USA v. Velisek

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America, 	Case No. 24-cr-00290 (NEB/LIB)
Plaintiff,
v. 	ORDER AND
REPORT 	AND 	RECOMMENDATION
Joel Clarence Velisek,
Defendant.
This matter comes before the undersigned United States Magistrate Judge pursuant to a
general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636 and Local
Rule 72.1, upon Defendant Joel Clarence Velisek’s (hereafter “Defendant”) various pretrial
discovery Motions, [Docket Nos. 45–48]; Defendant’s Motion to Suppress Searches and Seizures,
[Docket No. 49]; and Defendant’s Motion to Suppress Statements, [Docket No. 50]. The Court
held a Motions Hearing on November 19, 2025, regarding the parties’ pretrial motions. [Docket
No. 53].
Upon the request of the parties, time was allowed for supplemental Memorandums to be
filed by Defendant and the Government regarding Defendant’s Motion for Disclosure of
Informants, [Docket No. 48]; Defendant’s Motion to Suppress Searches and Seizures, [Docket No.
49]; and Defendant’s Motion to Suppress Statements, [Docket No. 50].
For the reasons discussed herein, Defendant’s Motion for Discovery and Inspection,
[Docket No. 45], and Defendant’s Motion to Compel Attorney for the Government to Disclose
Favorable Evidence, [Docket No. 46], are GRANTED in part and DENIED in part. Defendant’s
Motion for Pretrial Disclosure of Jencks Act Material, [Docket No. 47], and Defendant’s Motion
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for Disclosure of Informants, [Docket No. 48], are DENIED.
Further, it is recommended that Defendant’s Motion to Suppress Searches and Seizures,
[Docket No. 49], and Defendant’s Motion to Suppress Statements, [Docket No. 50], be DENIED.
I. 	Background
Defendant is charged with one (1) count of Possession with Intent to Distribute Fentanyl
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). (Indictment [Docket No. 1]).
II. 	Statement of Facts1
SA Newhouse is assigned to the Paul Bunyan Drug Task Force (hereafter “PBDTF”), and
was the lead investigator for the controlled substances and fugitive apprehension investigation into
Defendant. (Transcript [Docket No. 55]).2 The following factual background was discovered
pursuant to the PBDTF’s investigation into Defendant. (Gov’t.’s Ex. 1 at 4).3
During the week of October 18, 2023, SA Newhouse spoke with a cooperating defendant
(hereafter “CD-1”) who was providing information to law enforcement in exchange for
consideration on CD-1’s criminal charges. (Id. at 5). CD-1 explained that Defendant was living
“off of Miles Avenue” and was selling “significant quantities” of methamphetamine. (Id. at 6).
CD-1 additionally provided that, within the past month, CD-1 had observed a man walk to
Defendant’s residence and provide Defendant with a “significant amount” of methamphetamine.
(Id.).
During the week of November 28, 2023, SA Newhouse spoke with another cooperating
1 The facts contained in this section are derived from the testimony of Special Agent Brandon Newhouse (hereafter
“SA Newhouse”) at the November 19, 2025, Motions Hearing, as well as the Government’s exhibits admitted in the
present case.
2 Throughout this Order and Report and Recommendation, the Court refers to the transcript of the November 19, 2025,
Motions Hearing by the abbreviation “Tr.” (Transcript [Docket No. 51]).
3 Government’s Exhibit 1 is the warrant application, supporting affidavit, and tracking warrant for Defendant’s phone
number, XXX-XXX-3330. At the Motions Hearing, the Government, without objection, offered the warrant
application, supporting affidavit, and warrant into evidence as Government’s Exhibit 1. (Tr. 8, 9).
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defendant (hereafter “CD-2”) who was providing information to law enforcement in exchange for
consideration on CD-2’s criminal charges. (Id.). CD-2 disclosed that Defendant had been living in
his mother’s home on Miles Avenue. (Id.). CD-2 additionally reported he had last seen Defendant
with methamphetamine two months prior, but that he had heard, from his conversations with other
individuals, that Defendant had been selling “larger weights” of methamphetamine. (Id.).
During the week of December 22, 2023, SA Newhouse spoke with another cooperating
defendant (hereafter “CD-3”) who was providing information to law enforcement in exchange for
consideration 	on 	CD-3’s 	criminal 	charges. 	(Id.). 	CD-3 	explained 	they 	had 	purchased
methamphetamine from Defendant multiple times within the past few weeks at Defendant’s home
on Miles Avenue. (Id.). CD-3 provided SA Newhouse with Defendant’s phone number, XXX-
XXX-3330, and noted that Defendant used his phone to contact his customers and arrange sales.
(Id.). CD-3 additionally showed law enforcement his phone conversations with Defendant, which
included messages regarding drug sales and payment for the drug sales. (Id. at 7). CD-3 stated
Defendant drives a white Impala, or he rides with his sister, Patricia Kramer, in a truck. (Id.). CD-
3 lastly described the amount of methamphetamine they have seen Defendant possess, and
explained that Defendant would hide his supply of controlled substances in different locations.
(Id.).4
On February 19, 2024, the PBDTF received an anonymous tip. The tip explained that
Defendant and Deacota Stebe5 were living at XXXX Miles Avenue in Bemidji,6 and the tipster
4 SA Newhouse’s affidavit did not provide any specific descriptors relating to CD-3’s depiction of the amount of drugs
Defendant had allegedly been in possession of. (See Gov’t.’s Ex. 1). SA Newhouse did attest that, based on his training
and experience, the amount of methamphetamine described by CD-3 was consistent with a quantity used for
distribution, not for personal use. (Gov’t.’s Ex. 1 at 7).
5 The Court has no other information regarding the identity of Deacota Stebe or her relation to Defendant outside of
the information provided in SA Newhouse’s affidavit describing the information conveyed from the anonymous
tipster.
6 Pursuant to this investigation, SA Newhouse reviewed the property information for XXXX Miles Avenue SE,
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believed drug distribution and drug use were occurring at the residence. (Id.). The tipster then
provided Defendant’s phone number, XXX-XXX-3330. (Id.). Lastly, the tipster explained that five
children currently lived in the home and that Defendant and Deacota Stebe would use
methamphetamine in Defendant’s bedroom. (Id.).
During the week of February 28, 2024, the PBDTF communicated with another
cooperating defendant (hereafter “CD-4”) who was providing information to law enforcement in
exchange for consideration on CD-4’s criminal charges. (Id.). CD-4 stated they had previously
obtained methamphetamine from Defendant. (Id.). CD-4 additionally detailed that Defendant was
travelling to the Minneapolis-St. Paul area to purchase “large quantities” of methamphetamine.
(Id.). SA Newhouse then corroborated that CD-4 had been in telephonic contact with Defendant.
(Id.).
During the week of March 1, 2024, SA Newhouse spoke with Minneapolis-St. Paul area
law enforcement officers who were investigating a “source of supply” in the Minneapolis area.
(Id. at 8). SA Newhouse was informed that Defendant’s phone number, XXX-XXX-3330, had
been in contact with the Minneapolis area “source of supply.” (Id.).
In furtherance of this investigation, SA Newhouse reviewed Defendant’s criminal history
which uncovered a 2015 conviction for 3rd degree drug sale. (Id. at 5). SA Newhouse additionally
discovered a Department of Corrections active arrest warrant from December 29, 2023, and an
Anoka County 1st degree active drug warrant from February 1, 2024. (Id.).
On March 4, 2024, SA Newhouse submitted an application to the Minnesota State Court
requesting the authority to install and/or use a pen register and trap and trace device including
Bemidji, MN. (Id. at 5). The home is in the name of Patricia R. Velisek, Defendant’s mother. (Id.). Defendant’s
mother, however, has passed away, and Defendant has had multiple contacts with law enforcement at the XXXX
Miles Avenue residence. (Id.). Defendant is believed to be the primary resident of the XXXX Miles Avenue home.
(Id.).
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caller identification and a cell-site simulator, and the disclosure of real-time Global Positioning
System/Precision Location information, cell-site location information, and subscriber records on
Defendant’s phone number, XXX-XXX-3330. (See Id.).
In his affidavit submitted in support of the March 4, 2024, Tracking Warrant, SA
Newhouse attested to the information from the cooperating defendants and the anonymous tipster;
the investigative steps taken to confirm Defendant resided at the XXXX Miles Avenue home; and
Defendant’s criminal history and outstanding warrants. (Id. at 5–8). SA Newhouse additionally
attested that, based on his training, experience, participation in undercover narcotic operations, and
upon conversations with other experienced narcotic agents, he knows that persons involved in the
use and distribution of drugs have conversations with drug suppliers and customers via phone,
email, and other electronic media. (Id. at 4). SA Newhouse lastly attested that, based on his training
and experience, he knew (1) drugs are often trafficked to major cities, known as “hubs”; (2) the
drugs are then trafficked outwards from the “hubs”; (3) drugs are trafficked to distributors; (4) the
distributors of drugs are often users; (5) drugs are often distributed for financial gain and/or to
support the distributors own addiction; (6) drug distributors maintain records regarding the sale
and distribution of drugs which are usually stored in the distributor’s vehicle or their residence;
(7) it is common for distributors to keep contraband, proceeds, and records of drug transactions
within their residence, businesses, or vehicles; (8) persons involved in drug distribution conceal
their proceeds and evidence of financial transactions; and (9) persons involved in drug distribution
often communicate with drug suppliers and customers via phone, email, and other electronic
media. (Id. at 4).
The 	Honorable 	Minnesota 	State 	District 	Court 	Judge 	Annie 	P. 	Claesson-Huseby
determined that probable cause existed to support the issuance of the March 5, 2024, Tracking
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Warrant (hereafter “Tracking Warrant”). (Id. at 25). Thereafter, SA Newhouse executed the
Tracking Warrant.
On March 10, 2024, Defendant’s phone location data showed that he had left the Beltrami
County area and was traveling southbound towards the Minneapolis-St. Paul area. (Tr. 13). On
March 11, 2024, Defendant’s phone location data showed that he had left the metro area and was
travelling northbound towards Beltrami County. (Tr. 13). SA Newhouse believed Defendant’s
travel pattern to be significant given controlled substance distributors in the Beltrami County area
will often travel to the Minneapolis-St. Paul area to purchase larger amounts of controlled
substances at a cheaper price, and then bring them back to Beltrami County to sell. (Tr. 13). The
location data showed Defendant returning to Beltrami County at around 6:00 a.m. (Tr. 13). SA
Newhouse asked other law enforcement officers to “be on the lookout for a vehicle that might be
carrying [Defendant].” (Tr. 13).
Deputy Anthony Hanson (hereafter “Deputy Hanson”) soon located a black Ford Explorer
with the license plate XXXXX travelling on back roads toward “Windy Hill Lane SW in Beltrami
County.” (Gov’t.’s Ex. 3 at 3, 4).7 Deputy Hanson ran the license plate number, which revealed
the vehicle was registered to Nancy Sandberg. (Tr. 14).8 The movements of the Ford Explorer
coincided with the path of travel indicated by Defendant’s phone location data. (Gov’t.’s Ex. 3 at
4). Deputy Hanson attempted to initiate a traffic stop of the vehicle, but the vehicle did not stop,
which lead to a “motor vehicle pursuit” at “fast speeds.” (Id.; Tr. 14). The pursuit ended at XXXX
Windy Hill Lane SW. (Gov’t.’s Ex. 3 at 4). The area is described as having a large farmhouse with
7 Government’s Exhibit 3 is the warrant application, supporting affidavit, and the warrant to search the black Ford
Explorer, license plate XXXXX, for controlled substances; drug paraphernalia; indicia of occupancy and ownership,
such as ID cards, mail, and receipts; and communication devices such as cell phones, as well as, permission to
photograph the scene. At the Motions Hearing, the Government, without objection, offered the warrant application,
supporting affidavit, and warrant into evidence as Government’s Exhibit 3. (Tr. 9).
8 At the Motions Hearing, SA Newhouse described Ms. Sandberg as an “associate” of Defendant’s sister. (Tr. 14).
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a garage surrounded by a camper and multiple other cabin-like residences. (Tr. 15).
Upon arrival to XXXX Windy Hill Lane, Defendant, who had been driving the Ford
Explorer, fled the vehicle and began to run towards the main house on the property. (Tr. 16).
Defendant left the Ford Explorer running with the keys in the ignition and the doors unlocked. (Tr.
16). In the front passenger seat of the vehicle was Defendant’s sister, McKenzie Kramer, and in
the back seat was Defendant’s daughter, Brooke Velisek. (Tr. 16). Deputy Hanson, while standing
outside waiting for backup to arrive, observed the two women moving items throughout the
vehicle. (Tr. 22).
Deputies who later arrived on the scene spoke with Ms. Kramer. (Gov’t.’s Ex. 4 at 4).9 Ms.
Kramer indicated she lived in the main house on the XXXX Windy Hill Lane property and that
there were firearms inside of the home. (Id.). Deputies then observed someone, believed to be
Defendant, crawling underneath the porch. (Id.). Deputies later located a broken window
underneath the porch which they believed Defendant had broken in order to enter the home. (Id.).
Deputies maintained a perimeter around the home and began attempting to de-escalate the situation
to secure custody of Defendant. (Id.).10
SA Newhouse then submitted an application to the Minnesota State Court requesting the
authority to search the XXXX Windy Hill Lane residence for Defendant. (Gov’t.’s Ex. 4).11
In his affidavit in support of the March 11, 2024, Search Warrant for the XXXX Windy
9 Government’s Exhibit 4 is the warrant application, supporting affidavit, and the warrant to search XXXX Windy
Hill Lane for Defendant. At the Motions Hearing, the Government, without objection, offered the warrant application,
supporting affidavit, and warrant into evidence as Government’s Exhibit 4. (Tr. 9).
10 Around this time, the dispatch center received a call about Defendant. (Tr. 20). The caller, whose name is believed
to be either Tyler Rain or Tyler Luther, stated they had seen Defendant driving a black Ford Explorer in another area
of Bemidji. (Tr. 20; Tr. 31). SA Newhouse believed this call was a “decoy” given officers were looking at a black
Ford Explorer at the time of the call and Defendant was believed to be in the XXXX Windy Hill Lane residence. (Tr.
20).
11 Deputies had already entered the XXXX Windy Hill Lane residence and were present on the main level of the home
before this search warrant was issued. (Gov’t.’s Ex. 4 at 4).
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Hill Lane residence, SA Newhouse attested that the PBDTF was conducting a fugitive
apprehension and controlled substance investigation into Defendant. (Id. at 3). SA Newhouse
additionally attested to Defendant’s two active arrest warrants; the existence of the Tracking
Warrant and the location data observed through the execution of the Tracking Warrant; the motor
vehicle pursuit that ensued after the attempted traffic stop of the Ford Explorer; Defendant fleeing
the Ford Explorer and running towards the main home on the property; Defendant being seen
underneath the house’s porch and the subsequent discovery of the broken window; the deputies
conversation with Ms. Kramer; the established perimeter surrounding the home and the attempt to
deescalate the situation; and SA Newhouse’s belief that Defendant was either in the basement of
the home or had fled to an outbuilding, trailer, or other cabin. (Id. at 4).
The Honorable Minnesota State District Court Judge John Melbye determined that
probable cause existed to support the issuance of the March 11, 2024, Search Warrant (hereafter
“Windy Hill Search Warrant”). (Id. at 25). Thereafter, law enforcement executed the Windy Hill
Search Warrant.
Defendant was located in the attic of the Windy Hill residence and was placed under arrest.
(Gov’t.’s Ex. 3 at 4). After Defendant was taken into custody, Ms. Velisek requested Deputy
Hanson retrieve her shoes, a bag, and a phone from the Ford Explorer. (Tr. 17). Deputy Hanson
opened the rear driver’s side door and retrieved Ms. Velisek’s bag. (Tr. 17). While in the vehicle,
Deputy Hanson observed there was an “M-Box pill,” which is described as a “counterfeit fentanyl
pill,” in the passenger door pocket. (Tr. 18). Deputy Hanson seized the M-Box pill and exited the
vehicle. (Tr. 19, 33, 34). Deputy Hanson then searched Ms. Velisek’s bag and discovered
gabapentin pills. (Tr. 18). Investigator Jade Hayft (hereafter “Investigator Hayft”) then transported
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the Ford Explorer to the Law Enforcement Center pending an application for a search warrant.12
Later that same day, on March 11, 2024, SA Newhouse submitted an application to the
Minnesota State Court requesting the authority to search the Ford Explorer for controlled
substances; drug paraphernalia; indicia of occupancy and ownership such as ID cards, mail,
receipts; and electronic communication devices, such as cell phones, as well as, permission to
photograph the scene. (Gov’t.’s Ex. 3).
In his affidavit in support of the March 11, 2024, Search Warrant, SA Newhouse attested
that the PBDTF was conducting a fugitive apprehension and controlled substance investigation
into Defendant. (Id. at 3). SA Newhouse additionally attested to Defendant’s two active arrest
warrants; the existence of the Tracking Warrant and the location data observed through the
execution of the Tracking Warrant; the motor vehicle pursuit that ensued after the attempted traffic
stop of the Ford Explorer; Defendant fleeing the Ford Explorer and running towards the main home
on the property; Defendant being seen underneath the house’s porch and the discovery of the
broken window; and Defendant’s subsequent arrest after he was found hiding in the attic of the
home. (Id. at 4). SA Newhouse additionally described the other vehicle passengers, Ms. Velisek
and Ms. Kramer; Ms. Velisek’s possession of Gabapentin pills; and the discovery of the M-Box
pill in the passenger door pocket. (Id.). SA Newhouse lastly attested that the Ford Explorer was
brought to a secure location pending a search warrant, and that law enforcement had observed a
cell phone within the vehicle that had been receiving multiple phone calls. (Id.).
On March 11, 2024, Minnesota State District Court Judge Melbye determined that probable
12 Law enforcement made the decision for Investigator Hayft to drive the Ford Explorer to the Law Enforcement
Center instead of calling for a tow truck given the vehicle, having been driven around the home, through some trees,
and parked near some brush, was not in a position to be towed directly out of the area it was in. (Tr. 20, 21). Law
enforcement believed an officer, rather than a tow truck driver, should be the one to drive the car out of the
compromised area. (Id.).
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cause existed to support the issuance of the March 11, 2024, Search Warrant (hereafter “Vehicle
Search Warrant”). (Id. at 8). Thereafter, law enforcement executed the Vehicle Search Warrant.
Upon conducting a search of the Ford Explorer pursuant to the execution of the Vehicle
Search 	Warrant, 	law 	enforcement 	discovered 	approximately 	450 	grams 	of 	suspected
methamphetamine, a digital scale, unused glass smoking devices, and Defendant’s phone. (Tr. 21;
Gov’t.’s Ex. 2 at 5).13
On March 12, 2024, SA Newhouse and Special Agent Garrett Ditman (hereafter “SA
Ditman”) conducted an interview with Defendant in the Beltrami County Jail. (Gov’t.’s Ex. 6).14
SA Newhouse began by introducing himself and SA Ditman. (Id. at 0:33–0:38). He indicated they
would like to have a conversation with Defendant, but before that could happen, he would need to
read Defendant his rights. (Id. at 1:05–1:20). SA Newhouse then read Defendant his Miranda
rights. (Id. at 1:20–1:38). Defendant was asked if he understood his rights, to which he responded,
“yeah.” (Id. at 1:39–1:41). Defendant was asked if he had any questions about his rights, to which
he responded, “no.” (Id. at 1:41–1:43). Defendant was lastly asked if it was “alright” if the officers
had a “quick conversation” with him, to which he responded, “yeah.” (Id. at 1:44–1:45). SA
Newhouse then confirmed Defendant’s address and phone number and proceeded to interview him
regarding the events of March 11, 2024. (See Id.).
On March 27, 2024, SA Newhouse submitted an application to the Minnesota State Court
requesting the authority to search the phone found in the Ford Explorer for evidence related to the
distribution of controlled substances. (Gov’t.’s Ex. 2).
13 Government’s Exhibit 2 is the warrant application, supporting affidavit, and the warrant to search Defendant’s
phone which was found in the Ford Explorer. At the Motions Hearing, the Government, without objection, offered the
warrant application, supporting affidavit, and warrant into evidence as Government’s Exhibit 2. (Tr. 9).
14 Government’s Exhibit 6 is the recording of SA Newhouse and SA Ditman’s interview with Defendant on March
12, 2024. At the Motions Hearing, the Government, without objection, offered the recording into evidence as
Government’s Exhibit 6. (Tr. 36, 37).
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In his affidavit submitted in support of the March 27, 2024, Search Warrant, SA Newhouse
attested to the information from the cooperating defendants and the anonymous tipster; the
investigative steps taken to confirm Defendant resided at the XXXX Miles Avenue home; and
Defendant’s criminal history and outstanding warrants. (Id. at 2–4). SA Newhouse additionally
attested to the connection between Defendant’s phone number and the Minneapolis source of
supply investigation; the existence of the Tracking Warrant and the location data observed through
the execution of the Tracking Warrant; the motor vehicle pursuit that ensued after the attempted
traffic stop of the Ford Explorer; Defendant fleeing the Ford Explorer and running towards the
main home on the property; Defendant being seen underneath the house’s porch and the discovery
of the broken window; and Defendant’s subsequent arrest after a search warrant was issued to
search the main home. (Id. at 5). SA Newhouse lastly described the methamphetamine, digital
scale, unused glass smoking devices, and Defendant’s phone that were discovered during the
search of the Ford Explorer. (Id. at 5).
On March 28, 2024, the Honorable Minnesota State District Court Judge Jeanine R. Brand
determined that probable cause existed to support the issuance of the March 27, 2024, Search
Warrant (hereafter “Phone Search Warrant”). (Id. at 9). Thereafter, law enforcement executed the
Phone Search Warrant.
On June 20, 2024, SA Newhouse submitted an application to the Minnesota State Court
requesting the authority to obtain a DNA sample from Defendant. (Gov’t.’s Ex. 5).15
In his affidavit in support of the June 20, 2024, Search Warrant, SA Newhouse attested that
the PBDTF was investigating Defendant for his involvement in the sales and trafficking of
15 Government’s Exhibit 5 is the warrant application, supporting affidavit, and the warrant to obtain a DNA sample
from Defendant. At the Motions Hearing, the Government, without objection, offered the warrant application,
supporting affidavit, and warrant into evidence as Government’s Exhibit 5. (Tr. 9).
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controlled substances. (Id. at 2). SA Newhouse additionally attested to the existence of the
Tracking Warrant and the location data observed through the execution of the Tracking Warrant;
the motor vehicle pursuit that ensued after the attempted traffic stop of the Ford Explorer;
Defendant fleeing the Ford Explorer and running towards the main home on the property; and
Defendant’s subsequent arrest after a search warrant was issued to search the main home. (Id. at
3). SA Newhouse additionally described the other vehicle passengers, Ms. Velisek and Ms.
Kramer; the issuance of the Vehicle Search Warrant; and the discovery of the suspected
methamphetamine, digital scale, unused glass smoking devices, and Defendant’s phone within the
vehicle. (Id.).
SA Newhouse additionally attested to his review of Deputy Hanson’s squad camera. (Id.).
Deputy Hanson’s squad car camera had recorded Defendant fleeing the vehicle and Deputy
Hanson running after him. (Id.). Once Deputy Hanson is out of view, Ms. Velisek can be seen
exiting the vehicle with a cardboard box in her hands. (Id.). A few seconds later, Ms. Velisek goes
back inside the vehicle with the box in her hands. (Id.). SA Newhouse believes this box to be the
same box that was later found during the search of the Ford Explorer, and which contained the
methamphetamine. (Id.).
SA Newhouse lastly attested that the box, along with the controlled substances, were sent
to the Minnesota Bureau of Criminal Apprehension (hereafter “MN BCA”) for analysis. (Id.). On
April 17, 2024, an MN BCA lab report was issued requesting a DNA sample from Defendant, Ms.
Velisek, and Ms. Kramer, and subsequently, on April 24, 2024, an MN BCA report indicated the
controlled substance that was sent to the lab contained approximately 439 grams that had the
presence of methamphetamine. (Id. at 4). Latent print and DNA testing was still pending. (Id.).
On June 20, 2024, the Honorable Minnesota State District Court Judge Antoinette C.
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Wetzel determined that probable cause existed to support the issuance of the June 20, 2024, Search
Warrant (hereafter “DNA Warrant”). (Id. at 7). Thereafter, law enforcement executed the DNA
Warrant.
III. 	Defendant’s Motion for Discovery and Inspection. [Docket No. 45].
Defendant seeks an Order from this Court compelling the Government to permit Defendant
to inspect, copy, photograph, or subject to scientific analysis the following items within the
Government’s possession, custody, or control: (1) any and all statements or admissions by
Defendant, written or otherwise, recorded at the Beltrami, Morrison, and Sherburne County jails,
including a transcript of Defendant’s review and violation hearing with the Minnesota Department
of Corrections (hereafter “MN DOC”) in September 2023; (2) any and all books, papers,
documents, photographs, tangible objects, or copies thereof that are material to the defense and
intended for use by the Government at trial or which were obtained from or belong to Defendant;
(3) Defendant’s criminal record;16 (4) identification of any expert witness the Government intends
to call at trial; (5) the complete DNA files concerning the forensic evaluations. (See Def.’s Mot.
for Discovery and Inspection [Docket No. 45]).
In its written response to Defendant’s Motion, the Government asserts that it has and will
continue to comply with all of its discovery obligations under the Federal Rules of Criminal
Procedure and applicable case law. (Gov’t.’s Response [Docket No. 51] at 2). The Government
then addresses Defendant’s specific requests in turn. (Id. at 3, 4).
First, regarding Defendant’s request for all inculpatory or exculpatory statements made by
16 Specifically, Defendant requests a record of each prior sentence or imprisonment exceeding one year and one month;
each prior sentence of imprisonment of at least sixty days; information regarding whether Defendant is alleged to have
committed the instant offense under any criminal justice sentence, including probation, parole, supervised release,
imprisonment, work release, or escape status; and information regarding whether Defendant is alleged to have
committed the instant offense less than two years after release from imprisonment on the sentence included under
Defendant’s first two requests.
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Defendant at the Beltrami, Morrison, or Sherburne County Jails, the Government has already
disclosed jail calls made by Defendant that are within the Government’s possession. (Id. at 3). To
the extent the Government learns of any other exculpatory statements, the Government will
produce them consistent with its obligations under Brady. (Id.).
Second, regarding Defendant’s requests for a transcript of his September 2023, review and
violation hearing with the MN DOC, the Government is not in possession of that transcript, and
does not believe that transcript would bear any relevance to the charge as alleged in the Indictment.
(Id.). To the extent Defendant’s Motion for Discovery and Information seeks to obtain a transcript
not within the Government’s possession, the Government opposes the Motion. (Id.).
Third, Defendant requests information about the expert witnesses the Government plans to
call at trial. (Id.). The Government contends they will comply with any deadlines already set for
expert disclosure ordered by the Court. (Id.).
Fourth, Defendant requests the complete DNA and fingerprint file for analysis performed
in this case. (Id.at 4). The Government will provide the completed file to Defendant once it is
received from the MN BCA. (Id.).
Accordingly, Defendant’s Motion for Discovery and Inspection, [Docket No. 45], is
GRANTED in part, and DENIED in part, as set forth herein. The Government shall disclose
any subsequently acquired materials or information that are specifically responsive to Rule
16(a)(1)(A) through 16(a)(1)(E) to the Defense as soon as said responsive materials are discovered
by the Government and, in any event, by no later than twenty-one (21) days before trial.
Defendant’s Motion is also GRANTED insofar as it requests discovery concerning expert
witnesses pursuant to Rule 16(a)(1)(F) and Rule 16(a)(1)(G).17 If the Government determines that
17 Rule 16(a)(1)(F) disclosures should be made contemporaneous with Rule 16(a)(1)(G) disclosures since the former
will be necessary information to evaluate the latter.
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it will call experts at trial, the Government shall disclose to the Defense any such responsive
materials for experts it intends to call in its case-in-chief at trial as soon as possible and in no event
later than twenty-eight (28) days before trial consistent with this Court’s prior order for expert
disclosures.18
Defendant’s Motion is DENIED insofar as it requests a transcript of Defendant’s
September 2023, review violation hearing with the MN DOC. This transcript concerns unrelated
proceedings which precede the investigation and events in late 2023 and into 2024, and it is
ultimately irrelevant to the 2024 drug investigation and arrest of Defendant.
IV. 	Defendant’s Pretrial Motion to Compel Attorney for the Government to Disclose
Favorable Evidence. [Docket No. 46].
Defendant seeks disclosure of favorable evidence which would fall within the authority of
Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); and their
progeny. (See Mot. to Compel [Docket No. 46]). Specifically, Defendant requests evidence in
posession of the Government that documents the criminal history of its informants who were used
to secure the search warrants in the case, including informant files, records of cash payments, and
documentation of cases not prosecuted in exchange for informant testimony; evidence of prior,
admissible convictions of the remaining testifying government witnesses; evidence of immunity
agreements to the informants and Government witnesses; evidence discovered on items seized
from the Ford Explorer that excludes Defendant’s DNA profile; and evidence that Defendant was
selected for prosecution in this venue for punitive reasons only. (See Id.).
In its written response, the Government, acknowledging its duty to disclose responsive
18 See Second Amended Arraignment Order, [Docket No. 43], at ¶ 5, which already requires the parties to “disclos[e]
the identity of any exert witness they intend to use in their case-in-chief and make all expert disclosures related thereto
as required by Federal Rule of Criminal Procedure 16 no later than twenty-eight (28) days before trial,” as well as,
any rebuttal expert disclosures are to be made no later than ten (10) days before trial.
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materials and information under Brady and Giglio, opposes two of Defendant’s requests. (Gov’t.’s
Response [Docket No. 51] at 4, 5). First, in relation to Defendant’s request for additional
information about confidential informants, the Government specifies that its arguments in
opposition to this request are addressed in response to Defendant’s Motion for Disclosure of
Informants, [Docket No. 48]. (Id. at 4). Second, the Government opposes Defendant’s request for
evidence that he was “selected for prosecution in this venue for punitive reasons only.” (Id. at 5;
Mot. to Compel [Docket No. 46] at 2).
To the extent it seeks materials responsive to Brady, Giglio, and their progeny, Defendant’s
Motion to Compel Attorney for the Government to Disclose Favorable Evidence, [Docket No. 46],
is GRANTED in part, and DENIED in part, as set forth herein.
The Government will disclose any and all remaining or subsequently discovered, obtained,
or obtainable material covered by its representations set forth above and any materials responsive
to Brady to the Defense as soon as said responsive materials are discovered by the Government.19
The Government will disclose materials responsive to Giglio and related to the impeachment of
the Government’s witnesses to be called at trial by no later than seven (7) days before trial or when
the presiding trial judge requires disclosure of trial witnesses, whichever is earlier.20
Defendant’s Motion is DENIED insofar as it requests the Government to disclose evidence
19 The Court notes that, in Kyles v. Whitley, 514 U.S. 419 (1995), the United States Supreme Court “emphasized the
discretion of the prosecutor, not the trial judge, in deciding what evidence is producible under Brady.” United States
v. Garrett, 238 F.3d 293, 304 n.4 (5th Cir. 2000) (emphasis added). The Sixth Circuit has also explained that “while
the Brady rule imposes a general obligation upon the government to disclose evidence that is favorable to the accused
and material to guilt or punishment, the government typically is the sole judge of what evidence in its possession is
subject to disclosure.” United States v. Clark, 957 F.2d 248, 251 (6th Cir. 1992). That being said, “[i]f [the
Government] fails to comply adequately with a discovery order requiring it to disclose Brady material, it acts at its
own peril.” Id. Accordingly, the Court encourages the Government to carefully evaluate the materials in its possession
in light of a liberal understanding of its Brady obligations. However, a defendant should not view the granting of their
Motions in any way as this Court expanding the Government’s disclosure obligations beyond the scope required by
Brady, Giglio, and their progeny.
20 The Government’s disclosure of materials responsive to Giglio and related to the impeachment of the Government’s
witnesses to be called at trial shall include the criminal history, if any, for each trial witness.
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of the criminal history of the cooperating defendants or informants used to obtain search warrants
in the present case. See Section VI, infra (collateral attacks on the cooperating defendants in the
warrants issued is not exculpatory at trial on the indicted charges; cooperating defendants are not
trial witnesses; and, as discussed in the Court’s analysis of Defendant’s Motion to Suppress
Searches and Seizures, see Section VII, infra, the cooperating defendants are reliable).
Defendant’s Motion is also DENIED insofar as it requests the Government to disclose
evidence that Defendant was selected for prosecution in this venue for punitive reasons only. “If
the offense was begun in one district and completed in another, or committed in multiple districts,
the government may try the case in any district where the offense was begun, continued, or
completed.” United States v. Hill, 808 F. App’x 389, 392 (8th Cir. 2020) (citing United States v.
Kiser, 948 F.2d 418, 425 (8th Cir. 1991) (acknowledging the Eighth Circuit has recognized
possession of drugs with the intent to distribute as a continuing crime that may result in multiple
proper venues)).
V. 	Defendant’s Motion for Early Disclosure of Jencks Act Material. [Docket No. 47].
Defendant moves the Court for an Order requiring the Government to disclose Jencks Act
materials before trial. (See Mot. for Early Disclosure [Docket No. 47]). Defendant requests that
such information be disclosed at least four (4) weeks prior to the commencement of trial. (See Id.).
The Government objects to Defendant’s request, arguing that it cannot be required to make
pretrial disclosure of Jencks Act materials. (Gov’t.’s Response [Docket No. 51] at 5).
The Court recognizes the practical effect that disclosing Jencks Act materials only after a
witness has actually testified in the Government’s case-in-chief creates the prospect for
unnecessary continuances and delays in the trial while the Defense is permitted a reasonable time
to review the late disclosures. However, Defendant provides no citation to authority that would
allow the Court to require early disclosure of Jencks Act material. Generally, the case law provides
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that the Court may not require the Government to make early disclosure of Jencks Act material.
See e.g., United States v. Sturdivant, 513 F.3d 795, 803 (8th Cir. 2008); United States v. Alexander,
736 F. Supp. 968, 981 (D. Minn. 1990); United States v. White, 750 F.2d 726, 727 (8th Cir. 1984);
United States v. Wilson, 102 F.3d 968, 971–72 (8th Cir. 1996).
Accordingly, Defendant’s Motion for Early Disclosure of Jencks Act Material, [Docket
No. 47], is DENIED.21
VI. 	Motion for Disclosure of Informants. [Docket No. 48].
Defendant’s Motion for Disclosure of Informants, [Docket No. 48], seeks an Order from
this Court directing the Government to disclose the identities of the confidential informants utilized
in the present case. In support of this request, Defendant asserts that, under Roviaro v. United
States, 353 U.S. 53 (1957), pretrial disclosure of a confidential informant’s identity is required if
it would be “relevant and helpful” to the Defendant’s defense. (Id. at 1, 2).
In its written response, the Government opposes Defendant’s request for the disclosure of
the 	confidential 	informants. 	(Gov’t.’s 	Response 	[Docket 	No. 	51] 	at 	5–9). 	Although 	the
Government acknowledges that the informants provided information to law enforcement in the
present case, the Government contends that Defendant has been charged based solely upon the
observations and seizures of law enforcement officers. (Id. at 7). The Government argues that,
under the circumstances of the present case, Defendant cannot provide a basis for this Court to
conclude that the identity of the informants would be material to his defense at trial. (Id. at 6, 7).
In Defendant’s post-hearing Memorandum, he asserts the at issue informants were active
participants in the alleged conduct, and thus, the disclosure of their identity is necessary. (Def.’s
21 Nevertheless, the Government voluntarily agreed to provide all Jencks Act material to the Defense by no later than
three (3) business days before trial. (Gov’t.’s Response [Docket No. 51] at 5). The Court encourages such voluntarily
agreements.
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Mem. [Docket No. 56] at 7). Defendant argues that the informants were “customers” in
Defendant’s “distribution chain,” which provided them with the “unique position to describe
[Defendant’s] conduct.” (Id. at 4). Defendant would like the informants to describe “their own
specific [narcotics] usage, gram for gram” as this would “invariably lessen” the amount of
narcotics Defendant would be responsible for. (Id. at 6).
The Government relies on the “Informer’s Privilege” in support of its argument that it is
allowed “to withhold from disclosure the identity of persons who furnish information of violations
of law to officers charged with enforcement of that law.” Roviaro, 353 U.S. at 59 (citations
omitted). There are several exceptions to the privilege. Id. Of those, the one pertinent to the present
case considers the “fundamental requirements of fairness” and a defendant’s need to prepare an
adequate defense. See Id. at 60–61 (“Where the disclosure of an informer’s identity . . . is relevant
and helpful to the defense of an accused or is essential to a fair determination of a cause, the
privilege must give way.”).
“[T]here is no litmus test for determining when disclosure [of an informant’s identity] is
required[.]” United States v. Lapsley, 334 F.3d 762, 764 (8th Cir. 2003); see also Roviaro, 353
U.S. at 62 (“We believe that no fixed rule with respect to disclosure is justifiable.”). However, the
Eighth Circuit has indicated a Court ruling on a motion for disclosure of an informant’s identity
“must weigh the defendant’s right to information against the government’s privilege to withhold
the identity of its confidential informants.” Lapsley, 334 F.3d at 763–64 (internal quotation marks
and citations omitted).
The defendant bears the burden of demonstrating that the disclosure of an informant’s
identity is “material to the outcome of his case; in other words, that disclosure is vital to ensure a
fair trial.” United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 (8th Cir. 2001). If, for example,
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the informant is an active participant in the conduct charged, the informant’s identity is “almost
always” material. United States v. Sanchez, 429 F.3d 753, 756 (8th Cir. 2005). If, on the other
hand, the informant is a mere “tipster,” there is generally a strong presumption against disclosure.
United States v. Lindsey, 284 F.3d 874, 877 (8th Cir. 2002).
On the record now before the Court, the informants in the present case were mere
“tipster[s].” See Gonzalez-Rodriguez, 239 F.3d at 951 (defining “tipster” as “someone who
conveys information to the government but who does not participate in the offense”). The
informants here provided law enforcement officers with information linking Defendant to past
possession and distribution of narcotics. There is no indication on the record now before the Court
that the informants witnessed, participated in, or will provide evidence of, the charged crime of
possession of methamphetamine with intent to distribute as alleged to have specifically occurred
on March 11, 2024. Further, there is no indication that any of the informants purchased narcotics
from Defendant on March 11, 2024.22 Lastly, on the present record, the Government does not
appear to plan on calling any of the informants to testify at trial.23
The Court concludes that Defendant has failed to overcome the strong presumption against
the disclosure of the identity of the informants in the present case.
Therefore, Defendant’s Motion for Disclosure of Informants, [Docket No. 48], is
DENIED. The Government is not required at this time to disclose the identity of the confidential
informants unless the informant’s identity is discoverable under Brady and its progeny, or the
Government’s other discovery obligations.
22 Nor could any of the confidential informants have purchased from or supplied Defendant with narcotics on March
11, 2024, as Defendant was apprehended and the narcotics at issue seized while he was returning from two days in
the Twin Cities area and before he could have had any contact with the Bemidji area confidential informants on March
11th.
23 If the Government later determines that it will call any of the informants as a witness at trial, then said informant
should be identified and made available to the Defense by no later than fourteen (14) days before trial.
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VII. 	Defendant’s Motion to Suppress Searches and Seizures. [Docket No. 49].
Defendant challenges the probable cause determinations for the Tracking Warrant
(Gov’t.’s Ex. 1); Windy Hill Search Warrant (Gov’t.’s Ex. 4); Vehicle Search Warrant (Gov’t.’s
Ex. 4); Phone Search Warrant (Gov’t.’s Ex. 2); and DNA Warrant (Gov’t.’s Ex. 5). (See Def.’s
Mem. [Docket No. 56]). Defendant also challenges law enforcement’s entrance into the Ford
Explorer on March 11, 2024, before the Vehicle Search Warrant was issued, to the extent Deputy
Hanson seized the M-Box pill and officer’s saw Defendant’s phone. (Id. at 11).
A. Standard of Review
The Fourth Amendment guarantees the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures,” and that “no warrants
shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const. Amend. IV.
“[S]earches conducted outside the judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.” United States v. Davis, 569 F.3d 813, 816 (8th Cir.
2009) (citing Katz v. United States, 389 U.S. 347, 357 (1967)).
The Eighth Circuit has held that “[a]n affidavit establishes probable cause for a warrant if
it sets forth sufficient facts to establish that there is a fair probability that contraband or evidence
of criminal activity will be found in the particular place to be searched.” United States v.
Mutschelknaus, 592 F.3d 826, 828 (8th Cir. 2010) (internal quotation marks and citation omitted);
see United States v. Alexander, 574 F.3d 484, 489 (8th Cir. 2009); United States v. Hart, 544 F.3d
911, 914 (8th Cir. 2008). To establish such a fair probability, “there must be evidence of a nexus
between the contraband and the place to be searched before a warrant may properly issue[.]”
United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000) (citing United States v. Koelling, 992
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F.2d 817, 823 (8th Cir. 1993)). “Factors to consider in determining if a nexus exists include ‘the
nature of the crime and the reasonable, logical likelihood of finding useful evidence.’” United
States v. Johnson, 848 F.3d 872, 878 (8th Cir. 2017) (quoting United States v. Colbert, 828 F.3d
718, 726 (8th Cir. 2016)).
The sufficiency of a search warrant affidavit is examined using “common sense and not a
hypertechnical approach.” United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007) (citation and
internal quotations omitted); United States v. Kennedy, 427 F.3d 1136, 1141 (8th Cir. 2005).
Moreover, it is well-settled that “[p]robable cause is a fluid concept that focuses on ‘the factual
and practical considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.’” United States v. Colbert, 605 F.3d 573, 576 (8th Cir. 2010) (quoting Illinois v.
Gates, 462 U.S. 213, 231 (1983)). Thus, in reviewing a warrant application, the issuing judicial
officer is entitled to rely on the reasonable inferences of the affiant; the issuing judicial officer is
also entitled to make their own reasonable inferences drawn from the totality of the circumstances.
See United States v. Brackett, 846 F.3d 987, 992 (8th Cir. 2017) (quoting United States v.
Thompson, 210 F.3d 855, 860 (8th Cir. 2000)); see also United States v. Hager, 710 F.3d 830, 836
(8th Cir. 2013) (noting that courts use a “totality of the circumstances test . . . to determine whether
probable cause exists”).
“In ruling on a motion to suppress, probable cause is determined based on ‘the information
before the issuing judicial officer.’” Smith, 581 F.3d at 694 (quoting United States v. Reivich, 793
F.2d 957, 959 (8th Cir. 1986)). “Therefore, ‘[w]hen the [issuing judge] relied solely upon the
supporting affidavit to issue the warrant, only that information which is found within the four
corners of the affidavit may be considered in determining the existence of probable cause.’” United
States v. Wiley, No. 09-cr-239 (JRT/FLN), 2009 WL 5033956, at *2 (D. Minn. Dec. 15, 2009)
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(alterations in Wiley) (quoting United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005)). The
issuing court’s “determination of probable cause should be paid great deference by reviewing
courts.” Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)).
“[T]he duty of a reviewing court is simply to ensure that the [issuing court] had a ‘substantial basis
for . . . conclud[ing]’ that probable cause existed.” Id. at 238–39 (alteration in Gates) (quoting
Jones v. United States, 362 U.S. 257, 271 (1960)).
B. Analysis
Defendant challenges the probable cause determinations for the Tracking Warrant, Windy
Hill Search Warrant, Vehicle Search Warrant, Phone Search Warrant, and DNA Warrant. (See
Def.’s Mem. [Docket No. 56]). Specifically, Defendant argues the cooperating defendants and the
anonymous tipster were not sufficiently reliable, which invalidates the probable cause finding for
the Tracking Warrant and the Phone Search Warrant, and given the Windy Hill Search Warrant,
Vehicle Search Warrant, and DNA Warrant were only possible in light of the Tracking Warrant
and Phone Search Warrant, the later three warrants were tainted. (See Id.).24 Defendant also
challenges law enforcement’s entrance into the Ford Explorer on March 11, 2024, before the
Vehicle Search Warrant was issued, to the extent Deputy Hanson seized the plainly visible M-Box
pill and officers saw Defendant’s phone. (Id. at 11). Defendant lastly asserts that “[f]or the
[Tracking Warrant], and those to follow, the data relied upon is stale.” (Id. at 4).
As an initial matter, the Court addresses Defendant’s argument that the Tracking Warrant,
and all the warrants that follow, were based on stale information.
24 Defendant’s argument here is not entirely consistent with the record. He argues that the Windy Hill Search Warrant,
the Vehicle Search Warrant, and the DNA Warrant were only written and signed due to the data obtained from the
Tracking Warrant and the Phone Search Warrant. (Def.’s Mem. [Docket No. 56] at 8). The Phone Search Warrant,
however, was not applied for or issued until March 28, 2024, which is after the issuance of the Windy Hill Search
Warrant and the Vehicle Search Warrant on March 11, 2024. Further, the affidavit submitted in support of the Phone
Search Warrant actually includes information concerning the execution of the Windy Hill and Vehicle Search
Warrants. (Gov’t.’s Ex. 2 at 5).
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“It is axiomatic that probable cause must exist at the time of the search and not merely at
some time earlier.” Kennedy, 427 F.3d at 1141 (collecting cases). Even information obtained from
reliable, confidential informants must be sufficiently close in time to the issuance of the warrant
and subsequent search so that probable cause can be said to exist at the time of the search itself.
See, e.g., United States v. Wash., No. 21-cr-126 (ADM/ECW), 2022 U.S. Dist. LEXIS 32981,
2022 WL 538878, at *13 (D. Minn. Feb. 23, 2022), report and recommendation adopted, 2022
U.S. Dist. LEXIS 93561, 2022 WL 1658175 (D. Minn. May 25, 2022); United States v. Abari,
No. 19-cr-103 (MJD/ECW), 2019 U.S. Dist. LEXIS 234017, 2019 WL 10886798, at *3 n.3 (D.
Minn. Oct. 1, 2019), report and recommendation adopted, 2020 U.S. Dist. LEXIS 146273, 2020
WL 4727436 (D. Minn. Aug. 14, 2020). Thus, a lapse in time, between the observations provided
in an affidavit in support of a search warrant and the issuance and execution of said search warrant,
may possibly render probable cause fatally stale. Wash., 2022 WL 538878, at *14.
“While a lapse of time between the observations of a witness and the issuance of a search
warrant may render probable cause fatally stale, ‘[t]here is no bright-line test for determining when
information is stale.’” United States v. Gettel, 474 F.3d 1081, 1086 (8th Cir. 2007) (alteration in
Gettel) (quoting United States v. Maxim, 55 F.3d 394, 397 (8th Cir. 1995)). “A warrant becomes
stale if the information supporting the warrant is not sufficiently close in time to the issuance of
the warrant and the subsequent search conducted so that probable cause can be said to exist as of
the time of the search.” United States v. Ortiz-Cervantes, 868 F.3d 695, 700 (8th Cir. 2017)
(cleaned up); see United States v. Summage, 481 F.3d 1075, 1078 (8th Cir. 2007).
“The passage of time is not,” however, “necessarily the controlling factor in determining
staleness, as other factors, such as the nature of the criminal activity involved and the kind of
property subject to the search, must be considered.” Gettel, 474 F.3d at 1086 (internal citations
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and quotations omitted). A Court may not “simply count[ ] the number of days between the
occurrence of the facts supplied and the issuance of the affidavit,” but it must consider any passage
of time “in the context of a specific case and the nature of the crime under investigation.” United
States v. Maxim, 55 F.3d 394, 397 (8th Cir. 1995) (quoting Koelling, 992 F.2d at 822).
Additionally, where an affidavit alleges an “ongoing continuous criminal enterprise, the passage
of time between the receipt of information and the search becomes less critical in assessing
probable cause.” United States v. Rugh, 968 F.2d 750, 754 (8th Cir. 1992); see United States v.
Smith, 21 F.4th 510, 515 (8th Cir. 2021).
In narcotics investigations, “weeks or months” between a reported act and the search does
not necessarily make that information stale. United States v. Davis, 867 F.3d 1021, 1028 (8th Cir.
2017). Additionally, “where recent information corroborates otherwise stale information, probable
cause may be found.” United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir.), cert. denied, 516 U.S.
871, 116 S.Ct. 193, 133 L.Ed.2d 128 (1995). For example, cases involving drug distribution have
acknowledged older information is not necessarily stale due to the ongoing nature of the crime.
See Davis, 867 F.3d at 1028 (information was not stale where “the officers had reason to believe
that Davis had continually sold methamphetamine for over a year”).
Here, the alleged criminal activity was both continuing in nature and corroborated by more
recent information that suggested it was ongoing at least up to the month before the issuance of
the Tracking Warrant. The Tracking Warrant was issued on March 5, 2024; the Windy Hill Search
Warrant and the Vehicle Search Warrant were issued on March 11, 2024; the Phone Search
Warrant was issued on March 28, 2024; and the DNA Warrant was issued on June 20, 2024. (See
Gov’t. Exs. 1–5). The information from CD-1 was communicated during the week of October 18,
2023; the information from CD-2 was communicated during the week of November 28, 2023; the
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information from CD-3 was communicated during the week of December 22, 2023; the
information from the anonymous tipster was communicated on February 19, 2024; and the
information from CD-4 was communicated during the week of February 28, 2024. (Gov’t.’s Ex. 1
at 5–7). At most, the time between CD-4’s tip and the issuance of the Tracking Warrant is nine
days. (Gov’t.’s Ex. 1 at 7, 25).
Accordingly, the Court finds that the continuous course of information provided by the
cooperating defendants and the anonymous tipster was not stale as of the issuance of the warrants
in March 2024.
1. 	Tracking Warrant
Defendant argues the Tracking Warrant was issued without probable cause because the
Tracking Warrant relied on information from unreliable informants. (Mot. to Supp. [Docket No.
49] at 4). The Court finds this argument to be unpersuasive under the circumstances of the present
case.
The Court first considers whether the information from the cooperating defendants and the
anonymous tipster, if reliable, along with the other information included in SA Newhouse’s
affidavit, would have provided Minnesota State District Court Judge Claesson-Huseby with a
substantial basis upon which to conclude that probable cause existed to issue the Tracking Warrant.
SA Newhouse’s affidavit provided that CD-1, CD-2, CD-3, CD-4, and the anonymous
tipster each separately informed law enforcement that Defendant was selling narcotics.25 CD-1,
CD-2, CD-3, and the anonymous tipster each separately informed law enforcement that Defendant
lived in a home on Miles Avenue. CD-3 and the anonymous tipster also separately provided law
enforcement with Defendant’s phone number, XXX-XXX-3330. CD-3 and CD-4 were also both
25 CD-1, CD-2, CD-3, and CD-4 specifically identified Defendant as selling methamphetamine, while the anonymous
tipster identified only that “drug distribution and drug use” were involved at Defendant’s residence.
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confirmed to have been in telephonic contact with Defendant, with CD-3 providing law
enforcement with text messages between themself and Defendant discussing payment for drug
sales. CD-4 lastly described Defendant’s travel to the Minneapolis-St. Paul area to purchase large
quantities of methamphetamine.
It is well established that “[t]he statements of a reliable confidential informant are
themselves sufficient to support probable cause for a search warrant.” United States v. Wright, 145
F.3d 972, 975 (8th Cir. 1998) (citations omitted). If a confidential informant is found to be reliable,
the question remains as to whether the confidential informant’s statements provide a reasonable
basis upon which to find a fair probability that law enforcement will find contraband or evidence
of criminal activity in the particular place to be searched. See Mutschelknaus, 592 F.3d at 828.
Upon reviewing the totality of the circumstances in the present case, the Court concludes
that, if the cooperating defendants and the anonymous tipster were reliable, SA Newhouse’s
affidavit in support of the application for the Tracking Warrant would have provided District Court
Judge Claesson-Huseby with a substantial basis upon which to conclude that probable cause
existed to justify the issuance of the Tracking Warrant.
SA Newhouse’s affidavit first provides a substantial basis upon which Judge Claesson-
Huseby reasonably concluded that Defendant was involved in the distribution of controlled
substances. Four different cooperating defendants and an anonymous tipster separately advised
law enforcement that Defendant was selling controlled substances, and one of those cooperating
defendants and the anonymous tipster each told law enforcement that Defendant was using the
XXX-XXX-3330 phone number.
SA Newhouse’s affidavit next provides a substantial basis upon which Judge Claesson-
Huseby reasonably concluded that Defendant was involved in the distribution of controlled
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substances using the XXX-XXX-3330 phone number. CD-3 informed law enforcement that
Defendant used his phone to arrange drug sales. CD-3 additionally showed law enforcement his
own text exchanges with Defendant which discussed drug sales and payment for drugs. SA
Newhouse further attested that he had corroborated CD-4’s telephonic contact with Defendant.
SA Newhouse’s affidavit then provides a substantial basis upon which Judge Claesson-
Huseby reasonably concluded that Defendant’s phone number was linked to the larger distribution
on controlled substances. SA Newhouse attested that law enforcement officers from the
Minneapolis-St. Paul area had discovered the phone number, XXX-XXX-3330, the same phone
number CD-3 and the anonymous tipster linked to Defendant, had been in contact with a
Minneapolis “source of supply.”
The question remains as to whether the cooperating defendants and the anonymous tipster
were reliable for the purpose of determining the existence of probable cause. For the reasons
discussed below, the Court finds that all of the cooperating defendants and the anonymous tipster
in the present case were reliable for purposes of determining probable cause.
“The core question in assessing probable cause based upon information supplied by an
informant is whether the information is reliable.” United States v. Williams, 10 F.3d 590, 593 (8th
Cir. 1993). “The reliability of a confidential informant can be established if the person has a history
of providing law enforcement officials with truthful information.” United States v. Wright, 145
F.3d 972, 975 (8th Cir. 1998) (citations omitted). Such reliability can also be established through
law enforcement’s corroboration of information provided by a confidential informant. Williams,
10 F.3d at 593.
“If [some] information from an informant is shown to be reliable because of independent
corroboration, then it is a permissible inference that the informant is reliable and that therefore
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other information that the informant provides, though uncorroborated, is also reliable.” Id.; see
United States v. Leppert, 408 F.3d 1039, 1041 (8th Cir. 2005); United States v. Evans, 4 F.4th 633,
637 (8th Cir. 2021). “Even the corroboration of minor, innocent details can suffice to establish
probable cause.” United States v. Buchanan, 574 F.3d 554, 562 (8th Cir. 2009) (quoting United
States v. Tyler, 238 F.3d 1036, 1039 (8th Cir. 2001)); see United States v. Fulgham, 143 F.3d 399,
401 (8th Cir. 1998).
In his affidavit, SA Newhouse specifically attested that certain information provided by
CD-1, CD-2, CD-3, and the anonymous tipster was verified by law enforcement. For example,
CD-1, CD-2, CD-3, and the anonymous tipster each told law enforcement that Defendant was
living in a home on Miles Avenue. (Gov’t.’s Ex. 1 at 5–7). SA Newhouse reviewed the property
information for the XXXX Miles Avenue SE, Bemidji, MN, address, which showed the home was
owned by Defendant’s mother. (Id. at 5). SA Newhouse additionally discovered Defendant’s
mother had passed away, and that Defendant had a history of multiple contacts with law
enforcement at the XXXX Miles Avenue residence. (Id.). While this may be an “innocent” detail,
it “sufficiently corroborates the” information provided by CD-1, CD-2, CD-3, and the anonymous
tipster 	“for 	the 	purposes 	of 	probable 	cause.” 	United 	States 	v. 	Edwards, 	No. 	21-cr-255
(NEB/ECW), 2022 WL 4112436, at *7 (D. Minn. June 21, 2022), report and recommendation
adopted, 2022 WL 3536135 (D. Minn. Aug. 18, 2022); United States v. Tyler, 238 F.3d 1036,
1039 (8th Cir. 2001). The credibility of the information provided by CD-1, CD-2, and CD-3 is
further bolstered by the fact that the provided information was based on their personal
observations. See e.g., United States v. Leppert, 408 F.3d 1039, 1042 (8th Cir. 2005); United States
v. Mims, 567 F. Supp. 2d 1059, 1068 (D. Minn. 2008).
The reliability of the information CD-1, CD-2, CD-3, CD-4, and the anonymous tipster
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provided is also bolstered by the fact that the information was corroborated by information
separately gathered from each cooperating defendant and the anonymous tipster. For example,
CD-1, CD-2, CD-3, CD-4, and the anonymous tipster each separately informed law enforcement
that Defendant was selling narcotics. CD-1, CD-2, CD-3, and CD-4 specifically stated Defendant
was selling methamphetamine. CD-1, CD-2, CD-3, and the anonymous tipster indicated Defendant
lived on Miles Avenue. Additionally, CD-3 and the anonymous tipster each separately provided
law enforcement with Defendant’s phone number, XXX-XXX-3330. The cooperating defendants
and the anonymous tipster having separately provided the same information “reciprocally”
corroborates the information provided by each cooperating defendant and the anonymous tipster.
See e.g., United States v. Keys, 721 F.3d 512, 518 (8th Cir. 2013); Fulgham, 143 F.3d at 401;
United States v. Barnes, No. 18-cr-120 (ADM/KMM), 2019 WL 3293467, at *5 (D. Minn. Apr.
8, 2019), report and recommendation adopted, 2019 WL 2353659 (D. Minn. June 4, 2019), aff’d,
9 F.4th 977 (8th Cir. 2021); United States v. Light, No. 20-cr-147 (PAM/LIB), 2021 WL 1325683,
at *17 (D. Minn. Jan. 15, 2021), report and recommendation adopted, 2021 WL 1187260 (D. Minn.
Mar. 30, 2021).
Further lending credibility to the reliability of the information provided by CD-2, CD-3,
and CD-4 is the fact that CD-2, CD-3, and CD-4 made certain statements to law enforcement
against their own respective penal interest. See e.g., United States v. Mays, 993 F.3d 607, 615 (8th
Cir. 2021). Specifically, CD-2 described their personal involvement with Defendant and
methamphetamine; CD-3 explained they had obtained methamphetamine from Defendant multiple
times 	within 	the 	previous 	few 	weeks; 	and 	CD-4 	noted 	they 	had 	previously 	obtained
methamphetamine from Defendant. CD2, CD-3, and CD-4’s statements against their own
respective penal interest are “presumptively credible.” United States v. Leppert, 408 F.3d 1039,
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1041–42 (8th Cir. 2005).
The reliability of the information provided by CD-1, CD-3, and CD-4 is even further
bolstered by their respective track records of providing reliable information which led to the
seizure of evidence, including stolen property and controlled substances, and at least one arrest.
See e.g., United States v. Gabrio, 295 F.3d 880, 883 (8th Cir. 2002); United States v. Vinson, 414
F.3d 924, 930 (8th Cir. 2005). For example, CD-1 has provided information that has led to the
recovery of stolen property. (Gov’t.’s Ex. 1 at 5). CD-3 previously provided information that has
led to at least one arrest and the seizure of controlled substances. (Id. at 6). CD-4 has also provided
information that has led to the seizure of controlled substances. (Id.). The reliability of the
information provided by CD-1, CD-3, and CD-4 is bolstered by each of their respective track
records of providing reliable information to law enforcement which led to the seizure of evidence
and at least one arrest. Gabrio, 295 F.3d at 883; Vinson, 414 F.3d at 930.
In the present case, the record reflects that SA Newhouse’s affidavit submitted in support
of the application for the Tracking Warrant demonstrates that CD-1, CD-2, CD-3, and the
anonymous tipster provided information that was independently corroborated by law enforcement;
that CD-1, CD-2, CD-3, CD-4, and the anonymous tipster “reciprocally’ corroborated each other’s
information; that CD-2, CD-3, and CD-4 had made statements against their own penal interests;
that CD-1 had previously provided information that led to the recovery of stolen property; that
CD-3 and CD-4 had previously provided information that led to the seizure of controlled
substances; and that CD-3 had previously provided information that led to at least one arrest.
The totality of the circumstances in the present case thus establishes that CD-1, CD-2, CD-
3, CD-4, and the anonymous tipster were reliable for the purposes of determining the existence of
probable cause.
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In summation, the Court finds that the information from the cooperating defendants and
the anonymous tipster was reliable, and along with the other information provided in SA
Newhouse’s 	affidavit, it provided a sufficient 	basis upon which Judge Claesson-Huseby
reasonably concluded that the execution of the Tracking Warrant would result in a fair probability
that evidence of controlled substances would be found through tracking Defendant’s phone
number.
Therefore, to the extent Defendant’s Motion to Suppress seeks an Order of this Court
suppressing all evidence flowing directly or derivatively from the execution of the Tracking
Warrant, the undersigned recommends that Defendant’s Motion to Suppress Searches and
Seizures, [Docket No. 49], be DENIED.
2. 	Windy Hill Search Warrant
Defendant seeks to suppress all evidence flowing from the execution of the Windy Hill
Search Warrant authorizing law enforcement to search the Windy Hill residence for Defendant’s
person. (Mot. to Supp. [Docket No. 49] at 2, 6). Before reaching the merits of Defendant’s
challenge, the Court must first address the threshold issue of standing. Defendant may only
challenge a search warrant for which he has standing to challenge.
As observed above, the Fourth Amendment guarantees the “right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and that
“no warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const.
Amend. IV. However, Fourth Amendment rights are personal, and therefore, they may not be
asserted vicariously. United States v. Barragan, 379 F.3d 524, 529 (8th Cir. 2004) (citing Rakas v.
Illinois, 439 U.S. 128, 133–34 (1978)).
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“An individual asserting Fourth Amendment rights ‘must demonstrate that he personally
has an expectation of privacy in the place searched, and that his expectation is reasonable.’”
Barragan, 379 F.3d at 529 (citing Minnesota v. Carter, 525 U.S. 83, 88 (1998)); Rakas, 439 U.S.
at 133–34. The Defendant bears the burden of proving a reasonable expectation of privacy in the
area searched. Rakas, 439 U.S. at 130–31.
To establish a legitimate expectation of privacy, a defendant must show a subjective
expectation of privacy and that his expectation of privacy is one that society is prepared to
recognize as objectively reasonable. “If a defendant fails to prove a sufficiently close connection
to the relevant places or objects searched, he has no standing to claim that they were searched or
seized illegally.” Barragan, 379 F.3d at 529–30 (citing United States v. Gomez, 16 F.3d 254, 256
(8th Cir. 1994)). Ultimately, “[a] person who is aggrieved by an illegal search and seizure only
through the introduction of damaging evidence secured by a search of a third person’s premises or
property has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 134.
The Eighth Circuit has enumerated factors for Courts to consider in deciding whether a
Defendant had an expectation of privacy triggering standing to challenge the constitutionality of a
search including:
[O]wnership, possession and/or control of the area searched or item seized;
historical use of the property or item; ability to regulate access; the totality of the
circumstances surrounding the search; the existence or nonexistence of a subjective
anticipation of privacy; and the objective reasonableness of the expectation of
privacy considering the specific facts of the case.
Gomez, 16 F.3d at 256 (citing States v. Sanchez, 943 F.2d 110, 113 (1st Cir. 1991)).
Exactly who owns the Windy Hill residence is not clear from the record now before the
Court. The affidavit submitted in support of the application for the Windy Hill Search Warrant
indicates Ms. Kramer, one of the passengers in the Ford Explorer on March 11, 2024, lived in the
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home. (Gov’t.’s Ex. 4 at 4). Moreover, at the Motions Hearing, SA Newhouse specifically testified
that Defendant did not live at the Windy Hill Lane residence. (Tr. 15).26 Ultimately, the affidavit
submitted in support of the Windy Hill Search Warrant lacks any indication that Defendant has
any privacy interest in the Windy Hill residence.
Further, and most important, in support of Defendant’s standing to challenge this warrant,
Defendant merely states conclusorily in his briefing that he has “standing as a guest.” (Mot. to
Supp. [Docket No. 49] at 6).27 This one conclusory assertion fails to establish an evidentiary basis
upon which the Court could reasonably conclude that Defendant had a personal privacy interest in
the Windy Hill residence.
On the record now before the Court each of the above delineated factors weighs in favor
of finding that Defendant lacks any standing to assert any challenge to evidence flowing from the
execution of the Windy Hill Search Warrant. Defendant fails to allege or submit any evidence that
he has an ownership interest or control over the Windy Hill residence, and he fails to sufficiently
allege or submit any evidence that he had a subjective expectation of privacy in the Windy Hill
residence. Moreover, nothing in the record now before the Court supports finding that Defendant
had any objective expectation of privacy in the Windy Hill residence at the time the Windy Hill
Search Warrant was either issued or executed.
It is Defendant who bears the burden of proving a reasonable expectation of privacy in the
area searched. Rakas, 439 U.S. at 130–31. Regarding the Windy Hill residence, Defendant has
failed to meet this burden.
26 As noted above, Defendant was described as living in a home on Miles Avenue by CD-1, CD-2, CD-3, and the
anonymous tipster. Defendant was also confirmed to have had multiple contacts with law enforcement at the home on
Miles Avenue.
27 The only reference to Defendant as a “guest” at the Windy Hill residence is by his counsel in his written
Memorandum to the Court. In this form, this reference is mere argument of counsel and it is not evidence. Wittenburg
v. Am. Express Fin. Advisors, Inc., 464 F.3d 831, 838 (8th Cir. 2006) (“[A]rguments of counsel are not evidence.”).
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On that basis, the Court concludes that Defendant lacks standing to challenge the search of
the Windy Hill residence, and therefore, Defendant lacks standing to seek the suppression of any
evidence flowing either directly or derivatively from the execution of the Windy Hill Search
Warrant.
Therefore, to the extent Defendant’s Motion to Suppress seeks an Order of this Court
suppressing all evidence flowing from the execution of the Windy Hill Search Warrant, the
undersigned recommends that Defendant’s Motion to Suppress Searches and Seizures, [Docket
No. 49], be DENIED.
3. 	Seizure of the M-Box Pill, Discovery of Defendant’s Phone, and the Vehicle Search
Warrant.
Defendant argues Deputy Hanson’s seizure of the M-Box pill located in plain sight in the
passenger door pocket of the Ford Explorer, as well as, law enforcement’s observation, but not
seizure, of Defendant’s personal cell phone in the Ford Explorer before the issuance of the Vehicle
Search Warrant were the results of impermissible searches. (Def.’s Mem. [Docket No. 56] at 11).
Additionally, Defendant’s Motion seeks to suppress all evidence flowing from the execution of
the Vehicle Search Warrant. The Government, however, asserts that Defendant had abandoned the
Ford Explorer, and thus, Defendant forfeited any reasonable expectation of privacy in the vehicle.
(Gov’t.’s Response [Docket No. 58] at 12). Here again, the Court must first address the threshold
issue of standing.
A driver of a vehicle may have standing to contest a search of that vehicle, even when the
driver is not the owner, if the driver is using the vehicle with permission of the lawful owner. See
United States v. Lyton, 161 F.3d 1168, 1170 (8th Cir.1998); see also U.S. v. Best, 135 F.3d 1223,
1225 (8th Cir. 1998) (noting that if the defendant had permission to drive the vehicle, he would
have had a privacy interest giving rise to standing). The Court, however, lacks any indication that
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Defendant was given permission from Ms. Sandberg, the registered owner, to drive the Ford
Explorer. Ms. Sandberg was additionally not present for any of the March 11, 2024, events.
Further, while Defendant’s Motion states that “[Defendant’s] standing will be addressed in a post-
hearing memorandum,” (Mot. to Supp. [Docket No. 49] at 6), Defendant’s post-hearing
memorandum contains no mention of Defendant’s standing in relation to the Ford Explorer. (See
Def.’s Mem. [Docket No. 56]). The Court, however, need not make a final determination regarding
whether or not Defendant had a reasonable expectation of privacy in the Ford Explorer as the Court
finds Defendant abandoned the vehicle, and thus, abandoned any reasonable expectation of privacy
he may or may not have had.
“It is well established that the warrantless search of abandoned property does not constitute
an unreasonable search and does not violate the Fourth Amendment.” United States v. James, 534
F.3d 868, 873 (8th Cir.2008) (quoting United States v. Hoey, 983 F.2d 890, 892 (8th Cir.1993)
(citing, in turn, Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960))).
When determining whether a defendant abandoned property, the Eighth Circuit directs the Court
to consider two factors: “first, whether [the defendant] denied ownership of the item, and second,
whether [he] physically relinquished the item.” United States v. James, 353 F.3d 606, 616 (8th
Cir.2003) (citing United States v. Landry, 154 F.3d 897, 899 (8th Cir.1998)). “The issue is not
abandonment in the strict property right sense, but rather, whether the defendant in leaving the
property has relinquished [their] reasonable expectation of privacy so that the search and seizure
is valid.” Hoey, 983 F.2d at 892–93. “The government bears the burden of showing property has
been abandoned.” United States v. Hawkins, 116 Fed. Appx. 776, 778 (8th Cir.unpub.2004) (citing
James, 353 F.3d at 616).
In determining whether Defendant abandoned the Ford Explorer, the Court “must examine
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the objective facts available to” to law enforcement on March 11, 2024. James, 534 F.3d at 873.
Law enforcement knew that: (1) Defendant was not the title owner of the Ford Explorer; (2)
Defendant, who was driving the Ford Explorer, did not stop the vehicle when Deputy Hanson
initially attempted to conduct a traffic stop; (3) a motor vehicle pursuit ensued until Defendant
stopped the car near the Windy Hill residence; (4) Defendant fled the vehicle, running towards the
Windy Hill residence; (5) Defendant left the Ford Explorer running with the keys in the ignition
and the doors open and unlocked; and (6) Defendant was found three hours later hiding in the attic
of the Windy Hill residence.
The Eighth Circuit has repeatedly held that an individual who flees the police and
subsequently abandons an unlocked vehicle to continue fleeing police on foot loses any
expectation of privacy in the vehicle under the Fourth Amendment. See e.g., United States v.
Smith, 648 F.3d 654, 660 (8th Cir. 2011) (affirming defendant had abandoned the vehicle at issue
“‘when he left the car open, with the keys in the ignition, the motor running, in a public area’ and
then ran from the police.”); United States v. Walton, 538 F.2d 1348, 1351, 1354 (8th Cir.1976)
(suspect did not retain a reasonable expectation of privacy in vehicle left on public street with the
doors unlocked and the window down when fleeing police). The Eighth Circuit has additionally
held that, to have a legitimate expectation of privacy by way of a possessory interest, a “defendant
must have possession of the vehicle and the keys.” United States v. Russell, 847 F.3d 616, 619
(8th Cir. 2017) (quoting United States v. Macklin, 902 F.2d 1320, 1330 (8th Cir. 1990)).
Here, on the present record, the Government has met its burden to show Defendant
abandoned the Ford Explorer and the contents therein. Defendant fled from a running and unlocked
vehicle, of which he was not the title owner, in order to continue attempting to evade law
enforcement on foot. Defendant left the car running, did not take the car keys with him, and left
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the vehicle on someone else’s private property. Defendant thus relinquished any expectation of
privacy he may have otherwise had in Ms. Sandberg’s Ford Explorer. See Smith, 648 F.3d at 660;
see also Russell, 847 F.3d at 619. Having abandoned the Ford Explorer, Defendant abandoned any
expectation of privacy he might have had as the driver of the Ford Explorer, and he cannot
challenge any subsequent search of the vehicle, regardless of whether that search was conducted
with or without a search warrant.
Therefore, to the extent Defendant’s Motion to Suppress seeks an Order of this Court
suppressing all evidence seized or seen in the Ford Explorer while it was at the Windy Hill
residence, and later, all evidence flowing from the execution of the Vehicle Search Warrant, the
undersigned recommends that Defendant’s Motion to Suppress Searches and Seizures, [Docket
No. 49], be DENIED.
4. 	Phone Search Warrant
Moving next to the search warrant for Defendant’s cell phone which was located in the
Ford Explorer, (Gov’t.’s Ex. 2), the Court notes that the affidavit in support of this warrant
reiterates the same factual narrative as the previous Tracking Warrant, including the information
from the cooperating defendants and the anonymous tipster. (Gov’t.’s Ex. 5 at 2–4). The affidavit
further described the execution of the Tracking Warrant; the attempted traffic stop of Defendant;
Defendant’s attempt to flee into the Windy Hill residence and his subsequent arrest; and the
execution of the Vehicle Search Warrant which uncovered one pound of methamphetamine, a
digital scale, unused glass smoking devices, and Defendant’s phone. (Id. at 5).
Notably, however, Defendant’s arguments in relation to the Phone Search Warrant are
scarce. Defendant’s only mention of this warrant is as follows: (1) “The following warrants are
challenged: . . . The tracking warrant for a phone number purportedly used by [Defendant] and,
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later, for the phone itself;” and (2) “The latter two warrants – for [Defendant’s] DNA, Government
Exh. 5, and for the home where [Defendant] was arrested, Government Exh. 4 – would not have
been written and signed but for the data secured by the Exh. 1, the tracking warrant, and Exh. 2,
the call log warrant.” (Def.’s Mem. [Docket No. 56] at 8).
Defendant’s argument is not entirely consistent with the record now before the Court.28
The Phone Search Warrant was not applied for or issued until March 28, 2024, which is after the
issuance of the Windy Hill Search Warrant and the Vehicle Search Warrant on March 11, 2024.
Further, the affidavit submitted in support of the Phone Search Warrant actually includes
information concerning the execution of the Windy Hill and Vehicle Search Warrants. (Gov’t.’s
Ex. 2 at 5).
Ultimately, Defendant’s challenge to the Phone Search Warrant fails. Further, even if the
Court were to assume, solely for the sake of argument, that Defendant is arguing the evidence
found pursuant to the execution of the Phone Search Warrant must be suppressed because, identical
to the Tracking Warrant, the warrant relied on unreliable information from cooperating defendants
and an anonymous tipster, this argument fails. The Court has already found the information from
CD-1, CD-2, CD-3, CD-4, and the anonymous tipster to be reliable. Similarly, if the Court were
to assume, solely for the sake of argument, that Defendant is arguing the Phone Search Warrant
was tainted by the unlawful warrants preceding it, this argument also fails as the Court has already
upheld those previous searches.
“Under the fruit of the poisonous tree doctrine, the exclusionary rule bars the admission of
physical evidence and live witness testimony obtained directly or indirectly through the
exploitation of police illegality.” United States v. Simpson, 439 F.3d 490, 493–94 (8th Cir. 2006)
28 See fn. 24, supra.
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(internal quotations omitted) (quoting Hamilton v. Nix, 809 F.2d 763, 765 (8th Cir. 1987) ). In the
present case, however, the Court has determined that the underlying evidence seized pursuant to
the Tracking Warrant, Windy Hill Search Warrant, and Vehicle Search Warrant was obtained in a
constitutionally permissible manner, and therefore, no taint was created when that underlying
evidence was used in the application for the subsequent search warrants for the content of
Defendant’s phone.
Defendant offers no other, independent argument in support of his assertion that the
evidence seized pursuant to the Phone Search Warrant must be suppressed.
Therefore, to the extent Defendant’s Motion to Suppress seeks an Order of this Court
suppressing all evidence flowing from the execution of the Phone Search Warrant, the undersigned
recommends that Defendant’s Motion to Suppress Searches and Seizures, [Docket No. 49], be
DENIED.
5. 	DNA Warrant
Defendant’s Motion lastly seeks to suppress all evidence flowing from the execution of the
Warrant for his DNA. (Def.’s Mot. [Docket No. 49] at 2, 6). Defendant, however, does not argue
the DNA Warrant was not supported by probable cause. Instead, Defendant exclusively argues all
evidence flowing from the DNA Warrant must be suppressed because the DNA Warrant was
“tainted by the previous [warrant] applications.” (Mot. to Supp. [Docket No. 49] at 6).
As stated above, “[u]nder the fruit of the poisonous tree doctrine, the exclusionary rule bars
the admission of physical evidence and live witness testimony obtained directly or indirectly
through the exploitation of police illegality.” United States v. Simpson, 439 F.3d 490, 493–94 (8th
Cir. 2006) (internal quotations omitted) (quoting Hamilton v. Nix, 809 F.2d 763, 765 (8th Cir.
1987) ). Again, in the present case, the Court has determined that the underlying evidence seized
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pursuant to the Tracking Warrant, Windy Hill Search Warrant, Vehicle Search Warrant, and Phone
Search Warrant was obtained in a constitutionally permissible manner, and therefore, no taint was
created when that underlying evidence was used in application for other subsequent search
warrants.
Defendant offers no other, independent argument in support of his assertion that the
evidence seized pursuant to the Warrant for his DNA must be suppressed.
Therefore, to the extent Defendant’s Motion to Suppress seeks an Order of this Court
suppressing all evidence flowing from the execution of the DNA Warrant, the undersigned
recommends that Defendant’s Motion to Suppress Searches and Seizures, [Docket No. 49], be
DENIED.
VIII. 	Defendant’s Motion to Suppress Statements. [Docket No. 50].
Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(C), Defendant moves the Court
to suppress all statements, admissions, and answers made by Defendant to law enforcement on
March 12, 2024. (Def.’s Mot. [Docket No. 50]).
A. Standard of Review
“Miranda prohibits the government from introducing into evidence statements made by the
defendant during a custodial interrogation unless the defendant has been previously advised of his
Fifth Amendment privilege against self-incrimination and right to an attorney.” United States v.
Chipps, 410 F.3d 438, 445 (8th Cir. 2005) (cleaned up) (citing Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). Accordingly, Miranda warnings are required for
official interrogations where a person has been “taken into custody or otherwise deprived of his
freedom of action in any significant way[.]” Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct.
1526, 128 L. Ed. 2d 293 (1994) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602).
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A defendant may waive their rights, “provided the waiver is made voluntarily, knowingly
and intelligently.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. “If the suspect effectively waives his
right to counsel after receiving the Miranda warnings, law enforcement officers are free to question
him.” Davis v. United States, 512 U.S. 452, 458, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) (citing
North Carolina v. Butler, 441 U.S. 369, 372–76, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979)). “But if
a suspect requests counsel at any time during the interview, he is not subject to further questioning
until a lawyer has been made available or the suspect himself reinitiates conversation.” Id. (citing
Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)).
After Miranda warnings have been administered to a defendant, the burden is on the
prosecution to establish that the accused “ ‘in fact knowingly and voluntarily waived [Miranda]
rights’ when making the statement.” Berghuis v. Thompkins, 560 U.S. 370, 382, 130 S. Ct. 2250,
176 L. Ed. 2d 1098 (2010) (quoting Butler, 441 U.S. at 373, 99 S.Ct. 1755). However, the
prosecution “does not need to show that a waiver of Miranda rights was express ... [and an]
‘implicit waiver’ ... is sufficient to admit a suspect's statement into evidence.” Berghuis, 560 U.S.
at 384, 130 S.Ct. 2250. A waiver of Miranda rights may be implied if the prosecution establishes
that a Miranda warning was given, the accused understood the Miranda rights, and they proceeded
to speak with law enforcement. Id. at 385 (“[T]he law can presume that an individual who, with a
full understanding of his or her rights, acts in a manner inconsistent with their exercise has made
a deliberate choice to relinquish the protection those rights afford.”). This burden is satisfied where
the prosecution can establish waiver by a preponderance of the evidence. Colorado v. Connelly,
479 U.S. 157, 168, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).
“Although Miranda imposes on the police a rule that is both formalistic and practical when
it prevents them from interrogating suspects without first providing them with a Miranda warning,
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it does not impose a formalistic waiver procedure that a suspect must follow to relinquish those
rights.” Berghuis, 560 U.S. at 385, 130 S.Ct. 2250. Courts look to “the totality of the circumstances
in determining whether a suspect's waiver [of Miranda rights] is valid.” United States v. Gayekpar,
678 F.3d 629, 638 (8th Cir. 2012); see also Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135,
89 L.Ed.2d 410 (1986) (“Only if the totality of the circumstances surrounding the interrogation
reveals both an uncoerced choice and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.” (internal citations omitted)).
B. Analysis
Defendant argues that the statements he gave while being interviewed by SA Newhouse
and SA Ditman on March 12, 2024, should be suppressed given Defendant did not knowingly and
intelligently waive his Miranda rights. (Def.’s Mot. [Docket No. 50] at 2). Specifically, Defendant
asserts stating “yeah” in response to SA Newhouse asking whether Defendant had any questions
regarding his rights and if Defendant was willing to have a conversation with the Special Agents,
does not suffice as a knowing and intelligent waiver. (Def.’s Mem. [Docket No. 56] at 14, 15).29
As stated above, the Court looks to the totality of the circumstances in determining whether
a suspect's purported waiver of Miranda rights was knowing, intelligent, and voluntary. Gayekpar,
678 F.3d at 638; see also United States v. Magallon, 984 F.3d 1263, 1284 (8th Cir. 2021); United
States v. Vinton, 631 F.3d 476, 483 (8th Cir. 2011) (waiver of Miranda rights must be performed
voluntarily, knowingly, and intelligently). Indeed, waiver of Miranda rights must be “voluntary in
the sense that it [is] the product of free and deliberate choice rather than intimidation, coercion, or
29 In his Memorandum, Defendant argues it is “not clear” as to what Defendant is responding to when he says “yeah.”
(Def.’s Mem. [Docket No. 56] at 15). The recording of the interview, however, is extremely clear. As detailed above,
Defendant was asked if he understood his rights, to which he responded, “yeah.” (Id. at 1:39–1:41). Defendant was
then asked if it was “alright” if the officers had a “quick conversation” with him, to which he responded, “yeah.” (Id.
at 1:44–1:45).
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deception.” Moran, 475 U.S. at 421.
At the outset of the interview now at issue, SA Newhouse read Defendant his Miranda
rights. (Gov’t.’s Ex. 6 at 1:20–1:38). SA Newhouse then asked Defendant directly if he understood
his rights after they were read to him. (Id. at 1:39–1:41). Defendant verbally confirmed his
understanding when he immediately responded “yeah.” (Id.). Defendant’s express waiver in this
interaction is further bolstered by SA Newhouse’s follow-up question which asked Defendant if
he “had any questions about those rights,” to which Defendant responded, “no.” (Id. at 1:41–1:43).
As a result, given the record before it, the Court need not draw mere inferences regarding whether
Defendant by his conduct indicated a desire to waive his Miranda rights because Defendant
expressly waived those rights. See Gayekpar, 678 F.3d at 638.
Even if the Court were, however, to assume solely for the sake of argument that
Defendant’s responses of “yeah” after he had been read his Miranda rights did not expressly
indicate that he understood and chose to waive his rights, an implied waiver “may be inferred from
the fact that the defendant responded to questions posed by the interviewer after being advised of
his rights.” United States v. House, 939 F.2d 659, 662 (8th Cir. 1991). Here, after SA Newhouse
read Defendant his Miranda rights, SA Newhouse asked Defendant if it was “alright” if the Special
Agents had a “quick conversation” with him, to which Defendant responded, “yeah.” (Gov’t.’s Ex.
6 at 1:44–1:45). Defendant then continued to speak with law enforcement for approximately eleven
minutes. Throughout the interview, Defendant answered questions cooperatively. See Berghuis,
560 U.S. at 385 (the court may “presume that an individual, who with a full understanding of his
or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to
relinquish the protection those rights afford.”). Indeed, as the Eighth Circuit held in United States
v. Zamarripa, 544 F.2d 978, 981 (8th Cir. 1976) and its progeny, “[a] voluntary waiver need not
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assume any particular form; it may be made in writing on a printed format or it may be made orally
by replying to questions . . . . A valid waiver of rights does not require an express declaration to
that effect.” See also United States v. Woods, 829 F.3d 675 (8th Cir. 2016) (finding a knowing
and intelligent waiver of Miranda rights even where defendant refused to sign written waiver form
because defendant “did not refuse to answer questions or tell the officers that he did not want to
speak with them at any point during the interview”); United States v. Adams, 820 F.3d 317, 323
(8th Cir. 2016) (same).30 As such, alternatively, the Court finds that there was also an implicit
waiver by Defendant of his rights during the entirety of the interview.
Accordingly, the Court finds that Defendant’s statements during the interview with SA
Newhouse and SA Ditman on March 12, 2024, are not barred by Miranda.
Therefore, for all the foregoing reasons, the undersigned recommends that Defendant’s
Motion to Suppress Statements, [Docket No. 50], be DENIED.
III. 	CONCLUSION
Therefore, based on the foregoing and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. 	Defendant’s Motion for Discovery and Inspection, [Docket No. 45], is GRANTED in
part, and DENIED in part, as set forth herein;
2. 	Defendant’s Motion to Compel Attorney for the Government to Disclose Favorable
Evidence, [Docket No. 46], is GRANTED in part, 	and DENIED in part, as set forth
herein;
3. 	Defendant’s Motion for Disclosure of Jencks Act Material, [Docket No. 47], is DENIED;
and
30 Notably, once Defendant expressly indicated he was “done” with the interview, SA Newhouse and SA Ditman
promptly ceased asking questions and ended the recording. (Id. at 12:49–12:58).
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4. 	Defendant’s Motion for Disclosure of Informants, [Docket No. 48] is DENIED;
Further, IT IS HEREBY RECOMMENDED that:
1. 	Defendant’s Motion to Suppress Searches and Seizures, [Docket No. 49], be DENIED;
and
2. 	Defendant’s Motion to Suppress Statements, [Docket No. 50], be DENIED.
Dated: March 3, 2026 	s/Leo I. Brisbois
Hon. Leo I. Brisbois
U.S. MAGISTRATE JUDGE
N O T I C E
Filing Objections: This Report and Recommendation is not an order or judgment of the District Court
and is therefore not appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “A party may file and serve specific written objections to a magistrate
judge’s proposed findings and recommendation within 14 days after being served with a copy of the
recommended disposition[.]” A party may respond to those objections within 14 days after being
served a copy of the objections. LR 72.2(b)(2). All objections and responses must comply with the
word or line limits set forth in LR 72.2(c).
Under Advisement Date: This Report and Recommendation will be considered under advisement 14
days from the date of its filing. If timely objections are filed, this Report and Recommendation will be
considered under advisement from the earlier of: (1) 14 days after the objections are filed; or (2) from
the date a timely response is filed.
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