OPINION AND ORDER DENYING MOTION TO SUPPRESS AND ADOPTING REPORT AND RECOMMENDATION
ROBERTO A. LANGE, District Judge.
Defendant Phillip LaBatte was charged in an indictment with distribution of a controlled substance to a person under the age of 21 and possession with intent to distribute a controlled substance and aiding and abetting in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 859(a), and 18 U.S.C. § 2. Doc. 1. LaBatte filed a motion to suppress evidence and statements. Doc. 37.
Magistrate Judge Mark A. Moreno held a hearing on the motion to suppress on February 28, 2013. T. 1. Judge Moreno heard testimony from Cheyenne River Sioux Tribe Police Department Detective Russell Leaf, Cheyenne River Sioux Tribe Law Enforcement Officer Nicholas Cottier, and South Dakota Highway Patrol Trooper Shane Severyn. T. 5, 84, 91. Judge Moreno received eleven exhibits into evidence. T. 2. On March 25, 2013, Judge Moreno issued a Report and Recommendation that Defendant's suppression motion be denied. Doc. 49. The Report and Recommendation was served upon the parties as required by 28 U.S.C. § 636, and Defendant timely objected. Doc 52. In considering a magistrate judge's recommendation on 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). This Court has conducted a de novo review of the record. For the reasons explained below, this Court adopts the Report and Recommendation.
In December 2011, Russell Leaf, employed as a detective with the Cheyenne River Sioux Tribe Police Department, began investigating a string of burglaries. T. 5, 6. Detective Leaf received and read the police reports from three burglaries and spoke with the victims. T. 7. Detective Leaf identified certain juveniles as suspects in the burglaries and spoke with five juveniles between December 21, 2011, and December 23, 2011. T. 17-18, 65. The juveniles provided information, including saying that they sold some of the stolen property to LaBatte for money and marijuana. T. 18; Exh. 4. The juveniles claimed that they brought some of the stolen property to LaBatte at both a brown home and a white trailer home. T. 62.
LaBatte bought a white FEMA trailer home on December 21, 2011, which was after the burglaries occurred and after stolen property allegedly was sold to LaBatte. T. 62. Detective Leaf took photos of LaBatte's white trailer home to ensure that he had the home properly identified. T. 20, 24; Exh. 4. Keshia Buffalo, who had previously owned the home, identified to Detective Leaf the home in the photo as belonging to LaBatte. T. 20-21. Detective Leaf contacted the tribal clerk on December 23, 2011, to determine who owned the trailer at issue. T. 38. The tribal clerk provided Detective Leaf with a copy of a water bill that listed Keshia Buffalo as the owner; however, the tribal clerk wrote on the back of the water bill that Keshia Buffalo sold the home to LaBatte on December 21, 2011. Detective Leaf is unsure of whether he provided the water bill and the information regarding when LaBatte became an owner of the trailer to the tribal judge when he sought the warrant. T. 39.
Detective Leaf received no new information between December, 2011, and March 16, 2012, when he applied for the search warrant for LaBatte's white trailer house. T. 21-22. 78; Exh. 4. Detective Leaf did not specifically identify any of the stolen property in his application for a search warrant, but listed certain categories of allegedly stolen property and illegal drugs and drug paraphernalia. T. 70. Judge Karen Jeffries of the Cheyenne River Tribal Court issued a search warrant to Detective Leaf that same day. T. 25; Ex.h. 4. Detective Leaf went to search LaBatte's white trailer house on the afternoon of March 16, 2012. T. 25-26. April Pretends Eagle was in the home when Detective Leaf arrived, but LaBatte was not present. T. 28. Detective Leaf was joined at the home by Sergeant Don Farlee, Officer Nick Conier, and Detective Larry LeBeau, and the four officers searched the trailer. T. 26, 30. The officers seized property from the trailer, including property-such as power tools-not listed in the search warrant. T. 71; Exh. 7. Officer Cottier found a brick of marijuana inside of a drawstring bag. T. 86.
Detective Leaf also sought and received an arrest warrant for LaBatte on March 16, 2012. T. 41; Exh. 9. Detective Leaf and South Dakota Highway Patrol Agent Shane Severyn, who is an officer in the drug task force, interviewed LaBatte on April 23, 2012, while he was in custody based on charges stemming from the seizing of evidence from his home on March 16, 2012. T. 43-44, 48, 53, 92. Detective Leaf read LaBatte his Miranda rights. T. 45-47; Exh. 10; Miranda v. Arizona , 384 U.S. 436 (1966). LaBatte neither asked for an attorney during the interview nor requested that the interview terminate. T. 52, 97. The interview lasted between forty-five minutes and two hours and took place at the police department. T. 49, 55, 97. For a portion of that time, Detective Leaf was out of the room and Agent Severyn continued the interview alone. T. 51. Detective Leaf did not attempt to record the interview; Agent Severyn did record the interview, but that recording was accidentally erased, T. 56-57, 98, and only Agent Severyn wrote a report about the interview.
LaBatte makes two specific objections to the Report and Recommendation: (1) that the search warrant was not valid because the application for search warrant did not establish probable cause, the warrant lacked particularly, and the good-faith exception does not save the validity of the warrant; and (2) that Defendant's statements were not voluntary under the Fifth Amendment.
A. Search Warrant
The Warrant Clause of the Fourth Amendment requires that warrants (1) be issued by a neutral and detached judge; (2) contain a particular description of "the place to be searched, and the persons or things to be seized;" and (3) be based "upon probable cause, supported by Oath or affirmation." Dalia v. United States , 441 U.S. 238, 255 (1979); see also U.S. Const amend. IV.
LaBatte initially argues that the third requirement for a valid warrant-probable cause based on an affirmation-was not met. "Probable cause exists, if under the totality of the circumstances, a showing of facts can be made sufficient to create a fair probability that evidence of a crime will be found in the place to be searched." United States v. Wallace , 550 F.3d 729, 732 (8th Cir. 2008) (citations and internal quotation marks omitted). When evaluating whether probable cause supported the issuance of a warrant, a court is to assess the "totality-of-the-circumstances" including the "veracity' and basis of knowledge' of persons supplying hearsay information." Illinois v. Gates , 462 U.S. 213, 238 (1983). A reviewing court "is simply to ensure that the magistrate had a substantial basis for... conclud[ingr that probable cause existed." Id. at 238-39 (quoting Jones v. United States , 362 U.S. 257, 271 (1960)). A court's review should be "flexible" and not "hypertechnical, " but the affidavit "must provide the magistrate with a substantial basis for determining the existence of probable cause, " Id. at 236, 239. If the existence of probable cause is difficult to deterniine, "the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca , 380 U.S. 102, 109 (1965). Once a magistrate has determined that probable cause exists, that determination should be given "great deference." Gates , 462 U.S. at 236.
LaBatte argues that the March 16, 2012 warrant was not supported by probable cause. Doc. 38. Detective Leaf filed an application for a search warrant, with an attached affidavit. Exh. 4 at 2. The affidavit itself read merely "[s]ee attached statement and pictures." Exh. 4 at 3. To the affidavit were attached a letter from Detective Leaf outlining his investigation, Exh. 4 at 4-6, and photos of LaBatte's trailer home used to identify the specific trailer to be searched, Exh. 5 at 7-10. Detective Leaf is not sure whether he presented any information to the tribal judge that would have provided a link between the trailer in the photos and LaBatte. In his Report and Recommendation, Judge Moreno did not analyze whether the search warrant comported with the Fourth A endment requirements, but rather determined that the evidence need not be suppressed because of the ...