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United States v. Blacksmith

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

October 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JONATHAN ANDREW BLACKSMITH, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         INTRODUCTION

         A grand jury indicted Jonathan Blacksmith for count I, possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1); count II, possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1); count III, possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); count IV, possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and count V, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Docket 1). Mr. Blacksmith filed a motion to suppress all evidence seized by law enforcement from “the search of his person and the vehicle he was driving on February 17, 2017 . . . .” (Docket 17).

         The motion to suppress was referred to United States Magistrate Judge Daneta Wollmann pursuant to 28 U.S.C. § 636(b)(1)(B) and the standing order of March 9, 2015. An evidentiary hearing was held on February 14, 2018. (Dockets 28 & 31). Magistrate Judge Wollmann issued a report and recommendation (“R&R”) on defendant's motion to suppress. (Docket 30). The magistrate judge recommended defendant's motion to suppress physical evidence be denied. Id. at p. 8. The defendant timely filed his objections to the report and recommendation. (Docket 34).

         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 court completed a de novo review of those portions of the R&R to which objections were filed. For the reasons stated below, the court finds the report and recommendation is an appropriate application of the law to the facts presented by the parties at the suppression hearing. For the reasons stated below, the defendant's objections are overruled and the report and recommendation is adopted consistent with this order.

         OBJECTIONS

         Defendant objects to the facts and the conclusions reached by the magistrate judge as follows:

1. Defendant objects to the finding that the search was a proper inventory search because it was not conducted pursuant to an established procedure for inventory search.
2. Defendant objects to the finding that Officer Red Owl was informed that the owner of the silver vehicle was Leah Two Bulls.
3. Defendant objects to the [R&R's] omission of the fact that while Blacksmith was being arrested, he “worried about his vehicle being left in the parking lot and was asking for phone calls to have somebody come and get his vehicle.”
4. Defendant objects to the [R&R's] finding that the Government “introduced into evidence the [Oglala Sioux Tribe Department of Public Safety] OSTDPS protocol on towing and inventorying vehicles.”
5. Defendant objects to the [R&R] which states that when “[t]he driver of a car parked in a public place is arrested, and no passengers are present who can easily remove the vehicle with the driver's consent, OSTDPS protocol dictates conducting an inventory search and then towing the car.”
6. Defendant objects to the [R&R] referring to the OSTDPS policy, Exhibit 3, as stating protocol for conducting an inventory search.
7. Defendant objects to [the R&R] in general relying upon Exhibit 3 to validate an inventory search.
8. Defendant objects to the [R&R] finding that the search was proper as [an] inventory search.
9. Defendant objects to the [R&R] finding that the search of the vehicle was conducted according to standardized police procedure [because the finding is] clearly erroneous . . . .
10. Defendant objects to the [R&R] finding that the case is analogous to United States v. Garreau[1]. . . .
11. Defendant objects to the [R&R] [findings] that Officer Red Owl was credible and had probable cause to search the vehicle . . . .

         (Docket 34 at pp. 1-3). Mr. Blacksmith “requests a de novo determination of the objections” and asks the court to “enter an Order Granting the Motion to Suppress.” Id. at p. 4.

         Each of defendant's objections will be separately addressed in categories which make sense in the court's analysis.

         ANALYSIS

         The magistrate judge determined law enforcement conducted a valid inventory search of the vehicle defendant was driving when he was arrested. (Docket 30 at p. 8). Mr. Blacksmith does not challenge his arrest. (Docket 34). Defendant challenges the decision of the OSTDPS officers to take custody of his vehicle and conduct an inventory search. (Docket 34).

         On February 17, 2017, OSTDPS law enforcement officers Ronald Red Owl and Nicholas Campbell arrested Mr. Blacksmith on outstanding federal and tribal warrants. (Docket 30 at p. 2). The background for the ...


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