United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
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).
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
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
does not appear to object specifically to any of the
magistrate judge's factual findings. 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
3. The five search warrants lacked information
“establishing the reliability” of informants.
Id. at ¶¶ 21-23.
court will address each objection in turn.
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.
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.
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
Id. at pp. 8-9. Mr. Gregg observed defendant leave
the area on foot, heading west toward the Lil'
Angel's convenience store. 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.
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.
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. 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.
interview lasted approximately 30 minutes. Id.;
Docket 67 at p. 20. SA Seymore did not have a gun visible
during the interview. 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.
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
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.
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).
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 ...