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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
UNITED STATES OF AMERICA, Case No. 22‐CR‐124 (NEB/TNL)
Plaintiff,
v. ORDER ON REPORT AND
RECOMMENDATION
ABDIAZIZ SHAFII FARAH,
Defendant.
Defendant Abdiaziz Shafii Farah has been charged with willfully and knowingly
making a false statement in a passport application, in violation of 18 U.S.C. Section 1542.
(ECF Nos. 2, 22.) Farah moved to suppress evidence obtained by a search warrant of his
residence and a seizure warrant of his GMC Sierra truck on January 20, 2022. (ECF
No. 33.) In a Report and Recommendation, Magistrate Judge John F. Docherty
recommended denying the motion to suppress the evidence found in Farah’s residence
and granting the motion to suppress the evidence found in the Sierra. (ECF No. 142
(“R&R”).) The government objected to the R&R’s recommendation to suppress the
evidence found in the Sierra. (ECF No. 150.)
The Court has reviewed the R&R de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Crim.
P. 59(b)(3); D. Minn. LR 72.2(b)(3). Based on that de novo review, the Court sustains the
government’s objection and accepts in part and modifies in part the R&R.
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BACKGROUND
Neither party objects to the R&R’s description of the factual background, so the
Court incorporates those facts by reference, (R&R at 2–7), and focuses on the facts relating
to the inventory search of the GMC Sierra.
Farah moved to suppress evidence obtained by the search warrant for his
residence and the inventory search of his Sierra, which was conducted after the
government obtained a seizure warrant for the Sierra. Prior to the evidentiary hearing on
the motion, the parties agreed that the scope of the hearing would be limited to the
passport card seized from Farah’s residence and the passport book seized from the Sierra.
(ECF No. 55 (“Hr’g Tr.”) at 4.)
At the evidentiary hearing, the government offered the testimony of FBI Special
Agent (“SA”) Richard Frank. SA Frank became a Special Agent in 2019 and has been
involved in around 20 to 30 search‐and‐seizure warrant executions. (Id. at 8–9.) He has
been a member of the FBI Minneapolis office’s Evidentiary Response Team since 2021,
for which he had additional training. (Id. at 9.)
FBI policy. SA Frank testified that he knew that the FBI has written policies for
inventory searches of vehicles and has been trained on those policies. (Id. at 34–35.) He
did not review the policies before executing the warrants on January 20, but he did review
them to prepare for his hearing testimony. (Id.) According to SA Frank, the FBI’s vehicle
inventory policy is to always conduct an inventory search when executing a seizure
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warrant on a vehicle, during which they look at everything that is reasonably accessible
within the vehicle before turning it over to a civilian tow‐truck driver to be impounded.
(Id. at 36; see id. at 12–13, 35–36.) SA Frank noted three purposes of the policy:
(1) protecting the defendant’s rights, (2) protecting the FBI from false claims of loss or
theft, and (3) safety. (Id. at 13, 15, 35–36, 38–39.)
SA Frank did not know if FBI policy required items collected during an inventory
search be recorded on a form. (Id. at 41.) He noted that the FBI uses different forms when
conducting an inventory search and an evidentiary search. (Id. at 36–37; 41–42.) SA Frank
believed that using an evidentiary log to record items from an inventory search was
acceptable. (Id. at 41–42.)
January 20 inventory search. SA Frank testified to an inventory search on the Sierra
that was performed in accordance with his description of the FBI’s inventory policy. (See
id. at 12–15, 34.) The search was conducted while a tow truck was on its way to tow the
Sierra from Farah’s residence. (Id. at 14.) SA Frank testified that the inventory search was
conducted to secure items of value in the Sierra (e.g., currency), and because it was being
transported out of the FBI’s control, which could generate a claim. (Id. at 15.)
SA Frank decided what items to collect from the Sierra based on whether the item
was valuable, sensitive, irreplaceable, or worthy of additional protection. (Id. at 18.) A
passport, U.S. currency, and a bank envelope were found in the Sierra’s center console,
and U.S. currency was found in a briefcase or laptop bag in the back seat. (Id. at 17.) An
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Apple watch and bags of documents were also found in the Sierra. (Id.) The agents did
not open or collect one or two large boxes found in the Sierra’s truck bed because “they
looked very, very heavy and we didn’t have the ability to transport those back and it
didn’t look pertinent to anything.” (Id. at 20.) SA Frank did not “recall exactly what [the
boxes were],” but thought that they “looked like maybe like some sort of exercise
equipment or something of that nature.” (Id. at 30.) He could not recall why they did not
look inside the boxes and confirmed that if he had thought the boxes contained something
valuable or dangerous, he would have looked through them. (Id. at 30–31, 43.)
SA Frank alternated between searching Farah’s residence and the Sierra because
of the bitterly cold weather that day, making the Sierra search difficult. (Id. at 23, 25, 40–
41.) In doing so, he followed the same process for collecting items for the evidentiary
search of Farah’s residence and the inventory search of the Sierra: (1) he placed a
numbered, yellow evidentiary tag beside the item; (2) he had a photographer take a
picture of the item in place; then (3) he bagged the items and brought them to another
agent in the residence who logged the items. (Id. at 27, 32–34.) SA Frank uses this process
when doing an inventory search because it “tends to avoid issues later.” (Id. at 34.)
Though each item collected was tagged and photographed, the FBI did not
complete a separate inventory search form for the items collected from the Sierra. The
inventoried items from the Sierra were “interspersed” or “intermingled” with evidence
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collected from Farah’s residence on the same “evidence collected item log.” (Id. at 27–28;
see id. at 36–37.)
The R&R. The R&R concludes that the government failed to prove that the
inventory search of the Sierra was done according to established inventory procedures
and that the FBI had an investigatory motive for searching the Sierra, and thus
recommends that the Court grant Farah’s motion to suppress evidence found in the
Sierra. The government objects to these conclusions and recommendation.1
ANALYSIS
I. FBI Inventory Policy
“The inventory search exception to the Fourth Amendment’s warrant requirement
permits law enforcement to inventory the contents of a vehicle that is lawfully taken into
custody.” United States v. Garreau, 658 F.3d 854, 857 (8th Cir. 2011). “An inventory
generally serves three purposes: ‘the protection of the [vehicle] owner’s property while it
remains in police custody; the protection of the police against claims or disputes over lost
or stolen property; and the protection of the police from potential danger.’” Id. (alteration
in original) (citing South Dakota v. Opperman, 428 U.S. 364, 369 (1976)). “The Government
bears the burden of showing that its conduct complied with the inventory search
exception to the warrant requirement.” United States v. Taylor, 636 F.3d 461, 464 (8th Cir.
1 The R&R also recommends denying Farah’s motion to suppress the passport card
recovered during the search of his residence. Neither party objects to this
recommendation.
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2011). Courts “review the propriety of an inventory search under a totality‐of‐the‐
circumstances test.” United States v. Long, 906 F.3d 720, 725 (8th Cir. 2018).
The parties agree that the seizure warrant for the Sierra was valid and that the FBI
has a policy of conducting inventory searches of seized vehicles. The issue is whether the
government has proved that its conduct complied with the inventory search exception.
The R&R concludes that it did not. The government objects to the R&R’s conclusion that
(1) the government failed to show that the evidence2 was found during a valid inventory
search, and (2) there was an investigatory motive for the search that negated the
reasonableness of the inventory search. The Court addresses each conclusion in turn.
A. Evidence of FBI Policy
“An inventory search is reasonable and constitutional if it is conducted according
to standardized police procedures.” Garreau, 658 F.3d at 857. The R&R found that it was
impossible to compare the FBI’s actions to its inventory policy because the government
did not admit the policy into evidence, and that SA Frank failed to “close the gap”
because “his testimony was at a general level.” (R&R at 12.)
The Court agrees that the FBI’s written policy would have been helpful, but the
lack of such evidence need not doom the inventory search. In United States v. Hartje, 251
2
The R&R suggests that its recommendation as to the passport book found in the Sierra
be extended to all evidence seized from the Sierra. (R&R at 2.) The Court declines to do
so. The parties agreed to limit the scope of the hearing to the passport book and passport
card, as the government only seeks to offer these two items from the searches in its case‐
in‐chief. (Hr’g Tr. at 4.)
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F.3d 771 (8th Cir. 2001), the defendant moved to suppress evidence found in the trunk of
his vehicle because the officers allegedly searched the trunk for incriminating evidence
rather than to inventory its contents. Id. at 775. An officer testified that the “‘policy of
Conway Police Department is that anytime a vehicle is towed, that an inventory, a
complete inventory be done on that vehicle before the wrecker service takes the vehicle,’
and that ‘during training, this was what we were shown to do and how to do it.’” Id. at
776. The district court found that the vehicle was inventoried pursuant to the standard
police procedure. Id. The Eighth Circuit rejected the defendant’s argument that the
district court erred because the testifying officers “failed to outline more of the specifics
of the towing policy.” Id. (affirming defendant’s conviction); see also United States v. May,
440 F.Supp.2d 1016, 1037–38 (D. Minn. 2006) (rejecting the argument that the government
failed to establish the reasonableness of an inventory search because the government did
not submit the police department’s policy, where an officer testified to the standard
inventory‐search policy, that the policy was in writing, and that the vehicle search was
conducted according to that policy).
The passport book was found inside the Sierra’s center console, and so the R&R
questions whether the FBI inventory policy allows agents to open closed containers. (R&R
at 13–14; see Hr’g Tr. at 17, 21.) The R&R cites Colorado v. Bertine, 479 U.S. 367 (1987), which
addressed the reasonableness of a warrantless inventory search of a van containing a
backpack and canisters within the backpack. Id. at 372. In concluding that “reasonable
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police regulations relating to inventory procedures administered in good faith satisfy the
Fourth Amendment,” the Supreme Court noted that “the Police Department’s
procedures mandated the opening of closed containers and the listing of their contents.”
Id. at 374 & n.6; see id. (“Our decisions have always adhered to the requirement that
inventories be conducted according to standardized criteria.”). As is noted in the cases
cited above, evidence of an inventory policy need not be in written form; oral testimony
may suffice. See also United States v. Le, 474 F.3d 511, 515 (8th Cir. 2007) (“Trooper Vance
testified that he was trained to open closed containers during inventory searches and that
it is his standard practice to do so. Such oral testimony is sufficient to establish the
requisite standardized procedures required to comport with the Fourth Amendment.”).
Nor does the policy need to address specifically closed containers where it requires the
inventory of an entire vehicle. See United States v. Morris, 915 F.3d 552, 556–57 (8th Cir.
2019) (“Because the policy required an inventory of the entire vehicle, it was reasonable
for the deputies to open containers believed to have items valued at $25 or more.”).
Having reviewed the transcript of the evidentiary hearing, the Court finds that SA
Frank’s training and experience qualify him to testify about the FBI’s policy on inventory
searches. (See Hr’g Tr. at 8–9.) SA Frank testified that the FBI has written policies for
conducting inventory searches, and that he had reviewed those policies before the
hearing. (Id. at 34–35.) By FBI policy, he always conducts an inventory search when
executing a seizure warrant on a vehicle. (Id. at 12–13, 36.) When executing such a
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warrant, the FBI agents “secure” the vehicle, “mak[e] sure it’s safe for transport,” and
“secure anything in there that’s of value.” (Id. at 12–13; see also id. at 13.)
But SA Frank’s testimony does not sufficiently describe the FBI inventory policy
on the search of closed containers. SA Frank did acknowledge that the guidance is to look
at everything that is reasonably accessible within the vehicle. (Id. at 36.) The government
does not argue that this testimony addresses the FBI’s inventory policy regarding closed
containers. Given that the only evidence at issue—the passport book—was found inside
the Sierra’s closed center console, the government’s failure to address this aspect of the
inventory policy in its objection is troubling. See generally Florida v. Wells, 495 U.S. 1, 4
(1990) (“Our view that standardized criteria . . . or established routine . . . must regulate
the opening of containers found during inventory searches is based on the principle that
an inventory search must not be a ruse for a general rummaging in order to discover
incriminating evidence.”).
The R&R also questions the intermingling of items recovered from the seizure of
the Sierra and the search of Farah’s residence on the same evidence log. SA Frank
described the inventory procedure: (1) they photographed the items in place with
numbered markers next to them; (2) they bagged the items; and (3) they brought the items
to an agent who listed them on an evidence‐collected log. (Hr’g Tr. at 17, 32–33.) SA Frank
noted that items recovered during other seizure warrants and search warrants have been
collected the same way. (Id. at 19, 34.) The FBI has a form that “can be used” to log items
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collected during an inventory search, but agents are not required to use that form. (See id.
at 36, 41–42) (attesting that agents can also use FBI form FD‐597, “Receipt for Property”).
SA Frank also explained that the agents logged items from both searches on the same
form3 and that the severely cold temperature led to agents alternating between searching
the residence and the Sierra to keep warm. (Id. at 28, 40–41.) But the record is unclear as
to whether FBI policy allows agents to intermingle items collected from different
warrants on the same form.4
So the Court observes two concerns with the FBI’s inventory policy: (1) the unclear
evidence about the policy on opening containers within a vehicle during an inventory
search; and (2) the logging of items from two different types of searches on the same form.
Considered alone or together, these concerns do not doom the inventory search for three
reasons. First, the FBI inventory policy, which is written and standardized as described
by SA Frank, requires agents to look at everything that is reasonably accessible within
the vehicle and secure anything of value. (Id. at 13, 36.) This arguably incorporates a
search of containers such as a console because items of value would likely be found in
3 FBI agents used the Receipt for Property form on January 20. (See ECF No. 44‐1 at 2–5.)
4The government does not claim that the intermingling the items collected from different
searches on the same evidence log complied with FBI policy. It asserts that inventory
searches need not be conducted in a “totally mechanical ‘all or nothing’ fashion.” (Obj. at
4 (citing Wells, 495 U.S. at 4).) Even if the agents failed to adhere to FBI policy by
intermingling items on the same form, their search may be reasonable “provided it [wa]s
not a pretext for an investigatory search.” Taylor, 636 F.3d at 465.
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such places. So, it is not unreasonable for SA Frank to interpret the policy as allowing a
search of the console.
Second, the logging of the evidence on different forms did not result in any
confusion over where an item was found (indeed, the parties here determined that the
passport card was found in the house and the passport book was found in the vehicle).
SA Frank followed a standardized procedure in logging the items: each one was
photographed and labeled.
Third, even if standardized procedures were not followed to the letter, whether
standardized procedures were followed is only part of the standard the Court considers.
“[A] failure to follow standard procedures does not ineluctably render a search
unreasonable.” United States v. Morris, 995 F.3d 665, 670 (8th Cir. 2021). “[T]here must be
something else; something to suggest the police raised the inventory‐search banner in an
after‐the‐fact attempt to justify a simple investigatory search for incriminating evidence.”
Id. (citation omitted); see United States v. Marshall, 986 F.2d 1171, 1175 (8th Cir. 1993)
(holding that “the absence of standardized procedures in this case, coupled with the
substantial evidence of an investigatory motive on the part of the police” rendered the
search of a vehicle unreasonable under the Fourth Amendment (emphasis added)); see
generally Whren v. United States, 517 U.S. 806, 816 (1996) (“[I]t is a long leap from the
proposition that following regular procedures is some evidence of lack of pretext to the
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proposition that failure to follow regular procedures proves (or is an operational
substitute for) pretext.”).
Thus, under this standard, the Court considers whether substantial evidence of an
investigatory motive is found in the record.
B. Investigatory Motive
The R&R identifies four reasons for finding “ample evidence” of investigatory
motive. (R&R at 15.) First, it points to SA Frank’s failure to review the FBI inventory
policy before conducting the inventory search on January 20. (Id.) The Court does not find
this to be evidence of investigatory motive. SA Frank was trained and experienced in
conducting inventory searches, and he testified about the policy and how he followed it.
The Court is unaware of any rule requiring experienced agents to review a written
inventory policy before executing a seizure warrant.
Second, the R&R notes that SA Frank knew that a specific form “was to be used
for inventories . . . but did not do so.” (R&R at 15.) But SA Frank did not testify that the
FBI mandates the use of a particular form for inventories; instead, he testified that the
form (FD‐653) “can be used,” but that agents also use other forms, including the FD‐597
form that the FBI used on January 20. (Hr’g Tr. at 36; see id. at 41–24.) The record does not
suggest that SA Frank was being untruthful about the use of these forms.
Third, the R&R relies on the fact that the agents “‘intermingled’ all the evidence
seized from five different locations (the house plus four vehicles) onto a single evidence
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collection form, making any inventory of the Sierra pointless, since (at least on the limited
record before the Court) one could not possibly discern what items had been in the
Sierra.” (R&R at 15.) Prior to the evidentiary hearing, the parties had agreed that the only
evidence at issue was the passport book found in the Sierra and the passport card found
in the residence. Thus, there was no need to present evidence about where these items
were found or about the other items collected. Moreover, SA Frank explained that agents
switched off between the inventory search of the Sierra and the evidentiary search of the
residence due to the bitterly cold weather that day. The R&R—and this Court—attaches
no significance to the agents’ decision to switch between searches, or the fact SA Frank
used the same multi‐step procedure to collect and log the items from both searches. (Id.
at 15–16.) The Court does not view the decision to log the items collected under different
warrants on one form to be an “after‐the‐fact attempt to justify a simple investigatory
search for incriminating evidence.” Morris, 995 F.3d at 670 (citation omitted); see Garreau,
658 F.3d at 858 (holding that an officer’s “alleged minor deviation from the policy [by
failing to list a firearm on the inventory form] was not sufficient to render the [inventory]
search unlawful”); United States v. Mayfield, 161 F.3d 1143, 1145 (8th Cir. 1998) (affirming
district court’s finding that an inventory search was not “a pretext or ruse for a general
search for incriminating evidence” even though “the inventory list started at the scene
was not completed as it should have been,” and “the seized items were listed on an
evidence form later”).
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Finally, the R&R questions the FBI’s decision to collect miscellaneous documents
but leave the heavy boxes in the truck bed unchecked. (R&R at 15.) This decision,
standing alone, does not suggest an investigatory motive warranting the suppression of
the passport book. SA Frank explained that at the time of the inventory search, he did not
think the boxes fell into one of the three categories requiring that they be inventoried, and
that if he had thought that the boxes contained something valuable or dangerous, he
would have looked through them. (Hr’g Tr. at 43.) He also noted that the boxes were
“very, very heavy” and the agents had no way to transport them. (Id. at 20.) As for the
documents collected from the Sierra, SA Frank testified that they were listed as
“documents” on the log because he could not review every piece of paper during the
collection due to the cold weather, (id. at 28), but that they fell into one of the three
categories. (Id. at 42.) Given the totality of the circumstances, the Court concludes that the
inventory search of the Sierra was not a pretext for an evidentiary search. Thus, the
motion to suppress the passport book found in the Sierra is denied.
II. Search of Farah’s Residence
The R&R recommends denying the motion to suppress the passport card
recovered during the execution of the search warrant for Farah’s residence. No party
objects to this aspect of the R&R. The Court has reviewed, and agrees with, the R&R’s
conclusions about the passport card. See United States v. Torres, 920 F.3d 1215, 1216–17
(8th Cir. 2019) (rejecting the argument that a passport card is not a United States
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passport). The Court thus accepts the R&R’s recommendation to deny the motion to
suppress the passport card found in the residence.
CONCLUSION
Based on all the files, records, and proceedings in this case, IT IS HEREBY
ORDERED THAT:
1. The government’s objection (ECF No. 150) is SUSTAINED;
2. The Report and Recommendation (ECF No. 142) is ACCEPTED IN PART
and MODIFIED IN PART; and
3. Farah’s Motion to Suppress Evidence (ECF No. 33) is DENIED.
Dated: December 9, 2022 BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge
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