United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
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). 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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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 ...