United States District Court, D. South Dakota, Central Division
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART AND
DENYING MOTION TO SUPPRESS
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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.
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
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.
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.
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)).
Good-Faith Exception to the ...