United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ADOPTING REPORT AND
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
after midnight on December 22, 2015, Terri Searby called the
police to report that she had been sexually assaulted. T. 20.
Richard Kumley, a police officer for the Rosebud Sioux Tribe,
traveled to White Horse Housing, near Mission, South Dakota,
where he met with Searby at house number 495. T. 20. Searby
told Officer Kumley that she been drinking with friends at
nearby house number 492, where she had eventually fallen
asleep on a couch in the living room. Ex. 1 at 02:30-03:36.
She explained that she awoke in a different room to Harlan
Two Eagle on top of her; her pants and underwear had been
removed and her shirt was pushed up. Ex. 1 at 03:36-7:00; T.
21. Although Searby was not sure, she thought Two Eagle's
penis was inside her. Ex. 1 at 07:30-07:55.
Kumley had Searby stay in his patrol car while he entered
house number 492 through the front door. T. 21-22. In the
living room, Officer Kumley encountered Two Eagle, Two
Eagle's brother Vine, Two Eagle's nine-year-old
niece, and Raqual Thunderhawk. T. 23, 25-26, 30, 49; Ex. 1.
Two Eagle's sister Dieta eventually joined the group in
the living room. T. 30, 50. Officer Kumley handcuffed Two
Eagle shortly after entering the house, initially telling him
he was being detained but then informing him that he was
under arrest for sexual assault a few minutes later. Ex. 1 at
11:00-14:33. After handcuffing Two Eagle, Officer Kumley
asked Two Eagle and everyone else in the house several
questions. Ex. 1. Some of Officer Kumley's questions were
not directed to any particular person while others were
directed specifically to Two Eagle. Ex. 1. Officer Kumley
never read Two Eagle his Miranda rights. Two Eagle
denied having done anything to Searby. Ex. 1.
federal grand jury indicted Two Eagle for aggravated sexual
abuse of Searby. Doc. 1. He moved to suppress his statements,
arguing that they were involuntary and that Officer Kumley
violated Miranda v. Arizona, 384 U.S. 436 (1966), by
interrogating him without first advising him of his rights.
Magistrate Judge Mark A. Moreno held an evidentiary hearing
at which he heard testimony from Officer Kumley and received
into evidence a video recording from the body camera Officer
Kumley was wearing during his encounter with Two Eagle. Judge
Moreno recommended granting Two Eagle's motion in part,
concluding that while Two Eagle's statements were
voluntary, some of them were the result of custodial
interrogation and therefore inadmissible under
Miranda in the government's case in chief. Doc.
56. Two Eagle has now objected to that recommendation. Doc.
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.
Miranda, the police must give a suspect who is in
custody certain warnings before subjecting him to
interrogation. 384 U.S. at 444. The government does not
dispute that Two Eagle was in custody once he was handcuffed,
Doc. 58, so the only question is whether Officer Kumley
interrogated Two Eagle. "Interrogation" for
Miranda purposes obviously includes "express
questioning" by a police officer. Rhode Island v.
Innis, 446 U.S. 291, 300-01 (1980). But it also includes
the "functional equivalent" of express
questioning-"any words or actions on the part of the
police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect."
Id. at 300 (footnotes omitted). Miranda
does not apply, however, to "spontaneous statements made
during a conversation not initiated by the officer."
United States v. Chipps, 410 F.3d 438, 445 (8th Cir.
2005). And an officer's attempt to clarify a spontaneous
statement "generally does not constitute
interrogation." Id., Such an attempt can constitute
interrogation, however, if the question "enhance[s] the
defendant's guilt or raise[s] the offense to a higher
degree." Butzin v. Wood, 886 F.2d 1016, 1018
(8th Cir. 1989) (citation omitted).
Two Eagle was moving to suppress multiple statements
allegedly made in response to different questions from
Officer Kumley, T. 15; Ex. 2 A, Judge Moreno analyzed the
statements separately. First, Judge Moreno concluded that the
statements Two Eagle made after he was handcuffed but before
Officer Kumley told him he was under arrest were admissible
because they were either made spontaneously after Officer
Kumley asked all of the occupants of the house a general
question or were made in response to legitimate attempts by
Officer Kumley to clarify statements Two Eagle had
volunteered. Second, Judge Moreno found that because
Officer Kumley informing Two Eagle that he was under arrest
did not constitute interrogation, the questions Two Eagle
asked immediately thereafter were admissible under
Miranda. Third, Judge Moreno concluded that several
of the statements Two Eagle made after he was arrested were
inadmissible because they were the product of interrogation.
Fourth, Judge Moreno explained that Two Eagle's
statements consenting to a DNA test and to Officer Kumley
taking his clothes were admissible because a request to
search is not an interrogation that triggers
Miranda. Finally, Judge Moreno found that Two
Eagle's statement that he didn't know that "she
was going to fucking pass out like that" was admissible
because Two Eagle volunteered the statement and the statement
was not the product of anything Officer Kumley said or did.
than offering any specific objections to Judge Moreno's
conclusions, Two Eagle argues generally that all of his
statements should be suppressed because Officer Kumley
engaged in conduct that was reasonably likely to elicit an
incriminating response. This Court has viewed the recording
of Officer Kumley's encounter with Two Eagle multiple
times and agrees with Judge Moreno's factual findings and
legal conclusions concerning Two Eagle's statements.
Because the objection Two Eagle now makes was fully addressed
by Judge Moreno, no further analysis is necessary.
statement is involuntary when it was extracted by threats,
violence, or express or implied promises sufficient to
overbear the defendant's will and critically impair his
capacity for self-determination." United States v.
LeBrun, 363 F.3d 715, 724 (8th Cir. 2004) (en banc)
(quoting Simmons v. Bowersox, 235 F.3d 1124, 1132
(8th Cir. 2001)); see also Schneckloth v.
Bustamonte, 412 U.S. 218, 226-27 (1973). In determining
whether a statement was involuntary, both the conduct of the
police and the personal characteristics of the defendant must
be considered. See Sheets v. Butera. 389 F.3d 772,
779 (8th Cir. 2004) ("We consider, among other things,
the degree of police coercion, the length of the
interrogation, its location, its continuity, and the
defendant's maturity, education, physical condition, and
mental condition."); LeBrun, 363 F.3d at 724;
United States v. Pierce. 152 F.3d 808, 812 (8th Cir.
Moreno concluded that Two Eagle's statements were
voluntary based on the lack of any police coercion, the short
duration of the questioning, Two Eagle's age and
background, his ability to converse coherently with Officer
Kumley, and the fact that he denied having committed any
crime. This Court agrees with Judge Moreno's conclusion
that Two Eagle's statements were voluntary. Two
Eagle's one-sentence argument-that "all statements
made by him were involuntary within the meaning of the 5th
Amendment"-does not require any additional discussion.
Doc. 57 at 3. For the reasons stated in the report and
recommendation, this Court finds that Two Eagle's
statements were voluntary.