United States District Court, D. South Dakota, Southern Division
ORDER ON OBJECTIONS TO REPORT AND RECOMMENDATION DENYING MOTION TO SUPPRESS
KAREN E. SCHREIER, District Judge.
NATURE AND PROCEDURE OF CASE
Defendant, Cody Michael Smith, is charged with possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(9). Defendant moves to suppress all physical evidence seized from his residence on the ground that they are the fruits of an illegal entry into his home, which violated the Fourth Amendment to the United States Constitution. Docket 31. The motion was referred to a United States magistrate judge for a report and recommendation.
An evidentiary hearing was held on August 19, 2014. During the hearing, testimony from three law enforcement officers was presented, and six exhibits were received into evidence. On September 5, 2014, the magistrate judge issued a report and recommendation denying Smith's motion to suppress. Docket 43. Smith filed objections to portions of the report and recommendation on October 17, 2014. Docket 53. For the following reasons, the report and recommendation is adopted as modified by this opinion.
This court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Because motions to suppress evidence are considered dispositive matters, a magistrate judge's recommendation regarding such a motion is subject to de novo review. 28 U.S.C. § 636(b)(1)(A); see also United States v. Raddatz, 447 U.S. 667, 673 (1980). In conducting de novo review, this court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
According to the testimony given and exhibits introduced during the evidentiary hearing, the pertinent facts are as follows:
On April 26, 2013, a resident of a half-way house in Sioux Falls called 911 to request a well-being check on Alexis Wallace, another resident of the half-way house. The caller, identified as Jennifer, expressed concern that Wallace had not returned to the half-way house by curfew. Jennifer believed that Wallace's ex-boyfriend, whom she identified as Smith, was holding Wallace against her will. When the operator asked if Smith was known to have any weapons on him, Jennifer responded, "I'm sure of it, I'm sure." Additionally, when asked why she thought Smith was holding Wallace against her will, Jennifer responded that there was a no contact order between Smith and Wallace, that Smith was a known drug user, and that Smith would get "very, very, very angry." Jennifer stated that Wallace was supposed to have returned to the half-way house by 5 p.m., but that she was worried Smith had "found" Wallace.
Responding to the 911 call, officers Sandgren, Van Ravenswaay, and Lieuwen drove to Smith's home at 1021 S. 1st Avenue to look for Wallace. Sandgren described his familiarity with this same 1st Avenue residence to the other officers on the scene. As Sandgren explained, police had arrived at that location sometime in the recent past in order to respond to a male suspect who was discharging firearms outside the home. Sandgren video at 19:49-50. Sandgren believed Smith was that same individual. After Smith had been arrested, however, Sandgren learned his belief was mistaken.
At approximately 7:52 p.m., the officers knocked on the door to Smith's residence and identified themselves. When Smith answered the door, Sandgren asked, "Is Alexis here?" to which a negative answer was given. Id. at 19:52. Sandgren's voice is then heard saying "No, " although no audible response from Smith himself is picked up by any of the officers' wireless microphones. See id; see also Van Ravenswaay video at 19:52. Later, Smith is heard saying, "She isn't here[.]" Sandgren video at 19:53. Ultimately, Smith denied the officers access to his apartment in order to look for Wallace, and he demanded they return with a warrant before their entrance would be allowed.
Following this exchange, the officers returned to their patrol cars and discussed what to do next. Sandgren indicated that, at this point, they were merely "guessing" whether Wallace was inside the apartment or not. Id. at 19:56. The officers discussed the possibility of pinging Wallace's phone and radioed in for a check for Wallace at the local jail, hospitals, detox facilities, and other areas. Id. Between 7:58 and 8 p.m., dispatch told the officers that Wallace was not present at those locations. Ex. C (Computer aided dispatch timeline). Also during this time, because Sandgren believed he knew Smith from prior incidents at the 1st Avenue residence, he expressed his belief that Smith would not let them inside whether Wallace was there or not. Sandgren video at 19:57. Shortly thereafter, the officers learned Smith had outstanding, unrelated warrants for his arrest. Additionally, the officers decided to call Jennifer again in order to gain more specific information about why she felt Wallace was at Smith's home.
Van Ravenswaay returned to his patrol car and called Jennifer. Van Ravenswaay video at 20:03. Jennifer stated that Wallace had left the half-way house around 4:25 p.m. Further, Jennifer told Van Ravenswaay that Smith had been overheard yelling at Wallace over the phone, that Wallace went to Smith's home because she still had some personal belongings there, and that Wallace said she would return by 5 p.m. By this time, however, it was after 8 p.m. Although other residents of the half-way house had called and left messages on Wallace's phone, no one had heard from Wallace since her departure. Van Ravenswaay relayed the information Jennifer provided to the other officers.
While Van Ravenswaay was on the phone with Jennifer, Sandgren and Lieuwen exchanged several comments about Smith's appearance. Sandgren remarked that "it doesn't even look like him, the same guy. Sandgren video at 20:07. A short time later, one of the two officers stated that "the whole shape of his face changed" and that "he's got to be using meth." Id. at 20:08. Following the officers' discussion with Van Ravenswaay, Sandgren requested an additional police unit to be dispatched to the area. Id. at 20:09.
Around 8:13, the officers noticed Smith had emerged from his home to take out the trash. The officers arrested Smith on his outstanding warrants and placed him in the back of Sandgren's patrol car. During his arrest, Smith reiterated that the police could not enter his home without a warrant. Nonetheless, Sandgren stated, "We're going in the house" because the police had "information that [Wallace is] here, " and that they have an "obligation to check to make sure she's safe." Id. at 20:16.
Officer Winninger, the additional officer Sandgren requested, arrived on the scene at approximately 8:17. By this time, Smith had been arrested and placed in the back seat of Sandgren's patrol car. While Sandgren was briefing Winninger of the situation, Sandgren noticed that "someone just looked out the back window" of Smith's residence. Id. at 20:17. Sandgren stated that the officers had "talked to Cody, he said she's not here, " and that the officers were "going to go in his house whether he likes it or not." Id. at 20:17-18. Shortly thereafter, the officers announced their presence at the front door and entered Smith's apartment. Wallace did not respond immediately when the police called out. A short time later, however, Wallace indicated she was in the bedroom. Id. at 20:18. Sandgren later testified that Wallace was unrestrained when they found her, and that she stated the only thing preventing her from leaving the residence was Smith. Tr. 22:8-13. In addition to locating Wallace in the bedroom, the officers saw an AK-47 partially covered by a bed sheet.
At approximately 8:28, dispatch radioed that Jennifer had made a second 911 call. During this call, Jennifer indicated that Alexis had sent a text message which stated that Smith would not let her leave. For approximately an hour, the officers remained on the scene while questioning Wallace and Smith. At 9:36, the officers left the 1st Avenue home with Smith and Wallace in custody, as well as taking possession of the AK-47 and other evidence found in the home. During this drive back to the police station, Sandgren learned for the first time that Smith was not the same individual involved in the earlier incidents at the 1st Avenue home. Sandgren video at 21:39. Sandgren remarked, however, that, "You look just like him, similar." Id. at 20:40.
I. Factual Objections
A. Objection 1
Smith objects to the report and recommendation's finding that "Sandgren had prior knowledge of [the 1st Avenue] address and that there had been weapons fired, but he could not remember the name of the person with whom he dealt when he was previously at the apartment." Docket 43 at 2 (report and recommendation); Docket 53 at 6 (objection). Specifically, Smith objects to the omission of additional statements Sandgren made regarding Smith's resemblance to a previous tenant of the 1st Avenue apartment whom police had earlier dealt with, as well as statements concerning the shape of Smith's face.
The factual finding Smith objects to is located in a section of the report and recommendation designated as a summary of Sandgren's testimony. See Docket 43 at 1-3. Sandgren and Lieuwen talked about Smith's resemblance to the other individual while they waited for Van Ravenswaay to contact Jennifer. The officers' conversation about Smith's appearance, however, was not brought up during the evidentiary hearing by either party.
Instead, Sandgren testified he had been involved with at least one previous call to the 1st Avenue apartment in the past, when the police had dealt with a man who had been discharging firearms outside the residence. When the officers arrived to look for Wallace, Sandgren believed Smith was that same individual. Tr. 6:2-5. Sandgren stated on cross-examination, however, that he did not remember the name of the man he had previously dealt with. Tr. 14:7-12. Sandgren also acknowledged that his belief that Smith was the same individual was ultimately mistaken. Tr. 13:12-14. Although Sandgren turned out to be incorrect, the report and recommendation accurately summarizes Sandgren's testimony with respect to what he believed when he arrived at the scene. Therefore, Smith's objection is overruled.
B. Objection 2
Smith objects to the report and recommendation's finding that Sandgren spoke to Jennifer after the officers met with Smith at his doorstep. Docket 53 at 7. Smith contests that Van Ravenswaay, rather than Sandgren, spoke to Jennifer. Id. Although no specific portion of the report and recommendation is cited, it appears that Smith's objection is aimed at the summary of Sandgren's testimony from the evidentiary hearing. See Docket 43 at 1-3. In that summary, the report and recommendation notes that "[Jennifer] confirmed she knew..." and that "Wallace told Jennifer...".
The audio recordings from the officers' wireless microphones show that it was Van Ravenswaay who in fact spoke to Jennifer. Van Ravenswaay video at 20:03. The recordings also show that Van Ravenswaay relayed the information from his conversations with Jennifer to the other officers at the scene. Although Sandgren testified, "I contacted Jennifer again" and that "[s]he told me, " Docket 44 at 7, the report and recommendation does not appear to conclude that it was Sandgren who spoke to Jennifer. Instead, it states that "[t]he officers retreated to their patrol cars, " and that "they could still see the apartment and re-contacted the reporting party (Jennifer)." Thus, the report and recommendation does not specifically attribute the phone calls with Jennifer to Sandgren or any particular officer. Therefore, to the extent that the report and recommendation indicates that Jennifer was contacted by phone after the officers spoke to Smith, Smith's objection is overruled. To the extent the report and recommendation can be said to conclude that Sandgren called Jennifer, however, Smith's objection is sustained.
C. Objection 3
Smith objects to the report and recommendation's finding that Jennifer had seen Wallace get into Smith's vehicle. Docket 53 at 7-8. Smith asserts that this occurrence was fabricated by Sandgren. Id. As with Objection 2, this objection appears to be aimed at the report and recommendation's summary of Sandgren's testimony. The report and recommendation states that "[Jennifer] confirmed that she knew Wallace was with Smith because she saw Wallace get into his car." Docket 43 at 2. A footnote follows this sentence, however, which explains that "[t]his was Sandgren's ...