United States v. Schermerhorn

71 F. Supp. 3d 948, 2014 U.S. Dist. LEXIS 176024, 2014 WL 7338806
CourtDistrict Court, E.D. Missouri
DecidedDecember 22, 2014
DocketCase No. 1:14CR00063 SNLJ
StatusPublished

This text of 71 F. Supp. 3d 948 (United States v. Schermerhorn) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Schermerhorn, 71 F. Supp. 3d 948, 2014 U.S. Dist. LEXIS 176024, 2014 WL 7338806 (E.D. Mo. 2014).

Opinion

ORDER

STEPHEN N. LIMBAUGH, JR., District Judge.

IT IS HEREBY ORDERED that the report and recommendation of United States Magistrate Judge Abbie Crites-Leoni (# 46), filed November 21, 2014 be and is SUSTAINED, ADOPTED and INCORPORATED herein

IT IS HEREBY ORDERED that Defendant’s Motion to Suppress Evidence and Statements (# 32) be DENIED.

REPORT AND RECOMMENDATION

ABBIE CRITES-LEONI, United States Magistrate Judge.

This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). Pending before the undersigned is Defendant Brett Raymond Schermerhorn’s Motion to Suppress (Doc. 32) evidence obtained as a result of the installation of a GPS device on his vehicle. Schermerhorn argues that the Warrant that authorized the installation of the GPS device was not supported by probable cause. To support this claim, he alleges that the Affidavit used to secure, the GPS Warrant “contained misleading facts and omitted crucial facts” (Doc. 42 at 2) and that the good faith exception does [952]*952not apply, id. at 8. Schermerhorn’s second claim is that the search of his vehicle following a traffic stop was unlawful, because it was the result of information obtained from the GPS tracking device. Id. at 11-13. Lastly, Schermerhorn claims the reasons for the traffic stop were “suspicious” thereby suggesting that.it was an unlawful traffic stop. Id. at 13. The Government filed a Brief in Opposition to Schermerhorn’s claims. (Doc. 34) Following an evidentiary hearing (Doc. 39), both parties submitted memoranda. (Docs. 42, 43)

In consideration of the pleadings identified above, as well as all exhibits admitted into evidence, the undersigned recommends that the .following findings of fact and conclusions of law be adopted and that the Defendant’s Motion to Suppress be denied.

I. Findings of Fact

Sometime in September 2013, the DEA received information from an informant that a man named Huy Nguyen was selling quantities of marijuana and he lived in the Cape Girardeau, Missouri area. The informant also identified where Nguyen worked and shared that Nguyen had recently posted images on social media websites that depicted a marijuana growing operation and large sums of U.S. currency. DEA agents set up fake social media accounts, “friended” Nguyen, and then confirmed that photos had been posted on Nguyen’s site that showed him smoking marijuana inside a marijuana grow operation, marijuana packaged for distribution, and a large amount of U.S. currency on a table. A second informant confirmed where Nguyen worked and that Nguyen drove a black Nissan Maxima, as well as the Arkansas license plate number for the vehicle.

On October 31, 2013, DEA agents began surveillance efforts of Nguyen at his place of employment. DEA Task Force Officer Alan Nobles observed that the Nissan Maxima described by the second informant was parked at Nguyen’s place of employment at 11:30 a.m. Additional officers were called to assist with surveillance. At approximately 2:04 p.m., a blue Honda Civic pulled into the parking lot of the business. Nguyen was observed exiting the business where he reportedly worked and made contact with the driver of the Civic, a white male. Following a brief conversation, Nguyen went back into the store. Nguyen then came out of the store again and entered the Civic. The next thing the officers observed was the Civic pulling out of the parking lot; they followed the car. The officers ran a records check for the license on the Civic and learned that it was registered to Brett Raymond Schermer-horn.

The Civic eventually travelled to an apartment building in Cape Girardeau and parked there at approximately 3:27 p.m. Both the driver of the car and the passenger, Nguyen, exited the car and entered the apartment building. Roughly ten minutes later, the driver and Nguyen exited the building and got back into the . Civic. Before sitting in the front passenger seat, Nguyen placed a duffel bag into the trunk of the Civic. Nguyen was not carrying the duffel bag when he and Schermerhorn went into the building.

The Civic was followed all the way to Blytheville, Arkansas. Around the time the Civic arrived in Blytheville, the surveillance officers lost sight of the Civic. Approximately fifteen minutes later, the officers located the Civic parked in front of a residence. Nguyen was standing in the street talking on his cell phone, several black males were on the front porch of the residence, but the driver was not seen. Additionally, Officer Nobles testified that he does not know what happened to the [953]*953duffel bag that was placed into the trunk of the Civic, or what was in the duffel bag.

Officer Nobles contacted the local DEA field office and learned that the residence where the Civic was parked was the focus of an ongoing investigation and was “believed to be at the center of a large scale marijuana and methamphetamine distribution operation.” (Gov’t. Ex. # 2 at ¶ 10.)

Based solely on the aforementioned information, Officer Nobles applied for a state search warrant to attach a GPS tracking device to the blue Honda Civic identified above. Officer Nobles’ Affidavit stated that the Civic was registered to a man named Brett Raymond Schermer-horn. The introduction of the Affidavit provided that Officer Nobles had “probable cause to believe that the driver and/or occupants of a certain motor vehicle have been involved in various narcotics related crimes.” Id. at ¶ 2.

On November 25, 2013, an Assistant Prosecutor prepared the Search Warrant Application (Gov’t. Ex. # 1) and Affidavit (Gov’t Ex. #2) for the GPS warrant as Officer Nobles relayed the details of the investigation, including providing a written synopsis of the case. When the search warrant package was complete, the Assistant Prosecutor asked Officer Nobles to ■review it for accuracy. Officer Nobles testified that he believed the information contained in his Affidavit was true. Officer Nobles indicated that after the search warrant package was prepared, he and the Assistant Prosecutor met with the state court judge. The Judge reviewed the search warrant package and then signed the Search Warrant, which provided, in part:

WHEREAS, an application for a search warrant in writing duly verified by oath, has been filed with the undersigned Judge of this Court, stating upon information and belief that the driver and/or occupants of a certain motor vehicle have been involved in various narcotics related crimes. These crimes include delivery of marijuana, a controlled substance, and possession of marijuana with intent to distribute. Subjects believed to have been involved in these crimes have been identified as Brett Raymond Schermerhorn and Huy T. Nguyen. It is further believed that these subjects have utilized, and are continuing to utilize a ... 2013 Honda Civic; blue in color; Missouri license plate no. WG1-U4A; registered to Brett Raymond Schermerhorn...
WHEREAS, the Judge of this Court, from the sworn allegations of. said Complaint and from the supporting written affidavit of Alan Nobles filed therewith, has found probable cause to believe the allegations of the complaint to be true and that probable cause exists for the issuance of a search warrant herein.

(Gov’t. Ex. # 3 at p.

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Bluebook (online)
71 F. Supp. 3d 948, 2014 U.S. Dist. LEXIS 176024, 2014 WL 7338806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-schermerhorn-moed-2014.