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United States v. Milk

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

November 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
WICAHPE MILK, Defendant.

          REPORT AND RECOMMENDATION

          DANETA WOLLMANN UNITED STATES MAGISTRATE JUDGE

         Pending 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:

         RECOMMENDATION

         It is respectfully recommended that Defendant's Motion to Suppress Evidence be denied.

         JURISDICTION

         Defendant 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.

         FACTUAL BACKGROUND

         On 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 witness.

         Deputy 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.

         Mr. 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.

         Additional 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.

         Deputies 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. (Ex. 15).

         On 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 to ...


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