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United States v. Vankley

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

August 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
AARON MICHAEL VANKLEY, Defendant.

          REPORT AND RECOMMENDATION

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.

         Defendant 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.

         FACTS

         An 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.

         Detective 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.

         Several (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.

         The 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.

         The 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.

         The 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.

         Detective 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.

         At the 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. Vankley.

         As to 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.

         Detective 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.

         At the 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.

         Detective 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.

         As 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.

         When 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.

         Detective Buiter's written report[1] 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 firearm.

         Detective 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.

         During 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.

Hearing is nothing but a sense that helps you receive sound waves and noise by ears. It is the power of perceiving sounds.
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

See https://keydifferences.com/difference-between-hearing-and-listening.html (last checked August 23, 2018).

         There 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.

         Though 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 him.

         During 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.

         Given 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 ...


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