United States District Court, D. South Dakota, Western Division
REPORT AND RECOMMENDATION
WOLLMANN UNITED STATES MAGISTRATE JUDGE
is Defendant's Motion to Suppress Evidence (Doc. 45). An
evidentiary hearing was held on August 8, 2017. Defendant was
personally present and represented by his attorney of record,
Terry Pechota. The Government was represented by the
Assistant United States Attorney Kathryn Rich. Six witnesses
testified at the hearing. Seventeen exhibits were received
into evidence. Both parties have submitted briefs and oral
argument was heard at the conclusion of the hearing. Based on
a careful consideration of all the evidence, and
counsel's written and oral arguments, the Court
respectfully makes the following:
respectfully recommended that Defendant's Motion to
Suppress Evidence be denied.
is charged in a Superseding Indictment with Conspiracy to
Distribute a Controlled Substance, in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(A), and Prohibited
Person in Possession of Firearm, in violation of 18 U.S.C.
§ 922(g)(1). The pending Motion was referred to the
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Chief Judge Jeffrey L. Viken's Standing Order dated
March 9, 2015.
August 17, 2016, at about 1:49 a.m., Pennington County
Sheriff's Deputy Keith Carlson observed a red 1993
Pontiac Grand Prix driving erratically in Box Elder, South
Dakota. (Ex. 1). Deputy Carlson was engaged in a saturation
patrol focusing on alcohol or drug-impaired drivers. Deputy
Carlson observed the red Grand Prix stop at a stop sign for
approximately thirty seconds. No other vehicles were present,
nor was there any apparent reason for such a lengthy stop.
Deputy Carlson followed the red vehicle, and observed the
vehicle's two right-side tires drift onto the shoulder of
the road. The court finds Deputy Carlson to be a credible
Carlson initiated a traffic stop based on the erratic
driving. When he approached the Grand Prix, he could smell
the odor of marijuana. The driver identified himself as
Michael Croyle. The defendant, Wicahpe Milk, sat in the back
passenger seat. Mr. Milk identified himself as
“Wiconi” Milk, stated he did not have an
identification card, and provided a birthdate and social
security number. (Ex. 1). Two female passengers were also in
the car, and identified themselves.
Croyle then accompanied Deputy Carlson to the patrol car. Mr.
Croyle's pupils were dilated, he could not sit still, and
he repeatedly scratched his arms, head, and face. Mr. Croyle
told Deputy Carlson that he was on probation. (Ex. 1).
Dispatch notified Deputy Carlson that Mr. Croyle did not have
a valid driver's license, and that no results came back
for the information Mr. Milk provided. Mr. Croyle then
consented to perform standardized field sobriety tests.
deputies then arrived on the scene. Deputy Joshua Kunde asked
Mr. Milk to step out of the vehicle. Mr. Milk then provided
his correct name, birthdate, and social security number.
Dispatch found that Mr. Milk had an outstanding federal
arrest warrant. When Deputy Kunde advised Mr. Milk he would
be taken into custody based on the warrant, Mr. Milk ran
away. Deputies pursued Mr. Milk, apprehended him, and placed
him in handcuffs. Based on Mr. Croyle's sobriety tests,
Deputy Carlson determined Mr. Croyle was under the influence
of drugs and arrested him as well.
Carlson and Jonathan Edwards then searched the Grand Prix.
They located methamphetamine, drug paraphernalia, scales, a
handgun, cash, bags, and cell phones in the car. They also
found drug paraphernalia on one of the female passengers. Law
enforcement towed the Grand Prix and determined it was not
registered to any of the occupants. On August 18, 2016, South
Dakota Circuit Court Judge Heidi Linngren issued a search
warrant authorizing a further search of the car. (Ex. 2). On
September 19, 2016, Judge Linngren issued a search warrant
authorizing a search of the cell phones found in the car.
August 1, 2016, Oglala Sioux Police obtained a phone
belonging to Mr. Milk's spouse, Julissa Poor Bear. Ms.
Poor Bear's neighbor turned the phone over to the tribal
police and stated she believed Ms. Poor Bear, Mr. Milk, and
others were selling methamphetamine. On August 18, 2016,
Officer Leonard Her Many Horses applied for a search warrant
to search Ms. Poor Bear's phone for information related