United States v. Green

REPORT AND RECOMMENDATION

ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendant Kevin Green's Motion to Suppress Evidence Obtained as a Result of Search and Seizure and for Franks Hearing (“Motion to Suppress”) (Dkt. 258) and Defendant Kevin Green's Motion for Relief from Prejudicial Misjoinder or, in the Alternative, for Severance (Dkt. 266). This case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1.

Justin A. Wesley, U.S. Attorney's Office, appeared on behalf of the United States of America (“the Government”); Rick E. Mattox appeared by remote means on behalf of Defendant Anthony Akemu Abari, who was present by remote means at the hearings; and Robert D. Richmond appeared on behalf of Defendant Kevin Green, who was present at the hearings.

I. PROCEDURAL BACKGROUND-MOTION TO SUPPRESS

Green seeks to suppress the following as part of his Motion to Suppress:

1. All location data obtained with respect to a cellphone using telephone number 612-263-12XX, authorized by a tracking warrant issued on

March 6, 2019 and extended on May 1, 2019

2. All location data obtained with respect to a cellphone using telephone number 612-219-98XX, authorized by a tracking warrant issued on June 11, 2019

3. All location data and the fact of the order itself with respect to an order authorizing the use of a mobile tracking device on a rose-colored Porsche Cayenne, with MN license BZMXXX issued on February 15, 2019 and extended on April 17, 2019;

4. All evidence seized, including observations by the arresting officer, as a result of a warrantless seizure and search of Mr. Green and the vehicle he was driving on April 19, 2019;

5. All evidence seized as a result of a search of four cell phones pursuant to a search warrant issued on July 9, 2019;

6. All evidence seized as a result of the warrantless search and seizure on July 8, 2019 of a 2012 Audi Q7, a rose 2004 Porsche Cayenne, a black BMW (IL plate AGXXXXX), and a black Bentley sedan, and the subsequent search, pursuant to a search warrant issued on July 9, 2019, of those same vehicles; and

7. All evidence produced as a result of tracking warrants issued on June 13, 2019 for a 2012 Audi Q7 and a 2018 black Maserati Ghilibi; June 26, 2019 for a 2019 Silver Chevrolet Equinox; and on April 18, 2019 for a 2019 red Chevrolet Camaro.^[1]

(Dkt. 258.) In addition, Green sought a hearing under Franks v. Delaware, 438 U.S. 154 (1978). (Id.)

On September 23, 2020, this Court issued an Order denying the request for a Franks hearing in part and granting it in part as follows:

In particular, the March 6, 2019 Search Warrant Application provides in relevant part as follows:

Your Affiant learned of a narcotics dealer who uses the street name of “Stunna”. The information was obtained via a SCALES interview during the course of a narcotics arrest. “Stunna” was said to be a large scale supplier of Heroin. During the course of the interview the arrested party stated they had been in a Porsche SUV with “Stunna” and purchased 100 grams of heroin. “Stunna” was said to often drive a Porsche SUV that was Rose in color. The phone number of 612-263-12[XX] was identified as the mobile number used to contact “Stunna” and arrange for the mobile sale of narcotics.

(Gov't Ex. 9 at 3 (emphasis added).) The May 1, 2020 request for an extension contains similar language with respect to the Scales interview. (See Gov't Ex. 10 at 3.)

The June 11, 2019 Search Warrant Application, on the other hand, provides in relevant part as follows:

Your Affiant learned of a narcotics dealer who uses the street name of “Stunna”. The information was obtained via a SCALES interview during the course of a narcotics arrest. “Stunna” was said to be a large scale supplier of Heroin. During the course of the interview the arrested party stated they had been in a Porsche SUV with “Stunna” and purchased 100 grams of heroin. “Stunna” was said to often drive a Porsche SUV that was Rose in color. The phone number of 612-219-98[XX] was identified as the mobile number used to contact “Stunna” and arrange for the mobile sale of narcotics.

(Gov't Ex. 11 at 2-3 (emphasis added).)

Green asserts that, given that the portions of the warrant affidavits at issue contain identical language except for the two entirely different telephone numbers identified as the number used by “Stunna” to arrange the sale, he has made the requisite showing of an intentionally false or reckless statement to justify a Franks hearing. (Dkt. 259 at 4-5.)

The Court concludes that Green has met his burden to show that the difference in telephone numbers allegedly provided by the Scales interviewee was at least a false statement made with reckless disregard for

the truth, warranting a Franks hearing. . . . Here, the two warrants at issue pertain to the same investigation and are identical with respect to the information regarding the Scales interview except for the telephone number attributed to “Stunna” in arranging for the mobile drug buy.

The Government concedes that one of these telephone numbers is false by asserting that the “263” number is correct. (Dkt. 271 at 4.) According to the Government, what Green characterizes as deliberate falsehoods are more rationally explained as mistakes made by Officer Schmitt in copying and pasting the same language between warrant affidavits and then hastily going back and making changes in an attempt to tailor the June 11, 2019 Tracking Warrant to track the 219 number, and in each instance where the 263 number should appear, the 219 number appears instead. (Dkt. 271 at 4.) Indeed, “[a]llegations of negligence or innocent mistake will not suffice to demonstrate reckless or deliberate falsehood.” United States v. Snyder, 511 F.3d 813, 816 (8th Cir. 2008) (citations omitted). By way of example, the Court has previously concluded with respect to the July 8, 2019 Search Warrant for a Burnsville residence (Gov't Ex. 7) that a one digit difference within the 612-265-12XX number versus 612-263-12XX in the same search warrant application at most amounted to a typographical error and was insufficient to demonstrate a reckless or deliberate falsehood. (Dkt. 212 at 10.) Here, however, it is insufficient to say that the wholesale changing of a telephone number provided by the Scales interviewee, where the interview was presumably taped pursuant to state law and could be reviewed by Officer Schmitt, is a typographical error. While the evidence may ultimately show that this was merely a mistake on the part of Officer Schmitt, the record before the Court indicates that Officer Schmitt used the same facts obtained from the same Scales interview relating to the same drug sale to obtain two different tracking warrants for two different numbers, which is troubling and sufficient to require a Franks hearing. Green should be able to at least question Officer Schmitt about why he used two numbers from the same source for different warrants and the process that went into drafting this portion of the affidavits for both the March 6, 2019 Tracking Warrant (as extended on May 1, 2019) and June 11, 2019 Tracking Warrant.

(Dkt. 296 at 4-7 (emphasis in original).)

The Court next examined whether the warrants for the 612-263-12XX number were supported by probable cause if the allegedly offending information from the Scales interviewee was excluded from the search warrants:

1. March 6, 2019 Tracking Warrant for 612-263-12XX

With respect to March 2019 tracking search warrant for 612-263-12XX, outside of the information from the Scales interviewee, the supporting affidavit contained the following information:

• Your affiant was able to investigate this information and determined that “Stunna” was named Kevin Termell Green. It was further learned that his girlfriend used the social media name of Minnie Betty Jean.

• Green has a controlled substance felony conviction out of Illinois.

• Surveillance was established in the area of Franklin Ave and Nicollet Ave searching for a target of a separate narcotics investigation. Officer Schmitt noted a Rose-colored Porsche SUV drive down the alley and into the back parking lot of XXXX Blaisdell Ave South. The vehicle's license plate was noted as BZMXXX. It registered to a Minnie Loyd. A comparison of photographs confirmed that Minnie Loyd was the same individual as Minnie Betty Jean.

• Officer Schmitt was able to physically observe and identify Green driving this vehicle. Green was observed travelling to multiple locations and meeting with three different persons for short periods of time. The locations included XXXX Blaisdell Ave S where GREEN pulled into the back parking lot and met with a male. Green then drove to Winnetka and Highway 55 in Golden Valley where he left his vehicle running in the traffic lane of the parking lot in front of a restaurant while he met with a male in a vehicle. Green then drove to Mickey's Liquor on Plymouth Ave N and Emerson Ave N where he met with another person in a vehicle. Officer Schmitt believed that these interactions in his experience were indicative of narcotics transactions.

• It was believed that Green may be living at an address in Burnsville, however, this information had not been confirmed.

• The phone number 612-263-12XX has been identified as a Verizon Wireless affiliated and operated number.

(Gov't Ex. 9 at 3.)

The only portion of Officer Schmitt's affidavit that...