United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY, Magistrate Judge.
Defendant Richard Paul Olson, Jr. is before the court on a superseding indictment charging him with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(d). See Docket No. 26. Mr. Olson has now filed a motion seeking to suppress the.22 revolver and ammunition seized by police which form the basis of count one. See Docket No. 38. The government resists the motion. See Docket No. 41. Mr. Olson's motion was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Judge Schreier's Standing Order dated October 16, 2014. The following is this court's recommended disposition of the motion.
An evidentiary hearing was held in this matter on January 22, 2015. Mr. Olson and his counsel, Assistant Federal Public Defender Timothy Langley, were present. The government was represented by its Assistant United States Attorney Jennifer Mammenga. At the hearing, three witnesses testified: Deputy United States Marshal Gary Bunt, Detective Craig Butler of the Minnehaha County Sheriff's Office, and Sergeant Joe Bosman, also from the Minnehaha County Sheriff's Office. In addition, five photographs were introduced into evidence. From this evidence the court makes the following findings of fact.
Prior to December 12, 2013, there were state felony warrants outstanding for the arrest of Mr. Olson. The Sioux Falls Area Fugitive Task Force, of which all three witnesses were members, had been actively seeking to locate Mr. Olson for a period of several weeks. The task force believed that Mr. Olson was not living regularly in any one location, but was moving around between four or five different locations in an attempt to elude arrest. One of the locations he was thought to frequent was a trailer park in Sioux Falls near the intersection of Tenth and Franklin Streets. Another such location was 700 West Bailey Street in Sioux Falls.
On December 12, 2013, Deputy Bunt was surveilling the trailer park mentioned above. It had just snowed and the streets were slippery. Law enforcement did not know of a specific trailer within the park that Mr. Olson was associated with, so Deputy Bunt was watching traffic coming and going to the entire park, hoping to spot Mr. Olson or his vehicle. Deputy Bunt recognized Mr. Olson's vehicle leaving the park and began following him, contacting other law enforcement to tell them of these facts. When a state officer attempted to affect a traffic stop on Mr. Olson's vehicle a short time later, Mr. Olson's vehicle accelerated at a high rate of speed. A high-speed chase ensued (high speed for the road conditions), which was eventually called off after Mr. Olson's vehicle ran a red traffic light at the intersection of Sixth Street and West Avenue.
The next day, on December 13, 2013, a Sioux Falls policeman conducted a traffic stop on a vehicle containing persons who were known to associate with Mr. Olson. The stop occurred near the intersection of West Madison Street and and North Kiwanis Avenue. One of the occupants in the vehicle was Luke Poor Thunder, who lived at 700 West Bailey Street. Poor Thunder told the police that Mr. Olson had spent the night at Poor Thunder's house the night before and that Olson was still at the house when Poor Thunder left the house that day. Poor Thunder also told police that he had observed Mr. Olson in possession of a.22 caliber handgun at his house the night before. The police officer conveyed this information to other members of the Fugitive Task Force, two of which were Deputy Bunt and his partner, Deputy United States Marshal Ken Markie.
Deputies Bunt and Markie traveled to 700 West Bailey Street. Upon their arrival in the vicinity, they spotted Mr. Olson standing on the corner of Bailey and North Prairie Street, walking toward the deputies' van. Mr. Olson appeared to recognize the deputies as law enforcement as he immediately did an about-face and began walking in the opposite direction. When the officers first spotted Mr. Olson, they were approximately one and one-half property lots away from him. As the officers drew nearer to verify Mr. Olson's identity, they confirmed that it was indeed Mr. Olson.
At this point, Mr. Olson ran directly toward the residence at 700 West Bailey. Deputy Bunt yelled out to him "Stop! Police!" Mr. Olson kept running away from the officers.
Deputies Bunt and Markie parked their van in the middle of the street and fled it, leaving the doors open and the engine running as they gave chase to Mr. Olson. Deputy Bunt did not grab his police radio as he exited. The officers followed Mr. Olson as he entered the front door of 700 West Bailey, slamming the door behind him. The officers entered and followed Olson to a bedroom in the northeast corner of the house. Mr. Olson slammed the door to the bedroom behind him as he entered the room. Deputy Bunt kicked the door to the bedroom open as he followed after Mr. Olson.
Upon opening the door, Deputy Bunt observed Mr. Olson hunched over, facing away from Deputy Bunt. When Bunt entered, Mr. Olson sprang back, throwing himself on the bed inside the room and shouting "Don't shoot me. Don't shoot me." The officers observed three women who were also in the bedroom with Mr. Olson. The two deputies then apprehended Mr. Olson. In the midst of this, literally seconds after Mr. Olson was subdued, Deputy Bunt's phone rang. He recognized the number displayed on his caller identification to be Detective Butler. Deputy Bunt answered the call without giving Detective Butler a chance to speak. Instead, Deputy Bunt answered the call by stating "We have him. You need to come right away, " at which point Deputy Bunt hung up.
Deputy Bunt testified that he asked Detective Butler to assist them because he had concerns for officer safety. Also, there were three women in the room, and he knew Detective Butler and Sergeant Bosman had been to 700 West Bailey before trying to find Mr. Olson, so he wanted them to come over to "see the situation." In addition, Deputy Markie had begun pat searching Mr. Olson and discovering narcotics, for which Deputy Bunt testified neither he nor Markie were authorized to make arrests.
Deputy Markie placed Mr. Olson face-down on the floor of the bedroom and handcuffed him behind his back. At this point, Deputy Bunt left to attend to the deputies' vehicle (i.e. park it properly, close the doors, secure weapons in the vehicle, and turn off the engine) and to retrieve his radio. Deputy Markie was left to watch over Mr. Olson and the three women. Deputy Bunt then returned to the northeast bedroom and rejoined Deputy Markie. Deputy Markie conducted a pat-down search of Mr. Olson incident to his arrest. Found on Mr. Olson's person was a small jeweler's plastic baggie containing a white crystalline substance, three used syringes, $500 in cash, and a black Samsung cell phone.
Detective Butler and Sergeant Bosman arrived on the scene within three to five minutes of Detective Butler's phone contact with Deputy Bunt. These two state officers had no idea where Deputy Bunt and his partner were, whether they were chasing Mr. Olson outside somewhere or whether they were indoors. Detective Butler called out for the deputies and Deputy Bunt, who had stationed himself on the threshold to the hallway where he could observe both the bedroom and the outside, answered from inside 700 West Bailey indicating where they were. Detective Butler and Sergeant Bosman then followed the sound of the deputies' voices and entered the home, proceeding to the northeast bedroom.
Deputy Bunt never testified that he told Detective Butler on the phone that Olson was in handcuffs. Detective Butler testified that he had no knowledge that Olson had been handcuffed already at the time he entered the home. Sergeant Bosman testified that, upon arrival at 700 West Bailey, it was evident that the two Marshals "had their hands full" with trying to keep control over Mr. Olson and with the numerous people that were still unsecured and moving about the house.
Upon the entry of the state officers, the deputy marshals explained to them what had happened up to that point and showed the state officers the items that had been found by Deputy Markie's search of Mr. Olson's person. Detective Butler was standing next to a table that can be seen in Exhibits 1 and 2 from the hearing. These exhibits depict a small wooden support topped by an oval piece of transparent glass. See Exhibits 1 and 2. The table has a small stereo and speaker, some ear buds, a tiny vase, and a pack of Marlboro cigarettes ...