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Lykken v. Brady

July 27, 2009


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


This case arises out of a series of searches of the Lykken family farm conducted by defendants, Agents Michael Braley,*fn1 Fred Devaney, Trevor Jones, and Kevin Thom of the South Dakota Division of Criminal Investigation (DCI), Vermillion Police Department Detective Crystal Brady, and Union County Deputy Sheriff Mike Bucholz in 2004 and 2007. Plaintiffs Kerwyn Lykken and Esther Lykken filed suit against defendants, alleging violations of the Fourth Amendment based on the alleged unreasonableness of the searches of the Lykken property and the seizures of Esther and Kerwyn, the insufficient particularity of the search warrant, and the lack of probable cause supporting the searches. Plaintiffs also alleged state-law claims of conversion and trespass against all defendants, breach of implied and express contract against Jones, Braley, and Devaney, and emotional distress against Thom, Devaney, and Brady (for Esther) and Bucholz and Braley (for Kerwyn).

Defendants assert that plaintiffs' suit is barred by the doctrine of qualified immunity. Defendants moved for summary judgment on all of plaintiffs' claims. The court granted summary judgment in favor of defendants on Kerwyn's claim that he was unreasonably seized in violation of the Fourth Amendment, plaintiffs' claim that the search warrant was insufficiently particular, plaintiffs' claim that defendants lacked probable cause for the searches, and plaintiffs' claims of breach of contract. The court reserved ruling on plaintiffs' claim that the searches were unreasonable and that Esther was unreasonably seized and allowed plaintiffs to conduct limited discovery. The court denied without prejudice defendants' motions for summary judgment on the state-law claims of conversion, trespass, and emotional distress. Plaintiffs conducted additional discovery and submitted an amended statement of undisputed material facts and memorandum in opposition to defendants' motions for summary judgment. Braley, Devaney, Jones, and Thom filed a renewed motion for summary judgment on all the remaining claims.


The facts, with all reasonable inferences drawn in favor of plaintiffs and as relevant to the remaining issues in the case, are as follows: Esther and Kerwyn are the owners of farmland in rural Union County, South Dakota (hereinafter referred to as Lykken property). Both Esther and Kerwyn maintain a residence on the land.

In 2004, the South Dakota Attorney General's Office reopened an investigation into the 1971 disappearance of two teenage girls in rural Union County. Braley was assigned to the case as the lead investigator. David Lykken, who is incarcerated at the South Dakota State Penitentiary, became a suspect in the investigation. David Lykken is the son of Esther and brother of Kerwyn, and he resided on the Lykken property in 1971.

Braley applied for and obtained a search warrant for the Lykken property on August 20, 2004. The warrant authorized officers to search for the bodies or remains of the missing girls; clothing, jewelry, and other personal items belonging to the missing girls; a vehicle; and other items. The warrant was executed on August 24, 2004, by Braley, Devaney, Jones, and Thom, all of whom were acting as agents of DCI. Brady and Bucholz also were present on August 24, 2004, and assisted in the execution of the search warrant. Defendants arrived at the Lykken property around 10 a.m. When they arrived, Kerwyn, Esther, and other family members were moving cattle from the pens north of the highway running through the Lykken property to the pens south of the highway. Bucholz and Braley immediately and physically separated Kerwyn from his family members, and Brady and Devaney immediately and physically separated Esther from her family members. Kerwyn was confused and told defendants to stand back because the cars and people were spooking the cattle, but Bucholz and Braley intentionally stopped him, and Devaney and Brady intentionally stopped Esther from steering the cattle and moving them. Bucholz told Kerwyn that he could not finish moving the cattle. Defendants did not make any efforts to round up the cattle. When Kerwyn asked Bucholz and Braley about catching and feeding the cattle, Bucholz told him that the cattle would be fine and the neighbors would take care of them. After defendants prevented Kerwyn and Esther from rounding up the cattle, the cattle ran back into the north yard, broke through the fence, and ran into a corn field. The cattle remained in the corn for over a week, causing damage.

After separating Kerwyn from his family members, Braley and one other officer took Kerwyn to a car and interviewed him. The officers compelled Kerwyn to walk around the Lykken property and answer their questions about prior use of the buildings. Shortly thereafter, Braley and Bucholz told Kerwyn that he was no longer welcome at the farm and that they wanted to talk with him at the Union County Courthouse in Elk Point. Kerwyn drove to Elk Point around 11 a.m., where he was questioned until 2 p.m. Braley and Bucholz accused Kerwyn of crimes and insinuated that he had knowledge of the 1971 disappearances. Bucholz also said awful things about Kerwyn's deceased brother and father. At about 2:30 p.m., Bucholz told Kerwyn that they wanted to conduct a polygraph examination. Kerwyn drove to Vermillion, where Jones interrogated him until about 7 p.m. Jones accused Kerwyn of participation in the coverup of the 1971 disappearances, disposal of the bodies, and disposal of the vehicle. Kerwyn demanded to leave because the accusations against his father were just too much. Kerwyn returned to the Lykken property after the polygraph examination in order to take care of the cattle, but Bucholz told him to leave.

Meanwhile, Esther was also separated from her family members by Devaney and Brady right after defendants arrived to search the Lykken property. Brady made Esther show her around the Lykken property. They rode on a golf cart because Esther was 84 years old and had difficulty moving around the farm. Brady questioned Esther about the prior use of the farm and whether there were ever any unfamiliar vehicles in the yard. The questioning continued inside Esther's home, where Devaney was waiting. Brady and Devaney accused Esther of hiding the truth about crimes committed by her husband and sons and of assisting her sons in the rape, kidnapping, and murder of the two girls in 1971. Esther claims that Brady spoke too close to Esther's face, asked Esther a lot of questions, raised her voice, and used an accusatory tone of voice. Neither Brady nor Devaney ever physically touched or restrained Esther. Esther testified that Brady did more of the questioning than Devaney.

At some point after questioning Esther, Brady and Devaney escorted Esther outside and told her to sit on a bench in her yard. Esther claims that Brady and Devaney sat with her on the bench for awhile, but left her at some point. Esther testified that she was permitted to stand and walk around and to re-enter the house to use the bathroom. Deposition of Esther Lykken, July 24, 2006, Docket 178-7 at 26. Esther also testified that she did not re-enter the house to eat lunch or dinner, and she does not remember if she was allowed to get a glass of water during the day. Id. at 26-27. Brady and Devaney did not allow Esther to enter her house during the search to cook, turn off the stove, or care for her cats (one of which was pregnant) while officers conducted the search.

Esther has provided conflicting testimony on whether she was allowed to leave the Lykken property after the questioning was over. Esther testified that she was never told she could not leave the property: "No, I was not told I couldn't leave. But why would I leave home? That thought never entered my mind, that I would have left, no." Deposition of Esther Lykken, August 21, 2007, Docket 178-8 at 27. In an affidavit dated October 11, 2007, however, Esther claimed that she was told that she had to remain at the farm. Affidavit of Esther Lykken, Docket 178-2, ¶ 9. It is undisputed that around 8 p.m., an officer (alleged to be Thom) ordered Esther to enter the house and said to her, "You and Kerwyn get your act together tonight. You confess, and when we come in the morning, why, we'll have your confession and we'll be out of here immediately. There won't be anymore digging." Amended Plaintiffs' Joint Statement of Material Facts, Docket 170, ¶53.

Defendants excluded Esther and Kerwyn from the Lykken property until noon on August 28, 2004. When Esther returned to her home after defendants were finished searching, she found her home in a terrible mess. Her stove was filthy. Her cat had given birth, and several kittens died. Also, one of Esther's refrigerators or freezers was unplugged by unidentified officers, causing the food to spoil and produce a foul odor.

Kerwyn found his home in damaged condition as well. His basement was flooded with ankle-high water, apparently because unidentified officers had removed the drain hoses attached to the air conditioner. As a result, some of Kerwyn's personal property was wet, moldy, and ruined. Kerwyn also complains that defendants dug holes on the Lykken property, failed to properly refill the holes, and left the door to Kerwyn's shop open resulting in damage to the door, but this court previously found that these actions were not unreasonable.

Defendants obtained and executed two additional search warrants on the Lykken property in conjunction with their investigation of David Lykken. On November 16, 2004, defendants conducted a search for a vehicle and other large items believed to be involved in the 1971 disappearances. This search resulted in the digging of large holes on the Lykken property. Bucholz and another unknown officer directed Kerwyn to move his fat cattle on three occasions during this search. Kerwyn's cattle took three months longer than normal to fatten for market, requiring extra feed at a cost of $4,000. Finally, on February 5, 2007, defendants searched the Lykken property for a Bible and writings relevant to the investigation of David Lykken. There are no outstanding issues relating to this search.

Plaintiffs allege that the searches of the Lykken property and the related interrogations hurt their physical and emotional health. Esther complains that while she was in good physical health before the August 24, 2004, search, after the search she had trouble sleeping and developed high blood pressure. She also complains of racing thoughts, tiredness, poor concentration, forgetfulness, rapid heartbeat, dizziness, feelings of panic, and hyperventilation. Kerwyn complains that he was shocked, horrified, repulsed, disgusted, depressed, and fearful of being ostracized by ...

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