United States v. Fickas

UNITED STATES OF AMERICA, Plaintiff, v. Antoine Marcell Fickas (1), Lizabeth Ann Skarja (2), Defendants.

No. 21-cr-160 (WMW/LIB)

United States District Court, D. Minnesota

February 11, 2022

REPORT AND RECOMMENDATION

HON LEO I. BRISBOIS U.S. MAGISTRATE JUDGE

This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of 28 U.S.C. § 636 and Local Rule 72.1, upon Defendant Antoine Marcell Fickas' Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Docket No. 48], and Defendant Lizabeth Ann Skarja's Motion to Suppress Evidence Obtained as a Result of Search and Seizure. [Docket No. 52].

At the Motions Hearing regarding Defendants' Motions to Suppress, the parties requested, and were granted, the opportunity to submit supplemental briefing. Upon the completion of that briefing, Defendants' Motions to Suppress, [Docket Nos. 45, 52], were taken under advisement.

For reasons discussed herein, the Court recommends that Defendant Fickas' Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 48], be GRANTED, and Defendant Skarja's Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 52], be GRANTED.

I. Background and Statement of Facts

A. Background

Defendant Fickas is charged with one (1) count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, as well as, one (1) count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). (Indictment [Docket No. 1]). Defendant Skarja is also charged with one (1) count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, as well as, one (1) count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). (Indictment [Docket No. 1]).

B. Facts^[1]

On April 20, 2021, at approximately 1:48 a.m., Officer Joe Burns (hereinafter “Officer Burns”) with the Hibbing Police Department was approaching a roundabout in his marked patrol vehicle in Hibbing, Minnesota with his canine partner, Chase. (Tr. 4-13, 16).^[2] As he approached the roundabout, Officer Burns observed a dark-colored GMC Acadia. (Tr. 14). As Officer Burns was about to enter the roundabout, the Acadia exited the roundabout going past Officer Burns' patrol vehicle. (Tr. 15-16). As the Acadia drove past Officer Burns, he observed a male driver with his arm extended upward to the steering wheel. (Tr. 15-17, 91). The male driver's raised arm partially blocked his face. (Tr. 15-16). After he passed the Acadia, Officer Burns could see the license plate number of the Acadia. (Tr. 14).

Officer Burns recognized the license plate number as belonging to Kaycee Johnson, and he verified that information on his in-vehicle computer. (Tr. 17). Officer Burns had previous encounters with Ms. Johnson, and he had also had previous encounters with Ms. Johnson's then boyfriend, Justin Lemmons. (Tr. 17-20). Officer Burns knew Mr. Lemmons from “numerous” previous traffic stops and from previous incidents during which Mr. Lemmons fled from law enforcement. (Tr. 17-20). Officer Burns also knew, and verified on his in-vehicle computer, that there was an existing Domestic Abuse No. Contact Order issued by the Minnesota State Court which prohibited Ms. Johnson and Mr. Lemmons from being in close proximity to one another. (Tr. 17-20). Officer Burns was also aware that Mr. Lemmons was known to drive even when his driver's license had ben revoked. (Id.).

With this information, Officer Burns executed a U-turn to begin travelling behind the GMC Acadia. (Tr. 20-25). While driving behind the vehicle, Officer Burns observed the Acadia's brake lights momentarily activate as the Acadia drove through an intersection with a green light. (Id.). The driver then activated the Acadia's left-hand turn signal, but the Acadia did not turn. (Id.). Instead, the vehicle drove approximately 200 yards before deactivating its turn signal. (Id.). The Acadia then moved to the right-hand lane of the roadway. (Id.).

Officer Burns approached the Acadia by driving in the left-hand lane while the Acadia drove in the right-hand lane. (Id.). Officer Burns observed that the male driver had a goatee, a tattoo on his neck, and tattoos covering his arms. (Id.). Officer Burns believed the male driver was Mr. Lemmons because Mr. Lemmons “has goatee-style facial hair, neck tattoos, and full arm sleeves.” (Id.). Officer Burns also observed a female passenger in the front seat. (Id.). Although Officer Burns could not identify the female passenger, he believed it was Ms. Johnson because she was known to closely associate with Mr. Lemmons and the Acadia was registered to her. (Id.).

Upon making these observations, Officer Burns changed lanes to drive behind the Acadia. (Tr. 26-32). As Officer Burns began positioning his patrol vehicle behind the Acadia, the Acadia activated its right-hand turn signal. (Id.). The Acadia turned right onto Howard Street East travelling in an eastward direction. (Id.). Officer Burns turned right to follow the Acadia onto Howard Street East. (Id.).

Upon turning onto Howard Street East, Officer Burns initiated a stop by activating his vehicle's emergency lights. (Tr. 27-30). Officer Burns testified generically that during this time he observed the Acadia's occupants engaging in “furtive movements.” (Id.). After Officer Burns activated his emergency lights, the driver of the Acadia applied the vehicle's brakes to slow the vehicle, and the driver pointed his arm out of the window in a manner which Officer Burns described as indicating the driver was pulling over into the Southview Apartments. (Tr. 27-30, 77). The Acadia pulled into the Southview Apartments, and the driver parked the Acadia in a parking spot. (Tr. 27-30). Officer Burns brought his vehicle to a stop behind the Acadia. (Tr. 27- 30).

After stopping, Officer Burns exited his vehicle, and he verbally commanded the driver to show his hands through the open window of the Acadia. (Tr. 30-33). The driver complied with Officer Burns' commands, and Officer Burns began to approach the Acadia to remove the driver from the vehicle. (Id.). As Officer Burns was approaching the Acadia, other officers began arriving on the scene. (Id.).

Once he had approached the Acadia, Officer Burns “immediately recognized that” the driver was not Mr. Lemmons as Officer Burns had believed. (Tr. 33, 78). Officer Burns did not know the identity of the driver. (Tr. 34-36). The female passenger was also not the registered owner of the vehicle, Ms. Johnson, as Officer Burns had assumed. (Tr. 17, 37). Officer Burns asked the driver, who would later be identified as Defendant Fickas, to exit the Acadia. (Id.). Defendant Fickas complied. (Id.). Defendant Fickas provided his name and date of birth to Officer Burns, and Officer Burns verified Defendant Fickas' identity. (Id.). Officer Burns handcuffed Defendant Fickas, and Defendant Fickas was placed in the back seat of Officer Burns' patrol vehicle. (Tr. 81).

During the interaction between Officer Burns and Defendant Fickas, other officers on the scene approached the passenger's side of the Acadia. (Tr. 36-44). Officer Burns testified that he heard those other officers “struggling” to get the passenger out of the vehicle. (Id.). The passenger was later identified as Defendant Skarja. (Id.). While removing Defendant Skarja from the vehicle, the officer opened the front passenger's side door where Defendant Skarja was seated. (Id.). The officers, while standing outside the vehicle, purportedly observed a glass smoking device in the map pocket of the open door, (Id.), and they informed Officer Burns of the smoking device. (Id.). Without offering any details as to why, Officer Burns testified that he believed the smoking device may have been used to ingest methamphetamine. (Id.). Officer Burns also observed “multiple bags” in the front passenger seat area which he found to be suspicious because the Acadia was a sport-utility vehicle with some unused rear storage room visible. (Id.).

Officer Burns then deployed his canine partner, Chase, for a vehicle sniff. (Tr. 44-50). Chase was placed on a leash, and Officer Burns led Chase around the vehicle starting near the hood of the vehicle and moving toward the driver's side of the vehicle. (Id.). At the area of the Acadia between the driver's door and the rear passenger door, Chase alerted to the presence of the odor of narcotics, and he gave a final indication. (Id.).

Based on Chase's alert, the officers then searched the interior of the Acadia without a warrant and while the vehicle was still in the parking lot. (Id.). The officers searched all of the Acadia except for inside “several” bags located in the “trunk area” of the Acadia. (Tr. 47-51). During this on scene search of the Acadia, law enforcement officers located micro-baggies; three pounds of suspected methamphetamine; approximately thirteen grams of suspected heroine; scales, including a scale with white powder residue on it which tested positive for methamphetamine; “loaded” hypodermic needles; and a silicon container with a crystal substance that later tested positive for methamphetamine. (Id.). The Acadia was then towed to the police garage. (Id.).

After the on scene parking lot search of the Acadia, Officer Steve Dolinich with the Hibbing Police Department submitted an application for a search warrant authorizing law enforcement to search the Acadia. (Gov't's Ex. 1).^[3] In support of this application, Officer Dolinich submitted an affidavit containing the information detailed above. (Id.). The affidavit...