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United States v. Two Eagle

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

November 14, 2017




         Harlan James Two Eagle is accused of engaging in a sexual act, by use of force, with a female acquaintance. He seeks to suppress the unwarned statements he made after being handcuffed and arrested. Because some of his statements were evoked in violation of Miranda, but others were not, his Motion should be granted in part and denied in. part.


         Shortly after midnight on December 22, 2015, Terri Searby reported that she had been sexually assaulted. Richard Kumley, a police officer for the Rosebud Sioux Tribe, responded to White Horse Housing, just east of Mission, South Dakota, and found Searby on the front steps to house number 495. Searby told him that she had been drinking at her friend's house and one of the people there was Two Eagle. She had been sitting on the couch in the living room of the residence and eventually fell asleep. Later on, she woke up in a bedroom with Two Eagle on top of her. She no longer had her pants or underwear on and her shirt was pushed up. And her hands were together, pinned across her chest, and he was pushing down on her. Searby thought Two Eagle's penis was inside her but she was not sure. Despite her pleas for him to stop, he would not do so. At some point, Searby hit Two Eagle in the face and was able to push him off of her. Once free, she scurried to the bathroom, where she put clothes on, and left the house to call for help.

         Searby directed Officer Kumley around the corner to house number 492 - the house she had been in when she had her encounter with Two Eagle. She stayed in Kumley's patrol car while he approached and entered the home through the front door of it. Inside the residence were Two Eagle; his sister and brother, Dieta and Vine Two Eagle; his 9-year-old niece, A.T.E.; and Raqual (Kelly) Thunderhawk. All of the adults had been drinking alcoholic beverages. Kumley handcuffed Two Eagle (initially telling him he was detained) and then, in the course of less than three minutes, placed him under arrest for sexual assault. Afterward, Kumley asked Two Eagle, and everyone else in the home, a number of questions. No Miranda warnings were ever given. Rebuking the offense he was arrested on, Two Eagle adamantly maintained he did not do anything - of a criminal nature or otherwise - to Searby. The entire colloquy, from the time Kumley arrived until he left with Two Eagle, was recorded on Kumley's body cam.

         A federal grand jury ultimately indicted Two Eagle and charged him with aggravated sexual abuse. Following his arraignment and not guilty plea, he moved to suppress the statements he made to Officer Kumley. The Court held an evidentiary hearing on the Motion, heard testimony (from Kumley), and received three exhibits (a ' compact disc of the body cam recording and transcripts of the same) into evidence.


         A. Interrogation

         Two Eagle initially claims he was subject to custodial interrogation without first being advised of his Miranda[1] rights. Specifically, he argues the un-Mirandized questioning of him requires suppression of certain statements he made while handcuffed and after being arrested. It is clear Two Eagle was never given any Miranda warnings. And there is no real dispute Two Eagle was in custody when he spoke. The only question is whether he was interrogated.

         Under the Fifth Amendment, a suspect is guaranteed the right to remain silent and to the assistance of counsel during custodial interrogation.[2] If the suspect is not informed of his rights while in custody then any statements gained from interrogating him are generally inadmissible as substantive evidence.[3]

         For purposes of Miranda, "interrogation ... must reflect a measure of compulsion above and beyond that inherent in custody itself."[4] Interrogation includes not only express questioning, but also words or conduct an officer should know are "reasonably likely to elicit an incriminating response from the suspect."[5] This latter test "focuses primarily upon the perceptions of the suspect, rather than the intent of the police .... A practice that the police should know is reasonably likely to evoke an incriminating response from [the] suspect thus amounts to interrogation."[6] But the police "cannot be held accountable for the unforeseen results of their words or actions."[7]

         Miranda does not bar, from use at trial, volunteered or spontaneous statements made during a conversation not initiated by a police officer.[8] And the officer's request for clarification of a volunteered or spontaneous statement generally does not amount to interrogation as conceptualized in Miranda.[9]

         1. Pre-Arrest Statements

         After handcuffing Two Eagle but before arresting him, Officer Kumley asked everyone present, "What was all going on here tonight?"[10] Kumley then engaged in conversations with Kelly and A.T.E. for a little over a minute. Following these conversations and a three-second pause, Two Eagle made the comment, "I don't even know what's going on with that stuff right here."[11] Kumley inquired what Two Eagle meant by this and a brief dialogue ensued about Two Eagle "just trying to lay down" and "where" that was.[12]

         The line between impermissible interrogation and lawful follow-up questions to volunteered statements is a fine one. An officer may listen to volunteered statements ' and need not interrupt a suspect, who is spontaneously providing information, and deliver Miranda warnings.[13] The officer may even interrupt a volunteered statement to ask follow-up questions.[14] That said, when asking the suspect about volunteered information, the officer may cross the line into "express questioning or its functional equivalent"[15] outlawed by Miranda. The difference between legitimate follow-up questions and proscribed interrogation turns on whether the officer is seeking clarification of something the suspect has just said or whether, instead, the officer is looking to expand the interview.[16]

         Here, Two Eagle's initial statement was made spontaneously[17] and after a general, benign inquiry or salutation.[18] And his later statements were in response to attempts, on the part of Officer Kumley, to clarify or confirm what Two Eagle had already volunteered.[19] Kumley's follow-up questions were not designed to broaden Two Eagle's statements, enhance his guilt, or raise the offense to a higher degree.[20]

         2. Arrest Statements

         Next, in the sequence of events, Officer Kumley advised Two Eagle, "Now you're under arrest, okay?"[21] Two Eagle asked, "For what?"[22] Kumley replied that the arrest was for sexual assault.[23]

         Informing Two Eagle he was no longer detained but "[n]ow ... under arrest" did not amount to interrogation.[24] The arrest notification was not something that "invited" an incriminating response or that was "particularly 'evocative.'"[25] What's more, it is debatable whether Two Eagle's questions, after the notification, were even "incriminating."[26] Regardless, no legal basis exists to exclude the statement or any of the succeeding inquiries Two Eagle made about his arrest.[27]

         3. Post-Arrest Statements

         But the same is not true of other statements Two Eagle made to Officer Kumley later on, namely:

1. "Right over here. * * *With my fucking sister and my fucking everybody. What the fuck man?"; in response to probing into where Two Eagle tried falling asleep that night.
2. "Fuck no, this is just us right here. Man, what the fuck?"; following inquiries about Searby and who was in the home.
3. "Yeah, just us. What the fuck?"; answering the question, "There was nobody else here?"
4. "Nooo! *** What the fuck with that shit man!"; as a retort to importuning on whether Searby had been there.
5. "Over here."; after being asked, "Which bedroom he was laying in." 6. "Everybody was sitting, everybody was sitting in the fucking living room."; in reply to where "they" were laying and who "they" were.[28]

         Two Eagle was subjected to express questioning or at least to the "functional equivalent" of it. Before entering the house, Officer Kumley had already interviewed Searby and obtained a statement from her as to what happened. He therefore should have known that conversations with everyone in a small room together were reasonably likely to generate incriminating responses from Two Eagle. Whether Kumley directed his questions to Two Eagle, to one or more of the group, or to the congregation as a whole does not matter.[29] The questions asked were ones that, from an objective standpoint, were designed to prompt, and lead Two Eagle to make, self-incriminating statements. Kumley knew Two Eagle would hear-the questions and would likely be induced - because Two Eagle was an active participant in the conversations going on - to say things that could later be used against him. Keeping in mind that the focal point is the suspect's perceptions and not the officer's state of mind, [30] the Court concludes that Two Eagle was subjected to interrogation - as that term has been defined and applied[31] - in dereliction of Miranda.

         4. Consent to Search Statements

         Two Eagle's statements consenting to a DNA (buccal) swab and to Officer Kumley taking clothing and other items[32] are, however, a different story. The reason is simple: A request to search is not an interrogation that triggers the protections of Miranda.

         A suspect's oral consent to search does not violate the Fifth Amendment because the consent is not "evidence of a testimonial or communicative nature."[33] Giving consent to swab the suspect's mouth or take his garments from him is not testimonial communication since it does not "relate a factual assertion or disclose information."[34]Although the suspect's consent may lead to the disclosure of incriminating evidence, that evidence is physical, and non-testimonial, in nature.[35]

         This view comports with that taken by the Eighth Circuit and other federal circuits.[36] Inasmuch as neither Miranda nor the Fifth Amendment provide any basis for suppressing Two Eagle's statements consenting to searches of his person and apparel, his Motion - to this extent - should be denied.

         5. "Pass Out" Statement

         At some point toward the end of the parlay and while talking to Kelly and Vine, Two Eagle had this to say about Searby: "I didn't know that she was going to fucking pass out like that either."[37] Officer Kumley had spoken to Mission City Officer Andrew Red Bear (who had arrived to assist) about moving Searby to Red Bear's patrol car, but Kumley made no attempt to question anyone. Two Eagle's gratuitous and volunteered statement was not the product of interrogation. Nor was it otherwise derived from anything Kumley said or did. Miranda does not safeguard Two Eagle from making an unbidden admission under circumstances that Kumley neither initiated nor engendered.[38]

         6. Two Eagle's Susceptibilities

         In making its rulings as to the admissibility of Two Eagle's statements in the Government's case-in-chief, the Court has considered - as it must - whether he had any peculiar susceptibilities.[39] He did not - at least that Officer Kumley was aware of. Officer Kumley had never met Two Eagle before and had no knowledge of Two Eagle having any distinctive vulnerabilities or propensities to make sudden impromptu remarks.[40] Whatever stimulus Kumley's words or actions in the living room that night may have created, it did not rise to the level of interrogation so as to require the exclusion of Two Eagle's unsolicited statements.[41]

         B. Voluntariness

         Two Eagle also claims that the statements he made at the house were involuntary under the Fifth Amendment. He seeks to exclude these statements ...

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