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United States v. Kempf

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

October 18, 2018

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

          ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED AND DENYING MOTION TO SUPPRESS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Defendant, Chester Lee Kempf, is charged with one count of possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2), and one count of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d), 5845(a), and 5871. Docket 2. Kempf moves to suppress evidence. Docket 27. The court referred Kempf's motion to Magistrate Judge Veronica Duffy under 28 U.S.C. § 636(b)(1)(B). After holding an evidentiary hearing, Magistrate Judge Duffy recommended that the court deny Kempf's motion to suppress. Docket 32. Kempf now objects. Docket 35. After a de novo review of the Report and Recommendation and a review of the record, the court adopts the Report and Recommendation as modified below and denies Kempf's motion.

         LEGAL STANDARD

         This court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Because motions to suppress evidence are considered dispositive matters, a magistrate judge's recommendation regarding such a motion is subject to de novo review. 28 U.S.C. § 636(b)(1)(A); see also United States v. Raddatz, 447 U.S. 667, 673 (1980). In conducting a de novo review, this court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

         FACTS

         Kempf does not object to the magistrate judge's statement of facts. A full recitation of the facts can be found in the Report and Recommendation (Docket 32), but after a de novo review of the evidence, the court finds the pertinent facts relevant to Kempf's objections are as follows:

         On December 9, 2017, Officer MacFarlane, a Sioux Falls Police officer, was on patrol when he responded to a 911 call for a man in cardiac arrest at a residence. Officer MacFarlane was the first official to arrive at the scene, and he saw that the front door to the residence was open. He yelled “police department” while stepping inside the front door of the residence. A female, Shalene Ball, came up the stairs from the basement and directed Officer MacFarlane to go to the basement, saying, “He's down here.” Docket 33 at 9:8-10. When he arrived downstairs, Officer MacFarlane saw Kempf lying on his left side on the bathroom floor. Officer MacFarlane checked Kempf's breathing, which was faint and sounded “gargled, ” but his pulse on his neck was strong. Id. at 10:21-24. Officer MacFarlane rolled Kempf to the rescue position to help open Kempf's airway.

         During this initial response to Kempf lying on the floor, Officer MacFarlane simultaneously questioned Ball, who was standing in the bathroom doorway, about what happened. He also attempted to ask Kempf questions about his condition, but Kempf did not respond. Ball told Officer MacFarlane that Kempf was diabetic and he was taking insulin. In response, Officer MacFarlane testified that:

A. I asked her where he kept his medications at.
Q. What did she tell you?
A. “In his coat.” “In his coat, ” I believe is what she said.
Q. Did you ask her anything else after that then, after she responded, “The kit is in his coat”?
A. I asked her, “Does he keep his medications anywhere else?” We had a conversation about where he keeps his other medications.
Q. What did she say or do then?
A. Our conversations led us to a black bag that was on a wooden shelf [in the bathroom], about waist height, with ...

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