United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
E. SCHREIER UNITED STATES DISTRICT JUDGE
AND PROCEDURE OF CASE
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).
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.
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).
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
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
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 ...