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United States v. Palani Bull Bear

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

September 9, 2019





         A grand jury indicted defendant Palani Bull Bear on charges of second degree murder, discharging a firearm during a crime of violence, assault with intent to commit murder, and assault with a dangerous weapon. (Docket 48). The charges stem from a shooting in Kyle, South Dakota, on June 27, 2018, that killed Brycee Red Owl. Id. Pending before the court is defendant's motion to suppress statements he made to law enforcement officers and evidence seized pursuant to five search warrants. (Docket 54). The government opposes the motion. (Docket 59).

         The 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. The magistrate judge conducted an evidentiary hearing on March 6, 2019, at which two witnesses testified and nine exhibits were received into evidence. (Dockets 63 & 65). The parties submitted post-hearing briefing. (Dockets 66, 68 & 69). The magistrate judge then issued a report and recommendation (“R&R”) concluding defendant's motion should be denied. (Docket 70). Defendant timely filed objections to the R&R. (Docket 71).

         Under 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. For the reasons given below, the court overrules defendant's objections to the R&R and adopts the R&R as modified by this order.


         I. Defendant's Objections

         Defendant does not appear to object specifically to any of the magistrate judge's factual findings.[1] He does make three discernable legal objections to the R&R. Specifically, he argues:

1. His waiver of his Miranda rights was not voluntary, knowing or intelligent. (Docket 71 at ¶¶ 12-16).
2. He was not brought before a United States magistrate judge “without unnecessary delay” as required by Federal Rule of Criminal Procedure 5. Id. at ¶¶ 17-20.
3. The five search warrants lacked information “establishing the reliability” of informants. Id. at ¶¶ 21-23.

         The court will address each objection in turn.

         II. Facts

         The court adopts the R&R's factual findings in full. (Docket 70 at pp. 2-8). Defendant does not challenge the magistrate judge's finding that the law enforcement witnesses-Federal Bureau of Investigation (“FBI”) Special Agent Kevin Seymore (“SA Seymore”) and BIA Special Agent Ted Thayer (“SA Thayer”)-who testified at the evidentiary hearing were credible. The court likewise finds them credible.

         At approximately 11 p.m. on June 27, 2018, defendant allegedly shot and killed Brycee Red Owl in Kyle, South Dakota. (Docket 67 at pp. 5-9, 36). Defendant also allegedly shot at Tolin Gregg, who was with Mr. Red Owl, missing him but striking the horse he was riding. Id. at pp. 7-9. Kyle and the nearby locations at issue in this case are within the exterior boundaries of the Pine Ridge Reservation.

         SA Seymore arrived at the site of the homicide at approximately 3 a.m. on June 28. Id. at p. 5. After arriving, he spoke with Mr. Gregg. Id. at pp. 7-10. Mr. Gregg told SA Seymore he had been on horseback with Mr. Red Owl when defendant shot at them, killing Mr. Red Owl.[2] Id. at pp. 8-9. Mr. Gregg observed defendant leave the area on foot, heading west toward the Lil' Angel's convenience store.[3] Id. at p. 10. However, Oglala Sioux Tribe Department of Public Safety (“OST DPS”) officers who were familiar with defendant's mother, Lucy Bull Bear, knew the family was at the sundance grounds located approximately eight miles to the east of Kyle. Id. Law enforcement believed defendant might try to meet up with his family at the sundance grounds. Id.

         Law enforcement contacted the firekeeper at the sundance grounds, who agreed to inform them if defendant arrived at the grounds. Id. At approximately 6 a.m. on June 28, defendant arrived at the sundance grounds, where OST DPS officers arrested him. Id. at p. 11. The Oglala Sioux Tribe charged defendant with homicide and a weapons offense. Id. at p. 22. During the approximately seven hours between the homicide and his arrest at the sundance grounds, SA Seymore estimated defendant traveled 10-11 miles on foot. Id. at p. 41. Defendant first traveled west from Kyle, looped around the south side of town, and then proceeded east to the sundance grounds. Id. SA Seymore did not know whether defendant had access to food or water during the trek. Id. at p. 38. Defendant later stated he slept at some point before arriving at the sundance grounds. Id.

         At 7:30 a.m. on June 28, SA Seymore and SA Clifford interviewed defendant at the Medicine Root Detention Center in Kyle. Id. at pp. 11-12. Approximately two minutes into the interview, SA Clifford read defendant his Miranda rights.[4] Hearing Ex. 1 at 1:54 - 4:00. SA Clifford individually read each right to defendant and asked if he understood. Id. Defendant agreed that he understood each right. Id. Defendant also agreed to waive his Miranda rights. Id. Defendant signed a BIA Miranda warning form indicating he understood and waived his rights. Hearing Ex. 2.

         The interview lasted approximately 30 minutes. Id.; Docket 67 at p. 20. SA Seymore did not have a gun visible during the interview.[5] Id. The interview room was approximately 10 feet by 15 feet, with one door. Id. at 13, 15. Defendant was not restrained during the interview. Id. at p. 16. The court agrees with the magistrate judge's assessment that the agents “made no threats or promises, spoke slowly, and did not raise their voices.” (Docket 70 at p. 5). SA Seymore testified defendant “seemed a little slow or a little sore” but was “calm, ” “matter of fact, ” and “did not seem scared or unable to articulate what he wanted to say.” (Docket 67 at p. 17). Defendant did not mention exhaustion or ask to stop the interview. Id. at p. 18. The interview was audio recorded and the magistrate judge received a copy of the recording into evidence as Exhibit 1. Id. at pp. 18-19. The court listened to the interview and agrees with SA Seymore's description of defendant's demeanor. During the interview, defendant confessed to shooting Mr. Red Owl and Mr. Gregg. Hearing Ex. 1 at 4:03 - 5:34.

         After the interview, law enforcement unsuccessfully searched for defendant's gun, which he stated he dropped in a field outside Kyle. Id. SA Clifford took defendant to the field on June 28 to search for the gun. (Docket 67 at pp. 72-73). At least one of the officers during the search with defendant wore an activated body camera, generating footage of the search. Id. at p. 73. That video is not in the record.

         On June 29, SA Thayer interviewed defendant about the gun. Id. at pp. 74-80. SA Thayer read defendant his Miranda rights and defendant signed a BIA form indicating he agreed to waive his rights. Id. at pp. 75, 77; Hearing Ex. 9. SA Thayer testified he did not threaten defendant and did not have a weapon during the interview. (Docket 67 at p. 76). Defendant “seemed willing to talk” in SA Thayer's view. Id. SA Thayer attempted to record the interview, but the recording device malfunctioned. Id. On July 5, SA Seymore attempted to interview defendant again, but he invoked his right to an attorney and SA Seymore did not proceed. Id. at p. 26.

         On July 5, the government charged defendant with second degree murder by criminal complaint. (Docket 1). The magistrate judge issued a writ of habeas corpus ad prosequendum to bring defendant from the Adult Offenders Facility in Pine Ridge, South Dakota, to Rapid City, South Dakota, for his initial appearance. (Docket 5). Defendant made his initial appearance before the magistrate judge on July 6. (Docket 8).

         The magistrate judge issued five search warrants in this case. See Docket 70 at pp. 6-8 (describing the warrants); see also Dockets 59-3 - 59-7. Each warrant was issued after defendant's arrest and confession. Three of the warrants relate to a bank robbery in Albuquerque, New Mexico. (Docket 70 at pp. 7-8). An anonymous tipster informed the Albuquerque FBI that defendant robbed a bank in that city. (Docket at 59-5 at ...

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