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United States v. Zastrow

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

June 24, 2016





         Defendant, Nicholas Steven Zastrow, is charged with possession of an unregistered firearm under 26 U.S.C. §§ 5861(d), 5845(a)(1), and 5871. Zastrow moves to suppress all evidence seized following a warrantless search of his residence. Docket 26. He argues that the evidence was obtained in violation of the Fourth Amendment to the United States Constitution. The motion was referred to United States Magistrate Judge Veronica L. Duffy for a report and recommendation under 28 U.S.C. § 636(b)(1)(B).

         An evidentiary hearing was held on June 7, 2016. Two witnesses testified and several exhibits were received at the hearing. The magistrate judge issued a report and recommended denial of Zastrow’s motion to suppress. Docket 34. Zastrow timely filed an objection to the report and recommendation. Docket 35. For the following reasons, the court adopts the report and recommendation.


         This court’s review of a magistrate judge’s report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge’s recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Because motions to suppress evidence are considered dispositive matters, a magistrate judge’s recommendation regarding such a motion is subject to de novo review. 28 U.S.C. § 636(b)(1)(A); see also United States v. Raddatz, 447 U.S. 667, 673 (1980). In conducting a de novo review, this court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).


         Neither party objected to the magistrate judge’s findings of fact. The court has reviewed the record and adopts the magistrate judge’s factual findings in full. For ease of reference, the court provides the facts as found by the magistrate judge:

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.
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. 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 ...

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