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United States v. Titus

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

July 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RODNEY ALAN TITUS and JAMES WAYNE TIPTON, Defendants.

          ORDER ADOPTING REPORT AND RECOMMNEDATION AS MODIFIED AND DENYING MOTIONS TO SUPPRESS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Defendants, 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.

         LEGAL STANDARD

         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).

         BACKGROUND

         After a 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.

         Although 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.

         Later, 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.

         Although 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.[1]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.

         As 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.

         Detective 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.[2] Exhibit 1 at 3-6.

         A state 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 ...


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