United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ADOPTING REPORT AND
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
Demi Gunville (Demi) agreed to be a third-party custodian for
her brother Dave Gunville (Dave). At Dave's bail review
hearing, Demi gave sworn testimony about where she and Dave
would live when he was out on bail. Shortly after Dave was
released, a federal probation officer filed a Report of
Apparent Violation of Pretrial Release Conditions alleging
that Dave was not living where he was supposed to. During a
February 6, 2017 hearing on this Report, Judge Moreno told
Demi that she could potentially face criminal sanctions if
she had lied about where Dave would be living while out on
bail. Judge Moreno also informed Demi that the government
would decide whether to bring charges against her.
that Demi had given false sworn testimony during the bail
review hearing, the government asked the Cheyenne River Sioux
Tribe Police Department to investigate. Sergeant Jeremy Reede
and Officer Cody Norman interviewed Demi at the fitness
center in Eagle Butte, South Dakota, where she works. Less
than a week later, a grand jury indicted Demi for perjury,
false declaration before a court, and criminal contempt. Demi
moved to suppress her statements from the interview, arguing
that they were involuntary and that the officers violated
Miranda v. Arizona, 384 U.S. 436 (1966), by
questioning her without first advising her of her rights.
Magistrate Judge Veronica L. Duffy conducted an evidentiary
hearing and then recommended denying Demi's motion. Demi
has now objected to that recommendation.
Court reviews a report and recommendation under the statutory
standards found in 28 U.S.C. § 636(b)(1), which provides
in relevant part 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).
Having conducted a de novo review, this Court adopts the
report and recommendation in full.
argues that her statements to Sergeant Reede and Officer
Norman should be suppressed because she never received
Miranda warnings. Miranda requires police
officers to give a suspect certain warnings before
interrogating him but only when the suspect is in custody.
J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011);
Miranda, 384 U.S. at 444. Judge Duffy concluded that
Demi's statements are admissible under Miranda
because Demi was not in custody when she made them. Demi
objects to this conclusion, arguing that it is based on
erroneous factual and legal findings. This Court addresses
Demi's factual arguments first.
Reede and Officer Norman arrived at the fitness center during
daylight hours on May 11, 2017. T. 44. They were wearing
plain clothes but their badges and service weapons were
visible. T. 11-12, 65-66. The officers asked for Demi at the
front desk and one of her coworkers brought her to meet them.
T. 9, 61. At that time, Demi was approximately twenty-four
years old and had no criminal history. T. 37. Sergeant Reede
asked Demi if she would speak with him and Demi agreed. T. 9,
61-62. Rather than interviewing Demi in the fitness center
lobby, Officer Reede inquired whether there was somewhere
private they could talk. T. 9-10, 44. Demi then led the
officers to a conference room located beside the workout
area; the room had an oval table surrounded by ten chairs. T.
9-10, 43-44, 62, 69. As they entered the room, Sergeant Reede
told Demi that the interview was voluntary and that she did
not have to speak with the officers if she did not want to do
so. T. 9-10, 20, 44-45, 64. Demi asked if her mother could be
present during the interview, but Sergeant Reede said he
would prefer to speak with her mother separately. T. 9-10,
64. Demi closed the door to the conference room and everyone
took a seat. T. 10, 62. Demi sat at the head of the table
closest to the door while Sergeant Reede sat to her right and
Officer Norman sat to her left. T. 10-11, 14, 62-63. Demi was
not restrained in any way and she had an unobstructed path to
the door. T. 14, 63-64, 69.
everyone was seated, Sergeant Reede activated a digital
recording device and began the interview. T. 10-11. He asked
Demi about the circumstances surrounding the bail review
hearing and what occurred thereafter. Ex. 1. Approximately
five-and-a-half minutes into the interview, Sergeant Reede
informed Demi that he had covered everything he needed to
know. Ex. 1 at 05:14-05:20. Demi then asked Sergeant Reede
why he was asking her these questions when she had already
answered them in court. Ex. 1 at 05:20-05:24. Sergeant Reede
said that he was concluding the interview and turned off his
recording device. Ex. 1. He then responded to Demi in some
manner, and Demi asked whether she was going to be in
trouble. T. 35-36. The record does not show whether Sergeant
Reede answered Demi's question.
interview lasted approximately six minutes. Ex. 1; T. 16. The
officers never told Demi she was under arrest and did not
arrest her at the end of the interview. T. 13; 68. The tone
of the interview was conversational; Sergeant Reede never
raised his voice and Demi responded appropriately in a calm,
clear manner. Ex. 1; T. 14-15, 79. The officers testified
that Demi seemed comfortable speaking with them but that she
appeared to be nervous at the end of the interview when she
asked why she was being questioned. T. 14, 16, 33, 47-48, 67.
objects to several of Judge Duffy's factual findings, the
main objection being that Sergeant Reede never told Demi that
the interview was voluntary and that she did not have to
speak to the officers. Demi argues that the evidence does not
support this finding because the discussion is not on the
recording of the interview and because Sergeant Reede failed
to mention the discussion in his original report. Sergeant
Reede testified that the voluntariness discussion occurred
before everyone sat down and he started his digital recorder.
T. 19-20. He also said that although his original report on
the interview did hot mention the voluntariness discussion,
he wrote an addendum after an assistant United States
attorney told him that any warnings he gave a suspect needed
to be included in his reports. T. 19-20, 51. The addendum
states that Sergeant Reede told Demi that the interview was
voluntary and that she did not have to speak with the
officers. Ex. 2. At the suppression hearing, Sergeant Reede
and Officer Norman both testified that Sergeant Reede told
Demi that the interview was voluntary and that she did not
have to speak with the officers if she didn't want to. T.
9-10, 20, 44-45, 64. Judge Duffy observed this testimony and
evidently found it credible. That the voluntariness
discussion was not part of the recording or the original
report does not justify rejecting Judge Duffy's
next objection is that Judge Duffy erred by finding that the
officers' firearms were not visible during the interview
because they were concealed by the table. Sergeant Reede
testified that when he was seated at the table in the
conference room, his firearm was on his right hip, which was
the hip farthest away from Demi, and that the firearm was
"basically under the table." T. 12. Officer Norman
testified that he angled his seat at the conference room
table towards Demi so that his firearm, which was on his
right hip, was facing away from her. T. 66.
Regardless of whether the officers' firearms were visible
during the interview, it is clear that Demi would have seen
the firearms when she met the officers in the lobby. The
presence of the firearms is a factor this Court will consider
when analyzing the issues of custody and voluntariness.
also objects to Judge Duffy's finding that Sergeant Reede
told Demi that he would prefer to speak to Demi and her
mother separately. Demi argues that Judge Duffy should have
found that Sergeant Reede "denied" Demi's
request to have her mother present during the interview. The
only evidence on this issue supports Judge Duffy's
finding. Sergeant Reede and Officer Norman both testified
that when Demi asked if her mother could be present during
the interview, Sergeant Reede said he would rather interview
Demi and her mother separately. T. 9-10, 64. Instead of
insisting that her mother or anyone else be present, Demi sat
down at the table and answered Sergeant Reede's
questions. T. 47, 64-65.
fourth objection is that Judge Duffy erred by finding that
Demi's voice on the recording of the interview sounded
calm, assertive, and precise. Demi asserts that the recording
shows that she "was unaware of certain facts" and
that she seemed to be "talking through her feelings and
thoughts out loud." Doc. 42 at 3. This Court has
listened to the interview ...