United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED
AND DENYING MOTION TO SUPPRESS
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
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).
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:
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.
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
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