United States District Court, D. South Dakota, Central Division
REPORT AND RECOMMENDATION FOR DISPOSITION OF MOTION TO SUPPRESS
MARK A. MORENO, Magistrate Judge.
In this firearms case, Clyde Aquallo seeks to suppress, on Fourth and Fifth Amendment as well as Miranda grounds, the rifles and shotguns seized from his live-in girlfriend's house, the pre- and post-arrest statements he made to tribal officers and the urine sample taken from him, including the test results for the same. Because none of this evidence is excludable, the Court recommends Aquallo's suppression motion be denied.
Shortly before 11:00 p.m. on February 27, 2014, Steve Burnette contacted the Rosebud Sioux Tribal Police Department to report his sister, Shari Burnette, was involved in a domestic dispute with her residential mate, Aquallo. Sergeant William Moran and Officer Daniel Reynolds, both tribal police officers, responded in separate cars and went to Miner's Trailer Court located three to four miles north of Rosebud, South Dakota. There, Sergeant Moran spoke with Steve on a gravel road. Steve said Shari's three children had shown up at his house "out of nowhere" because Aquallo had threatened to kill her. Additionally, Steve reported Shari and Aquallo were still at her house and Aquallo had firearms in the home. Sergeant Moran and Officer Reynolds then proceeded, down the same road, to Shari's residence. When they arrived, she was outside. She told Sergeant Moran (1) Aquallo had been "fighting with her; (2) she and her kids were "scared of him;" (3) she wanted him out of the house; (4) she was "worried about her kids and her house;" (5) she and her kids hated "having to walk around on egg shells in [their] own... house;" (6) she couldn't "take it anymore;" (7) he warned her "if the cops ever get involved, it would be really bad for [her];" and (8) he had "a lot of firearms inside the house."
While Sergeant Moran was outside with Shari, Officer Reynolds went into the residence and made contact with Aquallo in the kitchen. The two talked for approximately 15 minutes. During the conversation, Aquallo indicated he and Shari had argued about money and the children, him being unfaithful to her and Steve using methamphetamine.
In the meantime, Sergeant Moran traveled back to Steve's home and spoke to KB., Shari's 14-year-old son. According to K.B., Aquallo had accused Shari of cheating on him, was "angry" and "threatened to kill her."
After returning, Sergeant Moran again talked to Shari, who was still outside the house and now standing behind an evergreen tree. When he informed her he planned to arrest Aquallo, Shari inquired how she was supposed to go about removing Aquallo's belongings from the home and spoke of being "worried about all those guns." After a minute or so, she expressed concern about "end[ing] up dead, " saying "he's a scary guy." Following her plea to "[g]et me the hell out of here, " she uttered, in a crying voice, "I don't think you realize how scared I am."
Before meeting with Shari a second time, Sergeant Moran had directed Officers Reynolds and Edwin Young (the latter who had since arrived at the house) to arrest Aquallo. They did, but Aquallo wanted to talk to Sergeant Moran about the arrest. Upon hearing this, Sergeant Moran ended his conversation with Shari and went into the home. There he informed Aquallo he was being arrested tribally for domestic abuse putting Shari in "reasonable fear for her safety" - and handcuffed him. Aquallo was cooperative and disclosed having several pocket knives on him. Sergeant Moran removed the knives and placed them on the kitchen table.
Aquallo then indicated he needed his medication from a back bedroom and walked to the bedroom with Sergeant Moran. Inside, Aquallo pointed to a white plate, sitting under a television, with a baggie of marijuana, rolling papers and a scale on it and declared the marijuana was Shari's, not his. Shari was later asked about this and agreed what was on the plate was her marijuana, but said she got it from Aquallo.
Officer Reynolds thereafter escorted Aquallo out of the residence and transported him to the Rosebud jail. Sergeant Moran and Officer Young stayed behind and collected the rifles and shotguns Shari wanted out of the house as well as the ammunition for them, the drug evidence and other items. In the process, Sergeant Moran noticed one of the shotguns appeared to have been illegally modified.
The next morning, Kenneth Ayers, a special agent with Rosebud Sioux Tribe Law Enforcement Services (RSTLES), sought and obtained a search warrant for Aquallo's urine. Later that same morning, Agent Ayers and Ben Estes, another special agent with RSTLES, interviewed Aquallo who was in custody at the time. Aquallo was Mirandized, signed a written waiver and interviewed. He admitted he and Shari had argued about money, but denied he had assaulted her - by physical contact, threats or even raising his voice. He said he did not use drugs and maintained Shari was the one who smoked marijuana, getting it from her brother Steve, her daughter and her exhusband. He also said the short barreled shotgun found in Shari's home was not his. About 30 minutes into the interview, Aquallo was shown the search warrant Agent Ayers had obtained and provided a urine sample.
On October 15, 2014, a federal grand jury indicted Aquallo, charging him with possession of an unregistered firearm, being a prohibited person in possession of firearms, assault with a dangerous weapon and using and carrying a firearm during and in relation to a crime of violence. He subsequently filed a motion seeking to suppress the guns from Shari's home, his statements before and after being arrested and the urine sample collected from him, arguing they were obtained in violation of the Fourth and Fifth Amendments and Miranda.  A hearing was held on the motion at which four witnesses testified and nine exhibits were admitted into evidence. Because the suppression motion is a dispositive one, this Court is only authorized the determine the same on a report and recommendation basis.
A. Seizure of the Firearms
Aquallo first claims the warrantless entry into Shari's residence and seizure of firearms inside it ran afoul of the Fourth Amendment. As he sees it, officers were required, but failed to obtain, a warrant before entering the house, arresting him on the tribal domestic abuse offense and commandeering the guns.
The Fourth Amendment protects "[t]he right of the people to be secure in their... houses, papers and effects against unreasonable searches and seizures." "In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement." One recognized exception is the voluntary consent of an individual possessing authority over the premises or effects to be searched. That person might be a homeowner,  or a fellow occupant who shares common authority over the property with another, absent, person. The exception even extends to entries and searches with the permission of a person the police reasonably, but erroneously, believe to possess shared authority as an occupant.
While one resident's consent of a jointly occupied home is generally sufficient to justify a warrantless search, the Supreme Court created a narrow exception to this rule. According to the Court a "physically present inhabitant's express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant." The Court though "went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present." Hence, for consent to be vitiated, the complaining occupant must be personally present unless "there is evidence that the police have removed [him] from the entrance for the sake of avoiding a possible objection."
Consent may be express or implied. Implied consent is established when a resident willingly allows, by words and action and without objection, officers to enter her home to diffuse a dangerous situation. "There is no requirement that consent be in response to an officer's request." "In fact, consent given without a specific request indicates voluntariness."
Here, the precise question is not whether Shari consented subjectively, but whether her conduct would have caused a reasonable person to believe she consented to the entry and search of her residence. Crediting Sergeant Moran and Officers Reynolds and Young's testimony, the ...