United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMNEDATION AS MODIFIED
AND DENYING MOTIONS TO SUPPRESS
E. SCHREIER UNITED STATES DISTRICT JUDGE
Rodney Alan Titus and James Wayne Tipton, are charged with
being felons in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Docket 2. Tipton and Titus move to
suppress all evidence stemming from a search warrant issued
on April 14, 2016, and request a Franks hearing. The
court referred defendants' motions to Magistrate Judge
Veronica Duffy pursuant to 25 U.S.C. § 636(b)(1)(B).
Docket 74; Docket 76. After holding an evidentiary hearing,
Magistrate Judge Duffy recommended that this court deny
defendants' motions to suppress. Tipton now objects.
After a de novo review of the Report and Recommendation and a
review of the record, the court adopts the Report and
Recommendation as modified below and denies Tipton's
motion to suppress.
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 are as follows:
The Mitchell Police Department (MPD) began investigating an
indecent exposure incident on April 14, 2016, after a young
male exposed his genitals in the Dakota Wesleyan University
(DWU) library. The victim described the flasher as a skinny,
white male approximately 20-30 years old with buzzed brown
hair. Exhibit A at 2; Docket 87 at 150:16-18. The victim
described the flasher's clothing as dark flannel pants
and a darker colored t-shirt. Docket 87 at 150:17-18. During
the investigation, the MPD also learned that a suspicious
male wearing a black bandana was seen on campus earlier that
day, but no one could confirm whether the suspicious male was
the flasher. Id. at 9:5-20; 40:2-15.
the search for the flasher began on the DWU campus, it
expanded to areas outside of the University. Id. at
8:21-9:1. Detectives Peter Arnold, Brian Larson, and Dan
Fechner began checking local motels for a young male fitting
the flasher's description. Id. at 10:3-12. The
search for the flasher eventually led the detectives to the
Siesta Motel. Id. at 10:13-15. Detective Arnold
spoke with the manager of the motel and learned that the
manager had not seen anyone matching the flasher's
description, but two suspicious males recently had checked
into the motel. Id. at 10:20-11:5. The room was
rented to James Tipton. Id. at 11:6-8. Detective
Arnold knew the name James Tipton because a James Tipton was
the victim in an ongoing fraud case Detective Arnold was
investigating. Id. at 12:2-14. Detective Arnold
wanted to speak with Tipton about the fraud case, but the
motel manager said Tipton and the other man, later identified
as Titus, were not currently at the motel. Exhibit 1 at 3.
The manager said Tipton and Titus had been driving two cars,
but only one car was in front of their motel room. Docket 87
at 12:20-13:22. Because Tipton and Titus were not at the
motel, the detectives continued to search for the flasher.
Id. at 12:22-25.
the detectives returned to the Siesta Motel, and two cars
were in front of Tipton's room. See Id. at
13:1-4. The detectives ran the plates for the cars, and both
cars came back registered to Titus. Id. at 13:4-6.
The detectives decided to approach the motel room.
Id. at 13:7-9. Detective Arnold knocked on the door
while Detective Larson looked into the room. Id. at
13:7-17. Although the curtains to the room were shut,
Detective Larson could see through a gap in the shades.
Id. at 79:23-24. Detective Larson saw two people in
the room. Id. at 80:1-2. Tipton was standing closer
to the door, but he did not answer immediately. Id.
at 80:1-8; 81:8-13. There was a short delay, and Titus took
something into the bathroom. Id. As this happened,
Detective Larson told the other detectives, “He's
hiding something.” Id. at 80:23-24. When
Tipton opened the door, Titus was still in the bathroom.
See Id. at 81:20-24.
the testimony is unclear about what happened immediately
after Tipton opened the door, Detective Arnold entered the
room “either to call Mr. Titus out of the bathroom or
to conduct a safety sweep or both.” Docket 92 at
7-8.When Detective Arnold entered the room, he
noted that two black bandanas and a large machete type knife
were on the bed. Exhibit 1 at 4; Docket 87 at 22:16-17. At
some point, Tipton and Titus were asked to step outside the
motel room, and Detective Arnold discussed both the fraud
case and the DWU investigation with them. Docket 87 at
14:23-15:2; 19:12-20; Docket 92 at 7-8.
Detective Arnold talked with Tipton, he noted that Tipton was
“highly animated, appeared to be nervous, and was very
dramatic . . . .” Id. at 18:10-18. Detective
Arnold-based on his training and experience-believed Tipton
was “under the influence of some type of narcotic
stimulant.” Id. at 18:15-18. As a result of
this belief, Detective Arnold requested that Trooper Lord
with the South Dakota Highway Patrol conduct a K-9 open air
sniff around the cars outside the motel room. Exhibit 1 at 5;
Docket 87 at 27:6-10. When Trooper Lord arrived, the K-9
performed the open air sniff and alerted on one of the cars
registered to Titus. Docket 87 at 27:5-14. Tipton and Titus
refused to consent to a search of the cars or the motel room.
Exhibit 1 at 5-6. Both men were then transported to the
Mitchell Police Station. Id. at 6. The Interstate
Identification Index (Triple I) showed Tipton's prior
drug related arrests included two prior arrests for drug
paraphernalia, two arrests for drug possession, and one
arrest for distribution of methamphetamine. Exhibit 4 at 2-3.
Titus's Triple I showed his only prior drug related
arrest was for keeping a place for the sale or use of drugs.
Exhibit 3 at 5.
Arnold, based on his interactions with Tipton and Titus,
submitted an affidavit requesting a search warrant for the
motel room, the two cars registered to Titus, and the persons
of Tipton and Titus. Exhibit 1 at 2. Detective Arnold also
requested that the court order Tipton and Titus to provide a
urine sample. Id. In his affidavit in support of his
request for a search warrant, Detective Arnold included the
following factual information: (1) Detective Arnold had
participated in prior narcotics investigations; (2) the
manager at the Siesta Motel noted that Tipton and Titus had
been acting strangely; (3) Tipton and Titus appeared to be
hiding something before answering the door for the police;
(4) a large machete knife was lying on the bed of the hotel
room; (5) a large backpack was wedged behind the bathroom
toilet; (6) Tipton appeared highly animated and fidgety and
that based on Detective Arnold's training and experience
Detective Arnold believed Tipton was under the influence of
narcotics; and (7) a K-9 indicated the presence of narcotics
in one of the cars registered to Titus. Exhibit 1 at 3-6.
court magistrate judge ordered the issuance of the search
warrant, and when the MPD executed the warrant on the motel
room, they discovered a .45-caliber handgun. Docket 87 at
22:12-15. The MPD also found a marijuana pipe in one of the
cars, and the urinalysis tests for ...