United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED
AND DENYING MOTION TO SUPPRESS
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Dustyn James Taylor, is charged with being a felon in
possession of firearms in violation of 18 U.S.C. §
922(g)(1). Docket 1. Taylor moves to suppress the evidence
found during a search of his home on February 5, 2016. Docket
40. 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).
Judge Duffy held an evidentiary hearing on December 20, 2016.
On December 29, 2016, Magistrate Judge Duffy issued a report
and recommendation denying Taylor's motion in full.
Docket 58. Taylor filed objections to the report and
recommendation. Docket 68. For the following reasons, the
report and recommendation is adopted as modified by 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).
de novo review of the evidence, the court finds the pertinent
facts to be as follows:
8, 2015, Taylor was released to parole from a South Dakota
state conviction. During his initial parole meeting,
Taylor's parole officer, Heather Buiter, explained the
terms and conditions of Taylor's parole to him. Docket
41-1. Taylor's mother was also present during the
meeting. Id. Buiter explained to Taylor that
“drugs, guns, violence and lying were all rule
infractions of supervision.” Id. Taylor
expressed to Buiter that he had outgrown his aggressive past.
Taylor then executed a Standard South Dakota Parole
Supervision Agreement (parole agreement). Id. The
parole agreement contained the following conditions: that
Taylor would not possess, purchase, or use marijuana,
narcotics, controlled substances or drug paraphernalia; that
Taylor would not own, purchase, or possess dangerous weapons;
that Taylor would avoid companions with criminal influences;
that 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; that Taylor would not purchase or consume alcohol
and would not enter establishments whose primary business was
the sale of intoxicating beverages; and that Taylor would
refrain from assaultive, abusive, or violent behavior and
threats of violence. Exhibit A. Taylor also agreed to submit
his person, property, place of residence, vehicle, and
personal effects to search and seizure at any time, with or
without a search warrant, when reasonable suspicion is
determined by a parole agent or law enforcement officer.
Taylor was paroled to live with his parents at a home on
Menlo Avenue in Sioux Falls, South Dakota, and Buiter met
with Taylor once a month during his supervision.
28, 2015, Buiter received a phone call from a Brandon, South
Dakota police officer informing Buiter that Taylor had been
involved in a bar fight and received a broken nose.
Id. Taylor's presence at the bar was a violation
of the terms of his agreement. As punishment for violating
his agreement by being at a bar, Buiter placed Taylor in the
Community Transition Program (CTP) for one month. Id.
31, 2015, Buiter informed Taylor that he could move back into
his house on Menlo Avenue if his parents did not live with
him. Id. Buiter did not want Taylor's mother and
stepfather to live with him because they were present at the
bar in Brandon on the night of the bar fight. Id.
Taylor verbally agreed with Buiter that his parents would
move out of the Menlo Avenue house and only Taylor and his
girlfriend, Talissa Toft, would live in the home. Buiter
noted this verbal agreement in her case notes.
January 30, 2016, Buiter received an email from Sioux Falls
Police Department (SFPD) Detective Skidmore. In the email,
Detective Skidmore stated that he received information from a
confidential informant regarding Taylor. The confidential
informant told Detective Skidmore the following: Taylor had
multiple guns in his home; Taylor drove an older style
Cadillac with paper plates and that Taylor may have a gun in
the car; Taylor was selling drugs out of his Menlo Avenue
home; and he or she had been in a dispute with Taylor and did
not want to file a police report because he or she was afraid
Taylor would retaliate. Id.; Docket 55.
receiving the email from Detective Skidmore, Buiter contacted
the SFPD narcotics unit. Docket 41-1. The narcotics unit
informed Buiter that there was a Crime Stoppers report on the
home. Id. Buiter testified that she did not ask any
follow-up questions about the Crime Stoppers report and that
she did not rely on the Crime Stoppers report when forming
her reasonable suspicion. See Docket 54 at 42.
Buiter then decided to conduct a parole search of
based her decision to search the Menlo Avenue home on a
number of circumstances. First, Taylor indicated in his
initial meeting that he had put his violent past behind him,
but a few weeks later, he went to a bar and got in a bar
fight. Second, Detective Skidmore's email led Buiter to
believe that Taylor possessed guns and drugs. Third, the
confidential informant had indicated that Taylor threatened
him or her and he or she was afraid Taylor would retaliate.
Based on these circumstances, Buiter suspected that Taylor
had violated the terms of his parole agreement by possessing
guns and drugs and engaging in violent behavior. Buiter ...