The opinion of the court was delivered by: Roberto A. Lange United States District Judge
OPINION AND ORDER ADOPTING IN PART AND DENYING IN PART REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART MOTION TO SUPPRESS
This case originated with a motor vehicle accident on the Rosebud Sioux Tribe reservation in which a young Native American child suffered severe injuries. At the accident scene, India Ford was intoxicated, claimed that she was the driver, and thus was arrested. Tribal police suspected that Patrick Medearis ("Patrick") was the actual driver of the vehicle and that Patrick attempted to conceal this fact from police because Patrick was on federal supervised release. One of the investigating officers, Rosebud Sioux Tribe Special Agent Charles Ginsbach, sought and obtained a search warrant from Tribal Judge Janel Sully for the vehicle, which had been towed after the accident to the residence of Defendant Robert Medearis ("Medearis"). Upon discovering that the front windshield had been removed from the vehicle, Agent Ginsbach phoned Judge Sully, who verbally authorized the search of Medearis's property for the missing windshield. Police then found the windshield on the premises.
After being indicted for tampering with evidence, Medearis moved to suppress (Doc. 16) the windshield and other physical evidence as well as all statements he made to tribal officers and an FBI agent. After the parties fully briefed the motion, Magistrate Judge Mark Moreno held a hearing on the motion on October 6, 2010. On October 20, 2010, Judge Moreno issued a Report and Recommendation (Doc. 30), recommending that Medearis's motion to suppress be denied.
Copies of the Report and Recommendation were served upon the parties as required by 28 U.S.C. § 636. In considering a magistrate judge's recommendation on a dispositive matter, such as a motion to suppress evidence, a district court must make a "de novo determination of those portions of the report or . . . recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Medearis filed objections (Doc. 35) to the Report and Recommendation on November 2, 2010. This Court has conducted a de novo review of the record . For the reasons explained below, the Court adopts in part and declines in part the Report and Recommendation.
On January 31, 2010, a four-year-old child suffered severe injuries in a motor vehicle accident near Wood, South Dakota. T. at 7. According to the Affidavit for Search Warrant of Agent Ginsbach, the child's mother, India Ford, told Rosebud Police Highway Safety Officer Frank Iron Heart that she was the driver of the pickup truck involved. Ex. 1. Tribal investigators, however, based on information they had received, suspected that Ford's boyfriend, Patrick Medearis, was the actual driver. After the accident, the pickup, registered to Defendant Robert Medearis, was towed and left at his residence. Because Ford lacerated her forehead during the accident, Agent Ginsbach wished to have the windshield tested for DNA in order to assist in identifying the driver of the pickup during the accident. T. at 7-8.
On February 2, 2010, Agent Ginsbach applied for a warrant to search and seize the pickup from the property. Agent Ginsbach submitted a supporting affidavit in which he stated that the front windshield of the pickup possibly had DNA evidence that would show whether Ford was the driver at the time of the accident. Ex. 1. Rosebud Sioux Tribal Judge Janel Sully issued a warrant authorizing tribal police to search Medearis's property for the pickup. Ex. 2.
While executing the warrant, Agent Ginsbach discovered that the windshield had been removed from the pickup. He noticed an ax and pick hammer nearby and glass shards on the dash and hood of the pickup. Agent Ginsbach surmised that the windshield recently had been chopped out of the truck's frame.
Upon seeing this, Agent Ginsbach presented the search warrant to Defendant Robert Medearis and asked Medearis about the location of the windshield. Medearis initially answered that he had thrown it away in a dumpster by the high school and then said that he had sold it. T. 46; 89-90. When Agent Ginsbach stated that he would apply for another search warrant, Medearis said "go ahead," and he drove to the back of his residence. T. 23.
Fearing that the windshield, and therefore any DNA evidence on it, might be inside the residence and either tampered with or destroyed, Agent Ginsbach ordered three of his fellow officers to enter the residence and secure its occupants. As the officers did so, Agent Ginsbach telephoned Judge Sully and requested authorization to expand the scope of the original search warrant. Agent Ginsbach was not experienced with seeking a telephonic search warrant or the specific rules governing a telephonic search warrant application, but he was aware through his training that such warrants had been authorized in the past. T. 64. According to his training, Agent Ginsbach was "to call the judge, notify him or her of your circumstances, request a telephonic search warrant of whatever you want to search and if they grant it, then do the search and then within a reasonable amount of time, submit an affidavit and the typed warrant to search before them and have them sign it." T. 65. Agent Ginsbach testified that he was never taught that the telephone call needed to be recorded or under oath. Id. This training did not strictly comport to the BIA-Office of Justice Services "Law Enforcement Handbook," Ex. 5. Judge Sully granted Agent Ginsbach's request and issued a telephonic warrant to search Medearis's residence and property for the missing windshield. It was the "second or third" telephonic search warrant request authorized by Judge Sully during her tenure as tribal judge. T. 79. Judge Sully testified that, because the Rosebud Sioux Tribal Law and Order Code does not address telephonic search warrants, tribal judges look to the Federal Rules of Criminal Procedure for guidance. T 83-84.
After completing the call with Judge Sully, Agent Ginsbach entered the residence where Robert Medearis, his son Patrick, and India Ford were detained. The occupants "were being secured so they wouldn't destroy any evidence until [Agent Ginsbach] found it." T 50. Agent Ginsbach testified that Defendant Robert Medearis would not have been free to leave and "remained detained from the point that [Agent Ginsbach] ordered the police to enter the house . . . through the time until [Agent Ginsbach] located the windshield." T. 48-50. Without advisement of Miranda rights, Agent Ginsbach informed Medearis that he had received authorization to search the premises and asked Medearis a second time for the location of the windshield. Medearis again said that he had sold it. T. 46. Agent Ginsbach proceeded outside and located the windshield in an old truck bed on the side of the residence. He photographed and seized the windshield, the pickup from which it had been taken, and the ax and hammer. He then arrested Medearis for tampering with evidence.
The next day, February 3, 2010, Special Agent Ginsbach and FBI Agent David Keith spoke briefly with Medearis about the pickup. T. 100. Medearis approached the agents after they concluded an interview with Patrick. T. 100. Their conversation occurred outside Medearis's residence following his release from tribal custody on the tampering charge. Medearis asked questions concerning recovering possession of the pickup seized the previous day. T. 101. While speaking with the agents, Medearis said "that he had cut the windshield out of the pickup truck to access the wiring harness from underneath the dash" because he had a buyer interested in certain parts of the pickup. T. 101-04.
On February 12, 2010, ten days after the search and seizure occurred, Agent Ginsbach executed, under oath, a supplemental search warrant affidavit before Rosebud Sioux Tribal Judge Steve Emery. The second warrant was intended to memorialize the telephonic search warrant that Judge Sully had issued on February 2, 2010, on which she previously had briefed Judge Emery. Judge Emery also signed, on February 12, 2010, two search warrant returns, one for the original warrant that Judge Sully had issued and the other for the telephonic warrant that she had later authorized. Judge Emery signed the documents because Judge Sully was unavailable on February 12, 2010, which was the date that Agent Ginsbach understood to be the deadline for a judge to sign the documentation.
It is undisputed that Agent Ginsbach and Judge Sully failed to comply with certain provisions of Rule 41 of the Federal Rules of Criminal Procedure relating to the issuance, execution, and return of telephonic search warrants. In order to determine whether the lack of statutory compliance justifies suppression of evidence, this Court must address various disputed legal questions.
A. Whether Agent Ginsbach was a Federal Officer
Medearis objects to the Magistrate Judge's finding that Rule 41 does not apply because the telephonic warrant was issued by a tribal judge and was sought and executed by tribal - not federal - law enforcement officers. Medearis objects to this finding on the basis that Agent Ginsbach, in addition to serving as a tribal law enforcement officer, is a federal law enforcement officer or was acting as a federal law enforcement officer during the search in controversy. During the suppression hearing, Agent Ginsbach testified that he became a special agent after completing training at a federal law enforcement training center, and he is employed as a law enforcement officer by the Tribe under a "638 contract"*fn2 between the Tribe and the Bureau of Indian Affairs ("BIA"). T. at 6, 106.As a result, Medearis contends that the telephonic search warrant Ginsbach obtained needed to comply with the requirements of the Federal Rules of Criminal Procedure, specifically Rule 41.
Tribal officers are deemed federal officers for certain purposes when either cross-deputized or employed through a contract with the BIA. See United States v. Schiradelly, 617 F.3d 979, 981 (8th Cir. 2010) (finding that tribal officers employed through a contract with the BIA constituted federal officers for purposes of assault on a federal officer charge under 18 U.S.C. § 111); United States v. Schrader, 10 F.3d 1345, 1350 (8th Cir. 1993) (tribal officers can act as federal officers under authorized contracts with the Department of Interior). In 1990, Congress passed the Indian Law Enforcement Reform Act, 25 U.S.C. §§ 2801-09, "to clarify and strengthen the authority of the law enforcement personnel and functions within the [BIA]." Schrader, 10 F.3d at 1350 (quoting S. Rep. No. 167, 101st Cong., 2d Sess. 4 (1990), reprinted in 1990 U.S.C.C.A.N. 712, 712). Under that Act, the Secretary of Interior may charge BIA employees with a broad range of law enforcement powers, including contracting with a tribe to assist the BIA in enforcing tribal laws and, in connection with such a contract, authorize a tribal law enforcement officer "to perform any activity the Secretary may authorize under section 2803." Id. (quoting 25. U.S.C. § 2804(a)). When acting under such authority, "a person who is not otherwise a Federal employee shall be considered to be an employee of the Department of the Interior only for purposes of . . . sections 111 [Assault, Resisting, or Impeding Certain Officers] and 1114 [homicide against federal officers] of Title 18," eligibility for certain benefits under 5 U.S.C. § § 8191 et seq., or state or local employees assigned to a federal agency under 5 U.S.C. § 3374. Id. (quoting 25 U.S.C. § 2804(f)) (emphasis added). Tribal officers deputized to perform federal functions - even without a 638 contract - also have been deemed federal officers for these purposes when performing the federal functions for which they were deputized. See United States v. Oakie, 12 F.3d 1436, 1440 (8th Cir. 1993); see also United States v. Martin, 163 F.3d 1212, 1215 (10th Cir. 1998).
The fact that a tribal officer receives BIA deputization under a 638 contract does not necessarily make him a federal officer. See Head v. United States, 2010 U.S. Dist. LEXIS 21356, No. 07-3555 at *4-5 (D. Minn. March 9, 2010) (finding that tribal officer with BIA certification was not acting as federal officer when suspect was arrested on tribal charges, held in a tribal jail with bail set by a tribal officer, and then appeared before a tribal judge to review the bail decision). In addition to receiving a certification from the BIA that the tribal officer is capable of enforcing federal law on a reservation: the tribal officer must be enforcing federal law vis-a-vis tribal law. Thus, even assuming that the federal officers are certified, be they BIA, whether the officers were acting under color of federal law depends entirely on what law was being enforced, which means the facts in each case must be analyzed.
Because none of the specific purposes for deeming a tribal officer to be a federal officer apply in this case, Agent Ginsbach is not deemed a federal officer. The warrants sought and executed in this case were tribal, not federal, warrants. The warrants issued expressly concerned an investigation into possible violations of the Tribe's laws proscribing False Alarms, Tampering with a Witness, and Driving under the Influence. Ex. 2; Ex. 4. Under these circumstances, "tribal police are not federal officers unless there is a 'working arrangement' in which the federal officers use the tribal officers as a means of skirting a criminal defendant's procedural protections." Gallegos, 2003 U.S. App. LEXIS 24235, at *12; see also United States v. Mitchell, 502 F.3d 931, 961-62 (9th Cir. 2007) (finding that defendant failed to show "actual collaboration" intended to deprive him of federal procedural rights when agents did not discuss the difference in rights afforded to those ...