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United States v. Kempf

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

August 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHESTER LEE KEMPF, Defendant.

          REPORT AND RECOMMENDATION

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Defendant Chester Lee Kempf is before the court on an indictment charging him with being a felon in possession of a firearm and with possessing an unregistered firearm (a silencer).[1] See Docket No. 1. Mr. Kempf has filed a motion to suppress certain evidence. See Docket No. 27. The United States (“government”) resists the motion. See Docket No. 29. 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 29, 2018. Mr. Kempf was present in person along with his lawyer, Assistant Federal Public Defender Amanda Kippley. The government was represented by its Assistant United States Attorney, Jeffrey Clapper. One witness testified and three exhibits were received into evidence. From this testimony and these exhibits, the court makes the following findings of fact.

         On December 9, 2017, near midnight Officer Jeff MacFarlane was on patrol in Sioux Falls, South Dakota, on behalf of the Sioux Falls Police Department. A hysterical female placed a 911 call about a man in cardiac arrest. Dispatch relayed alert tones over the police radio and then relayed the information and the man's address to Officer MacFarlane (among others). Officer MacFarlane proceeded to the location. See Exh. 1.

         The location was a twin home with the indicated address being on the east side of the structure. Officer MacFarlane was the first official to arrive at the scene. Officer MacFarlane went to the front door of the residence, which was ajar. He stepped inside the home and did not see or hear anything. He called out, “police department, ” and Shalene Ball appeared on a set of stairs going down to the basement. The stairs were immediately adjacent to the door on the left.

         Ms. Ball directed Officer MacFarlane to come downstairs. In the lower level, Officer MacFarlane saw Mr. Kempf lying on the floor in the bathroom with the light on. He was lying curled up on his left side, with his knees bent, and rolled forward partially on his chest or stomach. He was clothed in jeans and a t-shirt.

         Officer MacFarlane testified the followed events and observations occurred, but in rapid-fire fashion over a period of approximately 90 seconds. Although he knew they occurred, he could not say with absolute certainty the order in which they occurred or if they occurred simultaneously. He was questioning Ms. Ball what had happened, what had she seen, what was going on, if Mr. Kempf took any prescription medications, if he had used drugs, and if he had a mental illness. Officer MacFarlane was questioning Mr. Kempf if he was okay, what hurt, and whether he could hear Officer MacFarlane. Mr. Kempf was not responding.

         Officer MacFarlane could see no blood and no evidence of trauma. He checked Mr. Kempf's breathing and verified he was breathing faintly, though in a gargled fashion as though his tongue was in the way. Officer MacFarlane felt for a pulse in Mr. Kempf's neck and found a strong pulse. Officer MacFarlane tried to position Mr. Kempf into a “rescue position, ” which makes breathing easier. This consisted of keeping Mr. Kempf on his left side, but more perpendicular to the floor instead of rolled forward, his left arm under and supporting his head, his right arm parallel to his body on top, his left leg straight on the floor and in line with his body, and his right knee drawn up toward the chest and resting on the floor. Officer MacFarlane testified it was difficult to move Mr. Kempf's limbs as they were stiff similar to rigor mortis.

         While all of this was going on, Ms. Ball told Officer MacFarlane that Mr. Kempf was having a diabetic attack, that he was a diabetic and took insulin. Officer MacFarlane asked Ms. Ball where he kept his diabetic kit. Ms. Ball responded in his coat. Officer MacFarlane looked around for a coat, but never searched in any coat. Officer MacFarlane asked if there was anywhere else Mr. Kempf kept his medicines.

         There was a black bag about waist-high on a wooden shelf in the bathroom between the toilet and the vanity. See Exh. 2. Officer MacFarlane's attention was drawn to this bag as a possible location of Mr. Kempf's medicines because of conversation he had with Ms. Ball. Officer MacFarlane could not recall the exact words or nature of that conversation, only that the conversation with Ms. Ball led him to consider the bag as a source of medication. Officer MacFarlane testified it was a black leather-looking bag that looked like the type of hygiene kit a man would use to transport his toiletries in when going on an overnight stay. Officer MacFarlane testified he clearly understood from what Ms. Ball told him that the bag belonged to Mr. Kempf.

         Officer MacFarlane testified he had responded to a couple previous 911 calls that did involve a diabetic event. The symptoms he observed on those prior occasions did not match what he observed with Mr. Kempf. Also, he believed insulin was injected into muscle, not into a vein. However, he explained he did not have medical expertise and he could not rule out the possibility that Mr. Kempf was having a diabetic episode.

         While Officer MacFarlane was in the bathroom with Mr. Kempf, Ms. Ball remained outside the bathroom near the doorway looking in. At some point, Officer MacFarlane observed a syringe with a dark brownish-red substance in it on the floor of the bathroom (between the toilet and vanity) and a belt in the shape of a tourniquet near Mr. Kempf somewhere. Officer MacFarlane thought the substance in the syringe might be heroin or dried blood. As with his other recollections, Officer MacFarlane was unable to pinpoint exactly when in the sequence of events he observed these items, just that he did observe them.

         When medical personnel arrived on scene, they came to the basement with a backboard. At this point, Officer MacFarlane assisted other personnel in removing Mr. Kempf from the bathroom and placing him on a backboard. Officer MacFarlane testified he never left Mr. Kempf's side once he had arrived in the basement bathroom until the medical personnel came along and relieved him. During the time period before medical personnel arrived, Officer MacFarlane looked around his surroundings with his eyes, but did not physically do any searching. He stayed by Mr. Kempf's side.

         After helping medical personnel get Mr. Kempf secured to a back board, Officer MacFarlane went back into the bathroom and lifted the lid on the black bag. There was no padlock or other device locking the bag shut. The bag closed with a simple clasp. Officer MacFarlane could not remember if the clasp was closed or not. He looked into the bag to see if Mr. Kempf's diabetic kit was inside or if there was other evidence, including narcotics, that would shed light on Mr. Kempf's medical condition. He testified his goal was to gather as much information as possible to assist the paramedics in responding to Mr. Kempf's medical condition.

         Inside the bag, Officer MacFarlane observed a silver spoon, a small cotton ball about the size of a pencil eraser that was dirty as though it had mud on it, and a clear plastic rectangular box containing .22 caliber ammunition. After seeing the contents of the bag-especially the spoon and cotton ball-along with the syringe and belt, Officer MacFarlane thought that some type of opioid ingestion might be causing Mr. Kempf's symptoms. Again, however, he testified he did not have medical expertise. He did not want to jump to the conclusion Mr. Kempf was suffering an opioid overdose and fail to continue investigating.

         At some point, Officer MacFarlane went to the ambulance to which Mr. Kempf had been removed and inquired whether medical personnel had administered Narcan, an antidote to opioid overdose.

         Sergeant Smedsrud, Officer MacFarlane's supervisor, arrived on scene sometime after Officer MacFarlane. Officer MacFarlane spoke to him and told him he had observed the syringe and the contents of the black bag. Officer ...


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