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United States v. Weber

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

October 15, 2018





         Defendant Stanley Patrick Weber filed a motion to suppress physical evidence seized pursuant to a search warrant. (Docket 28). 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. An evidentiary hearing was held and Magistrate Judge Wollmann issued a report and recommendation (“R&R”) on defendant's motion to suppress. (Dockets 54 & 55). The magistrate judge recommended defendant's motion to suppress physical evidence be denied. Id. at p. 1. The defendant timely filed his objections to the report and recommendation. (Docket 56). For the reasons stated below, the defendant's objections are overruled and the report and recommendation is adopted consistent with this order.


         Defendant's objections to the R&R focus on his assertion the magistrate judge improperly applied the law to the facts presented during the suppression hearing. Id. at pp. 1-3. He contends the R&R's “proclamation that the law is in a ‘questionable state' is belied by those cases which have directly addressed the issue. Incorporation is absolutely a basic requirement for a warrant that relies upon an affidavit to be constitutionally valid.” Id. The defendant also objects to the R&R arguing “[a] warrant that is constitutionally invalid on its face is not saved by the holding in United States v. Leon, 468 U.S. 468 U.S. 897 (1984).” Id. at p. 3.

         Under 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. See also Fed. R. Crim. P. 59(b)(3).

         The defendant's objections do not claim the magistrate judge made any factual findings which are not supported by the evidence. (Docket 56). The court completed a de novo review of the suppression hearing transcript and the exhibits offered at the suppression hearing. To the extent necessary, the court concludes the factual findings of the magistrate judge are supported by the evidence presented during the hearing. The findings made by the magistrate judge are adopted in full. (Docket 55 at pp. 2-5 & 14-17). Because the facts are relevant to defendant's legal challenges to the R&R, the court provides a summary of the factual findings stated in the R&R.[1]


         On February 22, 2017, a grand jury indicted the defendant for alleged sex crimes committed while he was employed as a physician with the Pine Ridge Indian Health Services. Special Agent Curt Muller, an inspector with the United States Department of Health and Human Services, investigated the allegations against Dr. Weber.

         As part of the investigation, SA Muller sought a search warrant for Dr. Weber's residence. SA Muller prepared a 30-page affidavit in support of the search warrant, which detailed the allegations against Dr. Weber.[2]Suppression Hearing Exhibit 1. Five attachments supplemented the affidavit.

         Attachment A identified the property to be searched:

The property located as 2315 5th Avenue, Spearfish, South Dakota, a single story, single family residence, light tan in color with white trim, with white garage doors, the numbers “2315” are clearly displayed to the right of the right-most garage door, as photographically depicted in Attachments C-E;
[A]ny vehicles;
[O]utbuildings, or detached garages and the curtilage of the property;
[A]ny persons on the property; and
[T]he content of any computer and electronic storage devices, cellular phones, tablets, and any other electronic storage devices, including but not limited to external and internal hard drives, thumb drives, flash drives, gaming devices with storage capability, storage discs, S.D. cards, cameras, cellular phones, smart phone and phones with photo-taking and/or internet access capabilities, as further described in Attachment B.

         Attachment B provided a three-page list of the items to be seized, specifically:

The following materials, which constitute evidence of the commission of a criminal offense, contraband, the fruits of crime, or property designed or intended for use or which is or has been used as the means of committing a criminal offense, namely violations of Title 18, United States Code, Sections 2241, 2242, 2243 (sex abuse) and 2423(b) (International Sex Travel).
Attachments C through E are photographs of Dr. Weber's residence.

Id. at pp. 31-38.

         SA Muller also prepared an application for a search warrant.[3] Suppression Hearing Exhibit 2. The application identified the property to be searched by the same description contained in the affidavit. Id. The application identified the property to be searched and seized if found, as “See Affidavit in Support of Application for Search Warrant and Attachments A-E.” Id. SA Muller checked as the basis for the search, the following:

[E]vidence of a crime;
[C]ontraband, fruits of crime, or other items illegally possessed; [and]
[P]roperty designed for use, intended for use, or used in committing a crime.

Id. The application indicated “[t]he search is related to a violation of 18 U.S.C. § 2241, 2422, [4] and 2243.” Id.

         SA Muller prepared the search and seizure warrant (“search warrant”).[5] Suppression Hearing Exhibit 3. The search warrant contained the same property to be searched as in the application. Compare Suppression Hearing Exhibits 2 and 3. The search warrant referenced “[a]n application by a federal law enforcement officer, ” without any further explanation or incorporating by specific reference SA Muller's application and stated “that the affidavit(s), or any recorded testimony, [6] establish probable cause to search and seize the person or property, ” without further explanation or specifically incorporating SA Muller's affidavit. Suppression Hearing Exhibit 3. The search warrant did not identify the statutes allegedly violated and where the form prompted the preparer to “identify the person or describe the property to be seized, ” SA Muller typed in “evidence of a crime.” Id. SA Muller did not realize at the time that he needed to specifically incorporate his application, his affidavit and the attachments into the search warrant.

         Prior to meeting with Magistrate Judge Wollmann, the search warrant packet was e-mailed to her chambers so she had ample time to review the documents. (Docket 46 at p. 9:12-18). Sometime later the magistrate judge notified the United States Attorney's Office that the search warrant packet had been reviewed and the court was prepared to complete the search warrant application process. Id. at pp. 9:19-10:2.

         On February 24, 2017, SA Muller and Assistant United States Attorney Sarah Collins presented the search warrant, along with the application, affidavit and attachments as a packet to Magistrate Judge Wollmann. SA Muller was placed under oath by the magistrate judge. In the presence of Judge Wollman, SA Muller signed the affidavit and application. Suppression Hearing Exhibit 1 at p. 30 and Exhibit 2. Judge Wollmann signed the documents indicating they had been signed and sworn to by SA Muller in her presence on February 24, 2017. Id. The magistrate judge reviewed the packet of documents, dated and signed the search warrant on February 24, 2017 at 10:25 a.m. Suppression Hearing Exhibit 3.

         SA Muller took the search warrant packet to the clerk's office for filing. At that time SA Muller in good faith believed that the warrant was appropriate.[7]Nothing about the warrant stood out to SA Muller as being different from other search warrants he had previously dealt with.[8]

         On February 27, 2017, as part of the planning process before executing the search warrant, SA Muller briefed the Internet Crimes Against Children (ICAC) task force members. At the briefing, SA Muller described Dr. Weber's case and provided task force members with copies of the search warrant, the application and attachments A-E. The next morning, [9] SA Muller conducted a second briefing with the same ICAC task force members, as well as members of the Spearfish Police Department and the Department of Health and Human Services Office of the Inspector General. All law enforcement members involved in the search of Dr. Weber's residence were present at the briefing. During this briefing, SA Muller again reviewed the search warrant packet and provided each law enforcement member with copies of the search warrant and attachments A and B. He informed the assembled law enforcement officers they were to search for evidence of sexual abuse and sex travel, and that evidence of those two crimes could potentially intermingle.

         Law enforcement executed the search warrant on February 28, 2017, at approximately 9 a.m. Dr. Weber was at home when the agents executed the search warrant. SA Muller kept the search warrant, the application, the affidavit and its attachments together as a single bundle throughout the execution process and he directed the search.[10]

         The search team seized less than one banker box of items, namely a variety of paper documents and electronic devices. The agents left a copy of the search warrant and an inventory consisting of a two-page detailed list of items seized. See Suppression Hearing Exhibit 3 at p. 2; Docket 28-4.[11] ...

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