United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
Benton Leo Brave Hawk moved to suppress statements he made to law enforcement officers, arguing that the officers violated Miranda v. Arizona. 384 U.S. 436 (1966) and that his statements were involuntary under the Fifth Amendment. Magistrate Judge Mark A. Moreno issued a Report and Recommendation recommending denying Brave Hawk's motion, and Brave Hawk has now filed objections to that recommendation. For the reasons explained below, this Court adopts the Report and Recommendation.
Tribal police arrested Brave Hawk for allegedly sexually assaulting T.C.F., the eight-year-old daughter of Brave Hawk's significant other. Ex. 1 at 07:50-07:55, 17:40-18:00. Kory Provost, a special agent with the Rosebud Police Department, and Alicia Rowland, a special agent with the FBI, interviewed Brave Hawk while he was in custody at the Rosebud correctional facility. T. 9, 13. Before asking Brave Hawk any questions, Agent Provost read Brave Hawk his Miranda rights from an advice-of-rights form. Ex. 1 at 00:23-01:23; T. 15. Brave Hawk acknowledged that he understood each of his rights by writing his initials next to the paragraphs on the form explaining them. Ex 1. at 01:20-02:11; T. 16-17; Ex. 2.
At Agent Provost's request, Brave Hawk read aloud the form's waiver provision, which provided: "I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present." Ex. 1 at 02:10-02:28; T. 17; Ex. 2. The following exchange then took place:
Agent Provost: You agree with that?
Brave Hawk: Not really.
Agent Provost: Not really?
Brave Hawk: No.
Agent Provost: So, I mean, do you not want to talk to us?
Brave Hawk: I don't agree with it, but....
Agent Provost: I mean, it's up to you. (inaudible statement by Brave Hawk). I can't make you, I can't make you do anything. It's up to you. It's your choice. These are your rights. Okay? So either you can talk to us without a lawyer present, like it says, you can stop answering at any time. Or, or not.
Ex. 1 at 02:28-03:04; T. 18-19. Without giving a verbal response, Brave Hawk took the form and signed the signature block below the waiver provision. Ex. 1 at 03:03-03:51; T. 19-20; Ex.2.
Agents Provost and Rowland then began the interview, which lasted just under one hour and fourteen minutes. Ex. 1. Although Brave Hawk said at the outset that he was "tired" and only "somewhat" awake, Ex. 1 at 07:18-07:40, he never asked to stop or take a break and his answers to the officers' questions were coherent and intelligible, Ex. 1. He repeatedly denied having sexual contact with T.C.F., even when the officers lied and said they found DNA on the child. Ex. 1. Throughout the interview, Brave Hawk asked questions when he did not understand something, including inquiring about what a polygraph was, when he could take one, whether he would be released, and the nature of the tribal charges against him. Ex. 1 at 29:00-35:10. The atmosphere of the interview was calm; the officers did not display any weapons, ...