A federal magistrate ruled Tuesday that eight Molotov cocktails found during the search of a basement should be used as evidence in the upcoming trial of two Texas men who allegedly planned to use the devices during the Republican National Convention.
The ruling means prosecutors can't use evidence of makeshift shields and batons found in a trailer, but they can use evidence of molotov cocktails found in a St. Paul basement.
Attorneys for Bradley Crowder, 22, and David McKay, 23, had asked the magistrate to suppress evidence from a warrantless search of a U-haul trailer and from the basement of an apartment building where the two men were staying.
The trailer contained more than 30 shields and cut-off wooden shovel handles. A St. Paul police officer said there was no time to get a warrant, because an informant said the contents would be moved within the hour.
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Federal Magistrate Franklin Noel said there was ample time for police to obtain a search warrant, because police knew the trailer and its contents existed for at least a day and half before they located it.
Attorneys had argued the basement went beyond the area listed in the search warrant. But the magistrate said the warrant included all common areas.
U.S. District Judge Michael Davis can accept or reject the magistrate's recommendations when McKay and Crowder go on trial Monday.
Prosecutors allege Davis and Crowder were part of an Austin, Texas-based protest group that planned to use incendiary devices to destroy property or injure police during the convention, which was held at the Xcel Energy Center in St. Paul from Sept. 1-4.
McKay's attorney said the magistrate's report was good for the defense.
"I think it's a positive development," said Jeffrey DeGree, noting that the government could appeal Noel's recommendation.
A federal grand jury indicted McKay and Crowder in September on charges they possessed Molotov cocktails during their stay in St. Paul during the Republican National Convention.
They have pleaded not guilty and are being held without bail.
They came to Minnesota in a rented van and U-Haul trailer that contained helmets, batons and homemade riot shields. The FBI had an informant in the group.
The protesters arrived in St. Paul on Aug. 30 and unhitched the trailer from the van, according to court testimony. On Aug. 31, St. Paul Police Commander Davis Korus ordered the trailer be found.
"Whatever was in the trailer, I didn't want it in St. Paul," Korus testified.
He told officers who later found the trailer to "deal" with it, and an officer on the scene interpreted that to mean he should break into it.
In his report, Noel wrote that the search and seizure was illegal. McKay and Crowder had a "legitimate expectation of privacy" for the trailer and its contents.
"A container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant," he wrote.
Prosecutors had argued there were "exigent circumstances," such as the possibility the trailer might soon be moved or that there was an imminent threat to public safety or police.
But Noel disagreed. He also said law enforcement had "ample time to seek a warrant."
St. Paul Police spokesman Peter Panos said the department would not comment on the magistrate's recommendations.
(The Associated Press contributed to this story.)