United States v. Dancy

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UNITED STATES OF AMERICA, Plaintiff, v. NICHOLAS ANTWAIN DANCY, Defendant.

CRIMINAL No. 22-166 (JRT/DTS)

United States District Court, D. Minnesota

May 10, 2023

Ruth Shnider, UNITED STATES ATTORNEY'S OFFICE, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415, for Plaintiff.

Robert A. Lengeling, BEITO & LENGELING, PA, 310 Fourth Avenue South, Suite 1050, Minneapolis, MN 55415, for Defendant.

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

JOHN R. TUNHEIM UNITED STATES DISTRICT JUDGE

Defendant Nicholas Antwain Dancy is charged with three counts of interference with commerce by robbery, one count of carrying a firearm during and in relation to a crime of violence, and one count of being a felon in possession of a firearm. Dancy filed a motion to suppress all evidence gathered during the execution of a nighttime search warrant, arguing that it was obtained after officers began conducting a search and that evidence gathered during the pre-warrant entry was relied on to secure the search warrant. Dancy further argues that probable cause does not exist within the four corners of the search warrant because it contains false information and was obtained after the fact. Lastly, Dancy requests a Franks hearing on his claims.

Magistrate Judge David T. Schultz held a hearing on the matter and issued a Report and Recommendation (“R&R”) recommending that motion and request be denied in full. Because the search warrant is supported by probable cause Dancy has failed to meet his burden to show that an illegal entry occurred. Further, Dancy does not make the requisite showing for a Franks hearing. Therefore, the Court will overrule Dancy's objections, adopt the R&R, and deny both Dancy's motion to suppress evidence obtained as the result of a search and seizure and Dancy's request for a hearing pursuant to Franks v. Delaware.

BACKGROUND

While Dancy takes issue with the sufficiency of the witness descriptions in the facts described, neither party disputes the relevant facts. (Def.'s Objs. R. & R. at 1, Mar 29, 2023, Docket No. 61; Gov't Resp. Opp. Def.'s Objs. R. & R., at 2, Apr. 12, 2023, Docket No. 63.) The Court therefore adopts in full the factual summary contained in the Magistrate Judge's R&R and briefly summarizes facts relevant to Defendants' objections here. (See R. & R. at 1-5, Mar. 15, 2023, Docket No 60.)

I. FACTS

On or about May 27, 2022, an armed robbery was reported to law enforcement at a local grocery store, Towfig Grocery, in St. Paul, Minnesota. (Criminal Mot. Hr'g, Gov't Ex. 1 at 139, Jan. 19, Docket No. 54.) The affidavit describes that a Towfig Grocery employee told officers that a black male customer entered the store, asked for Tylenol packs, pointed a black handgun, and demanded money. (Id.) In response, the employee gave the suspect $240 from the register. (Id.) Another witness reported seeing the suspect come through a hole in a wooden fence adjacent to an alley north of the store, enter the store, and then exit the store with money before leaving through the same holed fence. (Id. at 6-7.) Law enforcement reviewed the robbery footage, which showed a black male entering the store wearing a covid mask, green T-shirt, dark jeans, and shoes with distinct features. (Id. at 7.) The suspect had long dreadlocks with light ends, a widow's peak, and eyebrows that only extend halfway. (Id.) The affidavit described that the suspect pointed the gun, received cash from the store employee and exited the store by backing out to the right from the entrance. (Id.) Other footage from external surveillance cameras shows a red, two-door Monte Carlo on the scene at the time of the robbery with a license plate that was registered to Dancy. (Id. at 8.)

Law enforcement compared Dancy's driver's license photo, his on-file booking photo, and the Towfiq robbery footage and identified the same half-length eyebrows, long dreads that faded to lighter ends, and receding widow's peak hairline. (Id.) Dancy's arrest record further noted a tattoo of a heart with writing through its center on his left forearm, which can be seen on the suspect's left arm in the robbery footage. (Id.) Additionally, during a routine traffic stop in August 2021, Dancy was stopped while driving the red Monte Carlo with the matching license plate and was observed to have the same long dark dreads with light ends. (Id.)

The affidavit contained numerous facts linking Dancy to a 597 Blair Avenue # 3 address (the “Blair address”), the location of the ultimate search warrant execution. These facts included: Dancy's driver's license bearing the Blair address and matching his probation file; law enforcement license plate readers showed nine license plate reader “hits” placing the red Monte Carlo parked near the Blair address, with the most recent “hit” at around the date of the first robbery. (Id.) The affidavit further contained information on a second armed robbery at Global Food Mid-Market in St. Paul on June 5, 2022, where an employee reported that a black male wearing black clothing pulled a black handgun and stole approximately $500 in cash before leaving through the north entrance. (Id. at 10.) Two additional witnesses reported seeing the suspect get into a red Monte Carlo with plates registered to Dancy and drive away. (Id. at 9-10.) Further, upon following the car, the witnesses observed a black male with the same clothing enter the Blair address. (Id. at 10.)

Based on the foregoing facts, officers electronically applied for a nighttime search warrant at 12:22am on June 6, 2022 to search the Blair address and the warrant was authorized at 12:27am. (Id. at 4, 10.) During the search, officers recovered a 9 millimeter gun with live ammo, Dancy's Minnesota ID and two cell phones, as well as blue and black Air Jordans and a green t-shirt, consistent with the clothing worn by the suspect of the first robbery. (Id. at 1.)

II. PROCEDURAL HISTORY

Dancy was indicted on August 4, 2022, for three counts of interference with commerce by robbery, one count of carrying a firearm during and in relation to a crime of violence, and one count of being a felon in possession of a firearm. (Indictment at 13, Aug. 4, 2022, Docket No. 1.) Dancy subsequently moved to suppress evidence seized during the search, asserting that officers illegally conducted the search before the warrant's issuance and relied on information gathered during the alleged pre-warrant search to secure the warrant. (Mot. Suppress Evid., Sept. 29, 2022, Docket No. 24; Am. Mot. Suppress Evid. at 2, Dec. 29, 2022, Docket No. 46.) Dancy amended his motion to make a four corners challenge to the warrant and requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), pointing to photos in the discovery file that show a microwave on a kitchen countertop allegedly displaying a time of 10:24 or 10:25, some two hours prior to the warrant's issuance. (Am. Mot. Suppress at 2.)

The United States opposed the motion and request, arguing that Dancy's arguments are meritless because the relevant photo does not show the time Dancy suggests and body camera footage shows the officers outside of the apartment several minutes after the warrant was signed. (Gov't Supp. Resp. Opp. Def.'s Pretrial Mots. (“Gov't Supp. Resp.”) at 7-8, Jan. 10, 2023, Docket No. 51; Gov't Post-Hearing Resp. Opp. Def.'s Mot. Suppress (“Gov't Post-Hearing Resp.”) at 1, Feb. 15, 2023, Docket No. 58.) The United States further argued that Dancy cannot show that the time of entry had any bearing on the probable cause analysis because the warrant affidavit did not recite facts that would have been learned inside the apartment. (Gov't Supp. Resp. at 8-9.) Lastly, the United States asserted that the affidavit clearly provides a substantial basis to conclude that evidence related to the robberies would be found in Dancy's apartment and thus probable cause existed. (Gov't Post-Hearing Resp. at 2-3.)

Thereafter, the Magistrate Judge issued a Report and Recommendation, recommending that Dancy's motion to suppress evidence and request for a Franks hearing be denied. (See generally R. & R.) The Magistrate Judge found that Dancy's four corners challenge to the warrant failed because numerous facts in the warrant identified Dancy and linked him to the Monte Carlo, the first robbery, and the Blair address. (R. & R. at 5-6.) Further, the Magistrate Judge found that Dancy failed to meet his burden to show an alleged illegal entry occurred because he does not clarify what evidence was gathered pre-warrant and subsequently relied on and found that the United States' evidence contradicted Dancy's unsupported assertions. (Id. at 8-9.) Lastly, the Magistrate Judge found that Dancy failed to make the requisite strong initial showing for a Franks hearing because he has not alleged any deliberate falsehood or reckless disregard for the truth, he has not offered any affidavits or similarly reliable statements containing evidence of the same, and he further failed to identify any specific statements in the challenged affidavit. (Id. at 10.) Accordingly, the Magistrate Judge recommended that the Court deny Dancy's motion and request. (Id.)

Dancy timely objected to the R&R on both the motion to suppress the evidence and the request for a Franks hearing. (See generally Def.'s Objs.) Dancy continues to rely on his original arguments that the search warrant application contains intentionally false and misleading statements by law enforcement made with a reckless disregard for the truth and that the warrant application fails to establish probable cause. (Id. at 1.) He “specifically” objects that the witness statements do not sufficiently describe Dancy in relation to the robberies, that the officers began searching...