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United States v. Westphal

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

April 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ADAM WESTPHAL, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION IN PART AND DENYING MOTION TO SUPPRESS

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         On February 27, 2019, Adam Westphal (Westphal) filed an objection to Magistrate Judge Mark A. Moreno's Report and Recommendation on WestphaPs Motion to Suppress. Doc. 53. Because the inevitable discovery doctrine applies to the firearms and methamphetamine seized and the good-faith exception to the warrant requirement applies to the rest of the evidence seized, this Court adopts Judge Moreno's Recommendation in part and denies Westphal's motion to suppress.

         I. Background

         Corson County Deputy Sheriff Justin Tvedt (Deputy Tvedt), on December 19, 2017, received a phone call from Westphal's ex-wife Nicole Forgey (Forgey), who reported that she thought Westphal was using methamphetamine and marijuana. Gov't Ex. 1; Doc. 47 at 13. Forgey and Westphal had children together, but were separated with Westphal dating a woman from Mobridge named Skyler. Gov't Ex. 1; Doc. 47 at 13-14. The children reportedly told Forgey that, while in Westphal's care, they had seen jars with a green substance and drug paraphernalia in the house. Gov't Ex. 1. Forgey told Deputy Tvedt that she believed Westphal was paranoid because he installed cameras around the house and slept with a pistol out of fear of law enforcement watching him. Gov't Ex. 1; Doc. 47 at 13-14. Deputy Tvedt relayed this information from Forgey to Corson County Deputy Sheriff Michael Varilek (Deputy Varilek) that same day. Gov't Ex. 1; Doc. 47 at 12-13.

         On the morning of Wednesday, December 20, 2017, Deputy Varilek provided the information to Potter County Sheriff Curtis Hamburger (Sheriff Hamburger), adding that he believed Westphal's girlfriend Skyler was Skyler Sartorius, a known methamphetamine user. Gov't Ex. 1; Doc. 47 at 14, 16. Sheriff Hamburger was aware of the situation and already had heard Westphal may be using drugs. Gov't Ex. 1; Doc. 47 at 16. Westphal's sister, Amy Cooper (Cooper), was planning an intervention for Westphal about his suspected drug use. Gov't Ex. 1; Doc. 47 at 17, 65. Sheriff Hamburger later told Deputy Varilek that Cooper wanted Westphal arrested and was willing to come to the Sheriffs Office to further discuss her request. Gov't Ex. 1.

         Shortly thereafter, Cooper arrived at the Sheriffs Office and met with Sheriff Hamburger and Deputy Varilek. Gov't Ex. 1; Doc. 47 at 17, 65. Cooper was visibly upset as she recounted the attempted intervention to Sheriff Hamburger and Deputy Varilek. Gov't Ex. 1; Doc. 47 at 19. She stated that earlier that day she traveled with family members to Gettysburg to Westphal's house. Gov't Ex. 1; Doc. 47 at 19. When Cooper arrived at Westphal's house, she noticed that he had lost a lot of weight since June and that his cheeks were sunken in. Gov't Ex. 1; Doc. 47 at 20. During the intervention, Westphal was argumentative, combative, behaving very oddly, and appeared to be hallucinating. Gov't Ex. 1; Doc. 47 at 19-20. Westphal told Cooper that someone was in the neighbor's shed watching him. Gov't Ex. 1; Doc. 47 at 19-20. Cooper looked in the neighbor's shed and did not see anyone in it. Gov't Ex. 1; Doc. 47 at 19-20. Cooper also saw Westphal take something from his bedroom and put it in the garage out of site. Gov't Ex. 1; Doc. 47 at 21. Cooper told the officers that Westphal was monitoring his house using cameras which would send notifications to his" four cell phones. Gov't Ex. 1; Doc. 47 at 20. Cooper disclosed that prior to the intervention, on September 22, 2017, Cooper received a picture from Forgey of a marijuana pipe and lighter found in Westphal's cabinet that their ten-year-old child took while at Westphal's house. Gov't Ex. 1; Doc. 47 at 20. Cooper showed the picture to Deputy Varilek. Doc. 47 at 21-22.

         The above information was incorporated into an Affidavit in Support of Request for Search Warrant in which Deputy Varilek requested a state judge to issue a search warrant for Westphal's residence, garages, vehicles, and a blood or urine specimen. Gov. Ex. 1. That same day, a state judge signed the warrant and the officers executed it. Gov't Ex. 1; Doc. 47 at 20. When the officers arrived, they found Westphal in the garage, placed him in handcuffs, and escorted him to the patrol car. Doc. 47 at 46. The officers seized a wooden dugout which contained a pipe and a small amount of marijuana located on the garage floor, small plastic baggies found in an enclosed trailer, and cleaning rods, snort tubes, and paper with residue on it located in a safe. Gov't Ex. 1; Doc. 47 at 20. The officers also seized five cell phones, a laptop computer, and several firearms. Gov't Ex. 1; Doc. 47 at 20. Six of the firearms were found in a gun cabinet inside the residence, i two were found inside a pickup parked in the unattached garage, and two were found in the attached garage. Gov't Ex. 1. Later that day, officers obtained a urine sample from Westphal that tested presumptively positive for methamphetamine. Gov't Ex. 1; Doc. 47 at 105.

         The next day on December 21, 2017, Sheriff Hamburger submitted an Affidavit in Support of Request for Search Warrant requesting a search warrant for the contents of the five cell phones and laptop computer seized from Westphal's residence. Gov't Ex. 2. The judge issued a search warrant for the electronic devices. Gov't Ex. 2.

         On December 22, 2017, Sheriff Hamburger along with other officers were examining the seized firearms. Doc. 47 at 100. One of the firearms had some loose parts and had a gap in the seams of the forearm vertical grip. Doc. 47 at 100-01. On further inspection of the firearms, officers discovered a small bundle wrapped up in white electrical tape in a Ruger AR. Doc. 47 at 100-01. The small bundle contained what the officers believe to be an 8-ball of methamphetamine. Doc. 47 at 108. The officers had seized the Ruger AR from a gun case inside a truck during execution of the first warrant. Doc. 47 at 99.

         The United States indicted Westphal on one count of conspiracy to distribute a controlled substance, one count of possession with intent to distribute a controlled substance, two counts of possession of a firearm by a prohibited person, and three counts of possession of an unregistered firearm and destructive device. Doc. 1. Westphal moved to suppress from use at trial all evidence taken from his property, arguing that the search warrants were invalid because the supporting affidavits did not set out probable cause that the officers would find evidence of a crime in Westphal's home or on his electronic devices. Doc. 27. Judge Moreno held an evidentiary hearing on February 27, 2019, heard testimony from Deputy Varilek and Sheriff Hamburger, and received twelve exhibits into evidence. Docs. 44, 47. On March 13, 2019, Judge Moreno issued a Report and Recommendation recommending denial of Westphal's motion. Doc. 49. Westphal has now objected to that Report and Recommendation. Doc. 53.

         This Court reviews a report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1), which provides in relevant part that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). 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). Having conducted a de novo review, this Court adopts the Report and Recommendation as modified.

         II. Discussion

         The warrant clause of the Fourth Amendment requires that warrants (1). be issued by a neutral and detached judge; (2) contain a particular description of the place to be searched, and the persons or things to be seized; and (3) be based "upon probable cause, supported by Oath or affirmation." Dalia v. United States, 441 U.S. 238, 255 (1979); see also U.S. Const amend. IV. "Ordinarily, evidence obtained in violation of the Fourth Amendment is subject to the exclusionary rule and, therefore, cannot be used in a criminal proceeding against the victim of the illegal search and seizure." United States v. Cannon, 703 F.3d 407, 412 (8th Cir. 2013) (citations omitted) (cleaned up). The exclusionary rule "operates as 'a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved."' United States v. Leon. 468 U.S. 897, 906 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).

         A. Good-Faith Exception to the ...


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