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United States v. Emery

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

June 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
STEVEN WILLIAM EMERY, Defendant.

          OPINION AND ORDER DENYING MOTION TO SUPPRESS

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         A 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.

         I. Facts

         On the 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.

         Captain 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.[1] 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.

         Officer 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, 130.

         A few 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.

         Special 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[2] rights and Emery waived these rights in writing. Exs. 20-21, 33-34.

         A grand 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.

         Magistrate 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.

         Emery 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 Miranda rights.

         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." 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.

         II. Factual Objections

         Emery 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).

         Whiting 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).

         III. Legal Objections

         The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."[3] 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 ...


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