ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge for consideration of Defendant Syed Ben Al-Amin's ("Al-Amin") Objection [Docket No. 46] to Magistrate Judge Steven E. Rau's February 13, 2019 Report and Recommendation ("R&R") [Docket No. 45]. In the R&R, Judge Rau recommends denying Al-Amin's Motion to Suppress Statements, Admissions, and Answers ("Motion to Suppress Statements") [Docket No. 19], and denying Al-Amin's Motion to Suppress Evidence Obtained as a Result of Search and Seizure ("Motion to Suppress Evidence") [Docket No. 20]. Also before the Court for consideration is the Government's Objection [Docket No. 48] to the R&R's definition of search incident to arrest. After a de novo review of the record, and for the reasons stated below, Al-Amin's Objection is sustained in part and denied in part. The Government's Objection is also sustained in part and denied in part. Al-Amin's Motions are denied for the reasons stated below.
On August 6, 2018, at about 1:24 p.m., Minneapolis Police Officer Paul Gillies ("Officer Gillies") was dispatched to respond to a 911 call alleging a violation of a restraining order. December 20, 2018 Corrected Motions Hearing Transcript ("Tr." and "Suppression Hearing") [Docket No. 38] at 7. Officer Gillies was informed that a female caller had reported "her husband was following her in a car and that they had pulled over in the area of 12th and Fremont,"
As Officer Gillies approached 12th and Fremont, he saw two cars parked, one "right behind" the other.
At this point, Officer Gillies' body camera recording is available to compare with his testimony. Gov't Ex. 1, at 18:27:26. The body camera shows Al-Amin in the passenger seat with the passenger side door still open.
At this point, Minneapolis Police Officer Ryan Keyes' ("Officer Keyes") body camera shows that as he pulled up his squad car, Al-Amin walks away from his car and lays down. Def. Ex. 1 at 18:28:10-14. The officers then approach and Officer Keyes handcuffs Al-Amin.
After Al-Amin is secured in the squad car, Officer Gillies turns to his fellow officers and states, "He punched her window as I turned the car," and, "he tried to lock up the vehicle, and weird shit, dumping stuff out of his pockets." Def. Ex. 1 at 18:29:33-42. Officer Gillies then approaches Al-Amin's wife, who is on the sidewalk after having walked from her vehicle back toward the scene. Gov't Ex. 1 at 18:29:49-53. Officer Gillies asks her if she "actually" has a restraining order.
On August 7, 2018, Sergeant Jerod Silva ("Sergeant Silva") interrogated Al-Amin while he was in custody. Gov't Ex. 2. The Government agrees to refrain from using Al-Amin's pre-
The videotaped interview shows Sergeant Silva enters the interview room at approximately 3:16:00. Gov't Ex. 2. Before Sergeant Silva is finished introducing himself and before he asks a single question, Al-Amin interrupts (3:16:52) Sergeant Silva and talks at him for seven minutes (3:23:54), whereupon, Sergeant Silva excuses himself for 15 minutes (until 3:38:52).
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C);
Al-Amin objects to the R&R's denial of his motion to suppress and the finding that probable cause supported Officer Gillies' search of Al-Amin's vehicle. The Government supports the R&R's conclusion, but objects to the R&R's rejection of the Government's "search incident to arrest" rationale for Officer Gillies' search of Al-Amin's vehicle.
The Fourth Amendment protects an individual's right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV. Searches without a warrant are per se unreasonable, subject to a few well-established exceptions which include an automobile exception.
The government bears the burden of establishing that an exception to the warrant requirement applies.
Before analyzing the constitutionality of Officer Gillies' search of the glove compartment of Al-Amin's vehicle, it is necessary to address the inconsistencies between Officer Gillies suppression hearing testimony and what is seen and heard on Officer Gillies' body camera and then on Officer Keyes' body camera.
Tr. at 12. Officer Gillies then testified that once Al-Amin was inside the car, with the door closed, Officer Gillies could see Al-Amin going through his pockets like he was trying to hide something. This testimony is problematic. The video, without audio, does not show Al-Amin walking back to his car. The video does show that when Officer Gillies pulls up, opens his door, and gets out of his car with his gun drawn, Al-Amin is already in the passenger seat of his car and the passenger side door is open. Al-Amin takes at most four seconds to show his empty hands and get out of the car. This testimony casts doubt on the credibility of Officer Gillies' testimony as to the nature and amount of movement he could see from Al-Amin. Because of the discrepancies, the Court will not credit the Suppression Hearing testimony of Officer Gillies with regard to Al-Amin's "furtive arm movements," but will rely instead on the evidence provided by the officer's body cameras instead. Thus the credibility assessment of the R&R cannot be the rationale for a finding of probable cause to search.
Probable cause is established for a warrantless search of a vehicle "where, in the totality of circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place."
The totality of circumstances here consists of officers summoned to a roadside scene based on a report of a violation of a no contact order by a suspect in a following vehicle. Officer Gillies saw Al-Amin standing and yelling through the closed window of the victim's car and then saw Al-Amin strike the window with his fist. The victim responded by driving her car forward about 30 feet while Al-Amin walked back to his vehicle. There is no testimony that Al-Amin saw Officer Gillies' squad car and there is nothing in the record to suggest that Al-Amin was trying to get back to his vehicle in response to police arrival. Officer Gillies also testified that he could see what Al-Amin was wearing, a track suit with the jacket unzipped, exposing a bare chest. Officer Gillies did not testify that he saw or thought Al-Amin possessed a weapon on his person as he stood at the victim's window. The bodycam footage then shows Al-Amin was seated in the passenger side of his vehicle with the door still open when Officer Gillies pulled up. Within seconds of Officer Gillies opening his door Al-Amin gets out of his car, and Al-Amin can be seen exiting the passenger side with his raised hands empty. Al-Amin was not fully compliant. Al-Amin did not follow Officer Gillies' instruction to get on the ground until after he walked around to the driver side of the vehicle. He appears to consider getting in, and then, as the second squad car pulls up, walks away from the vehicle and lays down. Al-Amin was handcuffed without incident. Officer Keyes patted him down. No contraband was found. Al-Amin was placed in the back of the squad car.
Officer Gillies then walks over to talk to the suspected victim. He asks her if it was true that she had a no contact order against Al-Amin. Officer Gillies then learns that Al-Amin and his wife had mutual no contact orders. Officer Gillies then allows Officer Keyes to take over the questioning of the victim and approaches the passenger side compartment of Al-Amin's vehicle. Based on the totality of these circumstances, as Officer Gillies began searching Al-Amin's vehicle, he did not yet have probable cause to search the vehicle. All the information the officers had of a crime was related to the suspected violation of a no contact order and Al-Amin's confrontation with his wife at her car.
The Government has not shown under the probable cause requirement, the "fair probability that contraband or evidence of a crime will be found in a particular place," i.e. the vehicle. Officer Gillies was no doubt curious about why Al-Amin had returned to the passenger side of the vehicle instead of the driver side and why Al-Amin was so interested in locking the vehicle up before he was arrested. But neither of these of these facts significantly suggests probable cause for a search. If
In contrast to the automobile exception, the search incident to arrest analysis starts with whether there was probable cause to arrest the defendant and then continues on to the analysis as to whether the officer had a reasonable belief that the vehicle associated with the defendant contains evidence of the offense of arrest.
The Supreme Court has not provided much guidance as to what is meant by "reasonable to believe." Most courts agree that "reasonable to believe" is a less demanding standard than probable cause.
There is no dispute that the crime of arrest was violation of a no contact order, Minn. Stat. § 609.748 (2018), which requires evidence of the prohibited party being in physical or verbal contact with the protected party. The question then is whether it was reasonable to believe that Al-Amin's car might contain evidence relevant to committing the crime of violating a no contact order. The officers could reasonably believe that Al-Amin had returned to his vehicle to hide evidence of his violation, or that the vehicle contained evidence of his stalking his wife. The prosecution argues the officers could have been searching for Al-Amin's phone, or other maps or documentation which would tend to prove his intent to violate the no contact order by deliberately approaching his wife, as opposed to having some accidental, unplanned encounter with her on the street as he claimed in his post-arrest statement. The 911 call report suggested that Al-Amin was using his car to follow his wife, which lends credence to the likelihood that evidence of the violation of the no contact order might be in the car. After Al-Amin was secured in the squad car, the officers learned from his wife, the victim, that he had threatened to shoot her tires with a gun. This bolstered the need to search his car. The gun would be a very significant piece of evidence in a violation of a no contact order case between volatile, disgruntled partners to a marriage.
Finally, even if the officers could not search the vehicle incident to arrest at the time that they began searching, the firearm found in the glove compartment may still be admissible if the Government can show it would have been inevitably discovered.
In this case, Officer Keyes interviewed the victim of the violation of the no contact order. She stated that Al-Amin had a gun in his vehicle and, while he was shouting at her through her window, he threatened to shoot out her tires. Officer Gillies was reasonably pursuing evidence incident to Al-Amin's arrest when he learned from Officer Keyes that there may be a firearm in the car. Officer Gilles opened the glove compartment and found the gun. But, even if he began the search unreasonably, Al-Amin's wife ultimately gave the officers a reasonable belief that would support a search incident to arrest after the officers became aware of the firearm threat.
Al-Amin also objects to the R&R's recommendation that the portion of his statement after he was
Based upon the foregoing, and all the files, records, and proceedings herein,
This testimony contradicts the bodycam footage showing that Officer Gillies did not open his squad car door, draw his gun, and give orders that would have been audible to Al-Amin until after Al-Amin was already in the passenger seat of his car. Gov't Ex. 1. The bodycam footage also shows that Al-Amin's passenger side door was open. Because of these discrepancies, the Court is only crediting uncontested testimony of Officer Gillies. The Court relies, for all other facts, on the bodycam footage and audio of the two officers. Gov't Ex. 1 and Def. Ex. 1.
