USA v. Wilkinson

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
UNITED STATES OF AMERICA, 	Case No. 25-cr-200 (MJD/LIB)
Plaintiff,
ORDER AND
v. 	REPORT AND RECOMMENDATION
James Earl Wilkinson
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 James Earl Wilkinson’s (hereafter “Defendant”) Motions for the
discovery and production of evidence, [Docket Nos. 32–36]; Defendant’s Motion to Dismiss
Count 2, [Docket No. 37]; and Defendant’s Motions to Suppress Evidence Obtained as a Result of
Search and Seizure, [Docket Nos. 38, 41]. The Court held a Motions Hearing on October 30, 2025,
regarding the parties’ pretrial motions.
Upon the request of the parties, time was allowed for supplemental Memorandums to be
filed by Defendant and the Government regarding Defendant’s Motions to Suppress Evidence
Obtained as a Result of Search and Seizure.
Defendant’s Motion for Disclosure of 404(b) Evidence, [Docket No. 32]; Defendant’s
Motion for Discovery, [Docket No. 33]; Defendant’s Motion for Release of Brady Materials,
[Docket No. 34]; and Defendant’s Motion to Preserve Rough Notes, [Docket No. 36], are
GRANTED. Defendant’s Motion for Early Disclosure of Jencks Act Material, [Docket No. 35],
is DENIED.
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 1 of 28

2
Further, it is recommended that Defendant’s Motion to Dismiss Count 2, [Docket No. 37];
and Defendant’s Motions to Suppress Evidence Obtained as a Result of Search and Seizure,
[Docket No. 38, 41], 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); one (1) count of Possession of a Firearm
as a Felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8); and one (1) count of Carrying a
Firearm During and in Retaliation to a Drug Trafficking Crime in violation of 18 U.S.C. §
924(c)(1)(A)(i). (Indictment [Docket No. 1]).
II. 	Statement of Facts1
On October 16, 2022, around 5:30 a.m., a 911 call was transferred from Pine County
Sheriff’s Department to the Duluth Police Department regarding a shooting in the Downtown
Duluth area. (Def.’s Ex. 10).2 The call came from Scott Lindgren, who claimed he had been in the
alley behind Sammy’s Pizza when Defendant “busted [Mr. Lindgren’s] jaw,” shot him in the
elbow, and stole $1,500 and a knife from him. (Def.’s Ex. 10A at 1–5).3 Mr. Lindgren stated that
Defendant had been driving either a white Chevy Malibu or a white Chevy Cruze with a bumper
that did not match the rest of the car. (Id. at 5). This information was then relayed to the Duluth
Police Department. (Transcript [Docket No. 51] at 51).4
1 The facts contained in this section are derived from the testimony of Duluth Police Department Investigator Elijah
Anderson (hereafter “Investigator Anderson”) and Melody Gonsalez at the October 30, 2025, Motions Hearing, as
well as the Government’s and the Defendant’s exhibits admitted in the present case.
2 Defendant’s Exhibit 10 is the recording of the October 16, 2022, 5:30 a.m. 911 call. (See Def.’s Ex. 10). At the
Motions Hearing, Defendant, without objection, offered the recording into evidence as Defendant’s Exhibit 10. (Tr.
11, 12).
3 Defendant’s Exhibit 10A is the transcript of Mr. Lindgren’s 911 call. (See Def.’s Ex. 10A). At the Motions Hearing,
Defendant, without objection, offered the transcript into evidence as Defendant’s Exhibit 10A. (Tr. 11, 12).
4 Throughout this Order and Report and Recommendation, the Court refers to the transcript of the October 30, 2025,
Motions Hearing by the abbreviation “Tr.” (Transcript [Docket No. 51]).
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 2 of 28

3
Investigator Anderson learned of the alleged shooting and robbery around 6:00 a.m. that
same day. (Tr. at 17, 18). He was informed that Defendant had been implicated, by name, in the
incident; that Defendant was allegedly in possession of and used a handgun; and that Defendant
had been driving a white passenger car, possibly a Chevy Malibu or a Chevy Cruze. (Tr. at 18,
19). As Investigator Anderson went to leave the police station to begin his patrol, an active 911
call came in from Maleecyia Hopson for a domestic incident. (Tr. 19, 20).
At approximately 6:44 a.m., Ms. Hopson called 911 to report that the father of her son,
Defendant, had assaulted her. (Gov’t.’s Ex. 1 at 2).5 Ms. Hopson mentioned Defendant was
currently in possession of a firearm, and had been known to carry a firearm in the past. (Id.). Ms.
Hopson additionally identified the vehicle that Defendant had arrived in as a silver Buick LaCrosse
with the license plate XXXXX. (Id.).6 Defendant then returned to Ms. Hopson’s apartment and
pounded on the apartment door asking for his car keys; this interaction can be heard on the 911
call recording. (Def.’s Ex. 12 at 03:15–03:21).7 Ms. Hopson did not unlock the door to allow
Defendant to enter. (See Id.). Defendant eventually left the apartment building, and was observed
by Ms. Hopson fleeing into a wooded area behind the apartment complex. (Gov’t.’s Ex. 1 at 2).
Investigator Anderson, Officer Letica, and Officer Dardis arrived at the apartment complex
shortly after Ms. Hopson’s 911 call. (Tr. 24). Officer Dardis located Defendant’s vehicle in the
parking lot, which matched the make, model, color, and license plate number that Ms. Hopson had
5 Government’s Exhibit 1 is the warrant application, supporting affidavit, and warrant to search Defendant’s person,
XXXX Decker Road, Apt. XXX, and a 2019 Chevy Equinox. (Tr. 10). At the Motions Hearing, the Government,
without objection, offered the warrant application, supporting affidavit, and warrant into evidence as Government’s
Exhibit 1. (Tr. 10).
6 Ms. Hopson confirmed this vehicle was owned by Defendant’s Mother, Melody Gonsalez, not Defendant. (Tr. 23).
7 Defendant’s Exhibit 12 is the recording of Ms. Hopson’s 911 call on October 16, 2022. (See Def.’s Ex. 12). At the
Motions Hearing, Defendant, without objection, offered the recording into evidence as Defendant’s Exhibit 12. (Tr.
11, 12).
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 3 of 28

4
described in her 911 call. (Tr. 25). Investigator Anderson and Officer Letica briefly searched the
park area next to the apartment complex, but did not locate Defendant. (Tr. 42, 43).
Investigator Anderson and Officer Letica went up to Ms. Hopson’s apartment. (Tr. 26).
Ms. Hopson appeared to have been crying, and seemed to have bruising and puffiness around her
eyes. (Tr. 26). Notably, Ms. Hopson never indicated that she had the keys to the Buick LaCrosse,
and officers were otherwise unable to locate them. (Tr. 62). Upon interviewing Ms. Hopson, she
provided Officer Letica with Defendant’s phone number, XXX-XXX-9841. (Tr. 26). Investigator
Anderson called the provided phone number and asked Defendant to come out of the woods so
they could discuss the incident. (Tr. 26). Defendant answered the phone and spoke briefly with
Investigator Anderson, but he did not come out from the woods. (Tr. 27). Investigator Anderson
spoke with Defendant on the phone one more time before leaving the apartment to inform him that
his vehicle would be towed, but Defendant still remained in the woods. (Tr. 27).8 Officers then
had the Buick LaCrosse towed. (Tr. 27).9
The vehicle was towed by Gus Gaskill to his personal tow yard, which is an indoor, secure
storage facility, pending an application for and issuance of a search warrant. (Tr. 29). An arrest
warrant in St. Louis County for Felony Domestic Assault stemming from the October 16, 2022,
incident was then issued. (Gov’t.’s Ex. 1 at 2).
8 Officers made the decision to tow Defendant’s vehicle given its similarities to the vehicle Mr. Lindgren described as
being involved in the alleged shooting and robbery; Defendant being named as an armed assailant by both Ms. Hopson
and Mr. Lindgren; and the temporal proximity of the two reports. (Tr. 27, 28).
9 Duluth Police Department Policy states that, when an officer orders a vehicle to be towed, the officer has to fill out
a “tow slip,” which includes the reason for the vehicle being towed; the investigative unit associated with the
investigation; the case number; and an inventory of the vehicle. (Tr. 47). The tow slip should be attached to the tow
sheet, signed by the officer who ordered the tow as well as the tow truck driver, and placed in the case file. (Tr. 48).
Investigator Anderson was able to locate notes that indicated the tow slip was placed in the file, but the tow slip itself
has not been located. (Tr. 48).
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 4 of 28

5
The investigation into the alleged shooting and robbery reported by Mr. Lindgren occurred
simultaneously with the events at Ms. Hopson’s apartment. (Tr. 64, 67). The Pine County Sheriff’s
Department responded to Mr. Lindgren’s 911 call, and upon arrival to Mr. Lindgren’s home, they
found no evidence to corroborate that Mr. Lindgren had been shot. (Tr. 51). A medic on the scene
confirmed that Mr. Lindgren had not been shot. (Tr. 51). Mr. Lindgren did have a minor scrape on
his elbow, which was not consistent with a gunshot wound, as well as a small lump on his head.
(Tr. 51). Mr. Lindgren told Pine County Officers that while he was driving away, Defendant had
shot at his car and hit his side view mirror. (Tr. 53). Officers did find damage to the side view
mirror, but the damage was not consistent with a gunshot, and there was deer fur sticking out of it.
(Tr. 53).10
Duluth Police Officer Tomlin (hereafter “Officer Tomlin”) contacted Mr. Lindgren to
further discuss the incident. (Def.’s Ex. 11A).11 Mr. Lindgren now alleged that Defendant and Mr.
Lindgren had been together at a restaurant called Spurs. (Id. at 3). When Defendant and Mr.
Lindgren went outside the restaurant to smoke, Defendant had grabbed Mr. Lindgren’s backpack
to try and steal $1,500 from him, which caused a fight. (Id. at 3, 4). Defendant then pulled out a
gun, shot Mr. Lindgren in the stomach and elbow, and left in either a white Chevy Malibu or Cruze.
(Id. at 2, 5).
The Duluth Police Department continued their investigation into the alleged shooting and
robbery by visiting the alley where Mr. Lindgren had stated the events took place. (Tr. 54). Officers
did not find any shell casings, bullet holes, or any other reports that there had been a shooting in
10 The Pine County Sheriff’s Department’s ultimate assessment of the situation was that Mr. Lindgren had been
involved in some sort of altercation with someone, but he was not shot. (Tr. 53).
11 Defendant’s Exhibit 11A is the transcript of the body-worn camera recording of Officer Tomlin’s interview of Mr.
Lindgren. (See Def.’s Ex. 11A). At the Motions Hearing, Defendant, without objection, offered the transcript into
evidence as Defendant’s Exhibit 11A. (Tr. 11, 12).
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 5 of 28

6
the area. (Tr. 54). Officers additionally reviewed surveillance footage from the area, which did not
reveal anything resembling a shooting. (Tr. 54). Though Mr. Lindgren’s account of the alleged
shooting and robbery was inconsistent, Mr. Lindgren was consistent in asserting Defendant was
involved in the incident. (Tr. 63). Mr. Lindgren was able to identify Defendant given they had
spent time in prison together. (Tr. 63).
The investigation into the alleged shooting and robbery was ultimately closed in January
2023, for lack of corroborating evidence that would indicate the event had occurred. (Tr. 30). There
is no documentation regarding whether or not Mr. Gaskill received any notification indicating that
the Buick LaCrosse was free to be released. (Tr. 60).12
On December 8, 2022, Officer Nitz submitted an application to the Minnesota State Court
requesting authority to search Defendant; Ms. Hopson’s apartment at XXXX Decker Road,
(hereafter “Ms. Hopson’s Apartment”); and Ms. Hopson’s Chevy Equinox for firearms, firearm
ammunition, and firearm indicia and accessories. (Gov’t.’s Ex. 1 at 1).
In his affidavit submitted in support of the December 8, 2022, Search Warrant, Officer Nitz
provided information regarding Ms. Hopson’s 911 call; Defendant’s alleged possession of a
firearm on October 16, 2022; surveillance footage of Defendant with an object believed to be a
gun in his possession on October 16, 2022; Defendant’s arrest warrant for the October 16, 2022,
domestic incident, as well as a Minnesota Department of Corrections Felony Warrant issued on
October 16, 2022; and a brief description of the phone calls between Investigator Anderson and
Defendant at the scene of the domestic incident. (Id. at 2).
12 Melody Gonsalez, Defendant’s mother and the owner of the Buick LaCrosse, called the Duluth Police Department
to inquire about obtaining her vehicle about one or two weeks after it was initially towed. (Tr. 72). At that time,
officers told Ms. Gonsalez that she could not have the vehicle yet as it was currently under investigation. (Tr. 72).
After that conversation, Ms. Gonsalez made no further attempts to retrieve her vehicle. (Tr. 72).
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 6 of 28

7
Officer Nitz additionally attested to the issuance of a Pen Register / Trap and Trace and
Mobile GPS Location Data warrant for Defendant’s cell phone number, which showed Defendant,
on December 8, 2022, in the general area of Ms. Hopson’s apartment building. (Id.). Defendant
was then seen through remote surveillance driving Ms. Hopson’s vehicle, the Blue Chevy Equinox,
and parking it in the parking lot of Ms. Hopson’s Apartment complex. (Id.). Building surveillance
then observed Defendant entering Ms. Hopson’s Apartment. (Id.).13
The Honorable Minnesota State District Court Judge Mark M. Starr determined that
probable cause existed to support the issuance of the December 8, 2022, Search Warrant. (Id. at
6). Thereafter, law enforcement officers executed the December 8, 2022, Search Warrant.
Mr. Gaskill, the tow driver who had towed the Buick LaCrosse on October 16, 2022,
continued storing the Buick LaCrosse in his locked storage area on Grand Avenue. (Tr. 33). Law
enforcement never obtained a search warrant or went to see the vehicle. (Tr. 59). Mr. Gaskill, after
the necessary time had passed, took legal possession of the Buick LaCrosse. (Tr. 32). Minnesota
Driver and Vehicle Services records list Mr. Gaskill as the legal owner of the vehicle. (Def.’s Ex.
6).14 Upon taking legal possession, Mr. Gaskill looked inside the vehicle and found a pistol, drugs,
a magazine for a firearm, and an expended nine-millimeter cartridge casing. (Tr. 33).
On May 17, 2023, Mr. Gaskill contacted dispatch to speak with Investigator Anderson. (Tr.
31, 32). Mr. Gaskill stated he “had something in relation to the case.” (Tr. 32). Investigator
Anderson met with Mr. Gaskill at his home, and Mr. Gaskill handed over the pistol, drugs,
13 The affidavit lastly included Minnesota Criminal Information System and Wisconsin court records which show
Defendant is prohibited from carrying a firearm due to previous felony convictions on June 26, 2013, for Second
Degree Assault; April 16, 2014, for Third Degree Sales of a Controlled Substance; August 22, 2018, for First Degree
Possession of Drugs; January 24, 2017, for First Degree Possession of Drugs; and June 29, 2018, for Battery by
Prisoners. (Gov’t.’s Ex. 1 at 3).
14 Defendant’s Exhibit 6 is the Minnesota Driver and Vehicle Services information for the Buick LaCrosse. (See Def.’s
Ex. 6). At the Motions Hearing, Defendant, without objection, offered the information into evidence as Defendant’s
Exhibit 6. (Tr. 11, 12). The Exhibit lists Mr. Gaskill as the current owner of the Buick LaCrosse, and lists Melody
Gonsalez as the previous owner. (See Def.’s Ex. 6)
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 7 of 28

8
magazine for a firearm, and expended nine-millimeter cartridge casing. (Tr. 32, 33). Upon further
inspection, Investigator Anderson confirmed the items to be a black and tan semiautomatic nine-
millimeter pistol with an extended magazine containing fourteen nine-millimeter unfired casings;
a fired nine-millimeter casing; and a baggie containing blue pills stamped with “M and then a 30,”
which, based on Investigator Anderson’s prior training and experience, he believed to be fentanyl.
(Tr. 35, 36). DNA swabs were then collected from the firearm as well as the baggies that the drugs
were processed in. (Tr. 39). Defendant was identified as a possible contributor to the DNA profile
on the firearm, but not the drug packaging. (Tr. 39, 40).
III. 	Defendant’s Motion for Disclosure of 404(b) Evidence. [Docket No. 32].
Defendant seeks immediate disclosure of any “bad act” or “similar course of conduct”
evidence that the Government intends to offer at trial pursuant to Federal Rule of Evidence 404(b).
(See Def.’s Mot. for Disclosure of 404(b) Evidence [Docket No. 32]).
In its written response, the Government acknowledged its obligation to comply with Rule
404(b), and it represented that it will continue to comply with its obligations. (Gov’t.’s Response
[Docket No. 39] at 1, 2). The Government suggested that disclosures regarding Rule 404(b)
evidence be made no later than fourteen (14) days before trial. (Id.).
In relevant part, Rule 404(b)(3) provides that the Government must “provide reasonable
notice of any” Rule 404(b) “evidence that the prosecutor intends to offer at trial, so that the
defendant has a fair opportunity to meet it.” 	Fed. R. Evid. 404(b)(3)(A). In that notice, the
Government must also “articulate . . . the permitted purpose for which the prosecutor intends to
offer the evidence and the reasoning that supports the purpose.” Fed. R. Evid. 404(b)(3)(B).
Defendant’s Motion for Disclosure of 404(b) Evidence, [Docket No. 32], is GRANTED,
as set forth herein. The Court orders the Government to disclose to the Defense as soon as
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 8 of 28

9
practicable, and in no event later than fourteen (14) days before trial, formal notice of any specific
404(b) evidence it intends to offer, as well as the purpose for which it intends to offer it into
evidence at trial.15
IV. 	Defendant’s Motion for Discovery. [Docket No. 33].
Defendant seeks disclosure of any written, recorded, or oral16 statements made by
Defendant or copies thereof in the possession, custody, or control of the Government. (See Def.’s
Mot. for Discovery [Docket No. 33]). Furthermore, Defendant requests permission to inspect
and/or copy books, papers, documents, data, photographs, tangible objects, buildings, or places in
the possession, custody, or control of the Government which are material to the preparation of the
defense, are intended for use by the Government as evidence in chief at trial or were obtained from
or belonged to the Defendant. (Id.). Defendant also requests permission to inspect and copy the
results of any physical or mental examinations, scientific tests, or experiments. (Id.). Defendant
requests a written summary of testimony the government intends to use under Fed. R. Evid. 702,
703, or 705.17 Defendant lastly requests a copy of his prior criminal record. (Id.).
In its written response to Defendant’s Motion, the Government acknowledges its
obligations under Fed. R. Crim. P. 16(a)(1)(A)–(B), (D)–(F). (Gov’t.’s Response [Docket No. 39]
at 2). The Government states it has complied with these obligations and will continue to do so if it
15 Federal Rule of Evidence 404(b) does not extend to evidence of acts which are “intrinsic” to the charged offense.
United States v. Adediran, 26 F.3d 61, 63 (8th Cir. 1994) (standards applicable to evidence considered under Rule
404(b) do not apply to such “inextricably intertwined” evidence); see United States v. Williams, 900 F.2d 823 (5th
Cir. 1990).
16 Specifically, Defendant requests: any written record containing a reference to or the substance of any relevant oral
statement made by defendant whether before or after arrest to any person known to defendant to be a government
agent; and a written statement of the substance of any relevant oral statements made by defendant which the
government intends to use at trial. (See Def.’s Mot. for Discovery [Docket No. 33]).
17 Specifically, the Defendant requests: a complete statement of all the opinions that the government will elicit from
the witness in its case in chief or during its rebuttal; the bases and reasons for them; the witnesses qualifications,
including a list of all publications authored in the previous 10 years; and a list of all other cases in which, during the
previous 4 years, the witness has testified as an expert at trial or be deposition.
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 9 of 28

10
becomes aware of any additional information or items subject to disclosure. (Id.).
The Government also acknowledges its ongoing obligations under Rule 16(a)(1)(G) and
Federal Rules of Evidence 702, 703, and 705, and intends to comply fully with the requirements
of those rules. (Id. at 2, 3).
Accordingly, Defendant’s Motion for Discovery, [Docket No. 33], is GRANTED 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)18
consistent with the prior Order of this Court.19 If the Government determines that 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.
V. 	Defendant’s Motion for Release of Brady Materials. [Docket No. 34].
Defendant seeks disclosure of evidence favorable to him 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. (Def.’s Mot. for Release of Brady Materials [Docket No. 34]).
Defendant 	seeks, 	(1) 	any 	identification 	of 	persons 	other 	than 	the 	defendant 	by
eyewitnesses to the crime; (2) any failure to identify the defendant by any eyewitnesses to the
18 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.
19 See Second Amended Arraignment Order, [Docket No. 29] at ¶ 4, which already requires the parties to “disclose
the identity of any expert 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 requiring any rebuttal expert disclosures to be made no later than ten (10) days before trial.
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 10 of 28

11
crime; (3) any statements of any witnesses exculpating the defendant; (4) any statements of
witnesses, which contradict statements of other witnesses; (5) any statements of any witnesses that
the firearm identified in Count 2 of the Indictment was in the possession or control of someone
other than the defendant on or prior to October 16, 2022; (6) any evidence that the firearm
described in Count 2 of the Indictment was in the possession or control of someone other than the
defendant on or prior to October 16, 2022; (7) any fingerprints, handwriting, DNA, or other
scientific evidence which was not identified with the defendant; (8) any items seized from parties
other than the defendant which tend to identify them rather than the defendant with commission
of the crimes charged in the indictment; (9) any prior convictions of prospective government
witnesses; (10) any offers or promises made to prospective government witnesses to induce their
cooperation against the defendant whether or not the government intends to call those persons as
witnesses.
The Government, acknowledging its duty to disclose responsive materials and information,
represented that it has previously disclosed evidence favorable to the Defendant within its
possession and will continue to comply with its obligations under Brady, and its progeny.
(Gov’t.’s Response [Docket No. 39] at 3). The Government objects to Defendant’s Motion to the
extent he seeks materials beyond the requirements of Brady, Giglio, and their progeny. (Id.).
Defendant’s Motion for Release of Brady Materials, [Docket No. 34], is GRANTED, as
set forth herein. The Government will disclose any and all remaining and/or subsequently
discovered, obtained, or obtainable material responsive to Brady to the Defense as soon as said
responsive materials are known to the Government.20 As for materials that are responsive to Giglio
20 Defendant’s Motion purportedly seeks to list various items that Defendant believes are categorized as responsive
materials under Brady, and Defendant asks the court to order the disclosure of these specific materials– ostensibly
after making a finding that said materials are responsive to Brady. To the extent Defendant makes such a request, that
request is denied. The Court notes that, in Kyles v. Whitley, 514 U.S. 419 (1995), the United States Supreme Court
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 11 of 28

12
and related to the impeachment of the Government’s witnesses to be called at trial, the Government
shall disclose responsive materials no later than seven (7) days before (a) trial or (b) when the
presiding trial judge requires disclosure of the Government’s witness list, whichever is earlier.21
VI. 	Defendant’s Motion for Early Disclosure of Jencks Act Material. [Docket No. 35].
Defendant moves the Court for an Order requiring the Government to disclose Jencks Act
materials at least ten (10) days before trial. 	(Def.’s Mot. for Early Disclosure of Jencks Act
Material [Docket No. 35]).
The Government objects to Defendant’s motion, arguing that it cannot be required to make
mandatory pretrial disclosure of Jencks Act materials. (Gov’t.’s Response [Docket No. 39] at 3).
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 any authority that would
allow the Court to require early disclosure of Jencks Act material. Generally, the case law provides
that the Court may not require the Government to make mandatory early disclosure of Jencks Act
material. 	See e.g., 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).
“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.
21 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.
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 12 of 28

13
Accordingly, Defendant’s Motion for Early Disclosure of Jencks Act Materials [Docket
No. 35], is DENIED.22
VII. 	Defendant’s Motion for Government Agents to Preserve Rough Notes. [Docket No.
36].
Defendant requests an Order from the Court requiring any law enforcement agent,
including any confidential reliable informants, to preserve all rough notes taken as part of their
investigations, whether or not the contents of such rough notes are incorporated in official records.
(See Def.’s Mot. for Gov. Agents to Preserve Rough Notes [Docket No. 36]).
The Government does not object to Defendant’s request to preserve rough notes and
evidence. (Gov’t.’s Response [Docket No. 39] at 4).
Defendant’s motion is GRANTED regarding rough notes as to preservation only at this
time. If Defendant seeks production or disclosure of rough notes, he will need to bring a separate
motion for such production.
VIII. 	Defendant’s Motion to Dismiss Count Two. [Docket No. 37].
Defendant seeks an Order of this Court dismissing Count 2 in the Indictment underlying
the present case. (Def.’s Mot. to Dismiss [Docket No. 37]). Defendant argues that, as a matter of
law, the charges against him violate the Second Amendment of the U.S. Constitution in light of
the U.S. Supreme Court’s decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S.
1, 142 S. Ct. 2111 (2022). (Id. at 1).
On May 15, 2025, a Grand Jury in the District of Minnesota returned an Indictment finding
probable cause that Defendant, having been previously convicted of multiple drug offenses and
Second Degree Assault, which were punishable by imprisonment for a term exceeding one year,
22 However, 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. 39] at 3). The Court encourages such voluntary
agreements.
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 13 of 28

14
was in possession of a Glock GMBH, Model 45, 9mm pistol bearing serial number BUEZ745 in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8). (Indictment [Docket No. 1]).
In his Motion, Defendant acknowledged that his argument that the charges against him
violate the Second Amendment is foreclosed by United States v. Jackson, 110 F.4th 1120 (8th Cir.
2024), where the Eighth Circuit upheld the constitutionality of 18 U.S.C. § 922(g)(1). (Def.’s Mot.
to Dismiss [Docket No. 37] at 1). Nevertheless, Defendant files this Motion to preserve the issue
for further appellate review. (Id.).
A conviction under § 922(g)(1) requires the government to prove that (1) the defendant
sustained a previous conviction for a crime punishable by a term of imprisonment exceeding one
year; (2) he knowingly possessed a firearm; (3) he knew that he belonged to a category of persons
prohibited from possessing a firearm; and (4) the firearm was in or affecting interstate commerce.
See Rehaif v. United States, 588 U.S. 225, 139 S. Ct. 2191, 2200, 204 L. Ed. 2d 594 (2019); United
States v. Coleman, 961 F.3d 1024, 1027 (8th Cir. 2020). In Jackson, the Eighth Circuit Court of
Appeals, reviewing the constitutionality of § 922(g)(1) in light of Bruen, upheld the “longstanding
prohibitions on the possession of firearms by felons” and found § 922(g)(1) to be constitutional.
Jackson, 110 F.4th at 1125 (citing District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783,
171 L. Ed. 2d 637 (2008)).
The Court in Jackson went on to hold that the constitutionality of § 922(g)(1) is
“[c]onsistent with the Supreme Court's assurances that recent decisions on the Second Amendment
cast no doubt on the constitutionality of laws prohibiting the possession of firearms by felons ....”
Id. at 1129.
This Court is bound to apply the precedent of the Eighth Circuit. See e.g., M.M. ex rel.
L.R. v. Special Sch. Dist. No. 1, 512 F.3d 455, 459 (8th Cir. 2008); Hood v. United States, 342
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 14 of 28

15
F.3d 861, 864 (8th Cir. 2003). Accordingly, the undersigned recommends that Defendant's Motion
to Dismiss, [Docket No. 37], be DENIED.
IX. 	Defendant’s Motions to Suppress Evidence Obtained as a Result of Search and
Seizure. [Docket Nos. 38, 41].23
Defendant seeks an Order of this Court suppressing evidence obtained as a result of the
October 16, 2022, seizure by towing and subsequent May 17, 2023, search of the silver Buick
LaCrosse, as well as, the search of Ms. Hopson’s Apartment pursuant to the December 8, 2022,
Search Warrant. (See Def.’s Mots. [Docket Nos. 38, 41]).24 Defendant argues there was no basis
to tow and thus seize the Buick LaCrosse given the vehicle was legally parked and officers had no
probable cause and no warrant, which categorizes the subsequent May 17, 2023, search as fruit of
the poisonous tree. (Def.’s Mot. [Docket No. 38] at 1, 2). As for the December 2022, search of Ms.
Hopson’s Apartment, Defendant argues that the search warrant obtained for Ms. Hopson’s
Apartment failed to establish a sufficient nexus between the residence to be searched and the items
subject to seizure, and was based on stale information. (See Def.’s Mot. [Docket No. 41]).
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,
23 Defendant’s Second Motion to Suppress, [Docket No. 41], was filed as a supplement to the first Motion to Suppress,
[Docket No. 38]. The Second Motion includes Defendant’s argument for the suppression of all evidence flowing from
the search conducted pursuant to a search warrant at Ms. Hopson’s Apartment on December 8, 2022. (Def.’s Mot. to
Suppress [Docket No. 41).
24 Defendant’s Motion to Suppress, [Docket No. 38], additionally challenged a search of Defendant’s iPhone on
December 8, 2022. (Tr. 13). However, the Government has not been able to obtain and/or produce a final copy of the
search warrant which authorized the search of Defendant’s iPhone. (Tr. 13, 14). As a result, the Government does not
intend to rely on that warrant, or introduce any evidence as to the content of the iPhone in its case-in-chief, and thus,
Defendant’s Motion to Suppress, [Docket No. 38], is satisfied to the extent that it challenges the search of Defendant’s
iPhone. (Tr. 14).
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 15 of 28

16
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
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
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 16 of 28

17
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”).25
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. Defendant’s Motion to Suppress Evidence Obtained as a Result of Search and
Seizure. [Docket No. 38].
Defendant argues that the October 16, 2022, tow of the Buick LaCrosse constituted a
seizure of the vehicle, and thus required probable cause, which did not exist at the time of the
seizure. (Def.’s Mem. [Docket No. 52] at 10; Def.’s Reply to Response [Docket No. 57] at 1–4).
Defendant additionally asserts there was no “preserving the status quo” exception to the warrant
requirement present in this case that would justify towing the vehicle. (Def.’s Mem. [Docket No.
52] at 14–16). In support of this contention, Defendant cites Segura v. United States, 468 U.S. 796
(1984). (Id. at 16). Under Segura, the Court held that when “officers, having probable cause, enter
premises, and with probable cause, arrest the occupants who have legitimate expectations of
25 “In ruling on a motion to suppress, probable cause is determined based on ‘the information before the issuing judicial
officer.’” United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (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) (alterations in Wiley) (quoting United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005)).
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 17 of 28

18
privacy in its contents . . . [and] secure the premises within to preserve the status quo while others,
in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment’s
proscription against unreasonable seizures.” Segura, 468 U.S. at 798; United States v. Mays, 993
F.3d 607 (8th Cir. 2021); Chambers v. Maroney, 399 U.S. 42, 52 (1970).
As stated above, the Fourth Amendment provides that “the right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated.” United States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001) (quoting 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 and well-delineated exceptions.” Davis, 569 F.3d at 816 (8th Cir. 2009) (citing Katz,
389 U.S. at 357. One of these exceptions is the “automobile exception.” United States v. Williams,
616 F.3d 760, 764 (8th Cir. 2012).
“[T]he ‘automobile exception’ permits the warrantless search of a vehicle if the police ‘had
probable cause to believe the vehicle contained contraband or other evidence of a crime before the
search began.’” United States v. Vore, 743 F.3d 1175, 1179 (8th Cir. 2014) (quoting United States
v. Wells, 347 F.3d 280, 287 (8th Cir. 2003)). “Probable cause sufficient to justify a search exists
where, in the totality of the circumstances, there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” Kennedy, 427 F.3d at 1141. In making the probable
cause determination, Courts “apply a common sense approach and consider all relevant
circumstances.” Id.
“Although a warrantless search usually constitutes a per se Fourth Amendment violation,
the automobile exception to the Fourth Amendment’s warrant requirement permits the warrantless
search or seizure of a vehicle by officers possessing probable cause to do so.” United States v.
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 18 of 28

19
Soderman, 983 F.3d 369, 375 (8th Cir. 2020) (citing Chambers, 399 U.S. at 51–52. The automobile
exception further allows officers to impound a vehicle while they obtain a search warrant. United
States v. Hogan, 25 F.3d 690, 692 (8th Cir. 1994) (citing Chambers, 399 U.S. at 51) (Holding that
it is reasonable to impound a vehicle on the basis of probable cause for “whatever period is
necessary to obtain a warrant for the search.”).
Under the totality of the circumstances, the Court finds that probable cause existed for the
initial tow of the Buick LaCrosse. Within two hours of each other, two different 911 calls had
identified Defendant, by name, as an armed assailant. Mr. Lindgren believed Defendant was
driving in a white Cruze or Malibu. Ms. Hopson’s 911 call identified Defendant in a reported
domestic assault and Defendant’s car as a silver Buick LaCrosse with the license plate XXXXXX,
which was at that time still parked in her apartment complex parking lot. Both of these descriptions
are depicting light colored passenger vehicles.26 See United States v. Sims, 424 F.3d 691, 692–
693 (8th Cir. 2005) (finding probable cause existed to seize the defendant's vehicle when witnesses
to the robbery had identified the defendant as the assailant and had reported a description of the
vehicle seen leaving the scene of the crime); see also Capraro v. Bunt, 44 F.3d 690, 691 (8th Cir.
1995) (finding probable cause existed to seize Defendant’s vehicle because it matched the victim's
description of the vehicle used in a crime). Law enforcement additionally found the Buick
LaCrosse within two hours of Mr. Lindgren’s earlier, separate 911 call, so the potential likelihood
of evidence in the Defendant’s vehicle was at the time reasonably high. Sims, 424 F.3d at 693 (the
likelihood of finding evidence of the crime in the vehicle was relatively high when the vehicle was
found about an hour after the crime was committed). These facts would support probable cause for
26 Investigator Anderson testified that the Duluth Police Department believed the Buick LaCrosse, though not an exact
match of the vehicle initially described by Mr. Lindgren, could still have been the vehicle used in the alleged shooting
and robbery due to the fact that Mr. Lindgren described the events as occurring early in the morning, when it was still
dark, and in an alley. (Tr. 62).
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 19 of 28

20
the seizure by towing pending application for a warrant by the Duluth police.
Defendant argues that, because the Pine County Sheriff’s Department separately learned
of the inconsistencies in Mr. Lindgren’s narrative before the Duluth police had the Buick LaCrosse
towed, there could then be no probable cause to believe the vehicle was involved in the shooting
and robbery alleged by Mr. Lindgren at the time it was towed. (Def.’s Reply to Response [Docket
No. 57] at 2, 3). Defendant, however, ignores the fact that the Pine County officers who learned
of these inconsistencies before the vehicle was towed are different from the Duluth Police
Department officers who, at the time they made the decision to tow the vehicle, had no knowledge
of Mr. Lindgren’s inconsistencies. (Tr. 64). In addition, the Duluth police had information of a
separate domestic assault and possession of a firearm by Defendant as reported in another 911 call
by Ms. Hopson. The Pine County officers’ knowledge of the details of Mr. Lindgren’s
inconsistencies cannot be imputed onto the Duluth Police Department officers, nor in any event
would it negate the separate reports of domestic violence Duluth officers were aware of, when they
made the decision to tow the Buick LaCrosse.
In summation, the Court finds that the information from Mr. Lindgren and Ms. Hopson,
including their descriptions of a light colored passenger vehicle and Defendant’s use and
possession of a firearm, provided a basis with which to conclude that probable cause existed to
justify the seizure by towing of the Buick LaCrosse.
The Court next considers the constitutional permissibility of the continued possession of
the Buick LaCrosse after the October 16, 2022, initial seizure.
Law enforcement learned of the inconsistencies in Mr. Lindgren’s description of the
alleged shooting and robbery after the vehicle had been towed from Ms. Hopson’s Apartment
complex. When officers did learn of the inconsistencies, the vehicle was diverted to the tow
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 20 of 28

21
company’s secure lot instead of the Duluth Police Department’s evidence garage, and law
enforcement did not pursue a search warrant. (Gov’t.’s Mem. [Docket No. 55] at 10, 11). The
investigation into the alleged shooting and robbery was not officially closed until January 2023,
when law enforcement determined there was a lack of corroborating evidence that would indicate
the event had occurred. (Tr. 30).
Once law enforcement learned of the inconsistencies in Mr. Lindgren’s description of the
alleged shooting and robbery, their decision to not seek a search warrant and no longer pursue the
investigation into Mr. Lindgren’s report of a shooting and robbery undercut any need for the
ongoing possession of the Buick LaCrosse. (Gov’t.’s Mem. [Docket No. 55] at 10). Without Mr.
Lindgren connecting the Buick LaCrosse to the commission of an alleged shooting and robbery,
law enforcement lacked a connection between the commission of a crime and the use of the Buick
LaCrosse given there was no evidence establishing the vehicle was used for, connected to, or
would contain evidence related to, the separate alleged perpetration of the domestic incident.
However, even where an initial seizure may have violated the Fourth Amendment, as the
continuous possession of the Buick LaCrosse likely did here, suppression of the evidence borne of
a later search may not be justified. “As the primary judicial remedy for deterring Fourth
Amendment violations, the exclusionary rule encompasses both the ‘primary evidence obtained as
a direct result of an illegal search or seizure’ and . . . ‘evidence later discovered and found to be
derivative of an illegality.’” Utah v. Strieff, 579 U.S. 232, 238, 136 S. Ct. 2056, 195 L. Ed. 2d
400 (2016). The exclusionary rule is to be used as a “last resort,” and does not “apply in every
circumstance in which it might provide marginal deterrence” to unconstitutional conduct. Herring
v. United States, 555 U.S. 135, 140 (2009). There are several exceptions to the rule, including the
independent source doctrine. See Strieff, 579 U.S. at 238. “[T]he independent source doctrine
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 21 of 28

22
allows trial courts to admit evidence obtained in an unlawful search if officers independently
acquired it from a separate, independent source.” Id. (citing Murray v. United States, 487 U.S. 533,
537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)).
Accordingly, the Court finally considers whether Mr. Gaskill’s subsequent private citizen
search of the Buick LaCrosse, absent police influence and after he had acquired title to the vehicle,
was an intervening act of free will sufficient to dissipate the taint of law enforcement’s alleged
unconstitutional continuous possession of the vehicle. See Wong Sun v. United States, 371 U.S.
471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (holding that evidence seized after an illegal search
must be suppressed unless the government demonstrates that the evidence resulted from “an
intervening independent act of free will” sufficient “to purge the primary taint of the unlawful
invasion”).
“The search and seizure of property by a private individual without any governmental
involvement is not subject to the dictates of the exclusionary rule.” United States v. Haes, 551 F.2d
767, 770 (8th Cir. 1977) (citing Burdeau v. McDowell, 256 U.S. 465, 467, 41 S.Ct. 574, 65 L.Ed.
1048 (1921)). However, searches that are physically conducted by a private individual, but at the
Government’s direction and under their guidance, is not a private search. Haes, 551 F.2d at 770;
United States v. Newton, 510 F.2d 1149, 1153 (7th Cir. 1975); Corngold v. United States, 367
F.2d 1, 5 (9th Cir. 1966). Searches that cannot be clearly identified as private or governmental
must be judged according to “the nature of the governmental participation in the search process.”
Haes, 551 F.2d at 770.
Three factors determine whether a private individual is acting as, or with the participation
of, a government official: “‘(1) whether the government had knowledge of and acquiesced in the
intrusive conduct; (2) whether the citizen intended to assist law enforcement or instead acted to
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 22 of 28

23
further his own purposes; and (3) whether the citizen acted at the government’s request.’” United
States v. Avalos, 984 F.3d 1306, 1307, 1308 (8th Cir. 2021) (quoting United States v. Highbull,
894 F.3d 988, 992 (8th Cir. 2018). Defendant bears the burden of establishing “‘by a
preponderance of the evidence’” that Mr. Gaskill acted as, or participated with, government
officials. Avalos, 984 F.3d at 1308 (quoting Highbull, 894 F.3d at 992).
Defendant cannot meet the burden of proving that Mr. Gaskill acted in the present case as,
or participated with, government officials. Though Mr. Gaskill clearly has some relation to the
Duluth Police Department given he was called to tow Defendant’s car, the connection ends there.
Mr. Gaskill searched the Buick LaCrosse only after he became the legal owner of the vehicle.
There is no evidence showing law enforcement had any passive knowledge of Mr. Gaskill’s search
of the vehicle; Mr. Gaskill clearly acted to further his own private ownership of the vehicle; and
there is no evidence showing law enforcement requested Mr. Gaskill search the vehicle. Avalos,
984 F.3d at 1308 (holding security officers were not acting as, or participating with, government
officials when the security officers were not trained by police, did not contact the police before
detaining the defendant, did not act at the request of the police, and there was no evidence showing
the security officers were intending to assist the police).
Therefore, to the extent Defendant’s Motion to Suppress seeks an Order of this Court
suppressing all evidence flowing from the private search of the Buick LaCrosse by Gus Gaskill,
the undersigned recommends that Defendant’s Motion to Suppress Evidence Obtained as a Result
of Search and Seizure, [Docket No. 38], be DENIED.
C. Defendant’s Second Motion to Suppress Evidence Obtained as a Result of Search
and Seizure. [Docket No. 41].27
27 The December 8, 2022, Search Warrant, authorized the search of Defendant, Ms. Hopson’s Apartment, and Ms.
Hopson’s vehicle. (See Gov’t.’s Ex. 1). Defendant challenges the December 8, 2022, Search Warrant, only to the
extent it authorized a search of Ms. Hopson’s Apartment. (Def.’s Mem. [Docket No. 52] at 20–28).
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 23 of 28

24
Defendant challenges the December 8, 2022, Search Warrant to the extent it permitted a
search of Ms. Hopson’s apartment. (Def.’s Mem. [Docket No. 52] at 18). Specifically, Defendant
argues that this search warrant failed to establish a nexus between “[Defendant] and Ms. Hopson’s
Home,” and was based on stale information. (Def.’s Mem. [Docket No. 52] at 20–28).
Before reaching the merits of Defendant’s challenge to the search warrant itself, 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)).
“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
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 24 of 28

25
(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 United States v. Sanchez, 943 F.2d 110, 113 (1st Cir. 1991)).
The affidavit submitted in support of the December 8, 2022, Search Warrant, lacks any
indication that Defendant has any privacy interest in Ms. Hopson’s Apartment. Further, and most
important, Defendant’s attempt at the Motions Hearing to offer a factual basis upon which this
Court could reasonably conclude that Defendant had a personal privacy interest in Ms. Hopson’s
Apartment was undermined by their own Memorandum.
At the Motions Hearing, Ms. Gonsalez testified that Defendant lived at Ms. Hopson’s
“house” after he was paroled. (Tr. 70). In support of this assertion, Ms. Gonsalez attested that she
knew Defendant was living there because she would “visit there,” “talked to them,” and her
grandchildren lived there. (Tr. 71).
Defendant’s Memorandum, however, when asserting the December 8, 2022, Search
Warrant lacked a sufficient nexus between the evidence of firearm possession and Ms. Hopson’s
apartment, argues the contrary. Defendant contends the affidavit makes clear that the apartment
belonged to Ms. Hopson, not Defendant. (Def.’s Mem. [Docket No. 52] at 20). More importantly,
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 25 of 28

26
the Memorandum illustrates that Defendant’s efforts to “forcibly” enter the apartment on October
16, 2022, indicates Defendant “did not have his own keys to the apartment and was not permitted
access.” (Id.). Lastly, the Memorandum concludes this argument by stating “[f]or two months, the
police were using GPS data to track [Defendant’s] location, yet there is no evidence [Defendant]
frequented Ms. Hopson’s apartment . . . . According to the affidavit, the police did not spot
[Defendant] in the area of [Ms.] Hopson’s apartment until December 8.” (Id. at 23).28
On the record now before the Court, each of the above delineated factors weighs in favor
of finding that Defendant lacks standing to assert any challenge to evidence flowing from the
execution of the December 8, 2022, Search Warrant, at Ms. Hopson’s Apartment. U.S. v. Heying,
No. 14-cr-30 (JRT/SER), 2014 WL 5461988, *17 (D. Minn. Aug. 15, 2014) (“A casual visitor
does not have an expectation of privacy[.]”) (citing U.S. v. Perez, 700 F.2d 1232, 1236 (8th Cir.
1983)); see United States v. Davis, 361 Fed. App’x 704, 705-06 (8th Cir. 2010) (unpublished
opinion) (holding that defendant lacked standing to challenge the search warrant authorizing the
search of his uncle's home when “[t]he evidence did not show that [he] either lived or stayed more
than irregularly at his uncle's residence, that he stored personal effects there which he admitted to
owning, or that he had exclusive access to or had taken precautions to maintain privacy in ... the
room where the [evidence] was found”). Defendant fails to sufficiently allege that he has an
ownership interest, control over, or a subjective expectation of privacy in Ms. Hopson’s Apartment
subject to the December 8, 2022, Search Warrant. Moreover, nothing on the record now before the
Court supports a finding that Defendant had an objective expectation of privacy in said apartment
at the time the December 8, 2022, Search Warrant, was issued or executed.
28 Defendant’s Reply to the Government’s Response, [Docket No. 57], continues this argument, stating “[T]he
affidavit does not allege that Wilkinson lived with Ms. Hopson. It does not allege that he spent the night there. It does
not allege that he kept his belongings there. It does not allege that he regularly visited Ms. Hopson.” (Def.’s Reply to
Response [Docket No. 57] at 6).
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 26 of 28

27
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 Ms. Hopson’s Apartment, Defendant has
wholly failed to meet this burden.
On that basis, the Court concludes that Defendant lacks standing to challenge the search of
Ms. Hopson’s Apartment, and therefore, Defendant lacks standing to seek the suppression of any
evidence flowing from the execution of the December 8, 2022, Search Warrant.
Therefore, to the extent Defendant’s Second Motion to Suppress seeks an Order of this
Court suppressing evidence flowing from the search of Ms. Hopson’s Apartment pursuant to the
execution 	of 	the December 	8, 	2022, 	Search 	Warrant, 	the undersigned 	recommends 	that
Defendant’s Second Motion to Suppress Evidence Obtained as a Result of Search and Seizure,
[Docket No. 41], be DENIED.
X. 	Conclusion
Thus, based on the foregoing and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. 	Defendant’s 	Motion 	for 	Disclosure 	of 	404(b) 	evidence, 	[Docket 	No. 	32], 	is
GRANTED, as set forth above;
2. 	Defendant’s Motion for Discovery, [Docket No. 33], is GRANTED, as set forth above;
3. 	Defendant’s Motion for Release of Brady Materials, [Docket No. 34], is GRANTED,
as set forth above;
4. 	Defendant’s Motion to Preserve Rough Notes, [Docket No. 36], is GRANTED, as set
forth above; and
5. 	Defendant’s Motion for Early Disclosure of Jencks Act Material, [Docket No. 35], is
DENIED.
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 27 of 28

28
Further, IT IS HEREBY RECOMMENDED THAT:
1. 	Defendant’s Motion to Dismiss Count 2, [Docket No. 37], be DENIED; and
2. 	Defendant’s Motions to Suppress Evidence Obtained as a Result of Search and Seizure,
[Docket Nos. 38, 41], be DENIED.
Dated: January 16, 2025 	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.
CASE 0:25-cr-00200-MJD-LIB Doc. 60 Filed 01/16/26 Page 28 of 28