United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
October 24, 2017, a grand jury indicted defendant Grant
Blacksmith on one count of aggravated sexual abuse by force
and one count of aggravated sexual abuse. (Docket 1). The
charges originate in an incident occurring between 2005 and
2007 where defendant allegedly sexually assaulted T.T., a
minor female child. Id. Now pending before the court
is defendant's motion to suppress all statements he made
to the Federal Bureau of Investigation (“FBI”)
agents following a polygraph examination on July 10, 2017.
(Docket 30). The United States opposes this motion. (Docket
suppression motion was referred to Magistrate Judge Daneta
Wollmann for a report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B) and the court's April 1, 2018,
standing order. The magistrate judge conducted a hearing on
the motion at which three witnesses testified and ten
exhibits were received into evidence. (Dockets 41 & 42).
The parties submitted post-hearing briefing. (Dockets 48
& 53). The magistrate judge then issued a report and
recommendation (“R&R”) concluding
defendant's motion should be denied. (Dockets 57).
Defendant timely filed objections to the R&R. (Docket
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.
reasons given below, the court overrules defendant's
objections to the R&R in part and sustains them in part.
The court accordingly modifies and adopts the R&R. The
court denies defendant's suppression motion.
following factual recitation is derived from the R&R, the
testimony at the evidentiary hearing before the magistrate
judge, and the exhibits admitted in that hearing.
early 2016, FBI Special Agent Matt Thatcher (“SA
Thatcher”) spoke with T.T., who alleged defendant
sexually assaulted her in 2005 or 2006, when she was
approximately seven or eight years old. (Docket 55 at pp.
3-4). Through “word of mouth, ” SA Thatcher
located defendant living at the Recreation Center in Oglala,
South Dakota, in March of 2016. Id. at p. 4. The
Recreation Center-also known as the Re*Creation & Worship
Center-is a facility in Oglala hosting
“living quarters for adult men” operated by a
Christian organization. Id. at p. 6. SA Thatcher
spoke with defendant for 30-45 minutes at the Recreation
Center and informed him of the allegations by T.T.
Id. at pp. 8-9, 11. Defendant told SA Thatcher T.T.
is the daughter of a good friend of his, Donroy Titus, and he
had spoken to her “on multiple occasions.”
Id. at p. 8. At that time, defendant told SA
Thatcher he did not remember assaulting T.T. and the
allegations did not “seem like something he would
do.” Id. at p. 9. SA Thatcher offered
defendant the option to take a polygraph examination and
ended the interview. Id. at p. 10. Defendant does
not seek to suppress any statements made to SA Thatcher
during the March 2016 interview.
Thatcher contacted defendant again in June of 2017.
Id. at p. 11. It is uncertain whether SA Thatcher
recorded this conversation. Id. at pp. 57-58. The
conversation was brief; SA Thatcher wanted to determine if
defendant was still living in the Oglala area and whether he
still wanted to take a polygraph test. Id. at p. 11.
Defendant told SA Thatcher he was still interested in taking
the polygraph and he was living with his mother and sister in
the Belt Village neighborhood of Oglala. Id.
Defendant did not give SA Thatcher a consistently active
phone No. or other reliable way to contact him. Id.
at pp. 11-13.
Thatcher arranged for Special Agent Tim Wittman (“SA
Wittman”), a trained polygraph examiner from the
FBI's Minneapolis office, to come to Pine Ridge, South
Dakota, on July 10, 2018, to administer polygraph tests.
Id. at pp. 12-13. SA Thatcher attempted to contact
defendant again between the June meeting and July 10 but was
unsuccessful. Id. at p. 13. He retrieved the Belt
Village address of defendant's sister from tribal records
and went to that home on the morning of July 10 to locate
defendant. Id. at pp. 13-14. SA Thatcher
wanted to ask defendant to take a polygraph test while SA
Wittman was in Pine Ridge. Id. at p. 14.
Thatcher arrived at defendant's sister's home in Belt
Village between 9 and 10 a.m. and found defendant there.
Id. He did not record the conversation with
defendant. Id. Defendant told SA Thatcher he was
willing to take the polygraph test that day, but he was tired
because he had been awake during the night watching for
vandals. Id. at pp. 14-15. Defendant slept
approximately four or five hours that night. Id. at
p. 90. Defendant was also concerned about childcare for his
young daughter, who was in the home with him. Id. at
p. 15. SA Thatcher told defendant it was “not
easy” to get a polygraph examiner to Pine Ridge.
Id. SA Thatcher also told defendant the polygraph
was voluntary and he did not have to take it that
Id. at pp. 15-16. Defendant's sister agreed to
watch his daughter if he left to take the polygraph test.
Id. at pp. 115-16. However, she planned to “do
some business” in town during the day and defendant
believed the other adult likely to be in the home during the
day-his niece's husband, who would return home from work
shortly after 11 a.m.-was unwilling to watch his daughter if
his sister left the house. Id. at pp. 115-17. Defendant
nevertheless agreed to leave with SA Thatcher to take the
polygraph test. Id. at p. 117. They did not discuss
the allegations against defendant on the ride from Oglala to
Pine Ridge. Id. SA Thatcher's gun and badge were
not visible during the interview at the home or during the
ride to Pine Ridge. Id. at p. 17.
Thatcher took defendant to the South Dakota Department of
Social Services (“DSS”) building in Pine Ridge.
Id. at pp. 18-19. He brought defendant into an
office in that building he estimated to be approximately 10
by 12 feet in size. Id. at p. 21. SA Thatcher
believed the office was of a size to be used by a single
employee, such as a supervisor. Id. Defendant claims
SA Thatcher asked him to leave his cell phone in this office.
Id. at p. 121. SA Thatcher did not recall asking
defendant to leave his cell phone or otherwise taking it from
him. Id. at p. 23. He did testify, however, that he
would have kept defendant's cell phone during the
polygraph had defendant asked. Id. Defendant signed
two consent forms prior to the polygraph interview.
Suppression Hearing Exs. 2 & 3. The first, signed at
10:32 a.m. was an Advice of Rights form listing
defendant's Miranda rights, including the right to remain
silent and the right to stop answering questions at any time.
Suppression Hearing Ex. 2. The second form, signed at 10:35
a.m., was a polygraph consent form informing defendant of his
right to refuse the test, to stop the test at any time and to
refuse to answer any individual question. Suppression Hearing
administering the polygraph test, SA Wittman read the
polygraph consent form out loud to defendant. (Docket 55 at
p. 69). He was not wearing a gun and his badge was not
visible. Id. He did not know whether defendant had a
cell phone; however, he testified he instructs all test
participants to make sure any cell phone is completely turned
off. Id. Defendant told SA Wittman he was tired,
having only had four or five hours of sleep, but that he was
alert enough to focus on the test. Id. at p. 70. SA
Wittman found defendant to be nervous, but not unusually so
compared to other polygraph examinees. Id. at p. 71.
SA Wittman attached polygraph “components”-the
devices necessary for the test-to defendant's person,
including a blood pressure cuff on one arm, two pneumograph
tubes across his chest and two electrodermal activity plates
on two of his fingers. Id. at p. 92-93. SA Wittman
felt defendant understood all his questions during the test.
Id. at pp. 71-72.
test indicated deception, in SA Wittman's opinion.
Id. at p. 74. He told defendant it was “clear
[he] did in fact have sexual contact” with T.T. (Docket
31-1 at p. 1). Immediately following the end of the polygraph
test, SA Wittman began interrogating defendant. (Docket 55 at
p. 74). SA Wittman did not remove the polygraph components
from defendant's person before beginning the
interrogation. Id. at p. 75. SA Wittman recorded the
interrogation and a transcript was made of this recording.
See Docket 31-1.
post-polygraph interrogation lasted approximately two hours.
Suppression Hearing Ex. 1. SA Wittman spoke in a level, ordinary
tone of voice. Id.; Docket 57 at p. 6. SA Wittman
repeatedly asked defendant if he forced T.T. to touch his
penis or had vaginal sex with her, often accompanied with
long colloquies referring to such incidents as a
“one-time mistake” or “an accident.”
See, e.g., Docket 31-1 at pp. 43-44. SA Wittman did not
explicitly threaten defendant or make any explicit promises
regarding criminal penalties or favorable prosecutorial
approximately 38 minutes into the interview, defendant can be
heard recounting how his daughter's mother would take him
home from parties “back in 2005.” Suppression
Hearing Ex. 1. at 37:00-38:30; Docket 31-1 at pp. 19-21. At
approximately minute 37:53, defendant states, “But I
just don't know how I could have done it. My
daughter's mom would take me, take me back home. Sir,
I'm just having a hard time.” Id. at
37:47. During the post-polygraph examination, defendant asked
to use the restroom and was escorted there by SA Thatcher and
SA Wittman. (Docket 55 at pp. 24, 76). Defendant returned to
the interview with no escort. Id. at p. 25.
one hour and 44 minutes into the interrogation, SA Wittman
turned away from defendant and began preparing for his next
scheduled polygraph. Id. at p. 82. At this point,
defendant stated, “Yeah, that's the only time, I
think, ” referring to sexual contact with T.T.
Suppression Hearing Ex. 1. at 1:45:00; Docket 31-1 at p. 50.
Following this statement, defendant proceeded to explain how,
at a party in approximately 2005, he returned from the
restroom with his zipper undone, grabbed T.T.'s hand and
placed it on his penis. (Docket 31-1 at pp. 50-52). He denied
engaging in vaginal intercourse with T.T., telling SA
Wittman, “That's it, that's all out there.
It's just one time, that was the one-time-thing, like you
said.” Id. at pp. 54-55. SA Thatcher entered
the interview room after this statement and SA Wittman asked
defendant to repeat his account of the sexual contact to SA
Thatcher. Id. at p. 55. Defendant responded, to SA
Wittman, “Just tell me back what you remember.”
Id. SA Wittman recounted defendant's story to SA
Thatcher to which defendant stated, “Yes, because I
thought it was a different girl, until I seen her
face.” Id. at p. 56.
the end of the post-polygraph interrogation, SA Thatcher
agreed to take defendant back to his sister's house in
Oglala. (Docket 55 at pp. 28-29). Defendant had been looking
for alternative rides home-SA Thatcher observed him using his
cell phone after the interview ended-but he was unsuccessful.
Id. Defendant asked to stop to pick up food and SA
Thatcher took him to Big Bat's, a convenience store in
Pine Ridge. Id. at pp. 29-30. Defendant paid for his
food using EBT. Id. at p. 146. He had no cash that
drive back to Oglala, SA Thatcher interrogated defendant.
Id. at pp. 30-31. He recorded the conversation,
which was admitted into evidence as Exhibit 103. Id.
at pp. 30-31, 35-36. During the interview, defendant again
stated he grabbed T.T.'s hand and put it on his penis.
(Docket 31-2 at p. 4). Defendant also admitted there was
“a possibility . . . [he] put [his] penis in her
vagina, ” referring to T.T. Id. at p. 16.
However, he did not affirmatively confess to having vaginal
sex with T.T.-he repeatedly stated he did not remember. See,
e.g., Id. at p. 21. The in-vehicle interview lasted
approximately 34 minutes. Suppression Hearing Ex. 103. SA
Thatcher returned defendant to his sister's house around
3 p.m. (Docket 57 at p. 7). The polygraph and interrogation
process lasted approximately five to six hours. Id.
testified at the suppression hearing. (Docket 55 at pp.
106-63). As of the hearing, defendant was 52 years old.
Id. at p. 106. He would have been 51 years old
during the July 2017 polygraph and interrogation.
Id. Defendant has a state and tribal criminal
history with at least 22 separate arrests. Id. at
pp. 137-38. He served in the military and testified to having
experience with military police. Id. at p. 145. He
agreed with the prosecutor's statement, “it was no
surprise to you when you had conversations with law
enforcement[.]” Id. at pp. 145-46. Defendant
has a high school diploma and attended “[a] few”
college classes. Id. at p. 157.
felt “uncomfortable” during the polygraph
examination because SA Wittman touched his hand and arm at
times. Id. at p. 150. He felt the physical distance
between the two of them during the interview was
“weird” and that SA Wittman was staring at him.
Id. at p. 131. Defendant believed he could not leave
the interview because he didn't have his cell phone and
his only ride home was with SA Thatcher. Id. at p.
134. He testified he confessed to sexual contact with T.T. to
end the questioning and get home. Id. at p. 137. He
was concerned about his daughter. Id. at pp. 160.
However, defendant also testified SA Wittman did not threaten
him, yell at him or make him any promises regarding criminal
charges. Id. at pp. 151-52. The polygraph questions
were not a surprise to defendant. Id. at p. 153.
Defendant knew he could have left the interview at any time,
but he worried about leaving his phone. Id. at p.
156. He understood the questions he was asked by both agents
and spoke with them voluntarily. Id. at pp. 160-61.
Neither the government nor the defense introduced any
evidence tending to show defendant has any mental
Defendant's Objections to the R&R
objected to 11 portions of the R&R. (Docket 60). As
summarized by the court, these objections relate to:
1. The finding SA Thatcher's testimony is credible.
Id. at p. 2.
2. The finding SA Thatcher told defendant it was his decision
to take the polygraph and that he did not have to take it.
3. The finding defendant conferred with his mother at his
sister's home in Oglala before deciding to take the
polygraph test. Id.
4. The finding SA Wittman's testimony is credible.
5. The finding SA Wittman told defendant the polygraph
results indicated deception. Id.
6. The finding defendant repeated his confession regarding
sexual contact with T.T. to SA ...