United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
Aaron Michael Vankley is before the court on an indictment
charging him with possession of a firearm by a prohibited
person. See Docket No. 2. Mr. Vankley has filed a
motion to suppress. See Docket No. 37, along with an
accompanying supporting brief (Docket No. 38). The United
States (“government”) resists the motion.
See Docket No. 39. This matter has been referred to
this magistrate judge for holding an evidentiary hearing and
recommending a disposition pursuant to 28 U.S.C. §
636(b)(1)(B) and the October 16, 2014, standing order of the
Honorable Karen E. Schreier, United States District Judge.
evidentiary hearing was held on August 22, 2018. Mr. Vankley
was present in person along with his counsel, Assistant
Federal Public Defender Amanda Kippley. The government was
represented by its Assistant United States Attorney, Tamara
Nash. One witness testified and two exhibits were received
into evidence. From this testimony and these exhibits, the
court makes the following findings of fact.
Adam Buiter testified on behalf of the government. Detective
Buiter is a narcotics detective for the City of Sioux Falls.
He is a member of the Sioux Falls Area Drug Task Force. He
was working on December 27, 2017, when the task force
executed a search warrant on a trailer home in Sioux Falls.
This residence was owned by Rhianna Mathison.
(at least eight) officers were present for the execution of
the warrant. There are several reasons it is necessary for
that many officers to be present for the execution of a
search warrant on a home. One reason is for officer safety.
There are also many different tasks assigned to the various
officers. One officer is assigned the task of creating a
pre-search video; another is assigned the task of being the
evidence custodian; as many officers as necessary are
assigned to watch over the persons who are found in the home
at the time the warrant is executed until those persons can
be transported; and of course, several officers actually
perform the search. Not all the officers who are present for
a search warrant interact with the people who are found to be
present in the home at the time the warrant is executed.
warrant authorized the search of the residence along with any
and all persons present. When the officers arrived, no one
answered the door, so the officers utilized a ram to break
through the door and enter the residence. They entered the
home at approximately 3:26 p.m.
officers could hear someone moving about in the master
bedroom. A male (who the officers later identified as Tanner
Fromm) exited the bedroom. The officers handcuffed Mr. Fromm
for safety purposes, and detained him in the living room area
of the trailer home.
officers could hear another person moving about in the master
bathroom, and could hear a toilet flushing. From where he was
standing in the living room, Detective Buiter could hear a
struggle going on in the master bathroom. Another officer
brought Mr. Vankley out of the bathroom and into the living
room area. Mr. Vankley was also handcuffed. The men were
brought to the living room and handcuffed for the duration of
the search for officer safety purposes. Both men were also
subjected to a pat-down search.
Buiter explained the men were searched multiple times. The
first time the two men were searched was merely was a pat
down search for safety purposes, and the later searches of
the two men were more thorough searches. Detective Scott
Nelson made the pre-search warrant video that was received
into evidence as Exhibit 1. The purpose of a pre-search
warrant video is to document the condition of the residence.
Another purpose of the pre-search video is to document the
people inside the home when the officers make contact. The
court has reviewed the pre-search video which was marked as
Exhibit 1 during the evidentiary hearing.
time the pre-search video was made, Mr. Vankley was already
in the living room, seated in a chair. His jeans pockets were
turned inside out. The officers asked the two men their basic
biographical information such as their names and how to spell
their names. The narrator of the pre-search video indicated
that certain incriminating items had been found on both Mr.
Vankley and Mr. Fromm's persons. It appears this was the
result of the pat down search, because an off-camera officer
asks Detective Nelson (the videographer for the pre-search
video) to show on camera the items found on Mr. Fromm and Mr.
Mr. Fromm, the videographer indicates he observed the
searching officer remove the incriminating items (a syringe
and a large safety pin that field tested positive for
methamphetamine, and a small amount of marijuana) from Mr.
Fromm's pocket. During his evidentiary hearing testimony,
Detective Buiter indicated he was the officer who searched
Mr. Fromm, and that these incriminating items were found in
the back pocket of Mr. Fromm's jeans.
Buiter's voice is heard on the video. The court concludes
it is Detective Buiter speaking, because during the
evidentiary hearing, defense counsel asked Detective Buiter
if he asked Mr. Vankley about whether “weed” was
legal in Iowa now. Detective Buiter conceded that he did ask
this question. On the video, the same person who asked about
“weed” being legal in Iowa also stated, as to Mr.
Vankley (to whom Detective Buiter refers on the video as
Aaron), that Mr. Vankley had a “small amount of
marijuana.” Detective Buiter did not specify where on
Mr. Vankley's person the small amount of marijuana that
he wished the videographer to show on the pre-search video
was found. Detective Buiter is also heard on the video,
regarding Mr. Vankley, saying “there is more weed in
the side of his jacket, but I will just get that out
later.” During the evidentiary hearing, Detective
Buiter mentioned the marijuana found in Mr. Vankley's
jacket, but did not mention the small amount of marijuana
that was apparently found elsewhere on Mr. Vankley's
person that is depicted on the video. On the video, Detective
Buiter then asks “is that amount of marijuana legal in
Iowa now? They keep changing the rules.” Just moments
before this statement, but after Mr. Fromm and Mr. Vankley
were asked to give their names, a different off-camera
officer can be heard making an exclamation about the
discovery of a firearm in the residence.
evidentiary hearing, Detective Buiter explained the officers
conducted a secondary sweep. One of the purposes of a
secondary sweep is to make sure there are no more people
hiding in the residence. The other purpose of the secondary
sweep is to make sure there are no obvious safety issues
present in the residence that could harm the officers who are
conducting the search. Examples would be weapons or needles
that could poke someone. When the officers executed the
search warrant, several illegal items were found in the
residence including items that field tested positive for
methamphetamine, drug paraphernalia items, marijuana, and a
firearm. The firearm that is the subject of this criminal
prosecution was located in a closet inside the master
bathroom. Detective Buiter was not the officer who found the
subject firearm, but he believes the firearm was found during
the secondary sweep.
Buiter did not advise Mr. Vankley of his Miranda
rights, because Detective Buiter did not believe he would be
asking Mr. Vankley incriminating questions. Detective Buiter
asked Mr. Vankley about his personal information and watched
over Mr. Vankley during the execution of the search warrant.
Mr. Vankley indicated he was on probation, to which Detective
Buiter inquired about whether Mr. Vankley had contacted his
probation officer. Detective Buiter also engaged in
“small talk” with Mr. Vankley. Because both Mr.
Vankley and Mr. Fromm had initially been uncooperative,
Detective Buiter tried to de-escalate and calm the situation
to better allow the officers to do their business. Detective
Buiter did not question Mr. Vankley about a firearm.
Detective Buiter testified he did not question Mr. Vankley
about the drugs that were found in the residence, though he
conceded he did ask Mr. Vankley “is marijuana legal in
Iowa now?” If Mr. Vankley made any verbal response to
this question, it cannot be heard on the pre-search video.
Detective Christensen was talking to Mr. Fromm about the gun
that had been found in the residence, Mr. Vankley stated,
“yeah that gun was mine.” Detective Buiter turned
and looked toward Mr. Vankley to see if Mr. Vankley was going
to say anything more about the firearm. Mr. Vankley did not
say anything more about the firearm. Detective Buiter
explained he did not question Mr. Vankley about the admission
because it was not his function to question Mr. Vankley, only
to secure him during the search. At the time Mr. Vankley made
this admission, other detectives were in the room. Mr.
Vankley's statement is not captured on the pre-search
video. Detective Buiter explained that the purpose of the
video is not to capture statements or interviews of suspects
but rather to capture the condition of the home at the time
the officers arrive.
Mr. Vankley said he owned the firearm that was found in the
residence, Detective Christensen was speaking with Mr. Fromm
who was seated in the living room near Mr. Vankley. Detective
Buiter estimated the men were ten to fifteen feet apart. The
court has reviewed the video and it appears to the court that
the men were seated much closer together than that-more like
three or four feet.
Buiter's written report indicates Mr. Vankley made the
admission about the firearm while Detective Christensen was
speaking with Mr. Fromm about finding the firearm in the
home. Detective Buiter testified during the evidentiary
hearing that he could not remember whether he actually heard
the conversation between Detective Christensen and Mr. Fromm,
or whether Detective Buiter learned later from Detective
Christensen that this was the subject of the conversation
that was occurring between Detective Christenson and Mr.
Fromm when Mr. Vankley made the admission about owning the
Spaeth wrote the arrest report, which was received into
evidence as Exhibit A. According to the arrest report, Mr.
Vankley made the statement about owning the firearm while he
was being searched by Detective Buiter. Detective Buiter
explained that Mr. Vankley was searched multiple times during
the execution of the search warrant on the home. The first
search of Mr. Vankley's person was the pat-down search.
Mr. Vankley's person was searched at least one more time,
and maybe more than that. Detective Buiter could not remember
during which search it was that Mr. Vankley made the
admission about the firearm.
the evidentiary hearing, Detective Buiter denied that he
could hear everything that was going on in the living room of
the trailer. The court does not find this statement credible.
But here, the court must distinguish between listening and
Hearing is nothing but a sense that helps you receive sound
waves and noise by ears. It is the power of perceiving
On the contrary, listening is when you receive the sound
waves and understand it by paying full attention to the words
and sentences of the speaker. It is one's ability to
correctly receive and interpret the message transferred by
the other party in the process of communication
(last checked August 23, 2018).
is no doubt in the court's mind, based on the court's
viewing of Exhibit 1, that Detective Buiter could
hear everything that was being said in the living
room of the trailer-maybe even everything that was being said
in the entire trailer-during the search. The officers were
not exactly whispering. It is also very plausible, however,
based on the amount of activity occurring in the compact
space, that Detective Buiter could not listen to
every conversation that was occurring at the same time in the
living room. It is entirely possible, then, given the
proximity between Mr. Vankley and Mr. Fromm, that Mr. Vankley
listened to the conversation between Detective Christensen
and Mr. Fromm, but at the same moment, Detective Buiter was
listening to something else.
Detective Buiter remembers Mr. Vankley admitting ownership of
the firearm, he does not remember what conversation was
occurring between Detective Christensen and Mr. Fromm at the
time. Detective Buiter insists, however, that Mr. Vankley did
not make the admission in response to a question
that was posed to Mr. Fromm or anyone else, but instead that
Mr. Vankley made the admission while Detective Christensen
was simply telling Mr. Fromm that the firearm had
been discovered in the home. Because Detective Buiter cannot
specifically recall the conversation between Mr. Fromm and
Detective Christenson, the court concludes Detective
Buiter's conviction regarding the content of the
conversation is based upon what Detective Christensen told
the evidentiary hearing, the defense suggested Detective
Buiter's testimony was not credible because the arrest
report (written by Officer Spaeth) indicates Mr.
Vankley's admission was made while Detective Buiter was
searching Mr. Vankley, instead of while Detective Christensen
was speaking with Mr. Fromm. The Defense emphasized that the
pre-search video clearly shows that, before the exclamation
about the discovery of the firearm which can be heard by the
off-camera officer on the pre-search video is ever heard, Mr.
Vankley can be seen on the video with this jeans pockets
turned inside out. This, the defense suggests, shows Mr.
Vankley had already been searched before the firearm
was found in the residence.
Detective Buiter's statement that is captured in the
pre-search video (“there is more weed in the side of
his jacket, but I will just get that out later, ”)
along with Detective Buiter's explanation that Mr.
Vankley was searched more than once, the court does not view
Detective Buiter's explanation of the timing of Mr.
Vankley's admission (when Detective Christensen was
speaking with Mr. Fromm) as necessarily inconsistent with
Detective Spaeth's recollection (while Detective Buiter
was searching Mr. Vankley). In other words, these two events
(1) Detective Buiter removing the weed ...