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United States v. Bird

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

November 8, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ARVIN BRAVE BIRD, Defendant.

          OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         The Government charged Arvin Brave Bird with sexual abuse and aggravated sexual abuse. Doc. 1. Brave Bird moved to suppress evidence obtained from his home on unlawful search and seizure grounds, and to suppress incriminating statements he made to an investigator under the "fruit of the poisonous tree" doctrine and voluntariness grounds. Doc. 45; Tr. at 4-5. After holding an evidentiary hearing and receiving additional written stipulated evidence, Magistrate Judge Mark A. Moreno issued an Amended Report and Recommendation, recommending that Brave Bird's motion be denied in its entirety. Doc. 80 at 16-17. Brave Bird has filed timely objections to that recommendation. Doc. 81. This Court has conducted a de novo review of the record, and for the reasons explained below, overrules Brave Bird's objections and adopts Judge Moreno's Amended Report and Recommendation.

         I. Facts

         On December 8, 2015, Karen Connot met with Rosebud Sioux Tribe Law Enforcement Services Officer Luke Black Bear to discuss an alleged sexual assault that had occurred the previous evening. Tr. at 14-15, 24. Connot told Officer Black Bear that she was sexually assaulted by Arvin Brave Bird and Michael Yellow Eyes, but did not directly say that Yellow Eyes had sex with her. Tr. at 15, 26. Officer Black Bear took Connot to the Rosebud Indian Health Service hospital for an evaluation. Tr. at 15. While at the hospital, Connot told Special Agent Bob Sedlmajer that after an argument with her boyfriend, she went to her uncle Brave Bird's home to stay for the evening. Tr. at 33. According to what Connot told Agent Sedlmajer, when she awoke, Brave Bird was on top of her having intercourse with her, and Yellow Eyes was on the stairs asking if it was his turn now. Tr. at 34.

         Officer Black Bear went to the residence where Connot claimed the incident happened. Tr. at 15. When Officer Black Bear arrived at the residence, Yellow Eyes met him at the door, said that he lived at the residence, and agreed to let Officer Black Bear search the basement area of the home, where the alleged sexual assault took place. Tr. at 15-16, 24. On the way to the basement, Officer Black Bear observed a condom wrapper under the kitchen table, and an unused condom at the top of the basement stairs. Tr. at 16. Once in the basement, Officer Black Bear noted that there was a mattress in the northwest corner, and that the basement was a "big open area." Tr. at 16. He also noticed several other items, including blankets, clothing, and a pair of sunglasses, that Agent Sedlmajer had told Officer Black Bear would be in the basement, based on Agent Sedlmajer's interview with Connot. Tr. at 16-17. Officer Black Bear photographed and seized this evidence, and Yellow Eyes was arrested. Tr. at 17; see also Gov't Ex. 2 (describing as evidence taken a black shirt, shorts, and grey comb; three grey blankets; one blue blanket; a portion of a mattress top; a washcloth; a pen tube; condom wrapper and condoms; a bag containing condoms; and a pair of pink sunglasses); Doc. 45 (Defendant's motion to suppress objecting to the same evidence, absent the bag of condoms). Officer Black Bear testified that while he was in the home with Yellow Eyes, there was no indication from Yellow Eyes that he did not live in the home. Tr. at 23. Agent Sedlmajer also testified that he received no information or indication on the day of the search that Yellow Eyes could not consent to a search of the home. Tr. at 57.

         On April 13, 2016, the grand jury indicted Brave Bird on charges of aggravated sexual abuse and sexual abuse under 18 U.S.C. §§ 1153, 2241(a), 2242(2), 2246(2) and 2. Brave Bird was arrested on April 20, 2016, and after receiving his Miranda rights, was interviewed by Agent Sedlmajer on that same day. Gov't Ex. 20 at 00:50-2:08; Doc. 22; Tr. at 45-46. During the course of the interview, Brave Bird told Agent Sedlmajer that he did not have sex with Connot on the night in question, and Agent Sedlmajer repeated those statements back to Brave Bird. See, e.g.. Gov't Ex. 20 at 18:40, 27:45; Tr. at 54. Agent Sedlmajer asked to obtain a buccal swab from Brave Bird, discussing with Brave Bird that if he did not have sex with Connot on that night, his DNA would not show up as a match to the DNA found from Connot's sexual assault kit. Gov't Ex. 20 at 20:00-23:00; Tr. at 54. After forty minutes, Brave Bird admitted that he did have sex with Connot on the evening of December 8, 2015, but said that she initiated it. Gov't Ex. 20 at 39:50-43:07; Tr. at 56.

         On July 5, 2016, Brave Bird filed a motion to suppress the photographs and evidence taken from the home as being obtained in an illegal search and seizure under the Fourth Amendment, and a motion to suppress his statements made to Agent Sedlmajer and the buccal swab given during the April 20, 2016 interview on the grounds that they were fruit of the poisonous tree from the illegal search, and further to suppress his incriminating statements as being the result of improper interrogation by Agent Sedlmajer that overbore his will. Doc. 45. Magistrate Judge Moreno conducted an initial hearing, issued a report and recommendation, and then re-opened the hearing to allow additional evidence via written stipulation showing that Brave Bird was a listed occupant of the home. Docs. 63, 66, 78. Judge Moreno then issued an Amendment Report and Recommendation Denying the Motion to Suppress. Doc. 80.

         II. Discussion

         This Court reviews a report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1), which provides that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). In particular, a district court can "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Brave Bird contends that Yellow Eyes did not have the actual or apparent authority to consent to a search of the basement where the incriminating evidence was seized, the evidence was not immediately incriminating so as to allow for the application of the plain view doctrine, and the incriminating statements made by Brave Bird and the buccal swab taken from him were obtained only after his will was overborn and are inadmissible under the fruits of the poisonous tree doctrine. Having conducted a de novo review, this Court adopts the Amended Report and Recommendation.

         A. Yellow Eye's Consent to Search the Residence

         Protecting an individual's privacy interest in their own home, the Fourth Amendment generally requires police officers to obtain a warrant before entering and searching a residence. Pavton v. New York, 445 U.S. 573, 590 (1980). If police enter a defendant's residence without a warrant, the prosecution must "prove that the police acted pursuant to a valid exception to the warrant requirement." United States v. Almeida-Perez, 549 F.3d 1162, 1169 (8th Cir. 2008). Obtaining the consent of a third party who shares "common authority over the premises" to be searched is one such exception. United States v. Matlock, 415 U.S. 164, 170 (1974); Georgia v. Randolph, 547 U.S. 103, 122-23 (2006) (holding that third-party consent is invalid if the defendant is present and objects to the search).

         The questioning at the evidentiary hearing, arguments made in the motion to suppress, legal standard used by Judge Moreno, and objections to the Amended Report and Recommendation focused more heavily on whether it was reasonable for Officer Black Bear and Agent Sedlmajer to believe that Yellow Eyes had the authority to consent to a search of the basement, regardless of whether he had the actual authority to consent to such a search. See Tr. at 36 ("Your Honor, I'm going to object at this point because it's irrelevant what the agent learned about ownership of the house after the search. The question is at the time of the search, did he have knowledge from SWA that that house was being jointly owned by more than one person, more than Arvin Brave Bird. I think after the fact it's irrelevant at that point."); see also Doc. 45 at 3; Doc. 48 at 2, 4-5; Doc. 81 at 2. Based on the evidence presented at the hearing, Judge Moreno made a factual finding that Yellow Eyes was a "co-occupant" of the home because "[h]e lived in the house, had his own room there, bought food for it, and had free access to and shared possession of the same." Doc. 80 at 7; see Tr. at 48-49. Even if Judge Moreno's finding that Yellow Eyes was a co-occupant with common authority was incorrect, it nevertheless appeared to Officer Black Bear and Agent Sedlmajer that Yellow Eyes had the authority to consent to a search of the home at the time. Thus, this Court need not determine whether Yellow Eyes had actual authority to authorize the search; Yellow Eyes clearly had apparent authority to do so and gave consent to Officer Black Bear in a way to justify the search.

         An officer's mistake regarding whether the third-party had the actual authority over the premises to consent to a search does not make the resulting search illegal, so long as '"the facts available to the officer at the moment. . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises." Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)): see also United States v. Elam, 441 F.3d 601, 603 (8th Cir. 2006). In considering whether an individual has apparent authority over a home, an officer should not just rely on a statement that the individual lives at the home and invites the officer inside, especially if "surrounding circumstances" suggest that "a reasonable person would doubt [the statement's] truth and not act upon it without further inquiry." Rodriguez, 497 U.S. at 188. However, officers are "entitled to draw the usual inferences from what they see and hear." Almeida-Perez, 549 F.3d at 1170.

         The Eighth Circuit has summarized its third-party consent jurisprudence to "suggest that where a person exercises privileges that would only be proper for an occupant of the house, the police may draw the inference that the person is indeed an occupant unless there are other circumstances that would cause a reasonable man to doubt the validity of that inference." Id. at 1171 (finding apparent authority to consent where third party was relaxing on the front porch, entered and left the home without knocking, and let officers inside without asking permission from anyone); see United States v. Nichols,574 F.3d 633, 636-37 (8th Cir. 2009) (finding apparent authority to consent where third party met officers at the door, was familiar with the home, and freely operated a computer inside the home); United States v. Hilliard,490 F.3d 635, 639-40 (8th Cir. 2007) (finding it was reasonable for officers to believe third party could consent to a search where she invited officers into home, collected personal clothing, and instantly directed officers to contraband); United States v. Janis,387 F.3d 682, 687 (8th Cir. 2004) (finding apparent authority where third party entered house without knocking, gestured for officers to ...


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