U.S. v. Keys

• Decision Date: 12 October 2005
• Docket Number: No. C4-05-037.,C4-05-037.
• Parties: UNITED STATES of America, Plaintiff, v. Derrick KEYS, Defendant.
• Court: U.S. District Court — District of North Dakota

390 F.Supp.2d 875

UNITED STATES of America, Plaintiff, v. Derrick KEYS, Defendant.

No. C4-05-037.

United States District Court, D. North Dakota, Northwestern Division.

October 12, 2005.

Timothy Q. Purdon, Vogel Law Firm, Bismarck, ND, for Defendant.

Paul R. Emerson, U.S. Attorneys, Bismarck, ND, for Plaintiff.

ORDER

HOVLAND, Chief Judge.

Before the Court are three separate motions filed by the defendant, Derrick Keys, on September 1, 2005. Two of the motions seek to suppress evidence, namely statements made to law enforcement officers by Keys and items seized pursuant to a seizure and search of Keys' vehicle on December 18, 2004. The third motion seeks dismissal of the Indictment based on the constitutionality of 18 U.S.C. § 922(g)(3). On September 23, 2005, the Government filed a consolidated response opposing each of the Defendant's motions. An evidentiary hearing was held on October 4, 2004, in Bismarck, North Dakota. For the reasons outlined below, the Court denies Keys' motion to suppress evidence seized from his vehicle, grants Keys' motion to suppress his statements, and denies Keys' motion to dismiss.

I. BACKGROUND

On Saturday, December 18, 2004, at approximately 2:30 p.m., Bureau of Indian Affairs Officers Tony Belgarde and Corbin House responded to a call for assistance placed by an employee at the Sky Dancer Hotel on the Turtle Mountain Indian Reservation in Belcourt, North Dakota. Upon arrival, the officers were informed that housekeeping had discovered possible drug paraphernalia in Room # 140 that was recently vacated by the occupants. The room was registered under the name Derrick Keys, of whom the officers were shown a photocopied drivers license. Hotel records reflected that upon checking out of Room # 140, its occupants relocated to Room # 142.

BIA Officers Belgarde and House entered the now vacated Room # 140 and examined what appeared to be a broken light bulb containing white residue. The officers suspected that the residue was methamphetamine. BIA narcotics investigator James Peach was contacted by the officers to conduct a field test of the residue.

In the meantime, Officer Belgarde knocked on the door of Room # 142. Officer Belgarde's notes recount the events that followed:

I knocked on the door, a voice from inside Room # 142 asked who is it. I advised that it is the Police, the door was then opened by Jenny L. Decoteau. I seen a male standing behind Jenny Decoteau, I asked him if he was Derrick Keys. The male replied "NO", I then said "YES YOU ARE". I, Officer Tony Belgarde identified Derrick Keys from the photo I.D. from the Sky Dancer Hotel Registry.¹

(footnote added).

Once inside, Officer Belgarde noticed a large knife on the bed. See Exhibit No. 5. At approximately 5:00 p.m. all four of the room's occupants, which included Jenny DeCoteau, Derrick Keys, Darwin Anderson, and Karen Hess, were removed and taken to another room for safety reasons. Keys and Anderson were handcuffed.

Officer Peach arrived sometime thereafter and conducted a field test of the broken glass containing the white residue found in Room # 140. The residue tested positive for methamphetamine. Officer Peach then questioned the four occupants in regards to his discovery. Of the four occupants, only DeCoteau claimed ownership of the methamphetamine.

The BIA officers attempted to obtain consent to search Room # 142, but failed. As a result, the officers obtained a search warrant from Tribal Court Judge Madonna Marcellais. Thereafter, a search of Room # 142 uncovered the following items: (1) a digital scale; (2) 13 grams of marijuana; (3) two keys; (4) 48 grams of methamphetamine;² (5) a box of 9mm shells; and (6) a loaded 9mm clip.³ All four occupants were brought to the Belcourt Police Department after the search, but only Jenny DeCoteau was arrested.

BIA Officer Peach then searched the Sky Dancer Hotel parking lot in an attempt to locate Derrick Keys' 1998 Chrysler van.⁴ After spotting what he believed to be Keys' vehicle, he radioed dispatch to confirm the license plate numbers.⁵ Upon receiving confirmation, Officer Peach impounded the van believing that the van contained further evidence of criminal activity in the form of drugs, firearms, and ammunition. Consequently, the van was towed back to the Belcourt Police Department.

Sometime after the four individuals arrived at the Belcourt Police Department, suspicion arose concerning whether Derrick Keys was an Indian/Native American. At the time of his booking, Keys listed his race as Caucasian. None of the officers involved knew whether Keys was Indian/Native American, but several believed that there were individuals with the last name "Keys" who were enrolled at either Fort Berthold Indian Reservation or Standing Rock Indian Reservation.

To aid in the determination, officers consulted the Belcourt Police Department's internal records. The records indicated Keys' race as "White." See Defendant's Ex. 22. That information was generated from a May 25, 2004, arrest in tribal court on charges of domestic abuse. The records reflect that Keys had been arrested on charges of domestic abuse on May 25, 2004, but was released to state officials in Rolette County that same day, a common practice by the Belcourt Police Department if they lack jurisdiction over a suspect. In fact, Rolette County Sheriff Tony Sims came to the Belcourt Police Station that evening to assist.

Further investigation was undertaken by BIA Officer Gerald Medrud who accessed Keys' criminal history from the National Crime Information Center (NCIC). The NCIC records were ambiguous regarding Keys' race. The records contain four notations stating that Keys was Caucasian, and two notations stating that Keys was Indian/Native American. See Defendant's Ex. 23. BIA Officer Medrud also searched the enrollment books at the Belcourt Police Department, but found no "Derrick Keys."⁶ Officer Medrud was admittedly confused, but on Saturday, December 18, 2004, he reasonably believed that Keys was an Indian/Native American, and relayed that information to Officer Peach.

At approximately 9:35 p.m on December 18, 2004, BIA Officers Gerald Medrud and Kieth Harviell questioned Derrick Keys at the Belcourt Police Department. After being fully advised of his Miranda rights, Keys signed a waiver of rights form. See Exhibit No. 7. Keys began telling the officers about his family and his relationship to Jenny DeCoteau, but questioning was terminated because Keys stated that his head was "fuzzy" and wanted to "sleep it off."

At approximately 10:00 p.m. on December 18, 2004, BIA officers began searching Keys' 1998 Chrysler van at the Belcourt Police Department. BIA Officer Kelan Gourneau, one of the officers participating in the search, found 9mm ammunition on the floorboard and a coat on the backseat containing a 9mm handgun. Upon discovering the handgun, the search was stopped by BIA Officer Peach because he felt it was no longer an impound search. He felt the search could be continued by obtaining a warrant.

The next day was Sunday, December 19th. There was no activity on that day. However, Keys, DeCoteau, Anderson, and Hess remained in custody at the Belcourt Police Department.

On Monday, December 20, 2004, BIA Officer Medrud spent the morning contacting officials from the Fort Berthold Indian Reservation and the Standing Rock Indian Reservation in hopes of obtaining enrollment information regarding Derrick Keys. It was clear after the phone calls that Keys was not an enrolled member of any tribe in North Dakota.

BIA Officer Medrud then re-questioned Keys at approximately 2:30 p.m. on December 20, 2004. Prior to the interview, Officer Medrud informed Keys that he would be released after the questioning. Keys was taken through his waiver of rights form signed on December 18th. Keys indicated that he was aware of his Miranda rights and was again willing to voluntarily talk to the officer. During the questioning, Keys made several admissions regarding his drug use and ownership of a 9mm handgun.

For purposes of securing a warrant to continue the search of Keys' 1998 Chrysler van, BIA Officer Peach prepared an affidavit which read in relevant part as follows:

1.

Jenny DeCoteau, Derrick Keys, Darwin Anderson and Karen Hess traveled to Belcourt North Dakota using Derrick Keys' 1998 White Chrysler Van with North Dakota State plates HDV811 and rent room # 142 at the Sky Dancer Hotel.

2.

Methamphetamine, Marijuana, ammunitions, knife, and Drug Paraphernalia were found inside room # 142 of the Sky Dancer Hotel. Jenny DeCoteau rented room # 142 at the Sky Dancer Hotel. A complaint was received by Belcourt Police Department from the Sky Dancer Hotel personnel of Drugs and Drug Paraphernalia in room # 140 of the Sky Dancer Hotel, a room also rented by Jenny DeCoteau and Derrick Keys.

3.

A search warrant was requested by Officer Tony Belgarde and issued for room # 142 of the Sky Dancer Hotel, Methamphetamine, Marijuana, ammunitions and Drug Paraphernalia were found inside room # 142 of the Sky Dancer Hotel.

4.

All subjects from the Sky Dancer Hotel were detained and brought to the Belcourt Police Department, the Keys Vehicle was located in the parking lot of the Sky Dancer Hotel by Officer Corbin House and Jim Peach and towed to the police department for impound.

5.

Officer Belgarde started the impound sheet of the Keys vehicle, after locating ammunitions and a firearm he stopped the impound sheet, the Keys vehicle was locked up and secured inside the garage of the Belcourt Police Department.

6.

Officer Peach radioed for Sheriff Tony Sims for assistance with the Keys vehicle, Sheriff Sims came to the Belcourt police department, Sims was briefed on the incident, Sims placed a called to Mary O'Donald, States Attorney for Rolette County and advised her of the incident, O'Donald advised us to stop with the vehicle impound sheet of the Keys vehicle and apply for a state search warrant on Monday, December 20,...