USA v. Rogers
Criminal

REPORT AND RECOMMENDATION as to Buford Braden Rogers recommends {{33}} MOTION to Suppress Evidence Obtained as a Result of May 3, 2013 Search and Seizure be DENIED, recommends {{31}} MOTION to Suppress May 3, 2013 Statements, Admissions, and Answers be DENIED. Objections to R&R due by 9/13/2013 R&R Ruling due by 9/30/2013. Signed by Magistrate Judge Jeanne J. Graham on 8/29/13.

District of Minnesota, mnd-0:2013-cr-00130-132002

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CASE 0:13-cr-00130-ADM-JJG Document 71 Filed 08/29/13 Page 1 of 20 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA _________________________________ United States of America, Case No. 13-cr-130 (ADM/JJG) Plaintiff, v. REPORT AND RECOMMENDATION Buford Braden Rogers, Defendant. _________________________________ JEANNE J. GRAHAM, United States Magistrate Judge This matter is before the undersigned United States Magistrate Judge on Defendant Buford Braden Rogers' Motion to Suppress May 3, 2013 Statements, Admissions, and Answers (ECF No. 31) and Motion to Suppress Evidence Obtained as a Result of the May 3, 2013 Search and Seizure (ECF No. 33). The Court held a hearing on the motions on July 23, 2013. Andrew R. Winter and Charles J. Kovats, Jr. appeared on behalf of the United States of America, and Andrew H. Mohring appeared on behalf of Defendant Buford Braden Rogers. For the reasons set forth below, the Court recommends that both motions be denied. Defendant Buford Braden Rogers ("Rogers") was indicted on May 21, 2013, with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and three counts of possession of unregistered destructive devices—namely, two Molotov Cocktails, two black powder and nail devices, and a pipe bomb—in violation of 26 U.S.C. §§ 5861(d) and 5871. This Court held an evidentiary hearing on Rogers' motions to suppress evidence and statements on July 23, 2013. At that hearing, the Government called FBI Agent Shane Ball to testify. The Government also offered the following exhibits into evidence CASE 0:13-cr-00130-ADM-JJG Document 71 Filed 08/29/13 Page 2 of 20 for the limited purpose of the suppression hearing: Government Exhibit 1—a search warrant executed on May 3, 2013, and related paperwork; Government Exhibit 2—a digital videorecording of an interview of Rogers; Government Exhibit 3—a transcript of that interview; and Government Exhibit 4—an Advice of Rights form. At the conclusion of the hearing, the parties requested an opportunity to submit post-hearing memoranda on Rogers' motion to suppress statements, which the Court granted. The Court took both suppression motions under advisement on August 7, 2013, after briefing was completed. I. Rogers' Motion to Suppress Evidence Seized Pursuant to the Search Warrant Executed on May 3, 2013 A team of law enforcement officers executed a search warrant at 1204 Benson Road, Lot 8, in Montevideo, Minnesota ("Benson Road"), on May 3, 2013. (Gov't Ex. 1 at 1.) The location was described as a residential trailer home, a storage shed, and other storage buildings or vehicles on the property. (Id.) Rogers moves to suppress the evidence seized pursuant to the warrant on the ground that the warrant was issued without probable cause. A. Probable Cause Rogers' motion to suppress evidence should be denied because probable cause existed for the issuance of the search warrant. Rogers does not identify any particular deficiency with the probable cause determination by the issuing judge, and the Court presumes Rogers simply wants the Court to review the four corners of the supporting affidavit. The probable cause standard is a "practical, nontechnical concept[]." Brinegar v. United States, 338 U.S. 160, 176 (1949). The duty of the judge who signs the warrant is "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). The affidavit must establish a 2 CASE 0:13-cr-00130-ADM-JJG Document 71 Filed 08/29/13 Page 3 of 20 "nexus. . . between the item to be seized and criminal behavior." Warden v. Hayden, 387 U.S. 294, 307 (1967). There must also be a nexus between the contraband and the place to be searched. United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000). In reviewing a search warrant for probable cause, the Court must give "great deference" to the issuing court's original determination. Gates, 462 U.S. at 236 (quotation omitted). If the issuing judge relied solely on the affidavit in assessing probable cause for the warrant, the reviewing court may consider "only that information which is found within the four corners of the affidavit. . . in determining the existence of probable cause." United States v. Leichtling, 684 F.2d 553, 555 (8th Cir. 1982). FBI Agent Marc Rensch swore the affidavit in support of the warrant. Agent Rensch averred that an individual referred to as "Witness 1" had informed an FBI agent in San Antonio, Texas, on May 2, 2013, that Rogers and his family were planning to destroy a radio tower or communications equipment in the City of Montevideo, raid the National Guard armory, and attack the Montevideo police station. Witness 1 had met Rogers in Arizona in the fall or winter of 2012, and after a conversation about their shared dissatisfaction with the economy and the government, Witness 1 moved to Minnesota and lived with Rogers' parents. While in Minnesota, Witness 1 learned that Rogers, his brother, and his parents were members of the Black Snake Militia and carried weapons at all times. Witness 1 further learned that Rogers stored numerous weapons and explosive devices in a storage shed outside his parents' home and in a toolbox inside the home. Witness 1 was able to describe the various weapons he had seen. According to Witness 1, Rogers also possessed homemade napalm, Molotov cocktails, homemade thermite, C4, and other explosive materials. Witness 1 saw Rogers personally detonate several explosives. On April 28 or 29, 2013, Rogers told Witness 1 that he planned to attack the City of Montevideo the next weekend. After Witness 1 balked at participating, Witness 1's girlfriend heard Rogers 3 CASE 0:13-cr-00130-ADM-JJG Document 71 Filed 08/29/13 Page 4 of 20 say that "Witness 1 'knew too much' so they had to 'take him out.'" (Gov't Ex. 1, Rensch Aff. ¶ 7(h).) Witness 1 and his girlfriend immediately left Minnesota and fled to San Antonio, where Witness 1 contacted the FBI. According to Agent Rensch's affidavit, on May 2, 2013, Agent Rensch learned that a citizen of Montevideo, who was also a friend of the Rogers family, had reported the following information to the Montevideo Police Department on February 8, 2013. This individual, identified in the search warrant affidavit as "Witness 2," saw Rogers and his father arrive at the Benson Road address and carry four rifle cases into the trailer home. Witness 2 saw a long gun stock protruding from one of the cases. Witness 2 had previously seen Rogers and his father "training" several times outside the Benson Road trailer, throwing knives at targets, practicing "takedown moves," and engaging in hand-to-hand combat. Based on the information obtained from Witness 1 and Witness 2 and Agent Rensch's independent investigation, Agent Rensch requested a search warrant to seize firearms, ammunition, explosives, chemicals, military ordnance, cords, fuses, gas cans, detonators, fuel, fertilizer, and other similar items, as well as documents, personal property, and other materials related to such items. He averred the items would constitute evidence of crimes as defined under 18 U.S.C. §§ 842(a)(1), 842(a)(3)(A), 842(a)(3)(B), 922, and 2332f(2). The Court has reviewed the affidavit and finds it provided probable cause to believe that law enforcement would find contraband or evidence of a crime in the residence, storage buildings, or vehicles located at the Benson Road address. The affidavit established a nexus between the items to be seized and the crimes specified in the application. The affidavit also established a nexus between the items and location to be searched. Accordingly, Rogers' Motion 4 CASE 0:13-cr-00130-ADM-JJG Document 71 Filed 08/29/13 Page 5 of 20 to Suppress Evidence Obtained as a Result of the May 3, 2013 Search and Seizure should be denied. B. Expectation of Privacy 1 Agent Ball testified at the hearing that Rogers' parents, brother, and a person named Dylan lived at the Benson Road residence and that Rogers did not live there. (Mot. Hr'g Tr. 46:4-15, 47:6-13, July 23, 2013) [hereinafter Tr.]. At the time the warrant was executed, Agent Ball knew Rogers lived elsewhere. (Tr. 46:16-20.) Rogers was not at his parents' home when the warrant was executed, but was taken into custody at his own residence while the search was underway. (Tr. 43:22-25, 44:1-4, 49:4-12.) To prevail on a Fourth Amendment challenge to a search or seizure, "the defendant must show that (1) he has a reasonable expectation of privacy in the areas searched or the items seized, and (2) society is prepared to accept the expectation of privacy as objectively reasonable." United States v. Skoda, 705 F.3d 834, 837 (8th Cir. 2013) (quoting United States v. Ruiz-Zarate, 678 F.3d 683, 689 (8th Cir. 2012)). The defendant bears the burden to establish each element. See United States v. James, 534 F.3d 868, 872-73 (8th Cir. 2008). An individual has no legitimate expectation of privacy in his or her parents' home when he or she does not live there. Skoda, 705 F.3d at 837. Rogers has not claimed an expectation of privacy in the Benson Road residence or in any of the items seized. The only relevant evidence before the Court is that Rogers' parents and brother lived at the Benson Road address, that Rogers neither lived there nor was present at the time of the search, and that Rogers lived at a different address. Although the FBI believed that 1 Neither party discussed whether Rogers had a legitimate expectation of privacy in the Benson Road address or the items seized, and the Court finds it an arguable question. Therefore, the Court will briefly address the issue. 5 CASE 0:13-cr-00130-ADM-JJG Document 71 Filed 08/29/13 Page 6 of 20 Rogers was storing weapons and explosive devices at the Benson Road property, according to the information obtained from Witness 1, Rogers has not claimed or shown a possessory or ownership interest in those items. Consequently, the Court finds that Rogers has not established a reasonable expectation of privacy in the area searched or the items seized. II. Rogers' Motion to Suppress May 3, 2013 Statements, Admissions, and Answers Rogers was interviewed by Agent Ball on May 3, 2013, during the execution of the search warrant. He moves to suppress statements made during the first part of the interrogation because he was not advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), prior to being questioned. Rogers does not argue that his statements were involuntary. The Government responds that Agent Ball was not required to advise Rogers of his Miranda rights, because the questioning fell under the public safety exception to Miranda recognized in New York v. Quarles, 467 U.S. 649 (1984). The Government concedes that Rogers' statements were the product of custodial interrogation. Approximately forty minutes into the interview, Agent Ball advised Rogers of his Miranda rights and continued to question him. Presuming that his pre-Miranda statements did not fall under the Quarles exception, Rogers moves to suppress his ensuing statements as obtained in violation of Missouri v. Seibert, 542 U.S. 600 (2004). The Government argues that since the pre-Miranda statements were obtained lawfully under Quarles, the Court need only assess the voluntariness of the post-Miranda statements and validity of the waiver. A. Background Based on the information provided by Witness 1, Agent Ball and other law enforcement personnel believed Rogers and others intended to attack the Montevideo police department, a communications tower, and/or the National Guard armory on May 4, 2013. (Tr. 16:5-8, 19-23.) 6 CASE 0:13-cr-00130-ADM-JJG Document 71 Filed 08/29/13 Page 7 of 20 Agent Rensch obtained the search warrant at 11:05 a.m. on May 3, 2013, and the warrant was executed shortl