United States District Court, D. South Dakota, Central Division
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For Jason Long, Defendant: Justin Lee Bell, LEAD ATTORNEY, May, Adam, Gerdes & Thompson, Pierre, SD.
For USA, Plaintiff: Jay P. Miller, LEAD ATTORNEY, U.S. Attorney's Office, Pierre Office, Pierre, SD; Kathryn Rich, U.S. Attorney's Office (Rapid City, SD), Rapid City Office, Rapid City, SD.
OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION AND DENYING MOTION TO SUPPRESS
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
Defendant Jason Long (" Long" ) originally was indicted for one count of possession with intent to distribute a controlled substance, AM 2201, in violation of 21 U.S.C. § 841(a)(1). Doc. 1. A Superseding Indictment added two counts of possessing with the intent to distribute a controlled substance analog, a substance called XLR-11, in violation of 21 U.S.C. § § 841(a)(1) and 846. Count III also alleges aiding and abetting under 18 U.S.C. § 2. Doc. 50.
Long filed a Motion to Suppress Evidence and Statements, Doc. 28. Magistrate Judge Mark A. Moreno held an evidentiary hearing on the Motion to Suppress on December 5 and 6, 2013. Doc. 60. At the suppression hearing, the parties raised additional arguments. Tr. 270. Judge Moreno directed the parties to submit further briefing on the newly raised arguments and held another evidentiary hearing on January 9, 2014. Tr. 270, 274-76. In his Report and Recommendation Concerning Motion to Suppress Evidence and Statements (" Report and Recommendation" ), Doc. 74, Judge Moreno recommended that the Motion to Suppress be granted in part and denied in part. Doc. 74 at 1. Both parties objected. Docs. 89, 90.
This Court reviews a report and recommendation under 28 U.S.C. § 636(b)(1), which provides in pertinent part that " [a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." This Court has conducted a de novo review of the record and proposed findings, adopts in part Judge Moreno's Report and Recommendation, sustains the Government's Objection to the Report and Recommendation, overrules Long's Objections to the Report and Recommendation, and denies Long's Motion to Suppress.
A. Officer Spargur's Entry into the OC Store
Officer Shane Spargur is a police officer with the Bureau of Indian Affairs (" BIA" ) for the Lower Brule Agency. Tr. 83. Officer Spargur was patrolling the Lower Brule Sioux Reservation (" the Reservation" ) in the pre-dawn hours of Saturday, July 28, 2012, when he spotted three young people around 4:20 a.m. Tr. 90-91. The Lower Brule Sioux Tribe (" Tribe" ) has an 11:00 p.m. curfew during the summer for juveniles. Tr. 91. Officer Spargur believed these individuals to be under eighteen, so he made contact with them to discuss their being out past curfew. Tr. 91. Two of the individuals had fireworks. Tr. 91, 195. The Tribe permits fireworks to be shot off only on the dates immediately surrounding the Fourth of July holiday. Tr. 91-92. Because shooting off fireworks after July 5 is not permitted on the Reservation, Officer Spargur confiscated the fireworks and asked the group where they
got their fireworks. Tr. 91-92. One told Officer Spargur that " he just bought them down at the OC Store."  Tr. 92, 196.
The OC Store was two blocks from where Officer Spargur contacted the juveniles, so he went to the store to speak with its proprietor, Jason Long, about selling fireworks out of season. Tr. 92-93. Officer Spargur had never been to the OC Store before July 28, 2012, but knew Long from a previous interaction at Long's house on the Reservation. Tr. 93-94, 101, 239. Long's house where Officer Spargur previously had contacted Long was a separate residence from the building that housed the OC Store. Tr. 94, 101, 239.
The OC Store was in a commercial building that appears to be paneled with corrugated aluminum siding. See Ex. 1. A sign that says " Sioux Boys" sat on the roof above the entrance and, because of this sign, some people in the community sometimes referred to the store as the " old Sioux Boys" store. Ex. 1; Tr. 64, 95. The OC Store's main door was located on the side of the building adjacent to an area where the gas pumps were located. Ex. 1. A screen door was attached to the main door's exterior frame. Ex. 1. These doors--the main outside door and its screen door--did not open directly into the OC Store, but opened into a small rectangular area that serves as the store's entryway. Tr. 98. A metal door with a glass panel divided the entryway from the store. Ex. 5; Tr. 97. Thus, to get into the store from the parking lot, customers passed through three doors: the screen door, the main door that leads into the entryway, and the metal door with the glass panel that leads from the entryway into the store. Tr. 97-98.
Officer Spargur arrived at the OC Store around 4:30 a.m. Tr. 195. The OC Store did not have posted hours and Officer Spargur did not see an open sign or a closed sign. Tr. 200, 206. From the parking lot, Officer Spargur could hear music coming from the store. Tr. 200. The store was not fully lit. One light near the street about twenty-five feet from the main door and one flood light attached to the building provided some exterior lighting. Tr. 196-200. The store's other floodlights, the lights attached to the gas pumps, and the light in the entryway were off. Tr. 196-201.
Both the screen door and the main door were unlocked, so Officer Spargur opened them and stepped into the OC Store's entryway. Tr. 97-98, 200-01. The metal door separating the entryway from the store was closed, but Officer Spargur could look through the door's glass panel into the store. Tr. 97-101, 202. Officer Spargur testified that the store was not fully lit, that most of the lights were off, but that it was lit well enough to permit him to " see from the door to the back areas with the merchandise stands." Tr. 101, 202-03, 206. He had not been to the store before so he was unsure whether this lighting was consistent with it being open or closed. Tr. 203. Officer Spargur did not have a warrant to enter the business. Tr. 104.
The OC Store was somewhat of a convenience store with rows of merchandise and a counter. Exs. 6, 8. The store had DVDs to rent, stand-up arcade games to play, and products for sale that include coffee, tobacco products, sunglasses, board games, and soft drinks. Ex. 6. Part of the back portion of the store was cordoned off by a blanket or a sheet. Ex. 6; Tr. 203. Officer Spargur testified that most of the light was coming from the back of the store near the blanket. Tr. 202-03, 206.
Officer Spargur was " unsure of whether or not the store was open or closed," Tr. 207, but ultimately believed the store was open when he arrived because of the lighting, the music, and the doors being unlocked. Tr. 101-03. Also, one of the juveniles had told him that the group " just bought" fireworks from the OC Store. Tr. 92, 196. Because he was unsure whether the store was open, Officer Spargur decided to knock on the metal door and announce his presence before entering. Tr. 207-08. He knocked and announced twice, but received no response. Tr. 102, 209. Officer Spargur then opened the metal door, stood in the doorway, and called for Long while identifying himself. Tr. 102, 209-10. Officer Spargur saw Long's young son, Jason Long, Jr., within the store. Tr. 103, 209-10. The two had little, if any, interaction; Officer Spargur did not know whether Jason Long, Jr. even looked at him, and the boy did not speak with Officer Spargur or invite him to enter. Tr. 103-04, 208. Officer Spargur entered the OC Store and walked toward the back to talk with whomever was inside. Tr. 209-10.
Officer Spargur went to the rear of the OC Store where it had a concession or dining area with rows of booths similar to a small fast food restaurant's dining area. Tr. 104, 212, 243. In the dining area, there was one man sitting at a table and another person asleep on a different table. Tr. 104-05. The person who was awake identified himself as Freedom Long when Officer Spargur asked his identity. Tr. 104. Officer Spargur asked Freedom about the juveniles. Tr. 104-05. Freedom confirmed that the juveniles had been in the store, but said that he did not sell them fireworks. Tr. 105. Officer Spargur then asked to speak with Jason Long. Tr. 105. Freedom responded that Long was sleeping in his room. Tr. 105-06. Officer Spargur asked Freedom if he would go into Long's room, wake him, and bring him out. Tr. 106. Freedom went to Long's room and left Officer Spargur in the dining area. Tr. 107.
Once Freedom was gone, Officer Spargur noticed a small red and black resealable pouch on one of the tables in the dining area. Tr. 107-08. Officer Spargur recognized this pouch as one that would normally hold synthetic marijuana. Tr. 107, 217-18. Officer Spargur had received training at two different law enforcement positions on how to identify synthetic marijuana. Tr. 84-89, 108. Possessing synthetic drugs is illegal on the Reservation. Tr. 33. Officer Spargur did not seize the pouch. Tr. 109.
Freedom returned alone from Long's room saying that Long was sleeping. Tr. 109-10. Officer Spargur asked Freedom a second time to awaken Long; Freedom complied, left for Long's room, and then returned with Long. Tr. 110, 214-15. Officer Spargur told Long that he was there to ask him questions about fireworks and that no fireworks could be sold after the 5th of July. Tr. 110-11. Long acknowledged knowing that fireworks could not be sold after the 5th of July, and then Freedom interjected that the OC Store did not sell the juveniles fireworks. Tr. 110-11. Officer Spargur noticed that Freedom had slurred speech and slow movement which led
Officer Spargur to suspect that Freedom was under the influence of something. Tr. 111. Officer Spargur then apologized for waking Long up and left. Tr. 111.
B. Application for Warrant and Affidavit Submission to Judge Miner
From the store's parking lot, Officer Spargur contacted his Chief of Police, Joel Chino, to advise him that he had seen what he believed to be synthetic marijuana at the OC Store. Tr. 112-13. Chief of Police Chino asked Officer Spargur if possibly he was mistaken and whether he had observed legal shisha tobacco used for smoking in a hookah rather than illegal synthetic marijuana. Tr. 112-13, 221. Officer Spargur researched on the internet shisha tobacco packaging. Tr. 113. His research revealed that shisha tobacco typically was wrapped in foil and packaged in cardboard, which was different from the package he observed at the OC Store. Tr. 113-14. His research supported his initial belief that the pouch observed in the OC Store was synthetic marijuana. Tr. 114.
After speaking with his supervisors, Officer Spargur drafted an application and affidavit for a search warrant for the OC Store. Tr. 114; Exs. 10, 11. Officer Spargur then called Judge Lorie Miner, the acting Chief Judge for the Lower Brule Sioux Tribe, to request a warrant. Tr. 32, 36, 116. At around 8:00 a.m. on Saturday, July 28, 2012, Judge Miner, who was at her home some distance from Lower Brule, approved the warrant telephonically to authorize the search of the OC Store. Tr. 36, 39, 122, 227-29.
Judge Miner was familiar with Long. She had dealt with Long on juvenile and custody matters and testified that she had no ill will against Long. Tr. 35-36. She also knew about Long and the OC Store. The tribal court is involved with both the counseling services and the probation office. Tr. 45. Around the latter part of 2010 and early part of 2011, Judge Miner began hearing from the Tribe's counseling services and the Tribe's probation officers about " this spice" Long was selling. Tr. 45.
Judge Miner also was involved in the process of adopting the tribal law banning synthetic drugs on the Reservation as a member of the Tribe's Judicial Committee (" the Committee" ). Tr. 54. The Committee consists of a tribal council member, the Tribe's counseling services director, the community health director, an Indian Health Services' nurse, the BIA superintendent, the tribal attorney, and Judge Miner. Tr. 54. One function of the Committee is to recommend to the Tribal Council changes or additions to tribal laws. Tr. 54, 62. Before the resolution banning synthetic drugs was passed, members of the public and even a member of the Committee were complaining that the tribal court was not doing anything to address synthetic drugs on the Reservation. Tr. 54. In July of 2011, the tribal attorney drafted proposed legislation seeking to ban synthetic drugs. Tr. 54-55. That proposed legislation came before the Committee, the Committee made changes, and the Committee forwarded the proposed legislation to the Tribal Council for its consideration. Tr. 54-55. Judge Miner was a participant in this process as a member of the Committee. Tr. 54-57.
After the Tribal Council outlawed synthetic marijuana, Judge Miner altered the conditions of release that she placed on pre-trial defendants by prohibiting defendants from entering businesses that possessed or sold synthetic drugs. Tr. 32-35, 43-45. This condition sometimes caused defendants to ask whether they could still go into the OC Store. Tr. 34-35. These questions prompted Judge Miner to change the condition to read: " Defendant
shall not enter OC Novelties or any other business where synthetic marijuana or synthetic stimulants are sold, for sale or possessed." Tr. 34-35; Def. Ex. A. Although Long at that point had not been prosecuted for selling or possessing synthetic marijuana, Judge Miner based this condition on what she had heard from her colleagues and people in the community about Long selling synthetic marijuana. Tr. 45-47. Despite this background, Judge Miner testified that her decision to authorize the search warrant in this case was based solely on the evidence that was presented to her by Officer Spargur on the phone that morning. Tr. 52.
Judge Miner did not follow many of the typical procedural safeguards in issuing this warrant. This was only the second telephonic warrant that Judge Miner had authorized, Tr. 38, and it was just the second time that Officer Spargur had ever sought a telephonic warrant, Tr. 227. The conversation between Judge Miner and Officer Spargur was not recorded. Tr. 40-41, 227. Judge Miner believed that the police department recorded telephonic requests for search warrants, Tr. 63, but Officer Spargur " was not aware of anything that requires us to record conversations[,]" Tr. 227. Chapter 3 of Section 29 of the Lower Brule Sioux Tribal Code concerns search warrants, but it does not provide requirements regarding the issuance of telephonic search warrants. See Ex. 19.
Judge Miner was not given, nor did she ask for, copies of Officer Spargur's application, his affidavit, or the search warrant. Tr. 40. Because Judge Miner never reviewed the affidavit and because her conversation with Officer Spargur was unrecorded, much of the testimony at the suppression hearing centered on establishing what Officer Spargur told Judge Miner over the telephone. Officer Spargur read to Judge Miner the portion of the application describing the property to be searched:
[t]he premises, residence, and surrounding curtilage outside of the OC Store as well as all vehicles and outlying buildings located on the premises of the OC Store, a tan colored building with brown colored roof, located at 119 Sicangu Drive north of intersecting road named BIA 10 Rd. Registered in the name of Jason Long on the lower Brule Sioux Tribe Reservation, Lower Brule South Dakota.
Ex. 10 (unhighlighted portion on the top, left hand portion of the page); Tr. 117-18, 223-24 (noting that he read the part in the top, left-hand corner with the small font). Officer Spargur largely omitted reading the remainder of his application. Ex. 10.
Officer Spargur recalled reading much of his affidavit to Judge Miner. Ex. 11. Officer Spargur testified he read to Judge Miner the portion of his affidavit describing
his entry into the OC Store, including that a group of juveniles at 4:30 a.m. told him they bought fireworks at the OC Store and that Officer Spargur then went to contact Jason Long at the OC Store to speak with him about selling fireworks. Ex. 11 at 2. Officer Spargur also read the portion of his affidavit describing his entry and activity at the OC Store as follows:
5. I entered the OC Store premises through the first door into the entry way. I knocked and announced to make known my presence and identity. I could hear loud music coming from inside the store. With no answer to my knock I opened the unlocked door to the store. I stood in the doorway and called out " Jason" looking for Jason Long. I called out for Jason a second time. On the second announcement, a juvenile stuck his head out of the back concession area and looked towards the entry. I made my way back to the concession area; again calling out for Jason with no answer.
6. After arriving at the concession area of the OC Store there was an adult male who identified himself as Freedom Long. I asked where Jason was. Freedom answered that Jason was sleeping. There was a person sleeping on a table in the concession area. I approached this person tapping their foot and asking for Jason again. Freedom advised me to the fact that person was not Jason but in fact Joel Brouse Jr. I asked Freedom where Jason was sleeping. Freedom said that Jason was in his room. Freedom motioned to a room towards the back of the concession area. This room had a white door with a latch and padlock attached to the door frame. I started to make my way towards the door telling Freedom that I needed to speak with Jason about the possible sale of fireworks to [the juvenile] and the other individuals I had just been in contact with. I asked Freedom if [the juvenile] had been in there. Freedom stated that yes " [the juvenile] just left. But I didn't sell him any fireworks. He must have stole them."
7. As I was standing near the door to Jason's room I noticed in plain view on a table in the concession area a small black and red package. This package was plastic re-sealable pouch approximately 3 inches by 3 inches in size. I immediately recognized this to be a package used by commercial companies to sell botanical potpourris. From my previous training and experience I know that people ingest these potpourris by smoking them to achieve an intoxication similar to marijuana. These substances have been classified as synthetic drugs by the state of South Dakota and the Lower Brule Sioux Tribe.
Ex. 11 at 3-4.
The affidavit that Officer Spargur read to Judge Miner next stated that Freedom was " under the influence of something that was altering his state of mind and effecting his actions" and that Officer Spargur " had to ask Freedom multiple times to go into Jason's room and wake him." Ex. 11. The affidavit states that when Jason came out of his room, Officer Spargur told him not to sell fireworks, Jason said he knew that he could not do so, and Officer Spargur left. Ex 11.
Judge Miner testified that she would have had the officer read her the search warrant. Tr. 64-65. Officer Spargur testified that he did not recall whether he read Judge Miner the search warrant.
Ex. 12; Tr. 122; Ex. 12. Officer Spargur's application requested the ability to search the property described in " Attachment A." Ex 11. Attachment A describes the area around the OC Store and states " [a]ll vehicles owned, used and/or associated with and by JASON LONG. A green colored Cadillac with white writing saying 'Rez Ink Lower Brule, SD.'" Ex. 12 at 2.
C. July 28 Search and Interview
After Judge Miner telephonically approved the search warrant, Officer Spargur and other officers began searching the OC Store around 9:00 a.m. on Saturday, July 28, 2012. Tr. 122. The officers seized over twenty packages of unopened incense from the store. Ex. 12 at 6. Parked outside the OC Store were two vehicles. Ex. 3. One was Long's green-colored Cadillac with white writing that said " Rez Ink." Ex. 3. The other was a dark 1997 Chevrolet Trailblazer, from which the team seized an empty package of incense. Exs. 3, 13; Tr. 122-23. Officer Spargur ran a license plate inquiry for the Trailblazer that revealed that it was registered to Freedom Long and Nancy Big Eagle, not to Long. Tr. 123; Ex. 19. This inquiry is time stamped at " 14:50.06," or 2:50 p.m., on July 28, 2012, which was after the search warrant was executed. Ex. 13. Long, Freedom, and Wanda Fields were arrested. Tr. 236.
Officer Spargur interviewed Long at the police department after his arrest. Tr. 236. Officer Spargur read Long his rights from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before the interview began. Tr. 127, 236. Long initialed the advice of rights form, waived those rights, and spoke with Officer Spargur. Tr. 127, 236; Ex. 14.
D. August 6 Search and Interview
Vicki Her Many Horses (" Vicki" ), who is Long's aunt, owned the Sioux Boys building out of which Long was running the OC Store. Tr. 282-83. Neither Vicki nor Long testified at the hearing. When interviewed, Long stated that he had no written lease with Vicki. See Ex. 17; Tr. 139, 152. Vicki's daughter, Rae Lynn Her Many Horses (" Rae Lynn" ), testified that Long was running his business out of the Sioux Boys building, but she was not certain Long had a lease agreement with Vicki. Tr. 282-83, 301.
After Long was arrested on July 28, 2012, Vicki called Rae Lynn and told her that she no longer could take care of the building and was willing to sell it to Rae Lynn. Tr. 283. On August 4, 2012, Vicki, Rae Lynn, and Rae Lynn's longtime boyfriend, Jacob Brouse (" Brouse" ), executed a Bill of Sale, Ex. 19, in which Vicki sold the building to Brouse with Rae Lynn to be the manager. Tr. 289-90. At that point, Long apparently was no longer a tenant of the building. See Tr. 139 (stating that Long told police officers that Vicki
had " trespassed" him from the store), Tr. 150 (stating that Vicki told police officers that Long was not permitted to be at the building); cf. Tr. 292 (stating that Vicki never told Rae Lynn that Long was not supposed to be there).
During the morning of August 6, 2012, a break-in occurred at the Sioux Boys building. Tr. 286. After the police came and left, Rae Lynn and Brouse shut the door, which they could not lock because the door had been broken during the break-in, and left for Chamberlain, South Dakota, to buy a new lock and wires to fix the security system. Tr. 288-89. When the couple returned from Chamberlain, the door they had closed was open yet again. ...