United States v. Elfred William Petruk

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3823
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Elfred William Petruk
lllllllllllllllllllllDefendant - Appellant
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No. 17-3824
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Elfred William Petruk
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the District of Minnesota - St. Paul
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Submitted: February 15, 2019
Filed: July 11, 2019
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Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
A jury convicted Elfred Petruk of one count of conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and
one count of possession with intent to distribute 500 grams or more of methamphet-
amine, in violation of § 841(a)(1) and (b)(1)(A). Petruk was serving a term of
supervised release for a prior conviction at the time he committed these offenses.
After sentencing him to concurrent 372-month terms of imprisonment on each
methamphetamine count, the district court1 revoked Petruk’s supervised release and
imposed a consecutive 30-month prison sentence. In these consolidated appeals,
Petruk challenges the district court’s2 pretrial denial of his motion to suppress
evidence and its posttrial revocation of supervised release.
I
Over a two-week period in September 2016, law enforcement officers across
two states obtained four warrants to search three vehicles associated with Petruk: a
1994 Chevrolet Camaro (Camaro), a 2001 Chevrolet Silverado pickup truck
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
2
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, adopting the report and recommendation of the Honorable Leo I.
Brisbois, United States Magistrate Judge for the District of Minnesota.
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(Silverado), and a 2005 Chrysler 300 (Chrysler). Three of the warrants permitted
officers to install Global Positioning System (GPS) tracking devices on each of the
vehicles. The fourth warrant allowed them to search the Chrysler. The affidavits
supporting each warrant application contained largely the same information, but
because Petruk challenges each warrant as unsupported by probable cause, we detail
below the information contained in each of the affidavits. See United States v.
O’Dell, 766 F.3d 870, 874 (8th Cir. 2014) (per curiam) (“When the issuing judge
relied solely upon the supporting affidavit to issue the search warrant, only that
information which is found within the four corners of the affidavit may be considered
in determining the existence of probable cause.” (cleaned up)).
On September 7, 2016, Investigator Scott Williams from the Lake Superior
Drug and Violent Crime Task Force applied for a warrant to install the GPS tracker
on the Camaro. His supporting affidavit detailed information that different officers
had received from four separate confidential informants (CI) connecting Petruk and
multiple vehicles to methamphetamine trafficking in the Duluth area. In July 2016,
CI-1 informed an officer that Petruk was selling large quantities of methamphetamine
and that Petruk primarily drove the Chrysler. The following month, CI-2 told another
officer that Petruk was “moving multiple pound quantities of methamphetamine and
[was] supplying other known methamphetamine dealers in the [Duluth] area.” CI-2
also said that Petruk drove the Chrysler. Also in August, another law enforcement
officer received a tip from CI-3 that Petruk had “teamed up” with other known
methamphetamine dealers in the area, whom the CI named. In September, CI-3 told
the same officer that Petruk “was in possession of a very large quantity of meth and
U.S. currency.” On both occasions, CI-3 told the officer that Petruk drove multiple
vehicles. Finally, CI-4 told Williams in August that Petruk was “moving a lot of
weight” of methamphetamine and “driving around in a black Chrysler 300 that ‘sticks
out,’” and in September told Williams that Petruk was “supplying the town with . . .
meth.” Williams’s affidavit stated that all four CIs said that Petruk’s large-scale
methamphetamine trafficking would “require him to re-up his supply often.” It also
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included the type of information each of the CIs had previously provided to law
enforcement, which had led to the issuance of multiple search warrants, the seizure
of contraband, and the arrest of numerous individuals on drug-related offenses.
According to Williams’s affidavit, officers had also independently corroborated
some of the information provided by the CIs, in particular with respect to Petruk’s
vehicles. In late July 2016, Duluth police officers pulled over the Chrysler, and
Petruk, who was riding in the passenger seat, claimed to own the car. In late August
and early September 2016, officers saw Petruk driving the Camaro with the Silverado
following closely behind, which led the officers to believe Petruk was conducting
countersurveillance to avoid detection. On one of the occasions, the Silverado was
driven by Gina Klobuchar. Officers knew Klobuchar was involved in the drug trade,
and they had received a tip that she might be working with Petruk.
Based on this information, Williams sought a warrant to place a GPS tracker
on the Camaro. The application stated that officers wanted to be “alerted when
Petruk makes trips out of town to re-up his supply” and to “track his movements to
other known drug dealers in the area.” A Minnesota state court judge issued the
warrant on September 7, 2016, and the GPS tracker was installed the next day.
A few days later, on September 12, Wisconsin District Attorney Daniel Blank
and Assistant District Attorney Jennifer Bork applied for a warrant to install a GPS
tracker on the Silverado. An affidavit by Todd Maas, an investigator for the Superior,
Wisconsin, police department, supported the warrant application. Maas’s affidavit
contained substantially the same information, almost verbatim, that was in Williams’s
affidavit for the Camaro GPS warrant. A Wisconsin state court judge issued the
warrant that same day, and the tracker was installed.
Also on September 12, Blank and Bork applied for a warrant to install a GPS
tracker on the Chrysler. That application was also supported by an affidavit from
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Maas. This affidavit was not identical to Maas’s affidavit for the Silverado GPS
warrant. It did, however, contain the information from all four CIs that Petruk was
involved in methamphetamine trafficking; the information from two CIs that Petruk
drove the Chrysler as his primary vehicle; and the information about the officers’
traffic stop when Petruk claimed to own the Chrysler. That day, a different
Wisconsin state court judge issued the warrant, and the GPS tracker was installed.
On the night of September 19, once the GPS trackers were installed on all three
vehicles, Cliff Sheppeck, an investigator with the Chisago County Sheriff’s Office,
applied by telephone for a warrant to search the Chrysler. Sheppeck’s affidavit
specifically stated that Petruk and an unidentified female were “currently
occup[ying]” the car. The affidavit contained substantially the same information that
was in the applications for the GPS tracker warrants, including the fact that Petruk
had claimed ownership of the Chrysler. But it also added new information that had
not been included in any previous warrant applications. By then, a fifth CI had told
officers that he had seen Petruk with two ounces of methamphetamine and that Petruk
“has methamphetamine on him at all times.” Like the others, CI-5 had also
previously provided reliable information to law enforcement. In addition, Sheppeck’s
affidavit stated that CI-3 told an officer that Petruk “ma[de] trips to the [Twin Cities]
twice a week to reup his supply of methamphetamine.”
Sheppeck’s affidavit also stated that GPS tracker warrants for the three vehicles
had been issued, and it included information the officers had obtained from the
Camaro and Silverado trackers, which corroborated the CI’s statement that Petruk
was frequently traveling to Minneapolis/St. Paul. In less than a week’s time, the
officers surveilled Petruk as he made two quick overnight trips from the Duluth area
to the Twin Cities and back. The first time, Petruk drove the Camaro. The second
time, Petruk drove the Silverado and was accompanied by Klobuchar, whose drug-
related activities and criminal history were also included in the affidavit. On the trip
in the Camaro, Petruk drove on low-traffic highways and backroads when returning
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to Duluth—a tactic Sheppeck stated was often used by drug traffickers in possession
of large quantities of controlled substances to avoid detection and contact with police.
And once Petruk was back in Duluth, officers tracked him visiting the homes of
known methamphetamine users.
The Chrysler search warrant application also contained information that Petruk,
who had prior felony convictions, was armed and may pose a danger to law
enforcement. CI-2 told an officer that Petruk stated he would not go back to prison
and would “shoot it out with the police.” CI-3 told an officer that he had seen Petruk
with at least one handgun in the last two weeks. CI-4 also told Williams that Petruk
“ha[d] weapons and will use them against police,” and CI-5 said that he had seen
Petruk with at least one handgun and that Petruk stated he would “not plan to stop for
police if the police attempt to stop him in a vehicle.” On September 19, a fourth state
court judge issued the warrant authorizing officers to search the Chrysler.
That same day, but before officers obtained the warrant, Petruk and a
companion drove the Chrysler south to Minneapolis—Petruk’s third trip there in
eleven days. In Minneapolis, Petruk stopped at some of the same locations he had
visited on his two prior trips. None of the tracking information for the Chrysler was
included in the application to search that car. Petruk traveled back north to Duluth
the next day, stopping at a salvage yard in North Branch, Minnesota. When Petruk
got out of the car, officers detained him and drove the Chrysler to the North Branch
Police Department to be searched pursuant to the warrant. In the back of the engine
compartment, officers found approximately 1.75 pounds of methamphetamine inside
a black shopping bag. Officers also found drug paraphernalia, receipts, and a
notebook. They also seized Petruk’s phone.
Petruk moved to suppress the seized evidence on the grounds that none of the
four warrants were supported by probable cause. Following a suppression hearing,
the magistrate judge disagreed and recommended the denial of the motion to
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suppress. The district court adopted the magistrate judge’s report and recommenda-
tion. At trial, the government introduced GPS tracking information obtained pursuant
to the warrants and various exhibits related to the seized methamphetamine. The jury
convicted Petruk on both counts. Immediately after sentencing on the methamphet-
amine convictions, the district court revoked Petruk’s supervised release and
sentenced him to a consecutive 30-month term of imprisonment.
II
We first address Petruk’s motion to suppress, followed by his challenge to the
supervised release revocation.
A
On appeal from the denial of a motion to suppress, we review a district court’s
findings of fact for clear error and its legal conclusions de novo. United States v.
Farnell, 701 F.3d 256, 260 (8th Cir. 2012). We affirm unless the denial of the motion
“is unsupported by substantial evidence, is based on an erroneous view of the
applicable law, or in light of the entire record, we are left with a firm and definite
conviction that a mistake has been made.” Id. at 260–61 (quoting United States v.
Rodriguez-Hernandez, 353 F.3d 632, 635 (8th Cir. 2003)).
At the outset, we address the government’s contention that Petruk waived the
right to appeal the denial of his suppression motion because defense counsel stated
“no objection” at trial when the government moved to introduce evidence that was the
subject of the suppression motion. In general, “the overruling of a pretrial motion to
suppress makes it unnecessary to object when the evidence is offered at trial,”
although “it is the better practice for defense counsel to object when the unsuppressed
evidence is offered” or to lodge a standing objection at the beginning of trial. See
United States v. Martin, 982 F.2d 1236, 1241 & n.3 (8th Cir. 1993); see also United
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States v. Neumann, 887 F.2d 880, 885 (8th Cir. 1989) (en banc) (“[A] mandatory
pretrial motion to suppress, filed on constitutional grounds in a criminal case, if
denied, does not ordinarily have to be renewed by way of objection at trial.”). An
attorney’s statement at trial that he has “no objection” to the introduction of evidence
may indicate a waiver of a previous objection. See, e.g., United States v. Johnson,
906 F.2d 1285, 1290 (8th Cir. 1990) (“[Defendant’s] counsel stated ‘no objection’
when the [unsuppressed] evidence was offered at trial. Accordingly, we could find
that [defendant] waived his previous objection.” (emphasis added)). But as with
questions of waiver generally, we must examine whether a party “consciously and
intentionally waived” any objection to the introduction of evidence. United States v.
Wedelstedt, 589 F.2d 339, 345 (8th Cir. 1978) (quoting Lawn v. United States, 355
U.S. 339, 355 (1958)). Here, in pretrial proceedings, Petruk unequivocally contested
the admissibility of the evidence seized as a result of the issuance and execution of
multiple search warrants. By stating “no objection” at trial to the admission of the
relevant evidence, Petruk likely waived the ability to raise on appeal any evidentiary
challenges to the disputed evidence. But on this record we find no conscious and
intentional waiver of his constitutional challenges, and thus turn to the merits of his
claims.3
The Fourth Amendment protects persons against unreasonable searches. U.S.
Const. amend. IV. Installing a GPS tracker on a vehicle to monitor that vehicle’s
movements is a search within the meaning of the Fourth Amendment and thus
3
Some of our cases have found waiver of a pretrial motion to suppress when
defense counsel simply stated “no objection” to the introduction of unsuppressed
evidence at trial. See, e.g., United States v. Comstock, 531 F.3d 667, 675 (8th Cir.
2008); United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 (8th Cir. 2001). But
here, Petruk argues that counsel’s statements at trial merely waived new objections
to the introduction of unsuppressed evidence under, for example, the Federal Rules
of Evidence. In any event, despite finding waiver, these cases went on to analyze the
merits of the Fourth Amendment claim. See Comstock, 531 F.3d at 675–78;
Gonzalez-Rodriguez, 239 F.3d at 951.
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generally requires a warrant. United States v. Faulkner, 826 F.3d 1139, 1144 (8th
Cir. 2016) (citing United States v. Jones, 565 U.S. 400, 404–05 (2012)); see Farnell,
701 F.3d at 261 (explaining that subject to a few well-established exceptions, the
Fourth Amendment requires that searches be conducted pursuant to a warrant). The
“[i]ssuance of a search warrant must be supported by probable cause,” which exists
when, “under the totality of the circumstances, there is a fair probability [that]
evidence of a crime will be found in a particular place.” Faulkner, 826 F.3d at 1144.
When reviewing the issuance of a warrant, we afford great deference to the issuing
judge’s probable-cause determination, ensuring only that the judge “had a substantial
basis for concluding that a search would uncover evidence of wrongdoing.” Illinois
v. Gates, 462 U.S. 213, 236 (1983) (cleaned up).
Like the district court, we conclude that the affidavits supporting each of the
GPS warrant applications provided probable cause to believe that Petruk was
involved in methamphetamine trafficking and that the location data from the vehicles
would lead to evidence of that trafficking. In this case, four confidential informants
provided information indicating that Petruk had teamed up with other known drug
dealers to sell large quantities of methamphetamine in the Duluth area and was using
multiple vehicles to travel regularly to Minneapolis/St. Paul to resupply. It is well-
established that “[t]he statements of a reliable confidential informant are themselves
sufficient to support probable cause for a search warrant.” United States v. Wright,
145 F.3d 972, 975 (8th Cir. 1998). The key inquiry is whether the confidential
informant’s information is, in fact, reliable. See, e.g., United States v. Williams, 10
F.3d 590, 593 (8th Cir. 1993). As we have repeatedly recognized, “[w]hen an
informant has provided reliable information in the past or where his tip was
independently corroborated, a court may deem the informant’s tip sufficiently reliable
to support a probable cause determination.” United States v. Caswell, 436 F.3d 894,
898 (8th Cir. 2006) (emphasis added).
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As the district court found, both indicia of reliability were present here. The
supporting affidavits established that all four CIs had a record of providing reliable
information to law enforcement. Each of the CIs had provided information that led
to the arrest of multiple individuals who were selling controlled substances, and also
to the issuance of one or more search warrants that resulted in the seizure of
controlled substances. Two of the CIs had also conducted one or more controlled
purchases of illegal drugs. Moreover, the information provided by the CIs in Petruk’s
case was corroborated not only by the other CIs, but by law enforcement officers as
well. See, e.g., United States v. Keys, 721 F.3d 512, 518 (8th Cir. 2013) (“[T]he
receipt of consistent information from two separate sources is a form of corrobora-
tion.”). Through multiple personal observations, officers learned that Petruk drove
various vehicles and that he was connected to at least one other known methamphet-
amine trafficker in the area—Klobuchar. See id. (affirming probable-cause
determination where two sources corroborated each other and officers verified details
provided by one of the sources).
Petruk nevertheless argues that the warrants were not supported by probable
cause because the corresponding applications did not state the basis of the CIs’
knowledge and because the information they provided was “stale.” First, it is true
that “[w]hen an affidavit in support of a search warrant is based upon information
from an informant, the informant’s ‘reliability, veracity, and basis of knowledge are
relevant considerations.’” Faulkner, 826 F.3d at 1144 (quoting United States v.
Reivich, 793 F.2d 957, 959 (8th Cir. 1986)). But they are not “independent, essential
elements” to finding probable cause. Id. (quoting Reivich, 793 F.2d at 959); see also
Gates, 462 U.S. at 230–33. Indeed, a “deficiency” in either the informant’s reliability
or his basis of knowledge “may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other, or by some other indicia of
reliability.” Gates, 462 U.S. at 233. In this case, the CIs’ reliable track record and
the officers’ independent corroboration make up for any deficiency in basis of
knowledge.
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Second, although information supporting a warrant can become “stale” if it is
not “sufficiently close in time to the issuance of the warrant and the subsequent
search,” United States v. Davis, 867 F.3d 1021, 1028 (8th Cir. 2017) (quoting United
States v. Johnson, 848 F.3d 872, 877 (8th Cir. 2017)), cert. denied, 138 S. Ct. 1441(2018), there is no staleness problem here. “We have no fixed formula for deciding
when information has become stale, but we consider the nature of the crime being
investigated and the property to be searched.” Id. (quoting United States v. Nieman,
520 F.3d 834, 839 (8th Cir. 2008)). Where the crime under investigation is “of a
continuous nature,” the passage of time between the last described act and the
application for a warrant is less significant. See, e.g., United States v. Maxim, 55
F.3d 394, 397 (8th Cir. 1995) (concluding that given the continuing nature of the
crime of unlawful possession of weapons, three-year-old and four-month-old
information included in supporting affidavit was not stale). Here, the information that
officers received from July to early September 2016 indicated that Petruk was
engaged in ongoing large-scale methamphetamine distribution involving several
vehicles, such that any time lapses between the provision of the information and the
applications for the search warrants did not render the information stale. See Davis,
867 F.3d at 1028 (concluding that, in ongoing narcotics investigation, information of
drug-related activity provided over a several-week period was not stale); United
States v. Day, 949 F.2d 973, 978 (8th Cir. 1991) (“[I]nformation about criminal
activity at an earlier, unspecified time may combine with factually connected, recent,
time-specific information to provide a substantial basis for the conclusion that the
criminal activity described in an affidavit is sufficiently close in time to the search
warrant application.”).
As to the warrant to search the Chrysler, Petruk argues that the warrant
application was fatally flawed because it failed to establish a sufficient link between
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drugs and the Chrysler, thus failing to demonstrate the necessary place-object nexus.4
See United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000) (“[T]here must be
evidence of a nexus between the contraband and the place to be searched before a
warrant may properly issue . . . .”). We disagree. Sheppeck’s affidavit contained
sufficient information from which an issuing judge could conclude that there was a
reasonable probability that evidence of drug-trafficking—not just actual
drugs—would be found in the Chrysler, Petruk’s primary vehicle. See Caswell, 436
F.3d at 899 (recognizing that issuing judges are “entitled to draw reasonable
inferences about where evidence is likely to be kept, based on the nature of the
evidence and the type of offense” (cleaned up)). As detailed in Sheppeck’s affidavit,
a fifth CI had come forward stating that Petruk carried methamphetamine with him
at all times and that he had personally seen Petruk with at least two ounces of the
drug. By then, CI-3 had also told law enforcement that Petruk drove his vehicles to
the Twin Cities twice a week to resupply. Moreover, the officers had observed Petruk
make two quick turnaround trips to the Twin Cities in a week’s time using vehicles
linked to the trafficking. When Petruk returned from one of those trips, he was
tracked visiting the homes of known drug users. And, at the time Sheppeck applied
for the warrant, Petruk was “occupying” the Chrysler. Collectively, this information
provided a sufficient nexus between drug-trafficking evidence and the Chrysler.5
4
Petruk also argues that Sheppeck was a “straw affiant” who had no personal
knowledge of the information contained in his affidavit, some of which was “cut and
pasted” from another affidavit. But Sheppeck states expressly that he “learned from”
Williams the information included in the affidavit. In any event, even if Sheppeck’s
affidavit could have been more carefully written, “we do not attach constitutional
significance” to the affidavit’s purported deficiencies. United States v. Hyten, 5 F.3d
1154, 1156 (8th Cir. 1993) (concluding that it was an “error of technical rather than
constitutional magnitude” for warrant to have the incorrect name of the officer who
signed affidavit and obtained warrant).
5
Petruk also makes much of the fact that Sheppeck’s affidavit did not contain
key evidence officers had obtained from the Chrysler GPS tracker: that when officers
sought the Chrysler search warrant, Petruk had already driven to the Twin Cities.
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The district court properly denied Petruk’s motion to suppress all evidence
derived from the execution of the warrants.
B
Petruk’s sole challenge to the revocation of his supervised release is that it was
premised on his methamphetamine convictions in this case, which he contends should
be reversed in light of his suppression arguments. But because we conclude that the
district court properly denied Petruk’s motion to suppress, there is no basis for
disturbing his convictions or his revocation of supervised release.
For all the aforementioned reasons, we affirm.6
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Had the officers included that fact, the warrant application would have provided
further support for a finding of probable cause. But, as described, the warrant
application as submitted sufficiently supported a finding of probable cause.
Additionally, to the extent that Petruk also advances basis-of-knowledge and
staleness arguments to challenge the Chrysler search warrant, we reject those
contentions for the reasons explained in the context of the GPS warrants.
6
Petruk’s pro se motion for leave to amend the reply brief is denied, as it
appears to raise arguments that were not included in his opening brief. See United
States v. Picardi, 739 F.3d 1118, 1123 n.3 (8th Cir. 2014).
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