United States District Court, D. South Dakota, Western Division
REPORT AND RECOMMENDATION
DANETA WOLLMANN, Magistrate Judge.
Pending before this Court are the following Motions:
1. Gerald LeBeau's Motion to Suppress (ECF No. 30)
2. Gerald LeBeau's Motion to Suppress Tape Recordings of Jail Telephone Calls (ECF No. 129)
3. Neil LeBeau's Motion to Suppress Recorded Telephone Conversations (ECF No. 154)
4. Gerald LeBeau's Motion to Suppress Sealed Envelopes and Motion for a Frank's hearing (ECF No. 140)
5. Neil LeBeau's Motion to Join Gerald LeBeau's Motion re: Sealed Envelopes/Frank's hearing (ECF No. 163)
6. Gerald LeBeau's Second Motion to Suppress Statements and Evidence and Request for a Frank's hearing (ECF No. 142)
7. Gerald LeBeau's Motion to Suppress Evidence Taken from Tribal Land (ECF No. 157)
8. Neil LeBeau's Motion to Join Gerald LeBeau's Motion to Suppress Evidence Taken from Tribal Land (ECF No. 160)
9. Neil LeBeau's Motion to Suppress Evidence re: 2012 traffic stop (ECF No.161)
An evidentiary hearing was held on March 11-13, 2015. Defendant Gerald LeBeau (hereinafter "Gers") was personally present and represented by his attorney of record, George Grassby. Defendant Neil LeBeau (hereinafter "Neil") was personally present and represented by his attorney of record, John M. Fitzgerald. The Government was represented by Ted McBride. Fifteen (15) witnesses testified at the hearing. Forty-two (42) exhibits were received into evidence. Both parties have submitted briefs prior to the hearing and subsequent to the hearing. Based on a careful consideration of all the evidence, and counsel's arguments, the Court respectfully makes the following findings of fact and conclusions of law:
Defendant Gerald LeBeau is charged in a Superseding Indictment with Possession with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), Conspiracy to Distribute a Controlled Substance (Cocaine) in violation 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B), Conspiracy to Distribute a Controlled Substance (Marihuana) in violation 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(D), and Witness Tampering in violation of 18 U.S.C. § 1512(B)(1).
Defendant Neil LeBeau is charged in a Superseding Indictment with Conspiracy to Distribute a Controlled Substance (Cocaine) in violation 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B), and Conspiracy to Distribute a Controlled Substance (Marihuana) in violation 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(D).
The pending Motions were referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Honorable Jeffrey L. Viken's Standing Order dated March 9, 2015.
Gerald LeBeau, a/k/a Gers LeBeau has been the subject of a couple of investigations over the past 23 years during Special FBI Agent Dan Cooper's tenure in Rapid City. In 2002, Gers was convicted in the District of South Dakota of Possession with Intent to Distribute and received a 120 month prison sentence. During the course of the 2002 investigation, Gers threatened to kill a law enforcement officer and his family. Gers also took efforts to escape law enforcement, such as diving out of a window and leading officers on a high speed chase. From 2011 to 2013, law enforcement had reports from independent sources that Gers possessed guns, waived guns, threatened to shoot people, and threatened to have a shoot-out with police because he did not want to go back to prison. (Hr'g Tr. 234). From 2011 through the date of their arrest, Gers LeBeau and Neil LeBeau were the subject of an open and active FBI investigation involving illegal narcotics.
On January 10, 2014, a Special Agent from Montana, Jeff Young Blood, was effectuating a search warrant of a hotel room at Cadillac Jack's Casino in Deadwood, South Dakota. This search was conducted in an unrelated case involving Lloyd Nickel. While executing the search warrant for Lloyd Nickel's hotel room, hotel staff informed Agent Young Blood that a female who had accompanied Lloyd Nickel was still in the hotel and she was presently in the company of Gerald LeBeau. (Hr'g Tr. 134, 229-231, 250-251, 476-477, 426).
Unfamiliar with the history of Gerald LeBeau, Agent Young Blood contacted local Agent Dan Cooper to see if he was familiar with Gerald LeBeau. Agent Cooper informed Agent Young Blood of Gers' criminal history involving narcotics. Lloyd Nickel's hotel room and Ger's hotel room were on the same floor of the hotel. Given the concern that Agent Young Blood was in the middle of executing the search warrant, and that the female occupant of the hotel room was believed to be at large in the hotel and in the company of a suspected drug dealer (Gers), who was also at large in the hotel. Agent Cooper, along with Agent Lyle Tolsma and Agent Shawn Sheridan, went to Cadillac Jack's to assist Agent Young Blood.
When the additional Agents arrived at Cadillac Jack's, hotel staff informed law enforcement that the female who had affiliated with Lloyd Nickel, was now in the company of Gers LeBeau. (Hr'g Tr. 185). Officer Tolsma and Officer Sheridan reviewed hotel surveillance footage showing the female, whom staff had identified as the female with Lloyd Nickel, enter Gers' hotel room. Wanting to speak with the female, law enforcement concocted a plan to have the hotel manager, Tim Atyeo, stand outside of Gers' hotel room while hotel staff telephoned Gers' room and ask Gers to the step outside to talk to the general manager. Gers opened his hotel room door and law enforcement asked him to step out of the room so they could speak to him. Gers stepped out of the hotel room into the hall where he was patted down and handcuffed. (Hr'g Tr. 254). Law enforcement inquired of Gers as to the identity of the female in the room. Officers testified that they informed Gers that they needed to speak with the female in the room. Gers stated that her name was Katrina, he did not know her last name, and that she was from Albuquerque. Gers called to the female, "Katrina" and according to the testimony of law enforcement, Gers indicated to the officers to go ahead. (Hr'g Tr. 321, 346). While in the hallway, Gers and Marlin LeBeau remained cuffed and detained and were not free to leave. (Hr'g Tr. 296). From review of the audio tape, law enforcement was not threatening or aggressive. Gers was cooperative and did not vocalize any protest when law enforcement indicated that they were going ahead with entering the hotel room. The quality of the audio tape makes it very difficult to decipher every conversation that took place.
The hotel room door was still ajar (Hr'g Tr. 283, 321) and Agent Tolsma knocked on the door and the female responded with, "Hello?" (Ex. 10 at 3:07). Agent Tolsma pushed open the door, entered the room and spoke to the female. While Agent Tolsma made contact with the female, Agent Sheridan conducted a protective sweep of the hotel room. Agent Tolsma testified that he felt that he had consent to enter the room to speak with the female, but that he did not have consent to search the room. (Hr'g Tr. 256). Gers' former attorney also stated that the agents had permission to enter the room to speak with or to remove the female, but did not have consent to search the room. (Mot. Suppress 1, ECF No. 31). While conducting the protective sweep, Agent Sheridan observed a white powdery substance located on a counter by the sink in plain view. (Hr'g Tr. 257)
The female was removed from Gers' hotel room and taken to another room for an interview. Gers and Marlin LeBeau were brought back into the room. Law enforcement repositioned their handcuffs from behind the back to place them in the front. Agent Tolsma told Gers that they were there to identify the female and that they wanted to interview him. Agent Tolsma informed Gers that he was not under arrest and that he did not have to talk to law enforcement if he did not want to. (Hr'g Tr. 259). Gers informed the officers of how he met the female and why she was in his hotel room. Agent Tolsma asked Gers for consent to search the hotel room and prepared a permission to search form. (Ex. 11). Initially, the form identified Room 452, the Dillinger Suite, as the place to be searched. Gers signed the permission to search form. Agent Tolsma and Agent Sheridan both testified that they witnessed Gers signing the permission form. (Hr'g Tr. 263, 350).
The audio tape stopped working during the time frame that Gers signed Exhibit 11. Upon discovering that the tape had malfunctioned, Agent Tolsma secured the battery and approached Gers again regarding the consent form. The audio tape verifies that Gers confirmed that he previously signed the permission to search form. (Ex. 10, Ch. 2 at:014). Gers followed up by stating, "I've got nothing to hide." Id.
Gers LeBeau had the odor of alcohol on him. However, he did not show any signs of intoxication from drugs or alcohol. (Hr'g Tr. 140, 141, 271, 430-431). When he was booked into the jail, he was administered a preliminary breath test ("PBT'') which registered a.036 (Hr'g Tr. 102).
While searching his hotel room, Agent Tolsma asked Gers of they could also search his 1992 Thunderbird. Gers verbally agreed to allow law enforcement to search the Thunderbird. (Ex. 10, Ch. 2 at 39:40). Using a different pen, Agent Tolsma added the search of the Thunderbird to the permission form. Agent Tolsma and Agent Sheridan initialed the form. Gers did not initial the form.
Agent Cooper searched Gers' Thunderbird. After discovering the large quantity of cocaine in Gers' car, Agent Cooper placed Gers under arrest. He was escorted to the parking lot and placed in the patrol car. Agent Sheridan read Gers his Miranda rights. (Hr'g Tr. 140). Gers indicated that he understood his rights and wanted a lawyer before he said anything. Agent Cooper testified that after Gers asked for a lawyer, they did not ask him anything further. (Hr'g Tr. 141). During the 40-45 minutes transport to the Pennington County Jail, Gers engaged the agents in conversation. (Hr'g Tr. 141). Gers talked about why he was at the casino, his gambling habits, and gambling strategies. (Hr'g Tr. 141).
When Agent Sheridan and Agent Cooper arrived at the Pennington County Jail, Gers was booked into the jail. The booking form is Exhibit 15, and contains Gers' signature. Agent Tolsma was not present at the time Gers was booked into the jail or when Gers signed the form, as Agent Tolsma was still in Deadwood, processing the female on drug charges. (Hr'g Tr. 144).
On January 16, 2014, Agent Cooper prepared an affidavit for an application for a search warrant for Gers' FEMA trailer located on the Pine Ridge Indian Reservation, Gers' cell phone and the 1992 Ford Thunderbird. Agent Cooper was unable to present the affidavit and application to United States Magistrate Judge Duffy, because she was out of town (Hr'g Tr. 146). They were then presented to District Court Judge Jeffrey L. Viken. Judge Viken began reviewing the affidavit and then recused himself from the case (Hr'g Tr. 147). Agent Cooper then presented the search warrants to South Dakota State Seventh Circuit Court Judge Robert Gusinsky. Judge Gusinsky issued the search warrants.
On January 17, 2014, Agent Cooper and Agent Tolsma approached the Margaret Clark residence, which is located on the Pine Ridge Indian Reservation. Margaret Clark informed law enforcement that the house was hers; she had control over all of the rooms; that she lets friends and family stay there occasionally and temporarily. (Hr'g Tr. 125, 483). Ms. Clark gave officers consent to search her house and she signed the consent form, which is marked as Exhibit 5. (Hr'g Tr. 481, 483). Ms. Clark told law enforcement officers that different relatives stay at her house and that she had no idea what items belong to whom. (Hr'g Tr. 482). Only Ms. Clark and her sister, Twila, have keys to the Margaret Clark residence (Hr'g Tr. 484).
While Gers was in custody of the Pennington County Jail, he placed several phone calls from the jail. At the beginning of all calls, an announcement is played warning both the inmate and the recipient of the call that the call is being recorded. The announcement is played in its entirety up until the recipient of the phone call either accepts or declines the phone call. (Hr'g Tr. 128-129). The recipient can skip the announcement, by electing to accept the call prior to the announcement being completed. Gers is familiar with this procedure as he has informed recipients that they don't need to listen to the whole announcement and they can simply accept the phone call. (Hr'g Tr. 129).
In mid-February of 2014, while Gers was in custody at the Pennington County Jail, he wrote several letters. Two of the letters, which were sealed, were seized by U.S. Marshals on July 16, 2014. One of the letters was addressed to Neil LeBeau and the other was addressed to Pablo LeBeau, Gers' son who was incarcerated on charges of conspiracy to distribute a controlled substance. Special Agent Matthew Miller presented a search warrant to United States Magistrate John E. Simko, who issued a warrant authorizing the letters to be opened. Additionally, inmate Scott Burleson was a cellmate of Gers LeBeau. Gers told Mr. Burleson of his drug trafficking activities (Hr'g Tr. 150). Mr. Burleson wrote letters to his attorney detailing the information provided by Gers. Additionally, Gers wrote a letter to Pablo LeBeau, gave it to Scott Burleson to mail to Pablo under the pretense that it was prepared and mailed by Scott Burleson in order to circumvent the jail mailing system. (Hr'g Tr. 150-151). Mr. Burleson gave these letters to his attorney. Mr. Burleson and his attorney then arranged for a meeting with Agent Cooper and provided them with these letters. When the letters were provided to law enforcement by Mr. Burleson and his attorney, they had already been opened. Agent Cooper testified that Mr. Burleson was never directed to steal anything from Gers LeBeau. (Hr'g Tr. 160). He also testified that Mr. Burleson did not steal the letters from Gers, but that Gers gave the letters to Mr. Burleson. (Hr'g Tr. 200).
Similarly, Gers wrote a letter to Pablo LeBeau. Pablo LeBeau, through his attorney, contacted law enforcement and turned over the letter. Gers applied for a Writ of Habeas Corpus Ad Testificandum for Pablo LeBeau to appear. The Court granted the Writ. Immediately thereafter, Pablo's attorney moved to quash the Writ, invoking his Fifth Amendment right against self-incrimination. Given Pablo's right to claim the privilege of the Fifth Amendment, the Court granted the motion to quash the Writ.
While in custody of the jail, Gers Lebeau also prepared a note and passed it to a fellow inmate, Luke Pond. (Hr'g Tr. 161). Passing notes is in violation of jail policy. Mr. Pond was caught with the note and he turned it over to the jail. The note was then seized by the jail and turned over to Agent Cooper.
Issue I. Motion to Suppress Evidence (ECF No. 30, ECF No. 142)
Gers LeBeau first argues that law enforcement lacked probable cause to conduct a search of his hotel room and question him. Here, officers engaged in a "knock and talk." "As commonly understood, a knock and talk' is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion." States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006). This principle permits police officers- consistent with the Fourth Amendment-to "approach the front door to announce their presence, " make "inquir[ies], " and "request consent to search the remainder of the property." United States v. Wells, 648 F.3d 671, 679 (8th Cir. 2011) (citing United States v. Weston, 443 F.3d 661, 667 (8th Cir.2006). However, a "knock and talk" can become coercive if the police assert their authority, refuse to leave, or otherwise make the people inside feel they cannot refuse to open up. United States v. Poe, 462 F.3d 997, 1000 (8th Cir. 2006). Here, there is no evidence of coercive law enforcement actions threatening Gers to open the door. Gers was contacted on the telephone by hotel staff requesting Gers to open his door to talk to the hotel manager. This trickery is not prohibited by the Fourth Amendment. In the case of United States v. Spotted Elk, the defendant opened her motel room after the hotel manager knocked and stated, "Front desk" while officers waited at the door. 548 F.3d 641, 654 (8th Cir. 2008). The Eighth Circuit upheld the district court's finding that the defendant opened the door of the motel room of her own accord and therefore, no Fourth Amendment violation occurred. Likewise, the knock and talk procedure conducted here complied with the requirements of the Fourth Amendment.
B. Ger's Pre-Arrest Statements
Ger's moves to suppress all statements he made during his immediate detention outside of his hotel room and all other pre-arrest statements made while he was in the hotel room.
The government filed a response indicating that it does not intend to use any of the statement made by Gers LeBeau during the search of the hotel room during its case in chief. Because the government does not intend to offer the contested evidence at trial, the court need not reach the merits of this motion to suppress. The proper course of action is to deny the motion to suppress, subject to renewal if it becomes necessary. See, eg., United States v. Lindsey, No. 10-15 (JNE/JJK), 2010 WL 4822925 at *1 (D.Minn. Nov. 22, 2010); United States v. Mitchell, No. 08-CR-46-LRR, 2009 WL 36605 (N.D. Iowa Jan. 5, 2009). It is respectfully recommended that the motion to suppress the pre-arrest statements be denied as moot.
C. Search of the hotel room
Gers LeBeau moves to suppress the physical evidence obtained in the hotel room. He argues that he did not give consent to search the room. He asserts that the permission to search form was forged. Second, Gers argues that he was impaired and unable to give consent.
When a defendant claims he did not voluntarily consent to a search, the Government bears the burden of proving consent was voluntarily given. United States v. Sanders, 341 F.3d 809, 817 (8th Cir. 2003). The standard of proof is a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477 (1972).
It should be noted that even if Gers LeBeau made statements in the absence of Miranda warnings, it does not necessarily follow that Mr. LeBeau's consent to search the hotel room is invalid, or must be suppressed in the absence of Miranda warnings. "[A] consent to search is not an incriminating statement." Cody v. Solem, 755 F.2d 1323, 1330 (8th Cir. 1985), cert. den. 474 U.S. 833 (1985). And "even persons who have been arrested and ...