U.S. v. Medearis

• Decision Date: 13 January 2011
• Docket Number: No. CR 10–30057–RAL.,CR 10–30057–RAL.
• Citation: 775 F.Supp.2d 1110
• Parties: UNITED STATES of America, Plaintiff,v.Robert MEDEARIS, Defendant.
• Court: U.S. District Court — District of South Dakota

775 F.Supp.2d 1110

UNITED STATES of America, Plaintiff,

v.Robert MEDEARIS, Defendant.

No. CR 10–30057–RAL.

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

Jan. 13, 2011.

Eric D. Kelderman, U.S. Attorney's Office, Pierre, SD, for Plaintiff.Edward G. Albright, Randall Briggs Turner, Federal Public Defender's Office, Pierre, SD, for Defendant.

OPINION AND ORDER ADOPTING IN PART AND DENYING IN PART REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART MOTION TO SUPPRESS

ROBERTO A. LANGE, District Judge.I. INTRODUCTION

This case originated with a motor vehicle accident on the Rosebud Sioux Tribe reservation in which a young Native American child suffered severe injuries. At the accident scene, India Ford was intoxicated, claimed that she was the driver, and thus was arrested. Tribal police suspected that Patrick Medearis (“Patrick”) was the actual driver of the vehicle and that Patrick attempted to conceal this fact from police because Patrick was on federal supervised release. One of the investigating officers, Rosebud Sioux Tribe Special Agent Charles Ginsbach, sought and obtained a search warrant from Tribal Judge Janel Sully for the vehicle, which had been towed after the accident to the residence of Defendant Robert Medearis (“Medearis”). Upon discovering that the front windshield had been removed from the vehicle, Agent Ginsbach phoned Judge Sully, who verbally authorized the search of Medearis's property for the missing windshield. Police then found the windshield on the premises.

After being indicted for tampering with evidence, Medearis moved to suppress (Doc. 16) the windshield and other physical evidence as well as all statements he made to tribal officers and an FBI agent. After the parties fully briefed the motion, Magistrate Judge Mark Moreno held a hearing on the motion on October 6, 2010. On October 20, 2010, 2010 WL 5576192, Judge Moreno issued a Report and Recommendation (Doc. 30), recommending that Medearis's motion to suppress be denied.

Copies of the Report and Recommendation were served upon the parties as required by 28 U.S.C. § 636. In considering a magistrate judge's recommendation on a dispositive matter, such as a motion to suppress evidence, a district court must make a “de novo determination of those portions of the report or ... recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Medearis filed objections (Doc. 35) to the Report and Recommendation on November 2, 2010. This Court has conducted a de novo review of the record. For the reasons explained below, the Court adopts in part and declines in part the Report and Recommendation.

II. FACTS ¹

On January 31, 2010, a four-year-old child suffered severe injuries in a motor vehicle accident near Wood, South Dakota. T. at 7. According to the Affidavit for Search Warrant of Agent Ginsbach, the child's mother, India Ford, told Rosebud Police Highway Safety Officer Frank Iron Heart that she was the driver of the pickup truck involved. Ex. 1. Tribal investigators, however, based on information they had received, suspected that Ford's boyfriend, Patrick Medearis, was the actual driver. After the accident, the pickup, registered to Defendant Robert Medearis, was towed and left at his residence. Because Ford lacerated her forehead during the accident, Agent Ginsbach wished to have the windshield tested for DNA in order to assist in identifying the driver of the pickup during the accident. T. at 7–8.

On February 2, 2010, Agent Ginsbach applied for a warrant to search and seize the pickup from the property. Agent Ginsbach submitted a supporting affidavit in which he stated that the front windshield of the pickup possibly had DNA evidence that would show whether Ford was the driver at the time of the accident. Ex. 1. Rosebud Sioux Tribal Judge Janel Sully issued a warrant authorizing tribal police to search Medearis's property for the pickup. Ex. 2.

While executing the warrant, Agent Ginsbach discovered that the windshield had been removed from the pickup. He noticed an ax and pick hammer nearby and glass shards on the dash and hood of the pickup. Agent Ginsbach surmised that the windshield recently had been chopped out of the truck's frame.

Upon seeing this, Agent Ginsbach presented the search warrant to Defendant Robert Medearis and asked Medearis about the location of the windshield. Medearis initially answered that he had thrown it away in a dumpster by the high school and then said that he had sold it. T. 46; 89–90. When Agent Ginsbach stated that he would apply for another search warrant, Medearis said “go ahead,” and he drove to the back of his residence. T. 23.

Fearing that the windshield, and therefore any DNA evidence on it, might be inside the residence and either tampered with or destroyed, Agent Ginsbach ordered three of his fellow officers to enter the residence and secure its occupants. As the officers did so, Agent Ginsbach telephoned Judge Sully and requested authorization to expand the scope of the original search warrant. Agent Ginsbach was not experienced with seeking a telephonic search warrant or the specific rules governing a telephonic search warrant application, but he was aware through his training that such warrants had been authorized in the past. T. 64. According to his training, Agent Ginsbach was “to call the judge, notify him or her of your circumstances, request a telephonic search warrant of whatever you want to search and if they grant it, then do the search and then within a reasonable amount of time, submit an affidavit and the typed warrant to search before them and have them sign it.” T. 65. Agent Ginsbach testified that he was never taught that the telephone call needed to be recorded or under oath. Id. This training did not strictly comport to the BIA–Office of Justice Services “Law Enforcement Handbook,” Ex. 5. Judge Sully granted Agent Ginsbach's request and issued a telephonic warrant to search Medearis's residence and property for the missing windshield. It was the “second or third” telephonic search warrant request authorized by Judge Sully during her tenure as tribal judge. T. 79. Judge Sully testified that, because the Rosebud Sioux Tribal Law and Order Code does not address telephonic search warrants, tribal judges look to the Federal Rules of Criminal Procedure for guidance. T 83–84.

After completing the call with Judge Sully, Agent Ginsbach entered the residence where Robert Medearis, his son Patrick, and India Ford were detained. The occupants “were being secured so they wouldn't destroy any evidence until [Agent Ginsbach] found it.” T 50. Agent Ginsbach testified that Defendant Robert Medearis would not have been free to leave and “remained detained from the point that [Agent Ginsbach] ordered the police to enter the house ... through the time until [Agent Ginsbach] located the windshield.” T. 48–50. Without advisement of Miranda rights, Agent Ginsbach informed Medearis that he had received authorization to search the premises and asked Medearis a second time for the location of the windshield. Medearis again said that he had sold it. T. 46. Agent Ginsbach proceeded outside and located the windshield in an old truck bed on the side of the residence. He photographed and seized the windshield, the pickup from which it had been taken, and the ax and hammer. He then arrested Medearis for tampering with evidence.

The next day, February 3, 2010, Special Agent Ginsbach and FBI Agent David Keith spoke briefly with Medearis about the pickup. T. 100. Medearis approached the agents after they concluded an interview with Patrick. T. 100. Their conversation occurred outside Medearis's residence following his release from tribal custody on the tampering charge. Medearis asked questions concerning recovering possession of the pickup seized the previous day. T. 101. While speaking with the agents, Medearis said “that he had cut the windshield out of the pickup truck to access the wiring harness from underneath the dash” because he had a buyer interested in certain parts of the pickup. T. 101–04.

On February 12, 2010, ten days after the search and seizure occurred, Agent Ginsbach executed, under oath, a supplemental search warrant affidavit before Rosebud Sioux Tribal Judge Steve Emery. The second warrant was intended to memorialize the telephonic search warrant that Judge Sully had issued on February 2, 2010, on which she previously had briefed Judge Emery. Judge Emery also signed, on February 12, 2010, two search warrant returns, one for the original warrant that Judge Sully had issued and the other for the telephonic warrant that she had later authorized. Judge Emery signed the documents because Judge Sully was unavailable on February 12, 2010, which was the date that Agent Ginsbach understood to be the deadline for a judge to sign the documentation.

III. DISCUSSION

It is undisputed that Agent Ginsbach and Judge Sully failed to comply with certain provisions of Rule 41 of the Federal Rules of Criminal Procedure relating to the issuance, execution, and return of telephonic search warrants. In order to determine whether the lack of statutory compliance justifies suppression of evidence, this Court must address various disputed legal questions.

A. Whether Agent Ginsbach was a Federal Officer

Medearis objects to the Magistrate Judge's finding that Rule 41 does not apply because the telephonic warrant was issued by a tribal judge and was sought and executed by tribal—not federal—law enforcement officers. Medearis objects to this finding on the basis that Agent Ginsbach, in addition to serving as a tribal law enforcement officer, is a federal law enforcement officer or was acting as a federal law enforcement officer during the search in controversy. During the suppression hearing, Agent Ginsbach testified that he became a special agent after completing training at a federal law enforcement training center, and he is employed as a law enforcement...