U.S. v. Peach

• Citation: 327 F.Supp.2d 1081
• Decision Date: 29 July 2004
• Docket Number: No. C4-04-33.,C4-04-33.
• Parties: UNITED STATES of America, Plaintiff, v. Bryan J. PEACH, Defendant.
• Court: U.S. District Court — District of North Dakota

327 F.Supp.2d 1081

UNITED STATES of America, Plaintiff, v. Bryan J. PEACH, Defendant.

No. C4-04-33.

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

July 29, 2004.

COPYRIGHT MATERIAL OMITTED

Reed Alan Soderstrom, Pringle & Herigstad, P.C., Minot, ND, for defendant.

ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

HOVLAND, Chief Judge.

Before the Court is the Defendant's Motion to Suppress Evidence filed on July 1, 2004. For the reasons set forth below, the motion is denied.

I. BACKGROUND

Deputy Sheriff Mark Nygaard was dispatched to Dorothy Dejarlais's residence near Dunseith, North Dakota, at approximately 1:56 a.m. on April 17, 2004, to investigate harassing telephone calls allegedly made by the defendant, Bryan J. Peach (Peach). While Deputy Nygaard was at the residence the caller phoned back and demanded to speak with his girlfriend, Laurie, who was Dejarlais's daughter. Deputy Nygaard took the telephone, identified himself, and asked the caller to identify himself, to which the caller stated "you know I am Brian put Laurie on the phone or I will kill both of you ..." Upon termination of the call, Deputy Nygaard advised Dejarlais that the Sheriff's Office would handle the matter and that she should not answer her phone in the interim.

Deputy Nygaard returned to Dejarlais's residence at approximately 3:48 a.m. on April 17, 2004, to investigate a complaint that Peach was driving past the residence in a black vehicle and "raising hell." As Deputy Nygaard approached the residence he encountered a black vehicle traveling away from the residence. Upon seeing Deputy Nygaard, the driver of the black vehicle ran a stop sign, crossed highway 281, and sped away east. Deputy Nygaard gave chase, reaching speeds of up to 105 miles per hour. Deputy Nygaard directed the dispatcher to inform Sheriff Tony Simms and the Belcourt Police Department of the situation — that an individual believed to be Peach had earlier threatened to kill Dejarlais and was now fleeing from Dejarlais's residence. Approaching from the east, Deputy Sheriff Melvin Frank attempted to position his vehicle in a manner so as to slow the black vehicle's progress. However, he was unsuccessful.

Bureau of Indian Affairs (BIA) Officer Belgarde joined in the chase as the black vehicle turned north onto a road identified in Deputy Nygaard's incident report as "BIA 15." He was unable to gain ground on the vehicle. Around this same time Al Haggerty, a security officer at the Dunseith Housing Project, advised Deputy Nygaard that the driver of the vehicle could be armed as a man driving a similar vehicle had shot at two units in the Dunseith Housing Project earlier that morning.

Deputy Nygaard lost sight of the black car as he approached Highway 43. Several law enforcement officers began scouring the area for the vehicle. Shortly thereafter, BIA Officer Chris Parisien observed a black Chevrolet Beretta with North Dakota license plate number GXW 098 parked in a pasture/field near Jerry Overby's residence. Officer Parisien radioed Deputy Nygaard to inform him of the vehicle's location. A check of the license revealed that it was registered to Peach.

As BIA Officer Parisien approached, he observed that the vehicle was unoccupied but the hood was warm to the touch. Officer Parisien proceeded to search the interior of the car and found a silver Kyocera cell phone on the front passenger side floor and a live .308 rifle shell underneath the gas pedal. Deputies Frank and Nygaard, along with BIA Officer Belgarde, subsequently reported to Officer Parisien's location. Deputy Nygaard confirmed the Chevrolet Beretta was the vehicle he had chased earlier. The car was impounded turned over to BIA Officers Parisien and Belgarde, and towed to Belcourt. A .308 bullet was later recovered from the North Dunseith Project housing unit occupied by Leroy Poitra, Mary Greenleaf, and George Counts.

II. LEGAL DISCUSSION

The defendant, Bryan Peach, seeks to exclude the following: evidence obtained during a warrantless search of a vehicle registered in his name; evidence of past convictions; the bullet and any evidence and testimony obtained from or regarding the shootings at the residences of Leroy Poitra, Mary Greenleaf and George Counts; and the drive-by shootings at the North Dunseith Housing Project.

A. WARRANTLESS SEARCH OF PEACH'S VEHICLE

Peach objects to the admission of the Kyocera cell phone and the .308 rifle shell found in his vehicle on the grounds that the warrantless search was unconstitutional. In addition, Peach asserts that the Kyocera cell phone and the .308 rifle shell should be excluded by virtue of the fact that Officer Parisien was outside of his jurisdiction when he searched the vehicle. The Government contends that exigent circumstances justified the warrantless search of the vehicle and, in any event, Peach had abandoned the car and no longer possessed an expectation of privacy. As for Officer Parisien's extra-jurisdictional search, the Government maintains that it does not justify the suppression of any evidence.

1) EXCEPTIONS TO THE FOURTH AMENDMENT'S WARRANT REQUIREMENT

The Fourth Amendment secures the persons, houses, papers, and effects of the people against unreasonable searches and seizures by the government. The general rule is that the Government must secure a warrant before conducting a search. United States v. Alberts, 721 F.2d 636, 638 (8th Cir.1983). When the Government seeks to introduce evidence that was seized during a warrantless search, it bears the burden of showing that its conduct fell within the bounds of the exception. United States v. Riedesel, 987 F.2d 1383, 1388 (8th Cir.1993).

"The `automobile exception' to the warrant requirement of the Fourth Amendment authorizes warrantless searches of automobiles where the officers have probable cause to believe that contraband or evidence of criminal activity is located therein, and where exigent circumstances exist." United States v. Hepperle, 810 F.2d 836, 840 (8th Cir.1987) (citing California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). Exigent circumstances generally exist when the delay in obtaining a warrant is overruled by the need for immediate action. See United States v. Bozada, 473 F.2d 389, 391 (8th Cir.1973) ("A pressing need for a prompt search must be reasonably apparent.").

Having reviewed the totality of the circumstances, the Court finds that exigent circumstances existed to justify the warrantless search of Peach's vehicle. First, BIA Officer Parisien had probable cause to believe the vehicle had been used in the commission of a crime. The vehicle matched the description given by Deputy Nygaard of the black car that had fled from Dejarlais's residence at approximately 3:48 a.m. Second, BIA Officer Parisien's search was motivated by safety concerns. The vehicle was registered to Peach and the officers reasonably assumed under the circumstances that it was Peach who had fled from Dejarlais's residence and led Deputy Nygaard on the high speed chase. In addition, Officer Parisien suspected that Parisien was in the vicinity given that the hood of the vehicle was still warm to the touch. In light of the earlier shooting incidents at the North Dunseith Housing Project and the threats leveled at Deputy Nygaard and Desjarlais, BIA Officer Parisien clearly had a reasonable basis to believe that Peach had access to a firearm and the propensity to act on his alleged threats of violence. Thus, at a minimum, Officer Parisien's search of the vehicle was justified by the need to ascertain whether Peach had left a firearm in the vehicle.

It should be noted that the vehicle was sitting in an empty field devoid of occupants and presumably unlocked when stumbled upon by BIA Officer Parisien. Thus, by all appearances, the vehicle owned by Peach had been abandoned. As the vehicle had been voluntarily abandoned prior to being discovered by Officer Parisien, the search of its interior would not constitute a violation of Peach's Fourth Amendment rights. "When a person voluntarily abandons property, he forfeits any expectation of privacy that he or she might otherwise have had in it." United States v. Washington, 146 F.3d 536, 537 (8th Cir.1998) (citing United States v. Sanders, 130 F.3d 1316, 1317-18 (8th Cir.1997)).

2) SEARCH BY BIA OFFICER OUTSIDE THE BOUNDS OF TRIBAL LAND

Peach contends, and for the purposes of this motion the Court accepts, that BIA Officer Parisien was outside of his jurisdiction and was off the reservation when he searched the vehicle. According to Peach, such a search is invalid as it is analogous to a warrantless arrest without probable cause. See Ross v. Neff, 905 F.2d 1349 (10th Cir.1990); Smith v. City of Oklahoma City, 696 F.2d 784 (10th Cir.1983); Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir.1985). In addition, Peach contends the search of his vehicle violated state law to the extent that BIA Officer Parisien was not authorized under state law to perform such a search. See N.D. Cent.Code § § 54-01-06 and 44-08-20.

The Government does not dispute that BIA Officer Parisien performed what amounted to an extra-jurisdictional search of Peach's vehicle because it was located off the reservation. Nevertheless, the Government maintains such conduct does not constitute a basis for excluding evidence recovered from the vehicle because it did not deprive Peach of a federal constitutional right. See United States v. Mikulski, 317 F.3d 1228, 1231-33 (10th Cir.2003).

To support his contention that a warrantless, off-reservation search is invalid, Peach relies primarily upon the holding in Ross v. Neff, 905 F.2d 1349 (10th Cir.1990). However, in the context of the present case such reliance is misplaced. First, this Court...