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United States v. Anderson

United States District Court, E.D. Missouri, Eastern Division

June 26, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS GREGORY ANDERSON, JR., Defendant.

          ORDER ADOPTING THIRD REPORT AND RECOMMENDATION

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's pretrial motions. All pretrial motions were referred to United States Magistrate Judge Nannette A. Baker under 28 U.S.C. § 636(b). Defendant Thomas Gregory Anderson, Jr. filed a Motion to Suppress Statements (ECF No. 807), Motion to Suppress the Contents of Any Electronic Surveillance (ECF No. 808), Motion for James Hearing to Determine Admissibility of Coconspirator Statements (ECF No. 809), Motion to Suppress Evidence Obtained During Unlawful Searches of Residence and Vehicle (ECF No. 810), and Motion to Disqualify the Office of the United States Attorney for the Eastern District of Missouri (ECF No. 811).[1]The United States filed responses to the motions, and Judge Baker held an evidentiary hearing December 15, 2016. The United States presented testimony with respect to the three motions to suppress, and the parties submitted the Motion for James Hearing and Motion to Disqualify on their written briefs. On March 27, 2017, Judge Baker issued her Third Report and Recommendation of United States Magistrate Judge (the “Third R&R”), recommending that Defendant's Motion to Suppress Statements be Granted in part and Denied in part, and recommending that Defendant's other motions be denied. (ECF No. 893.) Defendant filed Objections to the Third R&R (ECF No. 895), and the United States filed a Response to the Objections (ECF No. 898).

         When a party objects to a Report and Recommendation concerning a motion to suppress in a criminal case, the court is required to "'make a de novo review determination of those portions of the record or specified proposed findings to which objection is made.'" United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)). I conducted a de novo review of the motions to suppress, including a review of the testimony and exhibits introduced at the hearing. Based on that review, I conclude that the Magistrate Judge made proper factual findings and correctly analyzed the issues, and I adopt and incorporate the Third R&R.

         A. Motion to Suppress Statements

         With respect to the Motion to Suppress Statements, Judge Baker determined that Defendant's statement outside upon the agents' arrival was not in response to interrogation, and should not be suppressed, but that the remaining statements made by Defendant should be suppressed for the following reasons: (i) Defendant's statement that there were firearms in the basement that were his, made while he was essentially detained in the kitchen, was a custodial statement made prior to any Miranda warning; (ii) Defendant's statement made in the basement regarding the currency that was located, was the result of the functional equivalent of express questioning, and was again made prior to any Miranda warning, and (iii) Defendant's statement confirming ownership of certain firearms and currency, while made after Defendant had been advised of his Miranda rights, was made after he had invoked his right to remain silent.

         Neither party objected to Judge Baker's findings and conclusions with respect to the Motion to Suppress Statements, and the time to do so has expired. Following de novo review, I adopt and incorporate the findings and conclusions of the Magistrate Judge, and find that Defendant's motion to suppress statements should be granted in part and denied in part for the reasons stated in the Third R&R.

         B. Motions to Suppress Evidence

         1. Search of the Residence and Vehicle

         In his objections, Defendant contends that the Magistrate Judge erred in concluding that the evidence obtained during the search of the residence and the vehicle should not be suppressed, asserting that the search warrant was facially invalid and was not supported by probable cause, and that the search of the vehicle was warrantless. Based on a de novo review of the record, I find that Defendant's objections are not well-taken.

         I agree with the Magistrate Judge that the search warrant was not facially invalid. The search warrant describes the “person or property to be searched” in the top portion, and then invites a description or list of what is believed concealed therein. Here, the typed entry “Attached List” identifies the items believed concealed, and Magistrate Judge Adelman found probable cause to “seize the . . . property, ” referring to the attached list of items believed to be concealed. This is the most common sense reading of the warrant, and incorporation of the list satisfies the particularity requirement. See United States v. Riesselman, 646 F.3d 1072, 1077 (8th Cir. 2011) (holding search warrant that indicated Attachment 1 in the space designated for items to be searched sufficiently incorporated the attachment); United States v. Hamilton, 591 F.3d 1017, 1024 (8th Cir. 2010) (“The Warrant Clause's particularity requirement can be satisfied by including the items to be seized in an affidavit or attachment that is adequately referenced in the search warrant.”). Defendant's suggestion that the reference to property instead references the place to be searched makes little sense in the context of the warrant overall. Further, the case of Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 1289 (2004), cited by Defendant, is inapposite, as in that case the warrant had no reference whatsoever of the items to be seized, because the items to be seized were not incorporated into the warrant. Even if the warrant were deemed ambiguous, the officers were entitled to rely on its validity. Hamilton, 591 F.3d at 1029 (finding unclear reference to “See Attached Affidavit” was not ‘“so facially deficient that the executing officers could not reasonably have presumed it to authorize' seizure of the items included in the attached affidavit”) (quoting United States v. Watson, 498 F.3d 420, 433 (6th Cir. 2007).

         Based on a careful review of the warrant and the detailed affidavit submitted in support of the warrant, I also find the warrant was amply supported by probable cause. Defendant's further contention that the agent misled the issuing Magistrate Judge by failing to disclose that CS #1 was represented by the same law firm as Defendant fails because Defendant has not established that Rosenblum, Schwartz, Rogers & Glass, P.C. (“RSRG”) represented Defendant this early in the investigation, or that the agent knew of or had any responsibility to advise the Magistrate Judge of any alleged conflict. Nor does Defendant cite any pertinent case law in support of this theory of suppression.

         The search of the vehicle known to be used by Defendant that was parked in the driveway was also lawful. Defendant appears primarily to rely once again on his contention that the warrant was facially invalid, but that argument has already been rejected above. Defendant's further objection, that a search of the vehicle was outside the scope of the warrant, is refuted by the case law cited by the Magistrate Judge that recognizes that a warrant authorizing the search of the premises includes a vehicle parked in the driveway. See ECF No. 893, at 20. Additionally, in light of the evidence located inside the residence, Defendant's presence at the residence, and the agents' knowledge that Defendant regularly drove this vehicle, the agents also had probable cause to search the vehicle in the driveway. See United States v. Roberson, 439 F.3d 934, 940 (8th Cir. 2006).

         2. GPS Warrant and Wiretap

         The Magistrate Judge properly rejected Defendant's request to suppress the order for GPS tracking on the ground that Defendant provided no facts or legal argument in support of his motion. Inasmuch as Defendant's objection consists of nothing more than the bald assertion that “there was absolutely no legal basis for that legal mechanism, ” (ECF No. 895, at 9), the ...


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