United States District Court, D. South Dakota, Western Division
REPORT AND RECOMMENDATION
DANETA WOLLMANN UNITED STATES MAGISTRATE JUDGE
Pending is Defendant’s Motion to Suppress Evidence (Doc. 12). A hearing was held on March 16, 2015. Defendant was personally present and represented by his attorney of record, Monica D. Colbath. The Government was represented by Kathryn Rich. Six witnesses testified at the hearing. Twenty-eight exhibits were received into evidence. Both parties have submitted briefs. Based on a careful consideration of all the evidence, and counsel’s written and oral arguments, the Court respectfully makes the following findings of fact and conclusions of law.
Defendant is charged in an Indictment with Possession of Firearm by a Prohibited Person in violation of 18 U.S.C. § 992(g)(1). The pending Motion was referred to this magistrate judge for the holding of an evidentiary hearing and the issuance of a recommended disposition pursuant to 28 U.S.C. § 36(b)(1)(B) and the March 9, 2015, standing order of the Honorable Jeffrey L. Viken, Chief Judge.
In the late evening hours of December 5, 2014, Deputy Sheriff Patrick Humphrey and Deputy Sherriff Rich Nasser went to the residence of Jason Wellsandt to serve a bench warrant on Jennifer Huggins. Mr. Wellsandt and Ms. Huggins were in a romantic relationship and Ms. Huggins was known to be residing with Mr. Wellsandt at 5247 Red Cliff Court in Black Hawk, South Dakota. Deputy Humphrey and Deputy Nasser arrived in separate patrol vehicles at approximately 11:00 p.m. They parked near the neighboring trailer house, walked toward Mr. Wellsandt’s trailer house traveling past the railroad ties depicted in Exhibit 10. The deputies approached the trailer house and knocked on the door. A female answered the door, identified herself as “Crystal, ” and told the deputies that she didn’t know the whereabouts of Ms. Huggins. Crystal said she would text Ms. Huggins to find her whereabouts.
The deputies began leaving the premises traveling back by the railroad ties enroute to their patrol cars and came across a black nylon bag. The deputies described the nylon bag as looking like something that one would put sunglasses in. The nylon bag was located approximately one foot from the corner of where the two railroad ties meet. As depicted in the photographs, the nylon bag was located where foot travel and vehicular travel would frequently pass. Both deputies estimated the nylon bag was approximately 20 feet from the trailer. Defense counsel’s paralegal testified that the approximate location of the nylon bag was 10 feet from the trailer, based on measurements she took after receiving the discovery in this case. Deputy Nasser testified that he believed that the nylon bag was associated with the Wellsandt house.
The deputies opened the bag and inside was a small plastic baggie with a substance believed to be methamphetamine, marijuana, a hypodermic needle, and a syringe. While the officers were looking at the bag, Crystal exited the house and asked the officers what they were doing. Although, the officers were aware that Crystal did not want the officer on the property, she did not specifically ask them to leave. Crystal returned to the house. At that time, a vehicle driven by Albert Nagel arrived at the Wellsandt residence. Mr. Nagel said he was there to see his friend Jason. Mr. Nagel then entered the trailer.
Given law enforcement’s suspicion that Crystal was untruthful regarding the whereabouts of Ms. Huggins or Mr. Wellsandt, they re-approached the residence and asked to speak with Mr. Nagel. Mr. Nagel exited the home and consented to a search of his person which produced a glass pipe with what appeared to be methamphetamine residue on the inside of the pipe. Mr. Nagel was placed under arrest.
Deputy Nasser prepared an affidavit for a search warrant. A search warrant was issued by state circuit court Judge Michelle Percy for the residence of Mr. Wellsandt. The next day, Deputy Humphries executed the warrant on the Wellsandt home. Ms. Huggins and three children were present at the home at the time the search warrant was executed. During the search of the Wellsandt home, law enforcement located methamphetamine, drug paraphernalia, cash, and a stolen firearm.
While officers were executing the search warrant, Mr. Wellsandt arrived on the scene driving a turquoise 1969 Ford F250 pickup truck. The vehicle license plate was run and was identified as belonging to Mr. Wellsandt. Deputy Nasser testified that Mr. Wellsandt appeared like he had been out all night, possibly was under the influence of something, his eyes were bloodshot and watery and he was very sweaty. HT p. 45. Mr. Wellsandt was placed under arrest based on the items found in his house and his vehicle was towed to the Meade County secured evidence lot. A second search warrant was obtained for the search of Mr. Wellsandt’s turquoise 1969 Ford F250 pickup truck. The search produced a weapon which is the subject of the pending Indictment.
Mr. Wellsandt argues that the black nylon bag was located within the curtilage of his home and is protected by the Fourth Amendment. Mr. Wellsandt argues that the search and seizure of the black nylon bag was illegal and therefore cannot form the basis of providing probable cause for the initial search warrant for the house. Mr. Wellsandt argues that without searching the house and interviewing Ms. Huggins, law enforcement would ...