United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION TO SUPPRESS
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
postal employee noticed that a zip-lock baggie containing a
white, crystal-like substance had fallen out of an open box
addressed to Defendant Steven Emery. The substance looked
like drugs and a field test by the police confirmed that it
was methamphetamine. Emery argues that the methamphetamine
and the evidence seized because of its discovery must be
suppressed because the government conducted an illegal search
of the box and baggie. This Court denies Emery's motion
to suppress because the government did not engage in a Fourth
Amendment search and, in any event, the evidence seized
inevitably would have been discovered.
morning of May 9, 2018, postal employee Roberta Whiting was
working at the post office in St. Francis, South Dakota. T.
28-29. While unloading packages from a cart, Whiting noticed
that a toy car and a clear plastic baggie containing a white,
crystal-like substance had fallen out of a priority mail box
onto the floor. T. 29-31, 35-37, 49-52. The box, which was
addressed to Emery and had been shipped from Questa, New
Mexico, had one of its side flaps completely open. Exs. 1-2,
4-5, 7, 27. Believing that the baggie contained drugs,
Whiting placed the baggie and the car back in the box, moved
it to a back room, and called the Rosebud Sioux Tribe police.
T. 32-33, 38, 53, 56.
Iver Crow Eagle arrived about fifteen minutes later. T. 48,
56. Whiting explained what had happened and told Captain Crow
Eagle about the suspicious looking substance in the baggie.
T. 62. She removed the baggie and car from the box and laid
them out for him. T. 63-66, 74. Captain Crow Eagle, who is
trained to identify drugs and has over 13 years'
experience as a police officer, believed the substance in the
baggie to be methamphetamine. T. 61-62, 65, 78. He called
drug task force officer Joshua Antman, who came to the post
office and weighed and field tested the substance in the
baggie. T. 66, 91-92, 101; Ex. 32. The baggie
weighed 2.1 ounces and the test was presumptively positive
for methamphetamine. T. 66, 92, 101; Ex. 32. In Officer
Antman's experience, 2.1 ounces was a high-value amount
of methamphetamine and was consistent with the distribution
of drugs. T. 90, 102.
Antman and Captain Crow Eagle left in separate vehicles to
find Emery. T. 96, 110; Ex. 32. They stopped Emery in his
truck less than 20 minutes later and placed him under arrest
for the methamphetamine found at the post office. T. 67, 76,
97, 110; Exs. 30, 32, 40. Officer Antman seized a rifle and
an open container of vodka he observed in the truck's
back seat, along with a straw containing methamphetamine
residue from the driver's side door. Ex. 40; T. 97-99,
hours later, Officer Antman sought a warrant to search
Emery's residence and any vehicles found there. Ex. 39.
Among other things, Officer Antman cited the evidence seized
from the post office and Emery's truck as establishing
probable cause to believe that drugs, firearms, and other
evidence related to drug dealing would be found in the places
to be searched. Ex. 39. A tribal judge granted the warrant
and the police executed it that afternoon. Ex. 39; Ex. 32.
They seized drug paraphernalia, plastic baggies, firearm
ammunition, and rifle magazines. Ex. B; T. 99, 124.
Agent Benjamin Estes and Officer Antman interviewed Emery in
jail, once on the evening of May 9, 2018, and once the next
day. Before both interviews, tribal police read Emery his
Miranda rights and Emery waived these rights in
writing. Exs. 20-21, 33-34.
jury indicted Emery in the fall of 2018, charging him with
two drug crimes and possession of a firearm and ammunition by
a prohibited person. Doc. 1. Emery moved to suppress his
statements, the contents of the priority mail box, and the
evidence seized from his vehicle and residence. Docs. 32, 33,
45. He argued that Whiting and tribal police violated the
Fourth Amendment by searching the box without a warrant, that
his statements and the evidence seized from his home and
vehicle were fruits of this illegal search, and that his
Miranda waiver on May 9 was invalid because he was
under the influence of methamphetamine. Docs. 33, 45.
Judge Mark A. Moreno held an evidentiary hearing during which
the government presented testimony from Whiting, Captain Crow
Eagle, Officer Antman, Agent Estes, and Thomas Bishop, the
postmaster in Pierre, South Dakota. Emery presented testimony
from Charlee Archambault, a resident of St. Francis. Judge
Moreno recommended denying Emery's motion to suppress,
concluding that any detention or seizure of the box was
lawful, that tribal officers did not engage in a search under
the Fourth Amendment when they visually inspected the baggie
and field tested its contents, that Emery's waiver of his
Miranda rights was valid, and that the evidence from
Emery's residence and vehicle need not be suppressed as
fruit of the poisonous tree. Doc. 55.
objects to the report and recommendation, arguing that Judge
Moreno erred by crediting Whiting's testimony that she
did not open the box, by finding that the government did not
search the box or the baggie, and by refusing to suppress his
statements and the other evidence as fruit of the poisonous
tree. Doc. 61. Emery does not object to Judge Moreno's
conclusions that the detention and seizure of the box was
lawful and that Emery executed a valid waiver of his
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." However,
"[i]n the absence of an objection, the district court is
not required 'to give any more consideration to the
magistrate's report than the court considers
appropriate.'" United States v.
Murrillo-Figueroa, 862 F.Supp.2d 863, 866 (N.D. Iowa
2012) (quoting Thomas v. Am, 474 U.S. 140, 150
(1985)). Having conducted a de novo review of those portions
of the report and recommendation to which Emery objects, this
Court adopts the report and recommendation.
argues that Judge Moreno should have disbelieved
Whiting's testimony and found that she opened the
priority mail box to discover its contents. He contends that
the state of the box suggests that a postal employee opened
it, that Archambault's testimony undermined Whiting's
credibility, and that the evidence indicates that Whiting
told law enforcement that she opened the box and extracted
its contents. Doc. 61 (citing transcript from suppression
hearing and post-hearing Ex. C).
testified that she did not open or tamper with the box. T.
56. Judge Moreno, who observed Whiting and Archambault
testify, made a specific finding that Whiting's testimony
was credible while Archambault's was not. Doc. 55 at
11-12. Having reviewed the transcript and all the exhibits,
this Court agrees with Judge Moreno that Whiting's
testimony was credible and rejects Emery's assertions to
the contrary. See United States, v. Lockett, 393
F.3d 834, 837-38 (8th Cir. 2005) ("The magistrate's
finding that the officer's testimony was believable is
deserving of deference."); United States v.
Stoneman, No. CR 09-30101-RAL, 2010 WL 1610065, at *6
(D.S.D. Apr. 20, 2010) ("The Court is entitled to give
weight to the credibility determination of the magistrate
judge."). The baggie and toy car fell out of the box and
onto the floor while Whiting was unloading packages. The
contents of the clear baggie were then in plain view and
Whiting was able to see that the baggie contained a
suspicious-looking white substance. T. 30-32, 36-37, 41, 51,
53. Whiting's viewing of the baggie in these
circumstances, when she did not physically intrude into the
box, was not a search under the Fourth Amendment. See
United States v. Campos, 816 F.3d 1050, 1053 (8th Cir.
2016) (holding that officer's observation of a gun in the
defendant's opened bag was not a search because the gun
was in plain view).
Fourth Amendment guarantees "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and
seizures." U.S. Const, amend. IV. Because a sealed
package placed in the mail constitutes an "effect"
under the Amendment, United States v. Jacobsen, 466
U.S. 109, 114 (1984); United States v. Van Leeuwen,
397 U.S. 249, 251 (1970), a warrantless search of such a
package is ...