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govinfo:USCOURTS-mnd-0_10-cr-00005-0
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America,
Plaintiff,
v.
David West Dixon (02),
Defendant.
Criminal No. 10-005 JNE/SRN
REPORT AND RECOMMENDATION
______________________________________________________________________________
Jeffrey Paulsen, Esq., United States Attorn ey's Office, 600 U.S. Courthouse, 300 South
Fourth Street, Minneapolis, Minnesota 55415 for Plaintiff.
Lyonel Norris, Esq., Office of the Federal Defender, 300 South Fourth Street, Suite 107,
Minneapolis, Minnesota 55415, for Defendant.
______________________________________________________________________________
SUSAN RICHARD NELSON, United States Magistrate Judge
The above-captioned case comes before the unde rsigned United States Magistrate Judge
on Defendant Dixon’s Motion to Suppress Evidence [Doc. No. 23], Motion to Suppress
Evidence Obtained as a Result of Search and Seizure
1 [Doc. No. 25], and Motion to Suppress
Statements, Admissions, and Answers [Doc. No. 26]. At the hearing, Defendant orally withdrew
his Motion to Suppress Eyewitness Identifications [Doc. No. 24] because no identifications took
place. This case has been referred to the undersi gned for resolution of pretrial matters pursuant
to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. 2
1 The substance of this motion refers to a se arch of the premises at a certain address in
Minneapolis. At the hearing the parties agreed that no search was con ducted at that location
relevant to this case. Defendant clarified that the motion is based on the search of the Chevy van
associated with this investigation and not the Minneapolis residence.
2 The Court has addressed Defendant’s non-dispositive motions in a separate Order.
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I. BACKGROUND
The Government filed an Indictment agai nst Defendant David West Dixon (“Dixon”) on
January 12, 2010, charging Defendant with Bank Robbery [Doc. No. 11]. This Court held a pre-
trial motions hearing on February 24, 2010. Mi nneapolis Police Officer Dean Roth and FBI
Special Agent Larry Wesbey testified on behalf of the Government. The Court received in
evidence Government’s Exhibit 1, an applicati on, affidavit, search warrant, and receipt and
inventory return for a 1997 Chevy va n. This matter is set for trial before United States District
Judge Joan N. Ericksen.
II. FACTS
The following facts were elicited from th e testimony and exhibit introduced at the
hearing. Minneapolis Police Officer Dean Rot h, an 18 year veteran w ith the department, was
working on December 28, 2009, in a marked squad car. That morning, Officer Roth was called
to the area of 18th Street and Nicollet Avenue in Minneapolis because of a report of a fight on
the street between two males. When Officer Ro th arrived in that area, he looked around but did
not see anyone fighting in the street and he cleared the call with dispatch.
Officer Roth then proceeded south down Ni collet and took a right onto W 22nd Street.
At approximately 10:04 a.m., Officer Roth was headed west on W 22nd Street near the
intersection of 22nd Street and Blaisdell Avenue. Officer Roth’s car was approximately one half
block from the intersection when he observed a white male “franti cally” running south on
Blaisdell towards the intersection. At the southwes t corner of the intersec tion, i.e. kitty-corner
from Officer Roth’s squad car, a light colored Chevy van sat stopped but running, approximately
one car length before the stop sign. The white male, later identified as co-defendant Ryan
Liskow, ran to the passenger’s side of the vehicle and “dove” into the vehicle.
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Officer Roth found the white male’s behavior to be suspicious because of the manner in
which the man was running and the way in which he got into the van. Officer Roth testified the
man was running wildly “as if running away from someone or something” and he could barely
stay on his feet. Officer Roth believed the male was possibly involved in the previous call he
had received reporting two males fighting in the street. Therefore, he slowed down his squad car
and watched the van. Officer Ro th testified that he observed the van pull away from the curb
and proceed through the intersection without stopping at the stop sign.
Because of the van’s failure to stop at the stop sign, Officer Roth put on his flashers and
angled his squad car to indica te the van should stop. The driver of the van, Defendant Dixon,
stopped the vehicle and raised his hands. Officer Roth then indica ted to dispatch that he had
stopped a suspicious vehicle and provided dispatch with the van’s license plate. At first, Officer
Roth could only see the driver of the vehicle. As Officer Roth approached the van, the white
male who previously “dove” into the car, “jum ped” into view on the passenger side of the
vehicle. Officer Roth raised his weapon to indicate the men should ra ise their hands, and the
men complied.
After getting out of the squad car, Officer Ro th was notified by dispatch that there was an
alert on the van indicating it had re cently been involved in an inci dent in Lakeville. The alert
indicated that co-defendant Lis kow was suspected of attempting to run over a relative with the
vehicle and that the vehicle possibly containe d two long guns. There wa s no indication in the
alert that Defendant Dixon was involved in the Lakeville incident. Officer Roth then approached
the driver’s side of the vehi cle and opened the van’s door. B ecause both men were fidgeting,
Officer Roth instructed the men to keep their ha nds on the dash and the o fficer kept his weapon
pointed at the men. Defendant Dixon asked Officer Roth “what is going on?”
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Once the van door was open, Officer Roth saw a large amount of cash in twenty dollar
bills stuffed behind the driver’s seat. Consequently, Officer Roth asked dispatch for an
additional squad car and aired that he had seen a large amount of cash in th e vehicle. A short
time later, dispatch indicated that there had ju st been a bank robbery at the Franklin National
Bank and the suspect was a white male.
3 The bank was a half block away in the direction from
which the white male had run earlier.
Back-up arrived on the scene and Officer Roth indicated the other officer should remove
the passenger from the vehicle. Officer Roth th en instructed Defendant Dixon to get out of the
car and onto the ground. Once Defendant Dixon was on the ground, Officer Roth holstered his
gun and cuffed the defendant. At that time, De fendant Dixon was holding a ballpoint pen in his
left hand, and Officer Roth took the pen and placed it on the driver’s seat of the vehicle. Next,
Officer Roth did a pat down search of De fendant Dixon and placed him under arrest for
suspicion of bank robbery.
Sergeant Nelson, Officer Roth’s shift superv isor, and Deputy Chief Robert Allen then
arrived on the scene and directed Officer Roth to place Defendant Dixon in the back of his squad
car. Ten to fifteen minutes after the incident occurred, Officer Roth was instructed to take
Defendant Dixon to an investigation/interview room at the police station at City Hall. The van
that Defendant Dixon was arrested in was towed to the Minneapolis forensic garage. A search
warrant was obtained for the vehicle and cash was seized in the search.
At the police station, Lieutenant Michael Fossum and Sergeant Carpenter told Officer
Roth to place Defendant Dixon in interview room 108. Before placing Mr. Dixon in the
interview room, Officer Roth searched Defe ndant Dixon again more thoroughly. The search
3 Defendant Dixon is African-American.
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uncovered a small spiral note pad, another ballpoint pen, and other miscellaneous items. Later
Officer Roth learned that the demand note used in the robbery was written on a piece of small
spiral notebook paper.
Lieutenant Fossum and FBI Special Agen t Larry Wesbey interrogated Defendant Dixon
beginning at approximately 12:00 p.m., a couple of hours after Defendant Dixon was arrested.
The interview, which was recorded, began with Lieutenant Fossum asking the defendant basic
background questions, including his name, date of birth, address, and known associates.
Lieutenant Fossum then read Defendant Dixon hi s Miranda rights. After reading each right,
Lieutenant Fossum asked the defendant if he understood that right , and Defendant Dixon
indicated he did. Lieutenant Fossum then asked if Defendant Dixon still wished to speak to the
officers, and the defendant indicated he did. Defendant Dixon never as ked for a lawyer nor
asked to stop the interview. At some point in the interview, Agent Wesbey did tell Defendant
Dixon that he should tell the truth and “things would go better for him.”
Throughout the interview, Defendant Dixon seemed calm and appeared to understand the
officers’ questions. Agent Wesbey testified that the officers did not make any threats or
promises to Defendant Dixon. In total, the inte rview lasted more than three hours. Agent
Wesbey believes Defendant Dixon was offered wa ter but could not recall if the officers ever
offered Defendant Dixon food or the opportun ity to use the restroom. Defendant Dixon,
however, never indicated to the o fficers that he needed to use th e restroom or needed food. For
the majority of the interview, the defendant deni ed any involvement with the robbery. Near the
end of the interview, however, the defendant made potentially incriminating statements.
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III. DISCUSSION
Defendant moves to suppress the evidence se ized from the van and his person and to
suppress the statements he made after his arrest. Defendant Dixon contends that the evidence in
this case should be suppressed because the officer s did not have reasonable suspicion to stop the
van. Defendant also contends th at his statements should be s uppressed because the statements
were involuntary. This Court disagrees and recommends that the motions be denied.
A. Officer Roth Had Reasonable Suspicion for the Traffic Stop.
Contrary to the defendant’s arguments, the stop of the Chevy van was constitutional. The
Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.” U.S. Const. Amend. IV. A traffic stop
or investigatory detention const itutes a seizure within the meani ng of the Fourth Amendment.
United States v. Fuse , 391 F.3d 924, 927 (8th Cir. 2004) (citing Delaware v. Prouse , 440 U.S.
648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979)). An investigatory detention, which is a brief
seizure by police based on a reason able suspicion of criminal activity, is a narrow exception to
the Fourth Amendment’s probable cause requirement. Terry v. Ohio , 392 U.S. 1, 26-27 (1968);
United States v. Stigler , 574 F.3d 1008, 1010 (8th Cir. 2009) . The officer must have a
reasonable, articulable suspicio n of criminal activity in orde r to conduct the investigatory
detention, which has become known as a Terry stop. Id. at 21-22. The officer may also perform
a limited pat-down search for weapons if the officer believes the person is armed and dangerous.
Id. A reasonable, articulable susp icion means that there are speci fic and articulable facts, and
rational inferences drawn from those facts, reasonably suggesting that criminal activity has
occurred or is imminent. Id. at 21.
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Any traffic violation, however minor, creates probable cause to stop a vehicle. United
States v. Binion, 570 F.3d 1034, 1038 (8th Cir. 2009) ; United States v. Arciniega , 569 F.3d 394,
397 (8th Cir. 2009). “Subjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.” Arciniega, 569 F.3d at 397 (citing Whren v. United States , 517 U.S. 806,
813, 116 S. Ct. 1769, 135 L.Ed.2d 89 (1996)). Once an officer has probable cause to stop a
vehicle, “the stop is objectively reasonable and any ulterior motivation on the officer's part is
irrelevant.” Id. (citing United States v. Bell , 86 F.3d 820, 822 (8th Cir. 1996)). Likewise, it is
irrelevant that the officer may have ignored the violation if the officer did not suspect the
possibility of a greater crime. Id. (citing United States v. Luna , 368 F.3d 876, 878 (8th Cir.
2004)).
In this case, Officer Roth stopped the van because it failed to stop at a stop sign in
violation of Minn. Stat § 169.20. Th is traffic violation gave the officer reasonable suspicion to
conduct a Terry stop of the vehicle. Even if Officer Roth’s subjective intent was to stop the
vehicle because of the unusual manner in which Li skow ran to the van, th e traffic stop gave the
officer an objective basis for the stop. Therefore, the motion to suppress the fruits of the initial
stop should be denied.
B. The Expansion of the Scope of the Stop Was Valid.
The expansion of the stop to wait for another squad car to arrive on the scene was not
unconstitutional. An officer may expand the scope of a Terry stop if the officer has reasonable,
articulable suspicion that the person is engaged in criminal activity. United States v. Binion, 570
F.3d 1034, 1039 (8th Cir. 2009); United States v. Gil , 513 F.3d 836, 844 (8th Cir. 2008); United
States v. Long, 320 F.3d 795, 800 (8th Cir. 2003). To expand the scope of the stop, “[t]he officer
must have a particularized and objective basis for suspecting the partic ular person stopped of
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criminal activity.” Binion , 570 F.3d at 1039 (quoting United States v. Cortez , 449 U.S. 411,
417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981)). In such in stances, the officer may then
broaden the scope of the stop and satisfy his or her reasonable suspicions without violating the
Fourth Amendment, including asking questions unr elated to the original traffic stop. Gil , 513
F.3d at 844; United States v. Hogan , 539 F.3d 916, 921 (8th Cir. 2008); United States v. Jones ,
269 F.3d 919, 926-27 (8th Cir. 2001). Whether an officer has reasonable suspicion to expand the
scope of a traffic stop is determined by looking at the totality of the circumstances. Gil, 513 F.3d
at 844; Binion, 570 F.3d at 1039; United States v. Linkous, 285 F.3d 716, 720 (8th Cir. 2002).
During a Terry stop, officers may conduct protective searches for weapons, without
probable cause, where the officer has an articulab le suspicion that an individual is armed and
dangerous. United States v. Shranklen, 315 F.3d 959, 961 (8th Cir. 2003) (citing Terry, 392 U.S.
at 24). Because of the hazardous nature of roadside stops, the Supreme Court has held, “the
search of the passenger compartment of an autom obile, limited to those areas in which a weapon
may be placed or hidden, is permissible if the police officer possesses a reasonable belief . . . that
the suspect is dangerous and the suspect may gain immediate control of w eapons.” Michigan v.
Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); see also Shranklen, 315 F.3d at
961; United States v. Patterson , 140 F.3d 767, 773 (8th Cir. 1998). Officers may also take steps
“reasonably necessary to protect their personal safety and to maintain the status quo during the
course of the stop” including removing passengers from a vehicle. United States v. Walker
, 555
F.3d 716, 721 (8th Cir. 2009) (citing United States v. Hensley , 469 U.S. 221, 235, 105 S. Ct.
675, 83 L. Ed. 2d 604 (1985)).
After Officer Roth stopped the vehicle, he lear ned that there was an alert that the van had
been involved in an incident in which the driv er tried to run over anot her person and that the
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vehicle possibly contained two long guns. Because of the violent nature of the crime alert and
the possible involvement of guns, the alert provided Officer Roth with reasonable articulable
suspicion to expand the scope of the Terry stop , including opening the car door to remove the
defendant from the vehicle and secure officer sa fety. The motion to suppress the fruits of the
expanded search should therefore be denied.
C. The Searches of Defendant Dixon Were Constitutional.
In order to protect officer safety and pres erve evidence, a law enforcement officer may
conduct a full search of an arrestee and the area within the arrestee’s immediate control in a
search made incident to an arrest. United States v. Jones , 479 F.3d 975, 978 (8th Cir. 2007)
(citing United States v. Hrasky , 453 F.3d 1099, 1100-01 (8th Cir. 200)); see also Chimel v.
California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); United States v. Robinson ,
414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). The area within an arrestee’s immediate
control is the area from which he or she migh t gain possession of a we apon or destructible
evidence. United States v. Lucas , 898 F.2d 606, 609 (8th Cir. 1990). A search incident to arrest
must be contemporaneous with the arrest. Curd v. City Court of Judsonia, Arkansas , 141 F.3d
839, 842 (8th Cir. 1998).
Unlike a pat-down search during an inves tigatory detention, an officer conducting a
search incident to arrest may search not only for contraband, but also evidence that might be
concealed or destroyed. Id. ; United States v. Jones , 479 F.3d 975, 978 (8th Cir. 2007); United
States v. Hrasky, 453 F.3d 1099, 1104 (8th Cir. 2006). While th e rationale for a search incident
to arrest is officer safety and to preserve ev idence, the officer need not have any reason to
believe that the individual is actually armed or that evidence of the crime will be found on his
person. United States v. Pratt , 355 F.3d 1119, 1121 (8th Ci r. 2004). “It is the f act of arrest that
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enables the officer to conduct a search, not a pa rticularized suspicion as to the suspect's
dangerousness.” Id. A search of a person incident to arre st may take place at the scene of the
arrest or when the arrestee arrives at the police station or place of detention. Curd , 141 F.3d at
843.
The dispatch call relating th e robbery of the bank a block away, Liskow’s running from
the area of the robbery at the relevant time period, and the sight of large amounts of cash in plain
view in the vehicle, gave Offi cer Roth probable cause to arrest the occupants of the van.
Incident to that arrest, it was permissible fo r Officer Roth to search Defendant Dixon for
weapons and evidence, both at the scene of the arrest and at the police station before the
interrogation. As such, the motion to suppress th e fruits of the search of Defendant’s person
should be denied.
D. Any Inculpatory Statements Made by Defendant Dixon Were Not
Involuntary.
Any potentially incriminating statemen ts made by Defendant Dixon during the
interrogation were not the produc t of police coercion. An inculpatory statement made by a
defendant may be inadmissible if the defendant es tablishes that the stat ement was involuntary.
Williams v. Norris, 576 F.3d 850, 868 (8th Cir. 2009). A statement is involuntary if the totality
of the circumstances show that the defendant’s will was overborne by coercive police tactics and
pressure. Id. ; United States v. Dehghani , 550 F.3d 716, 719 (8th Cir. 2008). However, an
interrogation of a suspect always involves some pressure because the purpose of an interrogation
is to elicit a confession. Dehghani, 550 F.3d at 720. As the Eighth Circuit has noted, “it is a rare
case when a defendant can make a colorable argu ment that a self-incriminating statement was
compelled despite the fact that the law enfor cement authorities adhered to the dictates of
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Miranda.” Williams , 576 F.3d at 868 (citing Simmons v. Bowersox , 235 F.3d 1124, 1132 (8th
Cir. 2001)).
Courts may consider promises of leniency in assessing whether police conduct overbore
the will of a defendant, but it is only one consideration “and does not render a confession
involuntary per se.” Simmons v. Bowersox
, 235 F.3d 1124, 1133 (8th Cir. 2001). In Simmons ,
the Eighth Circuit stated that telling a suspect that telling the truth would “go better for him,” did
not “constitute an implied or express promise of leniency for the purpose of rendering his
confession involuntary.” Id.
(citing Bolder v. Armontrout, 921 F.2d 1359, 1366 (8th Cir. 1990)).
“A truthful and noncoercive statement of the po ssible penalties which an accused faces may be
given to the accused without overbearing one's free will.” Id.
In this case, Defendant Dixon suggests that the interrogation was coercive because it was
excessively lengthy, lasting more than three hours. While a lengthy interrogation can be
coercive, the Eighth Circuit has upheld interrogations lasting as long as thirteen hours. Williams
,
576 F.3d at 868-69. Under the circumstances, the length of the interrogation does not compel the
conclusion that the defendant’s will was overborne . Nor was Agent Wesbey’s statement, that it
would “go better” for defendant if he told the truth, coercive. As set forth above, the Eighth
Circuit has already held that su ch a statement is not a promise of leniency and does not render a
confession involuntary. Ther e is no evidence in th e record to suggest that the officers made
verbal or physical threats dur ing the interrogation. Defendant Dixon was provided water and he
appeared calm throughout the inte rrogation. While the agents may not have offered Defendant
Dixon use of the restroom, there is no evidence s uggesting he asked to use the restroom but was
denied. Under the totality of the circumstances, Defendant Di xon’s will was not overborne in
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the interrogation and any incriminating statements he may have made were not involuntary. The
motion to suppress statements should be denied.
IV. RECOMMENDATION
Based on the foregoing, and all the file s, records, and proceedings herein, IT IS
HEREBY RECOMMENDED that:
1. Defendant’s Motion to Suppress Evidence [Doc. No. 23] be
DENIED;
2. Motion to Suppress Eyewitness Iden tifications [Doc. No. 24] be
WITHDRAWN;
3. Defendant’s Motion to Suppress Ev idence Obtained as a Result of
Search and Seizure [Doc. No. 25] be DENIED; and
4. Defendant’s Motion to Suppres s Statements, Admissions, and
Answers [Doc. No. 26] be DENIED.
Dated: March 8, 2010 s/ Susan Richard Nelson ___
_________
Susan Richard Nelson
U. S. Magistrate Judge
Under D. Minn. LR 72.2(b), any party may object to this Report and Recommendation by filing
with the Clerk of Court a nd serving all parties by March 23, 2010,
a writing which specifically
identifies those portions of this Report to wh ich objections are made and the basis of those
objections. Failure to comply with this proced ure may operate as a forfeiture of the objecting
party’s right to seek review in the Court of Appeals. This Report and Recommendation does not
constitute an order or judgment of the District Court, and it is therefore not appealable to the
Court of Appeals.
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