United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
filed a motion to suppress statements and a motion to
suppress any evidence generated through a lineup. (Dockets 97
& 98). The motions were referred to Magistrate Judge
Daneta Wollmann for a report and recommendation pursuant to
28 U.S.C. § 636(b)(1)(B) and the standing order dated
March 9, 2015. The magistrate judge conducted a hearing on
the motions and issued a report and recommendation
(“R&R”) concluding defendant's motions
should be denied. (Docket 232). Defendant timely filed
objections to the R&R. (Docket 240). For the reasons stated
below, defendant's objections are overruled and the
report and recommendation is adopted consistent with this
Tuttle's objections to the R&R are summarized as
1. Defendant was in custody and should have been advised of
his Miranda rights before being interviewed; and
2. The photographic lineup was unduly suggestive.
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.
jury indicted Mr. Tuttle on one count of premeditated first
degree murder in violation of 18 U.S.C. §§ 1111(a),
2, 1152 and 1153; one count of felony murder in violation of
18 U.S.C. §§ 1111(a), 2, 1152 and 1153; one count
of conspiracy to commit assault with a dangerous weapon in
violation of 18 U.S.C. § 113(a)(3); and one count of
accessory after the fact to first degree murder in violation
of 18 U.S.C. § 3. (Docket 129). Three other individuals
were indicted with Mr. Tuttle on some of the same counts and
other counts of the superseding indictment relating to the
death of Vincent Brewer III on October 16, 2016, at Pine
Ridge, South Dakota. Id.
Tuttle filed a motion to suppress two statements purportedly
given to law enforcement. (Docket 97). He also filed a motion to
suppress any identification of him which occurred during a
series of photographic lineups. (Docket 98).
magistrate judge conducted a suppression hearing at which FBI
Special Agents Scott Eicher and Jeff Youngblood testified and
three exhibits were admitted. (Dockets 191 & 232).
Relying on the audio recording of the hearing, For The Record
(“FTR”), the magistrate judge issued the R&R.
(Docket 232 at p. 2 n.1).
DEFENDANT WAS IN CUSTODY AND SHOULD HAVE BEEN ADVISED OF HIS
MIRANDA RIGHTS BEFORE BEING INTERVIEWED
magistrate judge found “Mr. Tuttle was not in custody
[on October 1, 2016, ] for purposes of Miranda, and SA Eicher
was not required to administer Miranda warnings.”
Id. at p. 11. Based on this finding, the report
recommends defendant's “[m]otion to [s]uppress
[s]tatements be denied.” Id.
Tuttle objects to the report's recommendation. (Docket
240 at pp. 1-2). Defendant argues the recommendation is
erroneous and claims the facts presented at the suppression
hearing were materially different from the facts found by the
magistrate judge. Id. at p. 1. Defendant believes
the facts material to the court's de novo review of the
evidence presented include the following:
1. [D]efendant was taken into custody at the Walmart Parking
Lot where the vehicle in which he was a passenger was
surrounded by more than 10 police cars transporting police