United States v. Childs-Young

1

United States of America, Plaintiffs, v. 1. Shevirio Kavirion Childs-Young, et al., Defendants.

No. 22-cr-76-1 (KMM/TNL)

United States District Court, D. Minnesota

April 10, 2023

ORDER

Katherine Menendez, United States District Judge.

In this criminal case, the government has charged Shevirio Kavirion Childs-Young and several co-defendants with one count of conspiring to use, carry and brandish firearms during and in relation to a crime of violence, as well as several individual counts of aiding and abetting robbery, aiding and abetting carjacking, and brandishing a firearm during and in relation to a crime of violence. [Superseding Indictment Dkt. 34.] Mr. Childs-Young has moved to suppress eyewitness identification evidence and evidence obtained pursuant to several state search warrants. [Dkt. 89 (identification mot.); Dkt. 91-94 (warrant mots.).]

On November 8, 2022, United States Magistrate Judge Tony N Leung held a hearing on the suppression motions. With respect to the witness identification motion, Judge Leung received the following evidence: (1) testimony from Minneapolis Police Sergeant David Ligneel; (2) an audio recording of Sergeant Ligneel's interview with an individual identified by the initials L.D.W., who identified Mr. Childs-Young from a photo lineup; and (3) a photo-lineup form as well as the photographs Sergeant Ligneel used during that identification procedure. [Dkt. 129-5 (photo lineup form and photos).] For the motions concerning the search warrants, Judge Leung admitted into evidence the four search warrants and their respective applications. [Dkt. 108.] The first of the warrants authorized the search of a Minneapolis residence for individuals, firearms, and other evidence believed to be connected to a carjacking. The second authorized officers to obtain several months of cell phone records for a phone number associated with Mr. Childs-Young as part of an investigation into a series of robberies and carjackings. Third was a search warrant for records connected to a CashApp^[1] account, which was linked to the cell phone mentioned above, and which officers believed had been used by the suspected carjackers and robbers to transfer funds from their victims to themselves. Finally, Mr. Childs-Young challenged a warrant authorizing law enforcement to obtain a sample for DNA analysis by means of a buccal swab or blood draw. [Dkt. 129-1, 129-2, 129-3, 129-4.] The Court refers to these, respectively, as the “residence warrant,” the “cell phone warrant,” the “CashApp warrant,” and the “DNA warrant.”

On January 26, 2023, Judge Leung issued a Report and Recommendation (“R&R”) concluding that Mr. Childs-Young's suppression motions should be denied. [Dkt. 123.] In short, Judge Leung found that each of the search warrants was adequately supported by a showing of probable cause and the photo lineup procedure that Sergeant Ligneel used did not violate Mr. Childs-Young's constitutional rights. [Id.] Mr. Childs-Young objected to the R&R, and the government responded. [Dkt. 126 (Objection); Dkt. 129 (Response)]. For the reasons that follow, Mr. Childs-Young's objections are overruled, the R&R is accepted, and the motions to suppress are denied.

I. Legal Standard

After an R&R is issued, a party may “serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2). “The objections should specify the portions of the magistrate judge's report and recommendation to which objections are made and provide a basis for those objections.” United States v. Miller, Crim. No. 20-232(19) (JRT/BRT), 2022 WL 3644894, at *2 (D. Minn. Aug. 24, 2022) (quoting Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008)). The Court reviews de novo those portions of the R & R to which specific objections are made, and it “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3); D. Minn. LR 72.2(b)(3).

II. Search Warrants

Mr. Childs-Young argues that the R&R erred in concluding that the search warrants at issue in this case were supported by a proper showing of probable cause. [Dkt. 126 at 28.] When determining whether to issue a search warrant in the first instance, a judge makes a practical decision, based on the totality of the circumstances described in the officer's affidavit, about whether there is “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). When another judge reviews that common-sense decision, she gives the issuing judge's probable cause determination “great deference.” United States v. Reed, 25 F.4th 567, 569 (8th Cir. 2022). The reviewing court asks whether the issuing judge “had a substantial basis for concluding that probable cause existed.” Gates, 462 U.S. at 214. Applying these standards here, the Court overrules Mr. Childs-Young's objections, finds that the affidavits supporting the warrants provided a substantial basis for the issuing judges to find there was probable cause to issue them, and concludes that the R&R properly recommends denial of the motions to suppress.

As an initial matter, the Court notes that the motions concerning the warrants raised the issue of lack of probable cause and defense counsel requested a “four corners” review of each warrant at the hearing.^[2] However, prior to filing the written objections to the R&R, the defense did not articulate why or how probable cause was allegedly lacking from any of the warrants. For example, the defense did not argue at the hearing regarding the flaws in the warrants, and made no argument in the post-hearing memorandum submitted to the Magistrate Judge. [See Dkt. 118.] In fact, the specific critique of each warrant appeared for the first time in Mr. Childs-Young's objections. Though perhasps not a waiver of the probable cause issue, this makes the Magistrate Judge's task in evaluating a motion to suppress based on an alleged lack of probable cause unnecessarily difficult. Cf. United States v. Roberson-Romosz, Crim. No. 08-235 (JRT/JJK), 2008 WL 5104292, at *3 (D. Minn. Nov. 26, 2008) (stating that “[t]he dilemma created by the lack of any argument illustrates why the umpire does not throw the pitch” where the defense did not articulate an argument in support of certain issues raised). Nonetheless, this Court has carefully reviewed each warrant and Mr. Childs-Young's arguments and concludes that they were all supported by adequate probable cause.

The Residence Warrant

In his written objections to the R&R, Mr. Childs-Young asserts that the Magistrate Judge erred in finding that there was probable cause to support the residence warrant because the supporting affidavit did not connect the occupants of the vehicle to any description of the suspects who committed the carjacking. He further argues that the passage of time between the carjacking and the police encounter allows for the possibility that the occupants could have been persons other than the perpetrators of the crime. [Dkt. 126 at 3-4.] The Court disagrees.

The supporting affidavit for the residence warrant states that within just a couple of hours of a reported carjacking, the victim was able to track a cell phone believed to still be inside the vehicle. When police learned that information, they located the stolen car. When officers attempted to stop the vehicle, there was a pursuit, and its occupants fled into the residence. [Dkt. 129-4 at 1-2.] Mr. Childs-Young overlooks the incriminating inferences an issuing judge could permissibly draw from these circumstances, especially the occupants' flight into the residence. Given the deferential standard applicable here, this Court has little trouble finding that the issuing judge had a substantial basis to conclude there was a fair probability that a suspect, contraband, or evidence of the carjacking would be found in the residence. The objection is overruled.

The Cell Phone Warrant

Second Mr. Childs-Young suggests that the R&R erred in finding that the cell phone warrant was supported by probable cause because the supporting affidavit focused on the conduct of other individuals, not Mr. Childs-Young, but inexplicably concluded that Mr. Childs-Young had been involved in several carjackings. He argues that the affidavit failed to connect the target cell phone number to any criminal activity and that the warrant authorized an overly broad seizure of data. [Dkt. 126 at 4-6.] These objections are overruled.

Undermining Mr. Childs-Young's arguments is the fact that the affidavit described how Mr. Childs-Young had been heard on a recorded jail call to the target cell phone from a co-defendant discussing a recent carjacking. [R&R at 17; Dkt. 129-3 at 5.] The affidavit also describes Mr. Childs-Young's connection to that cell phone and a related CashApp account that several carjacking victims had reported as the destination where money was sent from their own financial accounts. [Dkt. 129-3 at 5.] Given these and other details set forth in the affidavit, there was no error in the R&R concluding that the issuing judge had a substantial basis to find probable cause for the cell phone warrant.

Mr Childs-Young's related complaint that the warrant allowed access to months of records when only a shorter duration was justified is similarly unpersuasive. The affidavit described a series of similar robberies taking place between July and October 2021. [Id. at 3.] The warrant rather straightforwardly tied the duration for which it authorized law enforcement to obtain data to the period when similar robberies were suspected to have been committed by the individuals connected to...