United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
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.
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.
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).
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.
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.
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.Suppression Hearing Exhibit
1. Five attachments supplemented the affidavit.
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;
[O]utbuildings, or detached garages and the curtilage of the
[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
B provided a three-page list of the items to be seized,
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
Id. at pp. 31-38.
Muller also prepared an application for a search
warrant. 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
[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,
Muller prepared the search and seizure warrant (“search
warrant”). 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,  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
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.
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.
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.Nothing about the
warrant stood out to SA Muller as being different from other
search warrants he had previously dealt with.
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,  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.
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.
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