United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE
jury indicted Francisco Villanueva, together with three other
defendants, in a multiple count superseding indictment.
(Docket 129). Mr. Villanueva is charged with count I: first
degree premediated murder in violation of 18 U.S.C.
§§ 1111(a), 2, 1152 and 1153; count II: first
degree felony murder in violation of 18 U.S.C. §§
1111(a), 2, 1152 and 1153; count III: conspiracy to commit
assault in violation of 18 U.S.C. §§ 113(a)(3),
1152, 1153 and 371; count IV: use of a firearm during a crime
of violence in violation of 18 U.S.C. §
924(c)(1)(A)(iii); and count VI: prohibited person in
possession of ammunition in violation of 18 U.S.C. §
before the court is defendant's motion to suppress all
evidence seized from his residence. (Docket 107). The United
States opposes defendant's motion. (Dockets 150 &
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. An evidentiary hearing was held on August
29-30, 2018. (Dockets 248 & 251). Following post-hearing
briefing, Magistrate Judge Wollmann issued a report and
recommendation (“R&R”) on defendant's
motion to suppress. (Docket 289). The magistrate judge
recommended defendant's motion to suppress “be
denied in full.” Id. at p. 16. The defendant
timely filed his objections to the R&R. (Docket 293). The
government filed a response to defendant's objections.
reasons stated below, the court finds the R&R is an
appropriate application of the law to the facts presented by
the parties at the suppression hearing. Defendant's
objections are overruled and the R&R is adopted in its
objections to the R&R are summarized as follows:
1. Mr. Villanueva objects generally to all factual findings
and legal conclusions made by the magistrate judge.
2. Mr. Villanueva objects to the magistrate judge's
conclusion that Tenth Circuit and Eighth Circuit case law are
the same on the objective findings required to support a
3. Mr. Villanueva objects to the magistrate judge's
finding that during an earlier shooting the Metro Gang Task
Force contacted the Denver Police Department about
defendant's arrest warrant.
4. Mr. Villanueva objects to the magistrate judge's
finding that the warrantless entry into his home was the
result of his arrest inside his home.
5. Mr. Villanueva objects to the magistrate judge's
conclusion that the officers were uncertain as to whether
there were other dangerous people inside the home after his
6. Mr. Villanueva objects to the magistrate judge's lack
of objective findings to support a protective sweep of his
(Docket 293). “For the foregoing reasons, ” Mr.
Villanueva argues “the district court should not accept
the Magistrate Court's [R&R] . . . and should grant
Defendant's Motion to Suppress.” Id. at p.
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
defendant's objections will be separately addressed.
court completed a de novo review of the transcripts
of the suppression hearing, the three video and audio
recordings (“video recording”) produced by three
law enforcement officers' body cameras and two affidavits
in support of search warrants. (Dockets 248 & 251 and
suppression hearing Exhibits 1-3, 102 & 106; see
also Docket 236). The court takes judicial notice of the
arrest warrant for the defendant issued on November 22, 2017,
in this case. (Docket 50). Unless otherwise indicated, the
court's findings of fact are consistent with the findings
made by the magistrate judge.
VILLANUEVA OBJECTS GENERALLY TO ALL FACTUAL FINDINGS AND
LEGAL CONCLUSIONS MADE BY THE MAGISTRATE JUDGE.
has mandated that the district court give de novo
review to those portions of a Magistrate's report and
recommendation to which objections are made.” Belk
v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994)
(referencing 28 U.S.C. § 636(b)(1)). “There is a
court-created exception in some circuits: ‘. . . [T]he
district court need not conduct de novo review when
a party makes general and conclusory objections that do not
direct the court to a specific error in the magistrate
judge's proposed findings and recommendations.'
” Id. (citing Johnson v. Knable, 934
F.2d 319 (4th Cir. 1991) (unpublished opinion) (citing
Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir.
1982); United States v. Merz, 376 U.S. 192, 199, 84
(1964); Pendleton v. Rumsfeld, 628 F.2d
102, 105-06 (D.C. Cir. 1980)). “There is language in an
Eighth Circuit case which indicates this Circuit's
approval of such an exception.” Id.
(referencing Branch v. Martin, 886 F.2d 1043 (8th
Cir. 1989) (“In the present case, plaintiff's
objections to the magistrate's factual conclusions were
timely filed and specific enough to trigger de novo
review). See, e.g., Goney v.
Clark, 749 F.2d 5, 7 (3d Cir. 1984) (per curiam) (no
de novo review if objections are untimely or
general)”). “[D]e novo review is not required
‘when a party makes general and conclusory objections
that do not direct the court to a specific error in the
magistrate judge's proposed findings and
recommendations.' ” Hudson v. Gammon, 46
F.3d 785, 786 (8th Cir. 1995) (citing Belk, 15 F.3d
at 815) (citations omitted).
court will address Mr. Villanueva's specific objections
to the R&R as they are “certainly definite enough
to require de novo review.” Id. (citing
Belk, 15 F.3d at 815). The court is not compelled to
evaluate defendant's generalized and conclusory
first objection to the R&R is overruled.
VILLANUEVA OBJECTS TO THE MAGISTRATE JUDGE'S CONCLUSION
THAT TENTH CIRCUIT AND EIGHTH CIRCUIT CASE LAW ARE THE SAME
ON THE OBJECTIVE FINDINGS REQUIRED TO SUPPORT A PROTECTIVE
Villanueva argues the magistrate judge should have applied
the standard of the United States Court of Appeals for the
Tenth Circuit in United States v. Nelson,
868 F.3d 885 (10th Cir. 2017) as opposed to the standard of
the United States Court of Appeals for the Eighth Circuit in
United States v. Alatorre, 863 F.3d 810
(8th Cir. 2017). (Docket 293 at pp. 7-13). Mr. Villanueva
submits “the warrantless entry was a violation of Prong
Two of the [Maryland v. Buie, 494 U.S. 325 (1990)]
standard as the Government cannot meet its burden as properly
described in [Nelson, 868 F.3d 885].”
Id. at p. 10.
argues Nelson is the proper standard:
In Buie, the Court recognized two exceptions to the
general rule that police must obtain a warrant to search a
home. Under the first exception (Prong One) the police may,
in conjunction with an arrest in a home, “as a
precautionary matter and without probable cause or reasonable
suspicion, look in closets and other spaces immediately
adjoining the place of arrest from which an attack could be
immediately launched.” . . . Under the second exception
(Prong Two), police may conduct a “protective
sweep” beyond areas immediately adjoining the arrest if
there are “articulable facts which, taken together with
the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be
swept harbors an individual posing a danger to those on the
(Docket 293 at pp. 6-7) (citing Buie, 494 U.S. at
334-35). Mr. Villanueva contends Nelson compels the
Under Prong Two, the government is required to articulate
specific facts giving rise to the inference of a dangerous
third person's presence. [Buie, 494 U.S. at
337]. As we've previously explained, “there could
always be a dangerous person concealed within a structure.
But that in itself cannot justify a protective sweep, unless
such sweeps are to be permitted as a matter of course. . .
.” United States v. Carter, 360 F.3d 1235,
1242-43 (10th Cir. 2004); see United States v. Roof,
103 Fed.Appx. 652, 658 (10th Cir. 2004) (unpublished)
(“A mere absence of information about whether anyone
remains in a home does not justify a protective
sweep.”). In short, “ ‘[n]o
information' cannot be an articulable basis for a sweep
that requires information to justify it in the first
place.” United States v. Colbert, 76 F.3d 773,
778 (6th Cir. 1996). Accordingly, if the deputies had no
knowledge regarding the potential presence of a third person,
then the government is per se unable to make the affirmative
showing that Buie requires.
Id. at pp. 8-9. Mr. Villanueva believes
Nelson supports his argument that the magistrate
judge “failed to identify any scene specific facts
which gives rise to the inference that a dangerous person was
inside the apartment.” Id. at p. 11. “As
for the unattended sleeping child, ” Mr. Villanueva
argues “the Magistrate Court has never provided a
single case nor authority supporting the legal conclusion
that an unattended child in and of itself authorizes
warrantless entry into a home.” Id. at p. 9.
government opposes Mr. Villanueva's objection. (Docket
298). The government “agrees with the [R&R] that,
in this particular area of the law, there is no split between
the 8th and 10th Circuits. . . . Both have adopted
substantially the same standard outlined in [Buie],
which addresses in-house arrests.” Id.
(referencing Alatorre, 863 F.3d at 814; United
States v. Cavely, 318 F.3d 987, 995 (10th Cir. 2003)).
choice of law section of the R&R, the magistrate judge
analyzed this issue. (Docket 289 at pp. 7-10). ...