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United States v. Taylor

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

January 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DUSTYN JAMES TAYLOR, Defendant.

          ORDER ON DEFENDANT'S MOTION FOR RECONSIDERATION OF DISCLOSURE OF CONFIDENTIAL INFORMANT IDENTITY DOCKET NO. 60

          VERONICA L. DUFFY, United States Magistrate Judge

         INTRODUCTION

         Defendant Dustyn James Taylor is before the court on an indictment charging him with being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). See Docket No. 1. Mr. Taylor now moves the court for an order compelling the United States (“government”) to immediately disclose the name of the confidential informant who tipped off a Sioux Falls police officer, who then relayed the information to Taylor's state parole officer, that Mr. Taylor may have contraband at his house. See Docket No. 60.

         FACTS

         An evidentiary hearing was held on a suppression motion filed by Mr. Taylor during which many facts relevant to the current motion were fleshed out. This court issued a report and recommendation (R & R) on that motion to suppress. See Docket No. 58. The following statement of facts is taken from this court's R & R.

         On June 8, 2015, Mr. Taylor was released to parole from a South Dakota state conviction. During his initial parole meeting with his parole officer, Heather Buiter, Ms. Buiter explained the terms and conditions of Mr. Taylor's parole. See Exhibit A. Mr. Taylor's mother was present during this initial meeting. During this meeting, Ms. Buiter explained the conditions of Mr. Taylor's parole. Mr. Taylor executed a Standard South Dakota Parole Supervision Agreement (hereinafter “agreement”). See Exhibit A. The agreement contained several conditions with which Mr. Taylor agreed to comply in order to remain on parole. Among those conditions included: that Mr. Taylor would obey all local, state and federal laws (id., SA 1); that Mr. Taylor would not possess, purchase, or use marijuana, narcotics, controlled substances or drug paraphernalia (id., SA 2); that Mr. Taylor would not own, purchase, or possess dangerous weapons (id., SA 4); that Mr. Taylor would avoid companions with criminal influences (id., SA 7); that Mr. Taylor would comply with all instructions of his parole agent in matters affecting his supervision and cooperate fully and truthfully in answering his parole agent's inquiries (id., SA 10); that Mr. Taylor would not purchase or consume alcohol and would not enter establishments whose primary business was the sale of intoxicating beverages (id., SA 13A & B); and that Mr. Taylor would refrain from assaultive, abusive, or violent behavior and threats of violence (id., SA 14). Finally, the agreement allowed Mr. Taylor's parole agent to visit his home at any time (id., SA 9) and provided that Mr. Taylor would submit his person, property, and place of residence to search and seizure at any time, with or without a search warrant, whenever a parole agent or law enforcement officer determined there was “reasonable suspicion.” (id., SA 5).

         During this initial meeting with Ms. Buiter, Mr. Taylor expressed that while in the past he had been an “aggressive” person, he had outgrown such behavior. Mr. Taylor was paroled to live with his parents (his mother and stepfather) at a home on Menlo Avenue in Sioux Falls, South Dakota. Based on his level of need, Ms. Buiter met with Mr. Taylor once per month during his supervision.

         On June 28, 2015, a Brandon, South Dakota, police officer notified Ms. Buiter that Mr. Taylor had been in a bar fight. As a result of the bar fight, Mr. Taylor received a broken nose. Though no criminal charges were filed against him, Mr. Taylor's mere presence in a bar was a violation of the terms of his supervision agreement. See Exhibit A, SA 13B. As punishment for this incident, Ms. Buiter placed Mr. Taylor in the Community Transition Program (CTP). The CTP is a structured program in which parolees are free to attend work during the day but must check into a residential correctional facility at night. See https://doc.sd.gov/documents/about/policies/Parole%20Services-Community%20Transition%20Program.pdf (last checked December 29, 2016). Mr. Taylor was in the CTP program for approximately one month.

         On July 31, 2015, Ms. Buiter informed Mr. Taylor he would be allowed to move back into the home on Menlo Avenue on the condition that his parents did not reside there. Ms. Buiter did not want Mr. Taylor to reside with his parents because his parents had been present in the bar in Brandon with Mr. Taylor when he had gotten into the fight. See Exhibit A, SA 10, 13B. Mr. Taylor agreed to this condition, and informed Ms. Buiter his parents would move out of the Menlo Avenue home which he planned to rent. Mr. Taylor represented to Ms. Buiter his parents would move out before his release from CTP and only his girlfriend, Talissa Toft, would be living there with him. Ms. Buiter approved this living arrangement and allowed Mr. Taylor to move back to the Menlo Avenue address. This condition was verbally agreed to by Mr. Taylor and is noted in Ms. Buiter's case notes regarding Mr. Taylor's supervision.

         On January 30, 2016, Ms. Buiter received an email from Sioux Falls Police Department (SFPD) Detective Skidmore. The email relayed that Detective Skidmore had received information from a confidential informant regarding Mr. Taylor. The confidential informant told Detective Skidmore the following information about Mr. Taylor: (1) Mr. Taylor had multiple guns in the Menlo Avenue home; (2) the type of vehicle Mr. Taylor drove and that Mr. Taylor “possibly” had a gun in his vehicle; (3) Mr. Taylor was selling drugs out of his Menlo Avenue home; and (4) the person who had reported this information to Detective Skidmore did not want to make a police report because he/she had been in a dispute with Mr. Taylor and was afraid of retaliation.

         After receipt of this email from Detective Skidmore, Ms. Buiter contacted the Sioux Falls Police Department narcotics unit. The narcotics unit informed Ms. Buiter it had received a Crime Stoppers tip regarding the Menlo Avenue home and that it had an open investigation regarding Mr. Taylor. Ms. Buiter did not receive any further information about the content of the Crime Stoppers tip and did not rely on the Crime Stoppers information in deciding to search Mr. Taylor's residence. Ms. Buiter testified the Crime Stoppers tip did not contribute to her reasonable suspicion to search because she did not know its contents.[1] After she received the email from Detective Skidmore, Ms. Buiter decided to conduct a parole search of Mr. Taylor's home.

         Ms. Buiter made the decision to search based upon a culmination of circumstances. Mr. Taylor previously articulated a propensity for violence, but claimed he had outgrown it. Based on the occurrence of the bar fight, she believed he had been insincere about his statement that he had outgrown his propensity for violence.[2] Detective Skidmore's comment regarding the informant's fear of retaliation added to her conviction that Mr. Taylor had lied to her about leaving his propensity for aggression behind. In her view, that Mr. Taylor had lied to her about this issue was a violation of the parole agreement (SA 10, 14). Finally, the information she received from Detective Skidmore's email led her to believe Mr. Taylor had violated the terms of his parole agreement regarding possessing weapons and drugs (SA 2 and SA 4).

         The information regarding Mr. Taylor possessing guns led Ms. Buiter to be increasingly concerned about Mr. Taylor's violent tendencies. Ms. Buiter knew nothing about the informant referenced in Detective Skidmore's email, and she could not personally testify about his/her reliability. Ms. Buiter stated she trusted Detective Skidmore's tip.

         Though she received Detective Skidmore's email on January 30, 2016, Ms. Buiter did not conduct the parole search immediately because she needed some time to prepare to make sure the search could be conducted safely. On February 5, 2016, Mr. Taylor arrived at Ms. Buiter's office for his regular (though re-scheduled) parole meeting. Ms. Buiter detained Mr. Taylor for investigative and safety purposes. Ms. Buiter contacted the Sioux Falls Police Department for assistance in conducting the parole search. Mr. Taylor was detained ...


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