U.S. v. Riesselman

• Decision Date: 22 July 2011
• Docket Number: No. 11–1161.,11–1161.
• Citation: 646 F.3d 1072
• Parties: UNITED STATES of America, Appellee,v.Paul Benjamin RIESSELMAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

646 F.3d 1072

UNITED STATES of America, Appellee,

v.Paul Benjamin RIESSELMAN, Appellant.

No. 11–1161.

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2011.Filed: July 22, 2011.

Jim K. McGough, argued, Omaha, NE, for appellant.Teresa Baumann, AUSA, argued, Cedar Rapids, IA, Kevin Craig Fletcher, I, AUSA, on the brief, Sioux City, IA, for appellee.Before BYE and MELLOY, Circuit Judges, and SMITH CAMP,¹District Judge.BYE, Circuit Judge.

Paul Riesselman was charged with conspiracy to distribute methamphetamine, distribution of methamphetamine, being an unlawful user of methamphetamine in possession of firearms, and unlawfully possessing an unregistered sawed-off shotgun. Riesselman filed a motion to suppress certain evidence, which the district court ² denied in part and granted in part. Riesselman appeals, arguing the district court erred in denying the suppression of physical evidence seized pursuant to a search warrant he alleges was invalid, as well as statements he made following an illegal search of his person. We affirm.

I.

In March 2008, a confidential informant provided information to Special Agent Todd Jones of the Iowa Division of Narcotics Enforcement (“DNE”) indicating Riesselman possessed methamphetamine and weapons at his residence. Between March and June 2008, the informant continued to work with the DNE and met with Riesselman to discuss methamphetamine transactions. In May 2008, the informant purchased a small amount of methamphetamine from Riesselman.

In response to the information received from the informant, Jones contacted Special Agent Darin Heideman, a federally-certified task force officer, to assist in the preparation and signing of a federal search warrant for Riesselman's home in Vail, Iowa. Heideman prepared an affidavit and application for a search warrant, which was signed by a magistrate judge on July 3, 2008. The items sought were indicated by a reference to “Attachment 1,” which included a list of documents, drug paraphernalia, weapons, and other items. The warrant did not authorize the search of any persons, only Riesselman's residence.

Prior to the execution of the search warrant, Heideman provided Jones with a copy of the search warrant, including Attachment 1, and the affidavit in support of the warrant application. On July 9, 2008, Jones and Heideman, along with other officers, executed the search warrant on Riesselman's property. There was no plan to arrest Riesselman, but during the search, officers detained him, searched him, and seized a small amount of methamphetamine found in his pocket. Officers also seized a cell phone found on his person.

Following the discovery of methamphetamine on Riesselman's person, Jones—who was not involved in the search of Riesselman's person—read Riesselman his Miranda rights, to which Riesselman replied he understood and was willing to speak with the officers. Jones then asked Heideman—who was also not involved in the search of Riesselman's person—to interview Riesselman inside his residence. As they walked inside, Riesselman asked Heideman whether he should have an attorney present. Heideman responded they were “just talking,” but indicated he would inform the prosecutor if Riesselman cooperated with the questioning. When inside, Heideman again informed Riesselman of his rights, and Riesselman acknowledged he understood.

The interview began with only Heideman questioning Riesselman and with no recording. Heideman asked Riesselman about the drugs found in his pocket, his drug usage, his work history, and the weapons found at his residence. After approximately thirty to forty-five minutes, Jones joined the interview and recorded the remainder of the conversation. Jones also questioned Riesselman about his drug history and his drug transactions. Riesselman admitted to distributing about one pound of methamphetamine, using other drugs, and possessing firearms.

Following the interview and at the conclusion of the search, Jones and Heideman released Riesselman and provided him with a copy of the search warrant. However, the officers failed to provide Riesselman with Attachment 1 referenced in the search warrant. Jones returned Riesselman's cell phone, left a copy of the inventory on the kitchen table, and photographed both items to show they had been left.

Riesselman was charged with conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 960(a); distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a); being an unlawful user of methamphetamine in possession of firearms in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2); and unlawfully possessing an unregistered sawed-off shotgun in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871. Riesselman filed a motion to suppress the evidence of the drugs and cell phone found on him during the search of his person because the search was not authorized by the search warrant. Also, Riesselman sought to suppress other physical evidence seized pursuant to the warrant because the incorporated Attachment 1 did not accompany his copy of the search warrant after the search concluded. Finally, Riesselman sought to suppress the statements he made during the interview following the search of his person, alleging they were a product of the illegal search.

The motion was referred to the magistrate judge, who conducted two evidentiary hearings on the matter and filed a report, recommending Riesselman's motion be granted in part and denied in part. After Riesselman filed objections to the magistrate judge's report and recommendation, the district court reviewed de novo the magistrate judge's recommended disposition of Riesselman's motion. The district court adopted the magistrate judge's findings of fact and ultimately agreed with the recommendation, granting the motion as to the drugs and cell phone unlawfully seized from Riesselman, and denying the motion as to the fruits of the warrant and the statements obtained during the interview. With regard to the fruits of the search warrant, the district court determined the search warrant adequately referenced Attachment 1 and the attachment accompanied the search warrant, satisfying the Fourth Amendment's particularity requirement. With regard to Riesselman's statements made in the interview following the unlawful search of his person, the district court concluded Riesselman failed to prove the discovery of methamphetamine was the but-for cause of making his statements and the government successfully showed the statements were sufficiently attenuated by other circumstances to purge the taint of the unlawful search.

Following the district court's denial of the motion to suppress, Riesselman entered a conditional plea of guilty to conspiracy to distribute as well as unlawful possession of an unregistered firearm and was sentenced to seventy-five months' imprisonment. Riesselman reserved the right to appeal all issues raised in his motion to suppress and he now raises two issues on appeal. First, he claims the district court erred in denying the suppression of all the fruits of the search warrant. Second, Riesselman claims the district court erred in denying suppression of his incriminating statements made after an unlawful search of his person.

II.

We review the district court's legal conclusions for the denial of a motion to suppress de novo, but its factual findings for clear error. United States v. Vanover, 630 F.3d 1108, 1114 (8th Cir.2011). “We ‘will affirm the district court's denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.’ ” Id. (quoting United States v. Munoz, 590 F.3d 916, 920 (8th Cir.2010)).

A.

Riesselman first argues the district court improperly denied suppression of physical evidence obtained from the search warrant because the search warrant was not sufficiently particular when the officers failed to provide him with the referenced Attachment 1 at the conclusion of the search. As required by the Fourth Amendment, search warrants must particularly describe a place to be searched and things to be seized. See U.S. Const. amend. IV (“[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be search, and the persons or things to be seized.”). Although a search warrant must be particular, adequate reference to an affidavit or attachment listing items to be searched or seized can satisfy the requirement. United States v. Hamilton, 591 F.3d 1017, 1024 (8th Cir.2010).

The district court determined a clear incorporation of Attachment 1, including a full list of items subject to seizure, and the presence of Attachment 1 with the search warrant at the search scene satisfied the Fourth Amendment's particularity requirement. That the copy of Attachment 1 was not provided to Riesselman after the search concluded was of no consequence because a complete copy of the search warrant was present at the time of the search, limiting the items the officers could seize. Based on the facts, we agree the search warrant was sufficiently particular for several reasons.

First, the search warrant in this case indicated Attachment 1 in the space designated for items to be searched. Such a reference sufficiently incorporated the attachment. See United States v. Curry, 911 F.2d 72, 77 (8th Cir.1990) (noting suitable words of incorporation include “see attached affidavit”); United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir.1976) (per curiam) (holding “U.S. currency as described in the affidavit” was a suitable way of incorporating the affidavit).

Second, the record supports the finding that the officers brought the attachment to the scene of the search. Although it is not entirely clear whether a referenced...