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United States v. Zastrow

United States District Court, D. South Dakota, Southern Division

June 9, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
NICHOLAS STEVEN ZASTROW, Defendant.

          REPORT AND RECOMMENDATION

          VERONICA L. DUFFY, Magistrate Judge.

         INTRODUCTION

         Defendant Nicholas Steven Zastrow is before the court on a felony indictment charging him with possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d), 5845(a)(1) and 5871. See Docket No. 1. Mr. Zastrow has filed a motion to suppress physical evidence and statements deriving from a warrantless search of his residence. See Docket No. 26. The United States of America (government) resists the motion. See Docket No. 30. This matter was referred to this magistrate judge for the holding of an evidentiary hearing and the making of findings of fact and a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, district judge. The following is this court's recommended disposition.

         FACTS

         An evidentiary hearing was held on Mr. Zastrow's motion on Tuesday, June 7, 2016. Present at the hearing were Mr. Zastrow and his attorney, D. Sonny Walter. Assistant United States Attorney Jennifer Mammenga appeared on behalf of the government. Two witnesses testified at the hearing: Brookings Police Officer Adam Smith and Special Agent Kurt Wheeler of the Bureau of Alcohol, Tobacco and Firearms. From the evidence introduced at the hearing, the court makes the following findings.

         At 5:43 a.m. on September 26, 2015, Brookings Police Department responded to a residence occupied by Mr. Zastrow and his friend, Cody Pomerenke, after a report of a disturbance. Both Mr. Zastrow and Pomerenke were arrested for felony aggravated assault, among other criminal offenses. Mr. Pomerenke was intoxicated at the time of his arrest. The residence was a rental property. Pomerenke's name was the only name on the lease. Mr. Zastrow had been staying with Pomerenke, with Pomerenke's permission, for some unknown period of time prior to September 26. Officer Smith testified he never asked Pomerenke if Mr. Zastrow was paying rent in return for staying at the residence.

         The residence consisted on the main floor of one enclosed bedroom with a door which Pomerenke used as his bedroom. The remainder of the house was an open living room/dining room area that also flowed into the kitchen with no partition or door. The living room/dining room area had a two-cushion loveseat glider couch, some chairs, and a table with kitchen chairs arranged around it. The loveseat was the only item of furniture suitable for sleeping in the combined room. The floor in the living room/dining room had piles of hunting gear, clothing, and miscellaneous items. There was plastic shelving set up that was full of miscellaneous items including ammunition cans. There was no television in the living room/dining room. No part of the living room/dining room area was partitioned, screened, or curtained off to create privacy. From the front door, one could see directly into the living room/dining room area. There were two doors to the residence, but Pomerenke was required to traverse through the living room/dining room area in order to reach his own bedroom-the door to Pomerenke's bedroom was located in the middle of the living room/dining room. Likewise, one would have to traverse the living room/dining room area to reach the kitchen or the basement stairs.[1]

         Both men appeared in state court and were granted bond. A condition of bond was that both men turn over all weapons to law enforcement.

         At approximately 7 p.m. on the same day, September 26, Pomerenke was released from jail. Officer Smith testified that prior to being released from jail on his own, an inmate would be required to blow.00 on a preliminary breath test to demonstrate that the inmate is no longer intoxicated. Officer Smith testified that when he made contact with Pomerenke on the evening of September 26, he observed nothing that would have indicated Pomerenke was under the influence of alcohol.

         Officer Smith was contacted via radio and asked to pick Pomerenke up at the jail and transport him to his home for the purpose of taking custody of Pomerenke's firearms. Officer Smith testified Pomerenke made the request for transportation and to have an officer come to his home to take custody of his firearms. Officer Smith picked Pomerenke up at the jail and drove him to his house. Pomerenke rode in the front passenger seat of Officer Smith's patrol car without any handcuffs or any other type of restraint. Upon arrival there, the house was discovered to be locked and Pomerenke did not have the keys with him.[2] Pomerenke decided to enter the house through an open, unlocked window. He then let Officer Smith in through the front door. Officer Smith asked Pomerenke where Mr. Zastrow stayed and Pomerenke indicated the living room/dining room area.

         With Pomerenke's permission, Officer Smith, Sergeant Terry Coon, and Pomerenke began collecting firearms from throughout the house. Some 29 firearms were collected-some rifles, revolvers, pistols, shotguns and two BB guns. Some of these firearms were in a locked gun safe that Pomerenke unlocked and emptied of firearms, giving the guns to the officers. Some of the firearms were located in the living room/dining room area.

         Upon collecting all these guns in the house, Pomerenke told Officer Smith he had two more firearms in his truck parked outside that he wished to turn over to him. Pomerenke could not locate his truck keys. Officer Smith went outside and checked the two front doors to the truck, both of which were locked.[3] Officer Smith left Pomerenke's house shortly thereafter with the 29 firearms collected thus far.

         Almost immediately after leaving, Officer Smith telephoned Sergeant Coon because he was worried about Pomerenke's mental state and leaving him with access to the two firearms in the truck. Sergeant Coon instructed Officer Smith to return to Pomerenke's house and attempt to get the firearms from the truck.

         Officer Smith came back to the home and knocked on the front door. The officer could see into the house and observed Pomerenke standing in the living room area. Pomerenke answered the door. Officer Smith asked Pomerenke if he could enter and assist Pomerenke in finding his truck keys. Pomerenke consented. Officer Smith entered the home a second time and began searching for ...


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