The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
REPORT AND RECOMMENDATION
Defendant Lala Briggs is before the court on an indictment charging him with possession of marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); use and carrying of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); being an unlawful user of a controlled substance in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2); and with forfeiture of firearm and ammunition, pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c).
Mr. Briggs has filed a motion to suppress statements and evidence obtained by police from Mr. Briggs and from his home. The government resists the motion in part. The district court, the Honorable Jeffrey L. Viken, referred this motion to this magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the court's standing order dated April 6, 2010.
An evidentiary hearing on this motion was held June 15, 2010, at which Mr. Briggs and his counsel, Gary Colbath, Jr., were present. The government was represented at the hearing by its Assistant United States Attorney Mark Vargo. At the hearing, Pennington County Sheriff's Deputy Todd Battest testified and one exhibit was received into evidence. From that evidence the court makes the following findings of fact.
On December 21, 2009, Deputy Battest was on duty serving felony arrest warrants. He had a state felony arrest warrant for Mr. Briggs for distribution of marijuana and he traveled to Mr. Briggs' home in Rapid City, South Dakota, for the purpose of executing the arrest warrant. Deputy Battest, dressed in street clothing, but armed with his weapon and customary equipment, knocked on Mr. Briggs' door to his apartment. Mr. Briggs answered the door.
Deputy Battest immediately smelled what he described as an overwhelming odor of raw marijuana coming from inside the residence. Deputy Battest identified himself as a sheriff's deputy, told Mr. Briggs that he had an arrest warrant for Mr. Briggs, told Mr. Briggs that he smelled marijuana, and immediately asked Mr. Briggs if the marijuana was on his person. As Deputy Battest delivered this salvo of information, he took a step into the entry area of Mr. Briggs' apartment. The area where Deputy Battest and Mr. Briggs were now standing was a combination living room and dining room. Visible to Deputy Battest from the front door was a couch, a dining room table, and some chairs. From the entry area, Deputy Battest saw two sandwich-sized clear plastic baggies on the dining room table containing what Deputy Battest believed to be marijuana. Also on the dining room table, Deputy Battest saw glass pipes of the kind used to smoke marijuana.
Deputy Battest did not explicitly tell Mr. Briggs that he was under arrest, but he agreed that it was implicit. Deputy Battest testified that Mr. Briggs was never free to leave from the first moment Deputy Battest made contact with him. Deputy Battest testified that it was apparent from Mr. Briggs' body language and facial expression that he immediately understood the implications of his situation and that he was considering whether to cooperate with Deputy Battest or to attempt to flee. Deputy Battest testified that, fairly soon after initiating contact with Mr. Briggs, Mr. Briggs apparently decided to cooperate as he no longer displayed signals that he was considering fleeing.
Shortly after Deputy Battest entered Mr. Briggs' apartment, Mr. Briggs' mother and a thirteen year-old boy entered the room where Mr. Briggs and Deputy Battest were standing. Deputy Battest testified that he wanted backup officers at the scene because he was outnumbered and because Mr. Briggs outweighed Deputy Battest by at least 200 pounds and, therefore, could overwhelm Deputy Battest if he chose to. Deputy Battest accordingly radioed dispatch for backup units. A short time later, a Deputy Oldson arrived on the scene. Deputy Battest instructed Deputy Oldson to secure the evidence in view on the dining room table to make sure it was not destroyed while a search warrant was being secured. When Deputy Oldson approached the dining room table, he observed a semi-automatic rifle in plain sight leaning against a corner. Acting on concerns for officer safety, he immediately emptied the rifle of its ammunition.
Throughout this period of time, the law enforcement officers interrogated Mr. Briggs about the presence of marijuana on his person, the presence of marijuana elsewhere in the home, the presence of other firearms, and the presence of anything else the officers "should know about." In response to this interrogation, Mr. Briggs told the officers that he had additional marijuana located in a shoe box on a shelf near the dining room table. Although the shoebox was in plain sight from Deputy Battest's position near the entry area of the apartment, Deputy Battest could not see into the box and view its contents. Never at any point during this initial period of contact with Mr. Briggs did any law enforcement officer advise Mr. Briggs of his Miranda*fn1 rights.
The officers at the scene relayed these facts to John Griswold, an agent with the South Dakota Division of Criminal Investigation. Agent Griswold prepared an affidavit and submitted the affidavit in support of a request for a search warrant for Mr. Briggs' apartment. That search warrant was issued by a state court judge. See Exhibit 1.
It is apparent from a review of the affidavit that some information was jumbled in its communication from the scene of Mr. Briggs' apartment to Agent Griswold, although the court expresses no opinion as to how this happened. Notably, the affidavit mentions the shoebox of marijuana that was not in plain view and that was discovered as a result of the officers' questioning of Mr. Briggs, but the affidavit does not mention at all the plastic bags of marijuana that were in plain view on the dining room table. Id. The affidavit, however, accurately states that Deputy Battest saw marijuana pipes on the table and that he smelled a strong odor of marijuana coming from the apartment immediately upon making initial contact with Mr. Briggs. Id.
Agent Griswold arrived at the Briggs apartment to execute the search warrant at approximately 11:30 pm. Deputy Battest had not left the apartment since he first arrived on Mr. Briggs' doorstep at approximately 7:20 pm that evening. Deputy Battest testified that he believed Agent Griswold advised Mr. Briggs of his Miranda rights when Agent Griswold arrived at the scene with the search warrant in hand.
Mr. Briggs now seeks to suppress the statements he made to law enforcement on December 21, 2009, for the reason that they were the product of custodial interrogation without benefit of Miranda warnings and were involuntary. Mr. Briggs also seeks to suppress physical evidence seized from his home pursuant to search warrant for the reason that Mr. Briggs' unwarned statements formed part of the probable cause for the issuance of that ...