United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
jury returned an indictment alleging defendant Julissa Poor
Bear conspired to distribute a controlled substance in
violation of federal law. (Docket 1). Defendant filed a
motion to suppress statements she made to law enforcement.
(Docket 39). The suppression motion was referred to the
magistrate judge for a report and recommendation pursuant to
28 U.S.C. § 636(b)(1)(B) and the standing order dated
March 9, 2015. Magistrate Judge Daneta Wollmann conducted a
hearing on the motion and issued a report and recommendation
concluding defendant's motion should be granted. (Dockets
70 & 73).
the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a
party files written objections to the magistrate judge's
proposed findings and recommendations, the district court is
required to “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. The court may “accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge.” Id.
government filed objections to the report and recommendation.
(Docket 76). As set forth by the government, the objections
target four points:
1. The Magistrate Judge's conclusion that “the
government has failed to prove by a preponderance of the
evidence that Ms. Poor Bear's confession was
2. The Magistrate Judge's conclusion that its factual
findings supported a recommendation the defendant's
statements were not voluntary.
3. The Magistrate Judge's finding that statements by the
agents constituted express or implied promises of leniency.
4. The Magistrate Judge's finding that the
defendant's will was overborne.
Id. at pp. 1-2 (internal citations omitted). The
government “concurs with the [report and
recommendation's] factual findings except as specifically
referenced” in its objections. Id. at p. 2.
court details its factual findings below. To the extent they
do not align with the government's view of the facts, the
government's objections are overruled.
October 2016, defendant turned herself into the jail in Kyle,
South Dakota, because she believed people in the area planned
to kill her. She was placed in custody because she had an
outstanding tribal arrest warrant. (Docket 73 at p. 2). Then
she was transferred to the Adult Offender's Facility
(“AOF”) in Pine Ridge. Id.
Cooper (“SA Cooper”) is a Special Agent with the
Federal Bureau of Investigation. Id. His
investigations focus on drug activity on the Pine Ridge
Indian Reservation. Id. Soon after defendant was
taken into custody in Kyle, SA Cooper received notice.
Id. SA Cooper had been investigating defendant: she
was a suspect in a drug conspiracy, informants discussed
defendant's drug activity with law enforcement and SA
Cooper had begun working with federal prosecutors on
presenting to a grand jury the information on defendant.
Cooper went to meet with defendant at the AOF, but medical
problems arose for her, possibly because she was in the
seventh month of her pregnancy. Id. at pp. 2-3.
Although the agent and defendant interacted briefly,
defendant's condition prohibited a full discussion.
Id. at p. 3.
Cooper returned to the AOF the following day with Dane
Rasmussen (“SA Rasmussen”), who is a Special
Agent with the South Dakota Division of Criminal
Investigation. Id. AOF staff indicated defendant was
admitted to the Indian Health Service hospital. Id.
The agents went to the hospital. Id.
the agents arrived, the hospital admitted defendant based on
her signs of distress and abdominal pains. Id. A
certified nurse midwife treated defendant and testified
defendant had low amniotic fluid and she provided defendant
with intravenous fluids. Id.
agents reached defendant in her hospital room that morning.
Id. They did not know the specifics of
defendant's medical problems, but they believed it
related to her pregnancy. Id. at p. 4. Wearing plain
clothes and with their weapons concealed, the agents began
questioning defendant, who was on her back in a hospital bed
with the headrest inclined. Id. at pp. 3-4. The
agents asked whether she felt better than the day before, and
she indicated she did not feel better. Id. at p. 4.
The agents presented defendant with a form setting out her
Miranda rights. She communicated she understood
the rights and signed the form. Id. The agents
discussed defendant's concern for her personal safety,
and they interrogated her on her drug activity. Id.
at pp. 4-6. The interactions lasted approximately one hour.
Defendant was tired and yawned throughout the discussion and
interrogation. Id. at p. 4. The tone of each person
was generally calm and conversational. Id. Defendant
understood the agents' questions and provided responsive
agents began by explaining to defendant she was a suspect in
an ongoing investigation and they were prepared to bring
information on her to a grand jury. (Exhibit 1 at 6:00-8:00).
Then the agents provided defendant with an opportunity to
explain why she believed her life was in danger. According to
defendant, four unknown men driving a black vehicle with
Colorado license plates visited the house of defendant's
Aunt, asking for defendant. Id. at 8:00-22:00.
Defendant's Aunt warned defendant to be careful because
she believed the four men were responsible for the recent
murder of Vinny Brewer, defendant's former romantic
partner and the man she believed was the father of her unborn
child. Id.; see also Exhibit 2. Shortly
after, when defendant was driving, she noticed a black car
behind her that she believed was following her because she
attempted to lose the car on backroads but was unsuccessful.
(Exhibit 1 at 8:00-22:00). Defendant asserted she spoke on
the phone to her sister-in-law, who encouraged her to go to
the jail for safety. Id. Defendant safely reached
the Kyle jail and turned herself in. Id. Defendant
believed her life was in jeopardy. Id. (“I am
like, I could have been dead by now, but before that I called
them to, like right after my auntie told me they were looking
defendant explained her safety concerns, the agents began
interrogating her about her suspected drug activity.
Id. at 24:00-26:00. During the interrogation, which
comprises the remainder of the interactions in the hospital
room, SA Cooper made comments regarding defendant's
truthfulness and the status of their drug investigation. SA
Cooper's comments include:
• You say you haven't dealt with any Hispanics or
Mexicans or anything and that is not true, okay? We know
those things. So we need to start addressing it. Okay?
The best way now is to start, you are not charged right
now federally, okay? We can start that process. And we go
talk to our prosecutor and we can say-we talked to
Julissa. Okay, she was truthful with us, we can use those
things to your advantage.
• But I can guarantee you this-we know enough that I
am going to be presenting your case to a federal grand jury.
That is how that works. They decide what you get charged
with, if you get charged with anything. We are there, if that
makes sense. Does that have to happen? No. But if we
walk out of here today and all we talk about is that Julissa
is lying to us about not being involved, then obviously what
do you think we have to do, we have to proceed forward with
• Because the bottom line is right now, if we continue
this conversation at the jail or you don't want to
anymore and we walk away, we are going to have to take what
you tell us and proceed forward. Right now you
haven't told us what the federal prosecutor is going to
want to know. The fact of the matter is does Julissa Poor
Bear do this thing 100 percent so we can either consider
maybe delaying charges against her because there may be
more help that we can do for the community with things we
• But if you want to take advantage of this situation,
this time you are spending with us and tell us the truth,
okay, then there is all kinds of decisions we can make. But
right now the only decision we are going to make is this
month I am going to go to a federal grand jury and I am
going to talk about Julissa Poor Bear and everybody she is
dealing with. That is what I am going to do. If you
don't want that to happen, then you need to start telling
us things that are truthful.
• But just understand what the reality of that is, what
your future is going to bring. We are going to charge
people with things like this, okay, ten year mandatory
minimum federal prison sentence. What that means is if
you are convicted, if you are convicted, you would have
to go to prison for ten or more years. . . . The
only way to get below that is to be truthful about it so that
the federal prosecutor can tell the judge okay, we don't
want somebody like Julissa Poor Bear to be sentenced to ten
years or more; we want you to be able to sentence her below
that. The only way that happens is truth coming out of
Julissa Poor Bear's mouth.
• Right now, as we walk away, okay, October 25th is
going to be the day Julissa Poor Bear decided she wanted to
be federally indicted. Okay? That is what is happening
here. I think you understand that. If you are comfortable
with that, that is fine.
Id. at 24:00-1:05:00 (emphasis added).
the agents interrogated her, defendant reiterated her fear of
being killed by the people she believed were looking for her.
Id. at 35:00- 1:06:00. In response, the agents
probed about the reasonableness of her fear, but they also
supported her view that the entire situation was a serious
matter and the safety of her and her family was important.
urging defendant's truthfulness, SA Cooper brought up the
subject of the safety of defendant's family:
• SA Cooper:
o The fact of the matter is, there are people in jail.
There's people that are charged. There are people that
are going to get charged. And the only way, I got to assume
that Julissa, you and your family are who you want to take
care of. Right? That is your priority.
o And then me and my family are in ...