United States v. Ryan Thompson ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3381
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Ryan Isiah Thompson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: June 18, 2020
Filed: October 1, 2020
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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KELLY, Circuit Judge.
Ryan Thompson entered a conditional plea of guilty to one count of possession
with intent to distribute heroin and one count of possession of a firearm in furtherance
of a drug trafficking crime and reserved his right to appeal the district court’s1 denial
of his motions to suppress. Finding no basis for reversal, we affirm.
I.
In early February 2018, a person identified in the record as ABC contacted St.
Paul Police Department Officer Shawn Longen with information that Thompson was
involved in heroin trafficking and that he also had firearms. More specifically, ABC
told Longen the following:
• Thompson drove his car and took bus trips from St. Paul to
Chicago to pick up heroin for distribution in St. Paul.
• Thompson had been arrested in Illinois and Minnesota for
drug-related crimes.
• Thompson lived at 677 Wells Street and had “a couple of
firearms” in the apartment.
• Thompson drove a silver van and a green Nissan Maxima with
the license plate AKS 918.
ABC also shared with Longen a video he had taken of Thompson in Thompson’s
apartment. The video showed stacks of money on a black case, a black handgun, a
second firearm, and Thompson sitting on a couch with baggies containing “what
appeared to be controlled substances.”
Longen followed up on ABC’s information by confirming Thompson’s age,
which ABC had discussed, and checking information about the green Nissan, which
he learned was registered to Thompson, although not at the 677 Wells address. He
also confirmed that Thompson had been arrested in Illinois and Minnesota for drug-
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, adopting in part the report and recommendation of the Honorable
Katherine Menendez, United States Magistrate Judge for the District of Minnesota.
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related offenses. When Longen showed an unlabeled photo of Thompson to ABC,
ABC identified the person in the photo as Thompson. Longen then began conducting
surveillance at 677 Wells, where he saw Thompson driving the green Nissan.
In late February 2018, ABC told Longen that Thompson had recently been
stopped by the Wisconsin State Patrol (WSP). Longen contacted the WSP and
verified that Thompson had been stopped while driving the green Nissan and was
arrested for possession of marijuana. ABC also gave Longen an audio recording of
a conversation he had with Thompson in which Thompson talked about the WSP
traffic stop. In the audio, Thompson said that he had marijuana in the car and on his
person, and that it would have been “much worse . . . if he would have had the work
with him.” In this conversation, Thompson also discussed “licks” and “zips,” and
said he had a “whoop” locked inside the glove box at the time of the stop.2
On February 28, 2018, Longen applied for a search warrant to place a GPS
tracking device on Thompson’s green Nissan. On the same day, Longen also applied
for an “order” authorizing “the installation and use of a pen register, trap device, and
electronic tracking device to include GPS location and Real Time Tool Data (RTT)”3
for a cell phone number ending in 0727, a number ABC said Thompson used in
connection with drug trafficking and to communicate with ABC.
A state court judge granted the warrant authorizing the GPS tracking device
and issued the requested order for the 0727 cell phone number. In the order, the
issuing judge found, “on the basis of the information submitted by the applicant, that
2
Longen testified at the evidentiary hearing that “work” was a common term
for drugs; that “licks” was a common term for customers; that “zips” was slang for
ounces; and that “whoop” was slang for a gun.
3
The parties do not provide a definition of RTT or an explanation of its
purpose.
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there is probable cause to believe that the information likely to be obtained by such
installations and use is relevant to ongoing criminal investigation into possible
violation(s) by RYAN ISIAH THOMPSON (DOB XX/XX/XXXX) for facilitating
the distribution of heroin in the Twin Cities metropolitan area.” It further provided
that law enforcement:
may install and use a pen register, trap and trace device,
and electronic tracking device to include GPS location, and
Real Time Tool Data (RTT) . . . [to] track the location
and/or movement of the phone for the time period of
February 28, 2018 and extending sixty (60) days past the
date of this Order; and to provide the following
information:
1. Stored Voice Message(s)/Voice mail
2. Stored SMS and MMS data, Text of Text, or other stored
messaging data and images;
3. Provide a “Locator Tool which uses Precision Location
and GPS, based on Probable Cause”;
4. Cell site activations;
...
10. An engineering map, showing all cell-site tower
locations/addresses, sector and orientations;
11. The physical address/location of all cellular towers in
specified market
ABC continued to provide information throughout March 2018. He updated
Longen on Thompson’s daily activities and said that Thompson would be making a
trip to Chicago soon to pick up heroin. On March 5, 2018, GPS tracking data showed
the green Nissan traveling to Chicago, remaining there for approximately 20 minutes,
and then returning west toward St. Paul. Based on this information, St. Paul police
officers stopped the car. They called for a drug-detection dog, and the dog alerted to
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the center console. Officers searched but found nothing, and Thompson was allowed
to leave.
On March 6, 2018, ABC gave Longen another audio recording. In this 20-30
minute recording, Thompson discussed the March 5 traffic stop. He said he thought
he was under investigation and that law enforcement might be monitoring his phones.
He suspected that people were informing on him and discussed the need to distance
himself from others, including ABC. Thompson also mentioned “letting things cool
off” for 90 days because that was the amount of time he thought “they have [] to
investigate me,” and he talked about how “he picked up on the surveillance vehicles
that were following him on I-94.” He was worried when the drug-detection dog
alerted on the car because he had “a whole hundred” on him. He thought that the
reason the officer was unable to feel where he had hidden the heroin was because the
officer wore gloves. He also bragged that his product was “the best dope for the
cheapest price.”
In early March, ABC became a paid informant. Shortly thereafter, he told
Longen the reason he was providing information was that he wanted Longen’s help
in reducing his probation term.
Also in early March, ABC told Longen that Thompson had purchased a newer,
silver Nissan Maxima with tinted windows. According to ABC, Thompson decided
to leave the green Nissan in Chicago because law enforcement had already stopped
that car twice. ABC also said Thompson had a new cell phone number ending in
3045. Based on this information, Longen applied for a warrant to install a GPS
tracking device on the silver Nissan and for an “order” to permit tracking of the 3045
number. On April 2, 2018, a state court judge approved both applications and issued
the related warrant and order. The applications for the warrant for the silver Nissan
and the order for cell phone number 3045 included information Longen had gathered
since February 28, but were otherwise nearly identical to those submitted for the
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green Nissan and for cell phone number 0727. Longen placed the tracker on the
silver Nissan on April 5.
Thompson subsequently made several trips to Chicago. On April 13, GPS
tracking showed that Thompson drove to the St. Paul bus station, and surveillance
video showed him boarding a Megabus to Chicago. On April 16, Thompson returned
to the St. Paul bus station, got into the silver Nissan, and drove away. Tracking
information also showed that the silver Nissan traveled to Chicago on April 20 and
returned on April 22. On May 3, Thompson took another trip to Chicago on a
Megabus. Based on the phone tracking, law enforcement determined that he
remained in Chicago for a few days before traveling toward St. Paul.
Officers believed Thompson would be returning to St. Paul with heroin he
picked up in Chicago. On May 6, 2018, Longen and other officers set up surveillance
at the St. Paul bus station to watch for Thompson’s return. Officers saw Thompson
exit a Megabus with a sling-style bag and then get into the driver’s seat of the silver
Nissan. A woman, who had driven the car to the station, moved over to the passenger
seat. The two drove away from the station.
Longen decided to stop Thompson’s car and asked Officer Whitney to conduct
the stop. Longen informed Whitney in advance that Thompson was known to carry
firearms and that he was suspected of possessing heroin.
Whitney stopped Thompson minutes after he left the station. Whitney told
Thompson he stopped him because his car had tinted windows and no license plates.
He then asked Thompson “[w]here you guys comin’ from?” Thompson responded
that he had just dropped off his young daughter and that he and his passenger, JLJ,
were going to get something to eat. Whitney asked Thompson to turn off his engine
because he was having trouble hearing him.
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Whitney then asked Thompson to “step out” of the car and said “you’re not
under arrest or anything at this point.” He “pat-searched” Thompson for weapons and
found none. He did not read Thompson his rights pursuant to Miranda.4 Whitney
asked Thompson if there was anything illegal in the car, and Thompson responded
there was not. Whitney also asked JLJ to “step out” of the car and he explained to
Thompson that he was “just gonna run the dog around the car.” Thompson objected,
saying “this is an illegal search and seizure.” Before the dog-sniff, the following
exchange took place:
Whitney: But if there’s nothin’ in the car for you to worry
about . . . then it’s all good and then you’ll be on your way
in five seconds.
Thompson: Well, this is what I was gonna to say.
Whitney: Yep.
Thompson: My girls have their guns license.
Whitney: A what?
Thompson: She has a gun license.
Whitney: Okay. Is there a gun in the car?
Thompson: Yeah, but she has a gun license.
...
Whitney: Where is that? Where’s the gun at?
Thompson: It’s in the front seat in her bag.
4
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
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The drug-detection dog circled the car but did not alert. When Longen arrived,
however, he found heroin hidden near the car’s center console. Whitney found a
firearm in the sling-style bag near the front seat. Thompson was arrested.
Longen then applied for and obtained another search warrant, this time for the
residence at 677 Wells. There, officers found a handgun, extended magazines, the
black case seen in the video ABC took of Thompson, a bullet-style mixer with a white
residue inside it, ammunition, and documents linking Thompson to the apartment.
Thompson moved to suppress the evidence seized pursuant to both GPS
vehicle warrants, both cell phone tracking orders, the May 6 traffic stop, and the
search of his apartment. He also moved to suppress statements he made during the
traffic stop. The district court determined that probable cause supported the warrants
and orders and that, in any event, the Leon good-faith exception would apply. It
denied in part Thompson’s motion to suppress his statements.5 Thompson appeals.
II.
When reviewing a district court’s decision on a motion to suppress, we review
the district court’s factual findings for clear error and its legal conclusions de novo.
United States v. Clay, 646 F.3d 1124, 1127 (8th Cir. 2011). We also review de novo
the district court’s application of the Leon good-faith exception to the exclusionary
rule and may consider the applicability of the good-faith exception before reviewing
the existence of probable cause. Id.5
The district court suppressed several of Thompson’s statements that it
determined were elicited in violation of Thompson’s Miranda rights. The
government has not appealed that ruling.
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A.
Thompson argues that both GPS vehicle warrants lacked probable cause. The
affidavits6 in support of both warrants included information that Thompson was
“involved in the sale and distribution of heroin.” They provided the address where
Thompson sold and stored heroin and described weekly trips to Chicago to “pick up
a large amount of heroin from a source.” Thompson contends that the warrant
applications relied “entirely on the untested word of a concerned citizen with whom
Officer Longen had never worked before,” and thus lacked a substantial basis for
finding probable cause.
It is true that neither application provided information about who ABC was or
why ABC was providing information to law enforcement. Nor did they describe why
Longen considered ABC to be reliable. See United States v. Faulkner, 826 F.3d
1139, 1144 (8th Cir. 2016). But the applications included details about Thompson
that Longen was able to corroborate, including Thompson’s age and appearance, his
address, and the car he was driving. Through surveillance, Longen confirmed that
Thompson was driving first the green Nissan and then the silver Nissan. ABC also
told Longen that Thompson had a prior drug-related criminal history, which Longen
was able to confirm, and this information was included in both applications. The
application for the silver Nissan included additional corroboration for ABC’s
information and said that the green Nissan had been seen in an area of Chicago
controlled by individuals involved in heroin distribution. We note that the magistrate
judge described the warrant applications for the vehicles as “thin.” But we agree that,
giving due deference to the issuing judge, the warrants were supported by adequate
probable cause. See id. at 1145 (giving deference to the magistrate judge and finding
the warrants were proper but noting that it was “a close call”).
6
The affidavit for the silver Nissan largely duplicated the affidavit for the green
Nissan, with the addition of information gained through further investigation and
information about the purchase of the silver Nissan.
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Even if the warrants lacked probable cause, however, the Leon good-faith
exception applies to the vehicle warrants. See United States v. Leon, 468 U.S. 897(1984). Under the good-faith exception, evidence should be suppressed “only if the
affiant-officer could not have harbored an objectively reasonable belief in the
existence of probable cause.” United States v. Gibson, 928 F.2d 250, 254 (8th Cir.
1991). Courts must “look at the objectively ascertainable question of whether a
reasonably well trained officer would have known that the search was illegal despite
a judge’s issuance of the warrant.” United States v. Jackson, 784 F.3d 1227, 1231
(8th Cir. 2015). Courts must also “look to the totality of the circumstances, including
any information known to the officers but not presented to the issuing judge” when
assessing good-faith. United States v. Marion, 238 F.3d 965, 969 (8th Cir. 2001)
(cleaned up).
According to Thompson, Longen could not have reasonably believed the
warrant was valid. He argues that Longen’s applications inaccurately referred to
ABC as a “concerned citizen” and omitted ABC’s criminal history, status as a paid
informant, and desire to obtain a shorter probationary period for his cooperation—all
to bolster ABC’s credibility. Thompson also alleges that Longen failed to conduct
controlled buys from him and that, based on his 18 years of experience as an officer,
“Longen should have known that his search warrant application did not have probable
cause to monitor the location of Mr. Thompson’s vehicles.” See Leon, 468 U.S. at
923 (good-faith exception does not apply if the warrant is so facially deficient that no
police officer would reasonably presume the warrant to be valid).
Thompson’s arguments are not enough to show that Longen lacked an
objectively reasonable belief that probable cause existed for the vehicle warrants. See
Gibson, 928 F.2d at 254. Prior to seeking the warrants, Longen watched a video of
Thompson at his apartment with firearms and what appeared to be baggies of
controlled substances. He also heard a recording of Thompson discussing his WSP
stop and how Thompson was glad he had no “work” in the car. After the warrant for
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the green Nissan was issued, ABC provided another recording in which Thompson
discussed how he had drugs in the car during the March traffic stop and that he had
“the best dope.” Although Longen did not include information he learned from the
video and recordings in his applications, as the district court noted, “[t]he videos and
audio recordings strongly bolstered Officer Longen’s belief in the validity of the
warrant[s].”
Longen also reasonably believed that ABC was a reliable informant. ABC
personally observed Thompson with heroin and had firsthand knowledge of his
movements. See United States v. Ellison, 793 F.2d 942, 946 (8th Cir. 1986) (finding
it significant that the informants personally observed the reported activity). ABC also
provided Longen with video evidence that supported his information. See United
States v. Solomon, 432 F.3d 824, 828 (8th Cir. 2005) (noting the informant “provided
the officers with printed-out photos from Solomon’s bedroom consistent with the
photos she had previously described”). In addition, Longen met ABC in person,
which can “strengthen an officer’s decision to rely on the information provided.”
United States v. LaMorie, 100 F.3d 547, 553 (8th Cir. 1996).
Thompson also challenges the constitutionality of the cell phone orders. He
reminds us that law enforcement needs a warrant based on probable cause to access
cell phone location records. See Carpenter v. United States, 138 S. Ct. 2206, 2221
(2018). Here, Longen obtained “orders,” not warrants. Moreover, the cell phone
orders cite authorizing statutes that require a standard lower than probable cause for
the information they seek. See 18 U.S.C. § 3123(a) (requiring certification by the
applicant “that the information likely to be obtained . . . is relevant to an ongoing
criminal investigation”); 18 U.S.C. § 2703(d) (requiring “specific and articulable
facts showing that there are reasonable grounds to believe that the . . . information
sought[ is] relevant and material to an ongoing criminal investigation”); Minn. Stat.
§ 626A.37 (requiring a finding “that there is reason to believe that the information
likely to be obtained . . . is relevant to an ongoing criminal investigation”). See also
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Carpenter, 138 S. Ct. at 2221 (showing required for a search pursuant to § 2703(d)
is a “‘gigantic’ departure from the probable cause rule”).
We agree that probable cause was required for the cell phone orders. See Riley
v. California, 573 U.S. 373, 386 (2014). But even if the cell phone orders lacked
probable cause, that is, “a fair probability that contraband or evidence of a crime will
be found in a particular place,” we agree with the district court that the good-faith
exception applies. See Illinois v. Gates, 462 U.S. 213, 238 (1983). Thompson does
not challenge this ruling on appeal. Nevertheless, we note that Carpenter had not yet
been decided at the time Longen applied for the cell phone orders. Longen used an
application form that would soon be out of date, but the application he used included
the words “probable cause,” and it was reasonable for him to rely on the various
statutes cited in the orders as authorization. See Illinois v. Krull, 480 U.S. 340, 354-
55, 360 (1987). This, coupled with the evidence from ABC and the investigation
concerning Thompson’s use of his phones and his travels, leads us to conclude that
Longen reasonably believed probable cause existed for the cell phone orders.
B.
Next Thompson argues that officers lacked probable cause to stop and search
his car or to arrest him on May 6 because Longen relied “solely . . . on information
from the informer” that Thompson was trafficking heroin and had no corroborating
evidence supporting these allegations. To the contrary, we agree with the district
court that law enforcement had probable cause to stop and search the car based on the
evidence obtained from the investigation. Prior to this time, officers had verified
information provided by ABC, conducted independent surveillance of Thompson, and
tracked his movements over several weeks. They also had knowledge of the video
and audio recordings of Thompson that ABC had provided. In sum, the evidence
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gathered over the course of the investigation was sufficient to establish probable
cause. Once the officers found heroin in Thompson’s car, they had probable cause
to arrest him.7
C.
Thompson argues that the statements he made during the May 6 traffic stop
should be suppressed because he made them while in custody without being provided
with Miranda warnings.8 Miranda requires that before custodial interrogation, a
person be advised of their right to be free from compulsory self-incrimination and to
assistance of counsel. Miranda, 384 U.S. at 444. Statements made during custodial
interrogation are generally suppressed if no Miranda warnings were provided. See
id. It is undisputed that Thompson was not read Miranda warnings before he made
the statements at issue.
Thompson’s only argument on appeal is that because he was in custody, all of
his statements should be suppressed. As relevant on appeal, the district court
determined that three sets of statements were admissible. First, we consider the
statements Thompson made during the initial minutes of the stop before he got out
of the car. We agree with the district court that these statements were admissible
7
Thompson also argues that the stop and search of his car and his subsequent
arrest were fruits of the unlawful warrants and orders. Because we conclude that the
warrants and orders were lawful, this argument necessarily fails. Thompson further
argues that the search warrant for his home was fruit of the illegal May 6 traffic stop
and search. Because we conclude that the traffic stop and search were supported by
probable cause and were not fruits of unlawful warrants or orders, this argument also
fails.
8
Thompson also argues that his statements should be suppressed as fruits of the
unlawful traffic stop. Because we conclude that the traffic stop and search of the car
were supported by probable cause and were not fruits of unlawful warrants or orders,
this argument necessarily fails.
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because a person would not have reasonably believed he was in custody at that time.
See United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990) (“Custody occurs
either upon formal arrest or under any other circumstances where the suspect is
deprived of his freedom of action in any significant way.”). An ordinary traffic stop
does not constitute custody for purposes of Miranda because “a traffic stop is
presumptively temporary and brief” and “circumstances associated with the typical
traffic stop are not such that the motorist feels completely at the mercy of the police.”
Berkemer v. McCarty, 468 U.S. 420, 437–38 (1984). While Thompson was in the
car, there was insufficient indication that his “freedom of action” had been “curtailed
to a degree associated with formal arrest.” See Griffin, 922 F.2d at 1347 (cleaned
up). At that point, Whitney had stopped Thompson for only a few minutes and asked
him fairly routine questions, such as where he had been and where he was going. See
Berkemer, 468 U.S. at 439 (noting that officers may ask “a moderate number of
questions to determine [the person’s] identity and to try to obtain information
confirming or dispelling the officer’s suspicions” during a typical traffic stop).
Second, we consider Thompson’s responses to the questions, “Is there anything
illegal in the car,” “Is there a gun in the car,” and “Where’s the gun at?” We agree
with Thompson that he was in custody when he made these statements. But the
district court concluded that the statements were nevertheless admissible under the
public-safety exception. See New York v. Quarles, 467 U.S. 649, 657 (1984)
(determining that the “need for answers to questions in a situation posing a threat to
the public safety outweighs the need for the prophylactic rule protecting the Fifth
Amendment’s privilege against self-incrimination”). We agree, and Thompson offers
no argument to the contrary.
Third, Thompson made statements about a gun license after he exited the car.
Whitney, before sending the drug-detection dog around the car, said “if there’s
nothin’ in the car for you to worry about . . . then it’s all good and then you’ll be on
your way in five seconds.” Thompson then stated, “Well, this is what I was gonna
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say. My girls have their gun license.” Without addressing whether Thompson was
in custody, the district court found these statements were voluntary. See United
States v. Hatten, 68 F.3d 257, 262 (8th Cir. 1995) (“A voluntary statement made by
a suspect, not in response to interrogation, is not barred by the Fifth Amendment and
is admissible with or without the giving of Miranda warnings.” (cleaned up)).
Thompson makes no argument on appeal that this ruling was in error.
III.
We affirm the judgment of the district court. Thompson has filed a motion for
leave to file a pro se supplemental brief “to provide additional legal authority
regarding the issues presented for appeal.” Finding the counseled briefing adequate
in this regard, the motion is denied.
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