USA v. Velisek

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOEL CLARENCE VELISEK,
Defendant.
Case No. 24‐CR‐290 (NEB/LIB)
ORDER
Defendant Joel Clarence Velisek moves to identify informants and suppress
evidence. (ECF Nos. 48–50.) United States Magistrate Judge Leo I. Brisbois denied the
motion to identify informants and recommended that this Court deny the motions to
suppress. (ECF No. 60.) Velisek appeals and objects. (ECF No. 63.) The Court denies the
appeal and overrules the objection.
BACKGROUND
Judge Brisbois’s Order and Report and Recommendation thoroughly recount the
relevant factual background (ECF No. 60); this Court incorporates that factual recitation
by reference and repeats only those facts necessary for context. Joel Clarence Velisek is
charged with possession with intent to distribute methamphetamine. (ECF No. 1.) Four
confidential informants and one anonymous tipster told law enforcement that Velisek
sold narcotics. (Gov. Ex. 1 at 5–7.) Based on that information and other evidence, a judge
signed several search and tracking warrants. (Gov. Exs. 1–5.)
Using evidence from some of those warrants, law enforcement found Velisek
driving a car. (Gov. Ex. 3 at 3–4.) When an officer attempted a stop, Velisek fled, and the
officer pursued. (ECF No. 55 at 14.) Velisek stopped the car and fled on foot to a nearby
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house, leaving the car unlocked with a door open. (Id. at 16.) Officers found drugs in the
car. (Id. at 21.)
When officers interviewed Velisek, they read him his Miranda rights. (Gov. Ex. 6
at 1:21–1:38.) An officer asked if Velisek understood those rights, and Velisek said “yeah.”
(Id. at 1:39–1:41.) Officers asked if he had any questions about the rights, and he
responded “no.” (Id. at 1:41–1:43.) Officers then asked if it was alright if they had a quick
conversation, and he said “yeah.” (Id. at 1:44–1:47.) Officers proceeded with the interview.
Velisek moves for disclosure of informants and for suppression of evidence related
to the search warrants, car search, and interview. (ECF Nos. 48–50.) Judge Brisbois denied
the motion for disclosure and recommended that this Court deny the motions to
suppress. (ECF No. 60.) Velisek appeals and objects. (ECF No. 63.)
ANALYSIS
The Court starts with the difference between the standard of review of a magistrate
judge’s order and R&R. Parreant v. Schotzko, No. 00‐2014 (JRT/JGL), 2001 WL 1640137, at
*6 (D. Minn. Sept. 30, 2001). A magistrate judge issues an R&R on several pretrial motions,
including a motion to suppress evidence. 28 U.S.C. § 636(b)(1)(A)–(B) (listing matters for
which a magistrate judge may issue a recommendation). A magistrate judge issues orders
on all other pretrial matters. Id.
A litigant may appeal an order or object to an R&R, and each comes with a
different standard of review. A district court judge reviews an order deferentially—it will
reverse only if the order is clearly erroneous or contrary to law. § 636(b)(1)(A). And a
court reviews a report and recommendation de novo when there is an objection, and for
clear error when there are no objections. § 636(b).
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Judge Brisbois issued an order on the motion to disclose informants, and an R&R
on the motion to suppress evidence. But Velisek “objected” to both and asserts that the
Court must review de novo. (ECF No. 63 at 1.) While Velisek is correct that the Court
reviews de novo the objected‐to portions of the R&R on the motions to suppress evidence,
the Court must review the order for disclosure of informants under the more deferential
clear‐error standard.
I. 	Motion for Disclosure of Informants
The government has a qualified privilege to withhold the identity of informants.
Roviaro v. United States, 353 U.S. 53, 59–60 (1957). But when the defendant shows that the
informant’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.” Id. at 60–61; United States
v. Hollis, 245 F.3d 671, 674 (8th Cir. 2001) (burden is on defendant). Disclosure is more
important when an informant participated in the crime or was an eyewitness. Devose v.
Norris, 53 F.3d 201, 206–207 (8th Cir. 1995). Mere tipsters need not be identified. United
States v. Alcantar, 271 F.3d 731, 739 (8th Cir. 2001).
Judge Brisbois denied Velisek’s motion, reasoning that the informants were mere
tipsters. Velisek appeals. Velisek asserts that the confidential informants can provide
evidentiary support for his theory of the case: that the drugs were not his and if he sold
drugs, it was less than the alleged 50 grams. (ECF No. 63 at 4–9.)
Velisek’s arguments fail to establish that the Order is clearly erroneous or contrary
to law. Thus, the Court must deny the appeal. Roble v. Celestica Corp., 627 F. Supp. 2d 1008,
1014 (D. Minn. 2007) (“The standard of review applicable to an appeal of a Magistrate
Judge’s order on nondispositive pretrial matters is extremely deferential.”). As Judge
Brisbois explained, Velisek’s charge is associated with his conduct on March 11, 2024.
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(ECF No. 1.) No evidence suggests that the informants can attest to Velisek’s conduct on
that date, or that any of the drugs Velisek allegedly possessed were or were not his. The
informants were mere tipsters—they did not participate in or witness the charged
conduct—so disclosure is not required. The Court denies the appeal.
II. 	Motion to Suppress Searches and Seizures
This motion encapsulates challenges to the warrants and the car search.
A. 	Warrants
“The proponent of a motion to suppress has the burden of establishing that his
own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas
v. Illinois, 439 U.S. 128, 130 n.1 (1978). A search warrant must be supported by probable
cause. U.S. Const. amend. IV; United States v. Gabrio, 295 F.3d 880, 882 (8th Cir. 2002).
“Probable cause exists when a practical, common‐sense inquiry that considers the totality
of the circumstances set forth in the information before the issuing judge yields a fair
probability that contraband or evidence of a crime will be found in a particular place.”
United States v. Stevens, 530 F.3d 714, 718 (8th Cir. 2008) (citation modified).
“When 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.
Solomon, 432 F.3d 824, 827 (8th Cir. 2005) (citation modified). Reviewing courts accord
“great deference” to the issuing judge’s “determination as to whether an affidavit
establishes probable cause.” Id. (quoting United States v. Leon, 468 U.S. 897, 914 (1984)).
“Judges may draw reasonable inferences from the totality of the circumstances in
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determining whether probable cause exists to issue a warrant.” United States v. Wallace,
550 F.3d 729, 732 (8th Cir. 2008) (per curiam) (citation modified).
Velisek asserts the tipsters do not support probable cause. “[W]hen determining
whether an informant’s tip supports a finding of probable cause,” the Court must
“engage 	in 	‘a 	totality‐of‐the‐circumstances 	analysis, 	which 	permits 	a 	balanced
assessment 	of 	the 	relative 	weights 	of 	all 	the 	various 	indicia 	of 	reliability 	(and
unreliability) attending an informant’s tip.’” United States v. Nolen, 536 F.3d 834, 839 (8th
Cir. 2008) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). An informant is “entitled to
some credibility,” but the information must be corroborated by independent evidence—
although to a lesser extent than if the informant was anonymous. Id. at 839–40; United
States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993).
As Judge Brisbois concluded, the four confidential informants and one anonymous
tipster are reliable, corroborated by independent evidence and each other, and support
finding 	probable 	cause. 	Three 	informants 	have 	a 	history 	of 	providing 	reliable
information. Gabrio, 295 F.3d at 883. Further, three informants provided information
against their penal interests by describing their personal involvement with Velisek, so
those statements are “presumptively credible.” United States v. Leppert, 408 F.3d 1039,
1042 (8th Cir. 2005).
Independent evidence supports finding reliability. Three informants and the
anonymous tipster identified Velisek’s home, which officers confirmed was owned by
Velisek’s mother. Officers found that Velisek’s mother had passed away and Velisek had
a history with law enforcement at that home. And one informant and the anonymous
tipster identified Velisek’s phone number. United States v. Keys, 721 F.3d 512, 518 (8th Cir.
2013).
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The 	informants 	and 	anonymous 	tipster 	also 	corroborated 	each 	other. 	All
informants and the anonymous tipster separately told law enforcement that Velisek sold
narcotics, and the informants specified methamphetamine.
Velisek generally asserts that the informants have incentive to maximize Velisek’s
involvement to minimize their own, some of the informants have drug dependencies,
and one is anonymous. But these arguments are insufficient to refute the strong
corroborating evidence that supported the informants and anonymous tipsters.
Velisek further argues that issues with the first and second warrants taint the
warrant to search the car, and that the warrant for the car is supported by insufficient
evidence. After reviewing the warrants and their supporting affidavits, the Court
concludes that the totality of the facts in the warrant application established probable
cause to issue the warrants. The Court overrules Velisek’s objection.
B. 	Car Search
The Fourth Amendment protects the “right of the people to be secure . . . against
unreasonable searches and seizures.” U.S. Const. amend. IV. But voluntarily abandoning
property forfeits any reasonable expectation of privacy, rendering the search and seizure
valid. United States v. Segars, 31 F.3d 655, 658 (8th Cir. 1994). The government bears the
burden of establishing abandonment. United States v. James, 353 F.3d 606, 616 (8th Cir.
2003).
Velisek abandoned the car by leaving the engine running and door open before
fleeing the police on foot. United States v. Walton, 538 F.2d 1348, 1351, 1354 (8th Cir. 1976)
(defendant abandoned car by leaving car unlocked with the windows down on a public
street while defendant fled). Velisek did not own the car, but he was driving it when
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officers attempted a stop. A vehicle pursuit ensued until Velisek pulled over near a house.
Velisek exited the car and fled toward the house. He left the car running with the keys in
the ignition and the door open and unlocked. United States v. Smith, 648 F.3d 654, 660 (8th
Cir. 2011) (defendant abandoned car by leaving the car on a public street, open, with keys
in the ignition and the motor running, while defendant fled). Velisek thus relinquished
any expectation of privacy in the car, so he cannot challenge the search. Velisek’s
objection is overruled.
III. 	Motion to Suppress Statements
Law enforcement must administer Miranda warnings before questioning an
arrestee—failure to do so renders a subsequent statement inadmissible. Michigan v.
Tucker, 417 U.S. 433, 445–46 (1974). If an arrestee waives their Miranda rights, then law
enforcement may question them. Davis v. United States, 512 U.S. 452, 458 (1994). The
government must show by a preponderance of the evidence that the defendant
voluntarily waived their rights. Colorado v. Connelly, 479 U.S. 157, 168–69 (1986). These
rights must be waived “voluntarily, knowingly and intelligently.” Miranda v. Arizona, 384
U.S. 436, 444 (1966).
Judge Brisbois rightly denied this motion to suppress because Velisek waived his
Miranda rights, as documented on an audio recording. An officer read Velisek his Miranda
rights, then asked Velisek if he understood those rights. Velisek immediately responded
“yeah.” The officer then asked if Velisek “had any questions about those rights.” Velisek
responded “no.” This is an express waiver.
None of Velisek’s objections alter the analysis. First, he points to Smith v. Illinois,
469 U.S. 91 (1984) (per curiam). Smith concludes that when an officer asks if the arrestee
understands the right to counsel, and the arrestee responds “Uh, yeah. I’d like to do that,”
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then the arrestee unambiguously invokes that right. Id. at 96–97. Velisek suggests that
this waiver is only unambiguous because of the statement after “yeah.” 1 But Smith is
distinguishable. 	Responding 	“yeah” 	would 	have 	merely 	meant 	the 	defendant
understood that right; adding “I’d like to do that” then invoked that right. And to the
extent that Velisek’s “yeah” did not unambiguously waive Miranda rights, the officer’s
follow‐up questions erase any ambiguity.
Velisek makes additional factual arguments: Velisek murmured “yeah,” the
officers did not take precautions to ensure Velisek knew his rights, and the officers did
not ask standard follow‐up questions. These arguments are unconvincing and fail to
engage with the officer’s follow‐up question asking whether Velisek understood his
rights. The Court overrules the objection.
CONCLUSION
Based on the foregoing and on all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. 	The Report and Recommendation (ECF No. 60) is ACCEPTED;
2. 	Velisek’s Objection (ECF No. 63) is OVERRULED;
3. 	The Order (ECF No. 60) is AFFIRMED;
4. 	Velisek’s Appeal (ECF No. 63) is DENIED;
1 Velisek bases his analysis on another statement in Smith: “All right. I’ll talk to you then.”
(ECF No. 63 at 19.) But that is not the statement Smith analyzes, so the Court applies
Velisek’s reasoning to the statement analyzed in Smith.
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5. 	Velisek’s Motion to Suppress Searches and Seizures (ECF No. 49) is
DENIED; and
6. 	Velisek’s Motion to Suppress Statements (ECF No. 50) is DENIED;
Dated: May 1, 2026 	BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge
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