United States v. Long

• Citation: 797 F.3d 558
• Decision Date: 14 August 2015
• Docket Number: No. 14–3599.,14–3599.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Jason LONG, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

797 F.3d 558

UNITED STATES of America, Plaintiff–Appellee

v.Jason LONG, Defendant–Appellant.

No. 14–3599.

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2015.

Filed: Aug. 14, 2015.

Justin L. Bell, argued, Pierre, SD, for Appellant.

Kevin Koliner, AUSA, argued, Sioux Falls, SD, for Appellee.

Before RILEY, Chief Judge, BRIGHT and MURPHY, Circuit Judges.

Opinion

RILEY, Chief Judge.

Jason Long (Long) pled guilty to one count of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), after the district court¹ denied his motion to suppress evidence obtained by United States Bureau of Indian Affairs (BIA) officers when searching the store once operated by Long. As permitted by his plea agreement, Long appeals this denial, maintaining the officers' searches were unconstitutional. Because we agree with the district court that the officers' actions did not violate the Fourth Amendment, we affirm.²

I. BACKGROUND

Jason Long, a member of the Lower Brule Sioux Tribe, operated the “OC Store”³ in Lower Brule, South Dakota, on the Lower Brule Sioux Reservation. The OC Store appears to have been a one-time gas station converted into a convenience and novelty store. The store was housed in a metal building with few exterior windows; all of the windows facing the parking area are covered with metal grates. The store sold soda, coffee, some food, tobacco products, and an eclectic assortment of other merchandise in addition to offering arcade games and movie rentals.

On July 28, 2012, at approximately 4:20 a.m., BIA Officer Shane Spargur encountered three juveniles in Lower Brule who he suspected were violating the tribe's curfew. Officer Spargur noticed the juveniles had fireworks, which were illegal to ignite other than during a three-day period for celebrating Independence Day. Officer Spargur questioned the juveniles about the fireworks, and one “stated that he just bought them down at the OC Store.” Officer Spargur then proceeded approximately two blocks to the OC Store “to make contact with” Long about the sale of the fireworks.

When Officer Spargur arrived at the store, he was “unsure” whether it “was open or closed.” He did not see an open/closed sign nor any posted business hours. An exterior street light in the parking lot and a flood light by the front door were on. Officer Spargur could hear loud music coming from inside. Although the store was not “fully lit,” “[i]t was pretty well lit” such that Officer Spargur could see the store's interior and merchandise. At that point, Officer Spargur did not see any customers or employees. Having never been to the store before, Officer Spargur was not sure whether these facts indicated the store was open or closed. Officer Spargur ultimately concluded the store was open because of the lights, music, unlocked doors, and the juveniles' report that they had “just” purchased fireworks there a few minutes before.

Officer Spargur entered the OC Store through two initial doors—both of which were closed but unlocked—leading to a small entryway. He then stopped at a third door, the main door, and “knock[ed] and announce[d] police a couple of times.” Although he thought the store was open, Officer Spargur testified he did the knock and announce “because of the time and me working as a police officer not just barging in and going in there ... just gave the opportunity to someone—for someone to come to the door to answer it.” After receiving no response, Officer Spargur opened the main door, which was also unlocked, and after observing an individual he later learned was Long's son inside, he entered the store.

Officer Spargur then encountered another of Long's sons, Freedom Long, in the store's concession area. Officer Spargur discussed the fireworks with Freedom. Freedom acknowledged the juveniles had been in the store, but he denied the children had bought fireworks. Officer Spargur asked Freedom to retrieve Long, who was sleeping in another room. Based on Freedom's slurred speech and deliberate actions, Officer Spargur believed Freedom was under the influence of some kind of drug. While Freedom was fetching Long, Officer Spargur noticed a small package on one of the concession tables that, based on his experience and training, he “recognized ... as a package normally holding synthetic marijuana.” Once Long emerged from his room, Officer Spargur briefly discussed the fireworks with him, reminded him not to sell fireworks after Independence Day, apologized for waking him, and then left the store without seizing the suspicious package.

After leaving the store, Officer Spargur began preparing an affidavit to obtain a search warrant. Officer Spargur spoke with the police chief, conducted some internet research to confirm the package he had seen was consistent with synthetic marijuana, and then telephoned tribal judge Lorrie Miner.

Judge Miner was at her home—approximately sixty miles away—when Officer Spargur called to have her “sign the search warrant telephonically.” Telephonic warrants are not common in Lower Brule—Judge Miner had only considered two telephonic requests for search warrants during her four-year tenure, and Officer Spargur testified this is the only telephonic warrant he had ever obtained. Neither party recorded the call, so precisely what was said is unknown, but Officer Spargur testified he read Judge Miner the affidavit and “the meat” of his warrant application. Officer Spargur specifically explained he read the things to be searched verbatim, but Officer Spargur did not recall whether he had read the warrant itself to Judge Miner.

At Long's first suppression hearing, Judge Miner had a limited recollection of her conversation with Officer Spargur. Judge Miner testified that during the conversation she would have placed Officer Spargur under oath. Although she recalled being “on the telephone for quite some time” and “Officer Spargur [giving her] a detailed account as to what had occurred,” Judge Miner could not remember whether Officer Spargur read the warrant itself. Judge Miner stated she believed she would have had Officer Spargur read the warrant to her “so I know what I am saying yes to.” Judge Miner further elaborated she “would have wanted a description of ... what they were searching for and where they needed to search” and she would have asked questions if the information Officer Spargur provided was not specific enough to support probable cause. At the end of the conversation, Judge Miner approved the warrant. Judge Miner testified she approved the warrant based solely on the information Office Spargur provided by phone.

After Judge Miner approved the warrant, Officer Spargur assembled a team of officers and searched the OC Store. The officers seized eighty grams of synthetic marijuana in twenty-six packages like that initially seen by Officer Spargur. The officers also searched a 1997 Chevy Blazer located in the OC Store parking lot. The vehicle was registered to Nancy Big Eagle and Freedom Long, and it also contained synthetic marijuana. Officer Spargur placed Long under arrest and interrogated him at the station.

On August 6, 2012, BIA Officer Jason La Mons entered the OC Store with Raelynn Her Many Horses and Joshua Brouse, the owner of the building housing the OC Store, to investigate a reported burglary. Officer La Mons was familiar with the store and had spoken to Vicki Her Many Horses—the prior owner and Long's aunt—“many times” in the preceding week. Vicki had informed Officer La Mons she and Long were having a “family dispute,” and “she did not want” Long in her building. Upset about recent break-ins, Vicki told Officer La Mons she wanted the police to investigate. Because of the break-ins, on August 4, 2012, Vicki sold the building to Brouse, the “long term” boyfriend of Vicki's daughter, Raelynn.

Raelynn and Brouse took the officer inside the store and showed him items that had been moved. Once inside, Officer La Mons found a witness statement bearing Long's name, a hundred-dollar bill, and an open shipping box filled with invoices—items that, according to Brouse and Raelynn, had not been in the building before the break-in. La Mons collected these items as evidence of the suspected burglary and then went to Long's house to speak with Long. Long admitted entering the OC Store, so Officer La Mons placed him under arrest. Long was again interrogated at the station.

Long later was charged with three drug offenses. Long filed a motion to suppress the evidence obtained during the July 28 and August 6 searches and the statements he made to the officers while in custody on both dates, claiming violations of the Fourth Amendment and his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).⁴

The magistrate judge assigned to the case recommended excluding all evidence obtained from the store on July 28, reasoning Officer Spargur's initial entry into the OC Store was unconstitutional. The magistrate judge recommended admitting the remaining evidence, including the synthetic marijuana found in the Blazer. The district court, adopting the magistrate's recommendation in part, denied Long's motion to suppress in its entirety.

Long conditionally pled guilty to one count of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Long to time served plus three years of supervised release. Long's guilty plea preserved his right to appeal the denial of his motion to suppress, which Long now does.

II. DISCUSSION

“In an appeal from a district court's denial of a motion to suppress evidence, this court reviews factual findings for clear error, and questions of constitutional law de novo. ” United States v. Douglas, 744 F.3d 1065, 1068 (8th Cir.2014) (quoting United States v. Hollins, 685 F.3d 703, 705 (8th Cir.2012) ). Long contends this court should review the district court's factual findings de novo because the district court...