United States District Court, D. North Dakota
ORDER DENYING DEFENDANT'S MOTION TO
L. HOVLAND, CHIEF JUDGE
the Court is a motion to suppress evidence filed by Defendant
Byron Brown on March 26, 2019. See Doc. No. 62. On
April 9, 2019, the Government filed a response in opposition
to the motion. See Doc. No. 71. Brown did not file a
reply. For the reasons set forth below, the Court denies
Brown's motion to suppress.
March 6, 2019, a federal grand jury indicted the Defendant,
Byron Brown, on one count of conspiracy to possess with
intent to distribute and distribute controlled substances;
two counts of possession with intent to distribute a
controlled substance; one count of possession of a firearm in
furtherance of a drug trafficking crime; and one count of
possession of firearms by a convicted felon. See
Doc. No. 2. On March 26, 2019, Brown filed a motion to
suppress evidence obtained as a result of a search warrant.
See Doc. No. 62. On June 5, 2019, a superseding
indictment adding a co-conspirator was filed. See
Doc. No. 86.
February 12, 2019, Bismarck Police Department Detective Jerry
Stein received a call from a source who wished to remain
anonymous. Prior to the call, Detective Jerry Stein was
working on a long-term investigation of heroin and
methamphetamine trafficking into the Bismarck area. The
anonymous individual provided information that a black male
was coming to Bismarck from Minneapolis on the bus at 2:00
a.m. and that he was staying at the Quality Inn. This
information led law enforcement to check the Quality
Inn's guest registration, which lists the name and rooms
of everyone staying at the hotel. Georgianna Hepperle's
name was registered to room 305. Law enforcement recognize
Ms. Hepperle's name and were aware she had been involved
in drug-related activity in the past.
Hepperle was under the supervision of North Dakota Parole and
Probation and was subject to a search clause. Law enforcement
decided to conduct a probationary search of Ms.
Hepperle's hotel room. Law enforcement, along with a
probation officer, knocked on the door and announced their
presence. A black male, later identified as Byron Brown,
answered the door and “quickly engaged in tumultuous
behavior with the police.” See Doc. No. 62, p.
2. Officers noticed a strong odor of marijuana. Id.
They observed an unzipped backpack sitting on a chair
containing a substance appearing to be methamphetamine in
excess of a quarter pound and a smaller plastic baggy that
appeared to contain approximately one ounce of heroin.
See id.; see also Doc. No. 71-1, p. 7.
officers realized nobody else was in the hotel room,
including Ms. Hepperle, they stopped the probation search,
froze the scene, and sought a search warrant. Detective Jerry
Stein with the Bismarck Police Department provided testimony
to South Central Judicial District Court Judge Dan Borgen.
See Doc. No. 71-1. In support of his request for a
search warrant, Detective Jerry Stein testified that, upon
entering the hotel room, Stein smelled the odor of marijuana
and observed what appeared to be large quantities of both
methamphetamine and heroin in plain view. See Doc.
No. 71-1, p.7. Judge Borgen granted the search warrant after
making a finding of probable cause based upon “an
anonymous tip that led the officers to a probation search,
odor of marijuana, large quantities of drugs in plain view
that are indicative of dealing along with the fact that the
tip was originally that someone would be coming in to
deal.” See Doc. No. 71-1, pp.1011. Law
enforcement returned to the Quality Inn to execute the search
warrant. During the search of the black backpack, officers
located a 9mm handgun, three bags of methamphetamine, a zip
lock bag of heroin, a digital scale, a large amount of U.S.
Currency, an opened box of zip lock bags, and a cellphone.
See Doc. No. 62, p. 6.
argues the evidence seized pursuant to the search warrant
should be suppressed because the search warrant was not
issued by a neutral and detached magistrate and it was not
based on reliable information. The Government disagrees and
alternatively argues that if the search warrant was somehow
defective, the good-faith exception to the exclusionary rule
should apply. The Fourth Amendment to the Constitution of the
United States provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Const. amend. IV; see also Johnson v. United States,
333 U.S. 10, 13 (1948). However, the Fourth Amendment says
nothing about suppressing evidence obtained in violation of
its command. “The judicially-created exclusionary rule
precludes admission of unlawfully seized evidence in criminal
trials.” Thompson v. Carthage Sch. Dist., 87
F.3d 979, 981 (8th Cir. 1996). The exclusionary rule
“is a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent
effect [against police misconduct], rather than a personal
constitutional right of the party aggrieved.”
United States v. Calandra, 414 U.S. 338, 348 (1974).
general rule is that the government must secure a warrant
before conducting a search. United States v.
Alberts, 721 F.2d 636, 638 (8th Cir. 1983). “The
Fourth Amendment requires a showing of probable cause to
support a search warrant.” United States v.
Gabrio, 295 F.3d 880, 882 (8th Cir. 2002).
“Probable cause exists if the warrant application and
affidavits describe circumstances showing a fair probability
that contraband or evidence of a crime will be found in a
particular place . . . .” United States v.
Keele, 589 F.3d 940, 943 (8th Cir. 2009) (quoting
United States v. Montes-Medina, 570 F.3d 1052, 1059
(8th Cir. 2009)). After a judicial officer has issued a
search warrant upon a finding of probable cause, “that
finding deserves great deference.” Walden v.
Carmack, 156 F.3d 861, 870 (8th Cir. 1998).
WHETHER JUDGE BORGEN WAS A NEUTRAL AND DETACHED
contends that Judge Borgen was not a neutral and detached
magistrate when he granted the search warrant. Under the
Fourth Amendment, a search warrant must be issued by a
neutral and detached magistrate instead of being judged by
the officers engaged in the competitive enterprise of
ferreting out crime. Johnson, 333 U.S. at 14. A
neutral and detached magistrate is someone independent of the
police and prosecution. Shadwick v. City of Tampa,
407 U.S. 345, 350 (1972). A magistrate failing to
“manifest that neutrality and detachment demanded of a
judicial officer when presented with a warrant
application” and who acts instead as “an ...