Petition for Writ of Certiorari — Marlon Maurice Winborn, Petitioner v. United States

NO.

SUPREME COURT OF THE UNITED STATES

MARLON MAURICE WINBORN |

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Kighth Circuit

APPENDIX OF PETITIONER

LEE R. JOHNSON

Johnson & Greenberg, PLLP

5775 Wayzata Boulevard _

Suite 700

St. Louis Park, MN 55416

(952) 545-1621 /Irjohnsonslp@gmail.com

Appendix A -- Eighth Circuit Court of Appeals Opinion in

United States v. Winborn, filed August 5, 2024, ...........:+sseesseseeeees 2a

Appendix B-- Eighth Circuit Court of Appeals Order denying

petition for rehearing en banc, filed September 10, 2024.............. 8a

Appendix C -- District Court of Minnesota Order in United

States v. Winborn filed on May 15, 2023... eseeeeeeeeeeeneeeeeeeeees 9a

Appendix D -- Excerpt from Defendant’s Post-Hearing

Memorandum in Support of Motion to Suppress from

United States v. Winborn, 22-CR-319, ECF No. 78...........ccccc econ 13a

Appendix E -- Excerpt from Suppression Hearing held in

United States v. Winborn, 22-CR-319, ECF No. 71.0.2... cece eeees 15a

CASE 0:22-cr-00319-PJS-JFD Doc. 149 Filed 08/05/24 Page 1 of 6

— Gnited States Court of Appeals

For the Cighth Circuit

No. 23-3453

United States of America

Plaintiff - Appellee

Wo

Marlon Maurice Winborn

Defendant - Appellant

Appeal from United States District Court

for the District of Minnesota

Submitted: June 12, 2024

Filed: August 5, 2024

Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

After police arrested Marion Winborn, the government charged him with one

count of unlawfully possessing a firearm as a felon. Winborn moved to suppress all

evidence, arguing police did not have reasonable suspicion in making the initial

Appendix A

NX

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investigatory stop that led to his arrest. The district court! denied Winborn’s motion.

Afterward, Winborn pled guilty to being a felon in possession of a firearm, but he

reserved the right to appeal the denial of his motion to suppress. Winborn now

appeals the denial of his motion to suppress. We affirm.

I. Background

On May 18, 2022, two Minneapolis police officers responded to two separate

911 calls reporting gunshots in an area that frequently had similar “shots fired”

complaints. The first caller, who provided his first name and callback number,

reported hearing nine gunshots. The second caller, who did not provide contact

information, reported hearing seven gunshots. After learning of these complaints,

the officers drove to the scene of the reported gunshots. Upon their arrival at the

scene, a 911 dispatcher reported a third call. This caller, who provided his full name

and callback number, reported hearing seven shots fired. The caller also reported

seeing two people wearing masks standing by a red Saturn without a front license

plate, as well as seeing a white Volkswagen Passat “take off”

- Two minutes after receiving the third caller’s report, the officers saw a parked,

red Saturn one block from the scene of the reported gunshots. They identified at

least two occupants in the vehicle, but they did not confirm whether the Saturn was

missing a front license plate. The officers approached the vehicle, one with her

weapon drawn and the other with his hand on his weapon. One of the officers saw

passengers in the front and rear seats, in addition to the driver's seat. Winborn was

in the driver’s seat.

iThe Honorable Patrick J. Schiltz, Chief Judge, United States District Court

for the District of Minnesota, adopting the report and recommendations of the

Honorable John F. Docherty, United States Magistrate Judge for the District of

Minnesota.

2.

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While approaching the vehicle, one of the officers called out, “[w]hat’s up,

guys?” Winborn then twice replied, “you got the wrong vehicle.” The officer

responded, “[t}hat’s cool, I don’t know that.” As the officer was still approaching

the vehicle, he told Winborn to put his hands on the wheel. He then told the front

passenger to put his hands on the dash and the rear passenger to put his hands on the

back of the seat. Once both officers were next to the car, one officer asked to see

Winborn’s identification, and Winborn, who had become agitated, reached for his

identification. While doing so, the officer saw what the officer suspected to be

marijuana in Winborn’s lap. The officer directed all the passengers to exit the

vehicle and arrested Winborn. Once the occupants were out of the red Saturn,

officers conducted a search and discovered three firearms.

Winborn filed a motion to suppress evidence obtained from the search,

arguing it was obtained in violation of the Fourth Amendment. Specifically, he

argued the 911 calls did not give officers reasonable suspicion to make the initial

stop, which he claimed began when the officers told the occupants to place their

hands where they could be seen. The district court rejected Winborn’s argument,

finding the circumstances established reasonable suspicion. Winborn now appeals

the denial of his motion to suppress. Because we hold the officers had reasonable

suspicion to make the initial stop, we affirm the district court.

If. Analysis

“We review the denial of a motion to suppress de novo but the underlying

factual determinations for clear error, giving due weight to inferences drawn by law

enforcement officials.” United States v. Clutter, 674 F.3d 980, 982 (8th Cir. 2012).

The Fourth Amendment protects against unreasonable searches and seizures.

U.S Const. amend. IV. “An officer may conduct a Fourth Amendment stop to

investigate a crime only if the officer has a reasonable suspicion that that person had

committed or was committing a crime.” United States v. Juvenile TK, 134 F.3d 899,

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902 (8th Cir. 1998) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). “Reasonable

suspicion exists when an ‘officer is aware of particularized, objective facts which,

when taken together with rational inferences from those facts, reasonably warrant

suspicion that a crime is being committed.”” United States v. Givens, 763 F.3d 987,

989 (8th Cir. 2014) (cleaned up) (quoting United States v. Hollins, 685 F.3d 703,

706 (8th Cir. 2012)). Reasonable suspicion is based on the totality of circumstances.

See Pollireis v. Marzolf, 9 F 4th 737, 744 (8th Cir. 2021). A reliable witness’s tip

can provide reasonable suspicion to make an investigatory stop. Navarette v.

California, 572 U.S. 393, 399-400 (2014); see United States v. Mosley, 878 F.3d

246, 252-53 (8th Cir. 2017). Winborn argues the officers lacked reasonable

‘suspicion to make the stop because the 911 callers’ tips were not reliable;

specifically, he argues the third caller lacked reliability because he did not have

specific knowledge that Winborn’s vehicle was involved in the shooting.

Here, we examine whether the police officers had reasonable suspicion to

make an investigatory stop at the time they told Winborn to put his hands on the

wheel. A 911 caller’s tip can, under the totality of circumstances, support an

officer’s reasonable suspicion if the caller and the tip are reliable. See Mosley, 878

F.3d at 253. Reliability is determined by evaluating an eyewitness’s knowledge of

the alleged incident, the contemporaneous reporting of the event, and the ability to

hold the caller accountable for potentially false reports. Jd. Winborn argues his case

is distinguishable from Mosley, while the government argues it is analogous.

In Mosley, a witness drove by a bank that had just been robbed and saw two

men fleeing. Id. at 250. While reporting what he saw to 911, the witness lost sight

of the two robbers, but he reported seeing only a gray or silver Taurus leave the

bank’s vicinity. Jd. The witness followed the vehicle and gave 911 its location and

direction of travel. Id. Notably, he only saw one occupant in the vehicle, a female

driver, so he was unsure whether the Taurus was involved in the robbery. Id.

Nevertheless, police relied on his information to stop the vehicle; they searched the

trunk and found two men with masks and cash hiding there. Jd.

4.

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The Mosley defendants argued police officers lacked reasonable suspicion to

stop their vehicle. Id. at 251. We concluded the officers had reasonable suspicion,

rejecting the argument that a witness must be “able to state “concretely’” whether a

suspicious vehicle is involved in a crime. Jd. Based on the Taurus’s “close temporal

and physical proximity” to the scene of the crime, we concluded the totality of the

circumstances—including the witness’s tip—supported a reasonable suspicion to

stop the vehicle. Jd. at 252.

Here, as was the case in Mosiley, the totality of the circumstances supported

the officers’ reasonable suspicion. Two 911 callers reported hearing multiple shots

fired in the same area. A third caller reported seeing two masked suspects near a red

Saturn near where those shots were fired, while another vehicle drove off. That the

suspects wore masks also indicated suspicious, perhaps criminal, activity. Though

Winborn alleges the third caller could not concretely state whether the suspects

committed a crime, we rejected a similar requirement in Mosley. See id. As

mentioned, Winborn was located one block away from the reported scene, just two

minutes after officers received information about the red Saturn. Moreover, when

one of the officers began to approach the red Saturn, Winborn suspiciously insisted,

“lylow’ve got the wrong car.”

While these facts separately could be consistent with innocent behavior, when

taken together, they give rise to reasonable suspicion to justify the stop under the

totality of the circumstances.? See United States v. Trogdon, 789 F.3d 907, 914 (8th

Cir. 2015); Juvenile TK, 134 F.3d at 904 (“[IJn light of the totality of circumstances

..., in particular, the short distance between the location of the stop and the crime

*The government argues Winborn’s Saturn further matched the third 911

caller’s description because it was missing its front license plate. But Winborn

contends the officers’ body camera footage suggests they were not in a position to

see the front of the vehicle when they ordered Winborn to place his hands on the

wheel. Even if the officers did not corroborate the missing front plate, the record

still reflects the officers had reasonable suspicion under the totality of circumstances

to stop the vehicle.

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scene,... and the allegations of conduct that was clearly criminal, . . . there was

reasonable suspicion to support the investigative stop.”). The district court did not

err in denying the motion to suppress.

Il. Conclusion

We affirm the district court.

_6-

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 23-3453

United States of America

Appellee

Vv.

Marlon Maurice Winborn

Appellant

Appeal from U.S. District Court for the District of Minnesota

(0:22-cr~00319-PJS-1)

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

September 10, 2024

Order Entered at the Direction of the Court:

Acting Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Maureen W. Gornik

Appendix B

Qe 8

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CASE 0:22-cr-00319-PJS-JFD Doc. 89 Filed 05/15/23 Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

UNITED STATES OF AMERICA, Case No. 22-CR-0319 (PJS/JED)

Plaintiff,

v. ORDER

MARLON MAURICE WINBORN and

MARQUIS DESHON DAVIS,

Defendant.

Lauren O. Roso, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.

Lee R. Johnson, JOHNSON & GREENBERG, PLLP, for defendant Marlon

Maurice Winborn.

Kevin W. DeVore, DEVORE LAW OFFICE, P.A., for defendant Marquis

Deshon Davis.

This matter is before the Court on defendants’ objections to the April 5, 2023

Report and Recommendation (“R&R”) of Magistrate Judge John F. Docherty. Judge

Docherty recommends denying Winborn’s and Davis’s motions to suppress and Davis's

motion to dismiss the indictment.’ The Court has conducted a de novo review. See 28

US.C. § 636(b)(1); Fed. R. Crim. P. 59(b). Based on that review, the Court overrules

defendants’ objections and adopts the R&R.

Judge Docherty also recommends denying Winborn’s motion to sever. Winborn

does not object to this recommendation.

Appendix C

CASE 0:22-cr-00319-PJS-JFD Doc. 89 Filed 05/15/23 Page 2 of 4

Winborn and Davis both contend that Judge Docherty erred in determining that

Officers Sporny and Sanchez had a reasonable articulable suspicion to conduct an

investigatory stop of the red Saturn from which defendants and firearms were

ultimately seized. According to Winborn and Davis, because the 911 call that led

Sporny and Sanchez to stop the red Saturn did not explicitly connect the vehicle to the

reported criminal activity (the firing of multiple gunshots in an alley), the officers were

acting only on a “hunch” in stopping the vehicle. See Winborn Obj. at 8-9; Davis Obj. at

5-6.

These objections are without merit, particularly in light of United States v. Mosley,

878 F.3d 246 (8th Cir. 2017). In Mosley, the Eighth Circuit concluded that police officers

had reasonable suspicion to stop a vehicle based on information obtained from a 911

caller placing the vehicle near the scene of a bank robbery, even though the caller

expressed uncertainty about whether the vehicle was connected to the robbery.

Similarly, Sporny and Sanchez had reasonable suspicion to stop the red Saturn based on

information obtained from a 911 caller placing the vehicle near the scene of a shots-fired

incident, even though the caller did not explicitly connect the vehicle to the gunfire.

Sporny and Sanchez were acting on more than an “inchoate hunch.” Id. at 251 (quoting

United States v. Tamayo-Baez, 820 F.3d 308, 312 (8th Cir. 2016)). Instead, they were

“aware of particularized, objective facts which, taken together with rational inferences

10

CASE 0:22-cr-00319-PJS-JFD Doc. 89 Filed 05/15/23 Page 3 of 4

from those facts, reasonably warrant[ed] suspicion that a crime [was] being

committed.” Id. (quoting United States v. Givens, 763 F.3d 987, 989 (8th Cir, 2014)).

Because Sporny and Sanchez had reasonable suspicion to stop the red Saturn,

Winbom’s objection to the later search of the vehicle is also without merit. That search

was plainly justified under Michigan v. Long, 463 U.S. 1032, 1049 (1983) (“[T]he search of

the passenger compartment of an automobile . . . is permissible if the police officer

possesses a reasonable belief based on specific and articulable facts which ...

reasonably warrant the officers in believing that the suspect is dangerous and the

suspect may gain immediate control of weapons.” (quotation omitted)).

ORDER

Based on the foregoing, and all of the files, records, and proceedings herein, the

Court OVERRULES defendants’ objections [ECF Nos. 85, 86] and ADOPTS the RER

[ECF No. 82]. Accordingly, IT IS HEREBY ORDERED THAT:

1. Defendant Winborn’s motion to sever defendant [ECF No. 51] is DENIED

AS MOOT; |

2. Defendant Winborn’s motion to suppress [ECF No. 52] is DENIED;

3. Defendant Davis’s motion to suppress [ECF No. 53] is DENIED; and

4, Defendant Davis’s motion to dismiss the indictment [ECF No. 54] is

DENIED.

11

CASE 0:22-cr-00319-PJS-JFD Doc. 89 Filed 05/15/23 Page 4 of 4

Dated: May 15, 2023 s/Patrick J. Schiltz

Patrick J. Schiltz, Chief Judge

United States District Court

12

CASE 0:22-cr-00319-PJS-JFD Doc, 73 Filed 02/21/23 Page 1 of 18

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

CRIMINAL NO 22-319(1) (PJS/JED)

UNITED STATES OF AMERICA,

Plaintiff

v. WINBORN'S POST-HEARING

MEMORANDUM IN SUPPORT

MARLON MAURICE WINBORN OF MOTION TO SUPPRESS

)

)

)

)

) DEFENDANT MARLON

)

)

)

)

Defendant )

Defendant Marlon Maurice Winborn, through his undersigned attorney,

submits this Post-Hearing Memorandum in further support of his Motion to

Suppress Evidence Obtained as a Result of Search and Seizure (ECF No. 52). As set

forth below, and in his initial motion, police did not have reasonable suspicion to

stop him or the red Saturn he was driving. Because the Government cannot show

the plain view exception to the exclusionary rule applies, all evidence discovered

during the search of the vehicle should be suppressed.

PROCEDURAL BACKGROUND

The Government filed a two-count superseding indictment on November

22, 2022. (ECF No. 9). Count 1 charged that on May 18, 2022, Mr. Winborn

committed the crime of being a felon in possession of a Taurus model] PT111 G2A

9mm. pistol, serial number ABE56477. (Id.) Count 2 charged that on May 18, 2022,

Marquis Davis committed the crime of being a felon in possession of a Glock

model 19 9mm pistol, serial number BBVZ148. (Id.)

1 Appendix D

13

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a. Officer Sporny's Contemporaneous Report On the Stop.

Whether an officer had reasonable suspicion is determined by what the

officer reasonably knew at the time of the stop and seizure. United States v. Hollins,

685 F.3d 703, 706 (8% Cir. 2012) Shortly after the stop, while still on the scene,

Officer Sporny explained to a superior why he had stopped the red Saturn:

Sporny:

Sporny:

Sergeant:

Sporny:

Sporny:

We show up. Come down the alley here.

Probably did come ..., I think this is [inaudible] Pillsbury

and Pleasant. Yes we came up in the alley . Um, I cut

down the bike way the wrong way and then Amanda said

something something about a red Saturn so I seen the

red Saturn |

Was that in the call?

Yes but with a temporary tag though.

And so I was like, okay red Saturn, 50-50 on the

Temp Tag... who knows, right? So we go, we pull out

on it Driver gets out of the, the, he leans out the window.

Ya'll got the wrong car. Okay.

(Gov. Exh. 3 at 22:45. (emphasis added)). An officer making a traffic stop based

upon reasonable suspicion “must be able to articulate something more than an

‘inchoate and unparticularized suspicion or “hunch.” See e.g. United States v.

Sokolaw, 490 U.S.1, 7 (1989) (citation omitted). Officer Sporny's contemporaneous

report weighs against reasonable suspicion because it indicates he stopped the red

Saturn based on a hunch it might be involved in the shots fired.

b. The 911 Call Mentioning the Red Saturn.

The Government's central argument on reasonable suspicion is that the red

Saturn was mentioned by a 911 caller. (See Gov. Response at p. 8.) A cursory look

14

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

em ict ime cme ee ree re eee mm ecm es ee ee ce rr rr es mr rt ts a ce ce ee ee ee ee ee ee ry re ee ee ve

COURT FILE

United States of America, NO. 22-CR-319 (PUIS/dJFD)

Plaintiff,

(1) Marlon Maurice Winborn,

(2) Marquis Deshon Davis, Courtroom 6A

Tuesday, January 24, 2023

St. Paul, Minnesota

9:00 A.M.

A a mr ee a ems ee ee ese es mer re rere re i ee ee er re re ie ee ee ee a er

Defendants.

)

)

)

)

)

vs. )

)

)

)

)

)

)

CRIMINAL MOTION HEARING

BEFORE THE HONORABLE JOHN F. DOCHERTY

UNITED STATES MAGISTRATE JUDGE

TIMOTHY J. WILLETTE, RDR, CRR, CRC

Official Court Reporter - United States District Court

Warren E. Burger Federal Building & U.S. Courthouse

316 North Robert Street - Suite 146

St. Paul, Minnesota 55101

651.848.1224

Appendix E

APPEARANCES:

For the Government:

OFFICE OF THE U.S. ATTORNEY

By: LAUREN O. ROSO

Assistant U.S. Attorney

600 United States Courthouse

300 South Fourth Street

Minneapolis, Minnesota 55415

' For defendant (1) Marlon Maurice Winborn:

JOHNSON & GREENBERG, PLLP

By: LEE R. JOHNSON, ESQUIRE

5775 Wayzata Boulevard - Suite 700

St. Louis Park, Minnesota 55416

For defendant (2) Marquis Deshon Davis:

DeVORE LAW OFFICE, P.A.

By: KEVIN W. DeVORE, ESQUIRE

724 Bielenberg Drive - Suite 110

Woodbury, Minnesota 55125

16

24

25

(9:00 a.m.)

PROCEEDINGS

IN OPEN COURT

THE COURT: Good morning, everyone. Please take a

seat.

We're here this morning for motions hearings in

the case of United States vs. Marion Maurice Winborn and

Marquis Deshon Davis, this Court's File Number 22-CR-319.

Mr. Winborn is Defendant Number 1, Mr. Davis is Defendant

Number 2.

Let's begin by getting appearances beginning with

the lawyer for the United States.

MS. ROSO: Good morning, Your Honor. Assistant

United States Attorney Lauren Roso on behalf of the

Government.

THE COURT: Good morning.

And for Mr. Winborn?

MR. JOHNSON: Good morning, Your Honor. Lee

Johnson appearing for Mr. Winborn.

THE COURT: Good morning.

And for Mr. Davis.

MR. DeVORE: Good morning, Your Honor. Kevin

DeVore on behalf of Mr. Davis, who's seated to my right.

THE COURT: Good morning. Good to see you again.

Mr. Davis, Mr. Winborn, just a couple of words _

TIMOTHY J. WILLETTE, RDR, CRR, CRC 17

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SPORNY - CROSS 57

Q. And again, you didn't wait for a response.

A. No.

Q. So the idea is just to alert them that this is what I'm

doing in case something goes wrong?

A. Yes.

Q. All right. And when Mr. Winborn told you, "You got the

wrong vehicle" -- I think he said it twice, and your

response was, "That's cool. I don't know that."

A. Correct.

Q. Now, you told him to put his hands on the wheel,

correct?

A. Correct.

Q. And you also -- and Officer Sanchez was giving commands

to the people in the back seat.

A. Correct.

Q. So maybe I can just cut this off and say there's no

question that you were doing an investigatory stop of this

vehicle, correct?

A. Correct.

QO. And you had decided to do that as soon as you saw the

red Saturn, correct?

A. Correct.

Q. And you told Mr. Winborn to shut off the car; do you

remember that?

A. Yes. —

TIMOTHY J. WILLETTE, RDR, CRR, CRC

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SPORNY - BY THE COURT 62

Saturn, you stop by the Saturn, you back up, you get out,

all of these things.

At some point that Saturn's not free to go. If it

leaves, you're going to chase it, you know what I mean? Can

you identify when that was in this continuum of events?

A. Iwas out of the squad car so quickly I think that I

would have probably jumped -- if it was -- me being honest,

Your Honor, my honest working opinion, or working --

Q. That's what I want.

A. -- would have been if the vehicle would have took off, I

would have jumped in my squad car, attempt to stop it, and

if it was called off by the supervisor, it would have been

potentially called off by our chase protocols.

Q. Okay.

A. It is plausible.

Q. So are you saying that as soon as Officer Sanchez said,

"There's a red Saturn,” that vehicle was not going anywhere

without a police response?

A. I'm sorry, Your Honor.

Q. Sure. You're driving along, Officer Sanchez says,

"There's a red Saturn.™ You stop. You back up. Sometime

after that you get out of the vehicle and start giving

verbal commands to the occupants.

A. Yes, Your Honor.

QO. And I guess what I'm trying to find out —- legally, I'm

TIMOTHY J. WILLETTE, RDR, CRR, CRC 4

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SPORNY - CROSS 67

A. That's a fair assessment, yes.

Q. And then same thing with Officer Sanchez, right? Were

you guys kind of coming up sort of in equal distances from

the car?

A. Pretty close to that, yes.

Q. All right. And she was on the passenger side and you

were on the driver's side.

A. Correct.

Q. And I think you testified that she had her gun already

drawn, is that correct?

A. 2 believe I was asked that, but I know that she did have

her weapon drawn, yes.

OQ. Not her Taser gun, but her actual --

A. Her service weapon, yes.

QO. And did you have yours drawn?

A. I did not have mine pointed. I had mine what we call at

the ready, which it was unsnapped, but it was in my hand.

Q. Okay. You had your hand on your gun as you were

approaching the vehicle.

A. Yes.

O. You had that happening, you had your hand on your gun

unsnapped, almost immediately after you got out of the car,

correct?

A. Yes.

Q. All right. And just to clarify what the judge asked

TIMOTHY J. WILLETTE, RDR, CRR, CRC Ag

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SPORNY - CROSS 68

you, as you stopped behind that Saturn, it was not free to

leave, correct? |

A. No.

QO. Okay. And then you continued to approach the vehicle,

but in the video, would you agree that while you're still

quite a ways back from the vehicle, you started to elevate

your commands towards the rear passenger of the vehicle to

put his hands on the back seat; is that a fair statement?

A. Yes, that's a fair statement.

©. And even at that point as you're elevating your commands

and you're raising your voice, you still could not see into

the vehicle, correct?

A. Correct.

QO. All right. And is it fair to say that at some point you

observed some what you thought to be marijuana on the lap of

the driver, which was Mr. Winborn, correct?

A. Correct.

Q. All right. But that was after you got all the way up to

the car, correct?

A. Correct.

QO. And at that point were you able to observe any weapons

or guns at all of any kind?

A. Inmy visual, no.

Q. And in the video Mr. Winborn tells you that he had

nothing to do with the gunshots, correct?

TIMOTHY J. WILLETTE, RDR, CRR, CRC HI

(651) 848-1224