U.S. v. Terry

• Decision Date: 07 March 2005
• Docket Number: No. 04-2595.,04-2595.
• Citation: 400 F.3d 575
• Parties: UNITED STATES of America, Appellee, v. Randy Lynn TERRY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

400 F.3d 575

UNITED STATES of America, Appellee, v. Randy Lynn TERRY, Appellant.

No. 04-2595.

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2004.

Filed: March 7, 2005.

COPYRIGHT MATERIAL OMITTED

Gary G. Colbath, argued, Rapid City, SD (Monica D. Thomas, Rapid City on the brief), for appellant.

Jeffrey C. Clapper, Asst. U.S. Attorney, argued, Sioux Falls, SD, for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.

MORRIS SHEPARD ARNOLD, Circuit Judge.

Randy Terry entered a conditional plea of guilty to possessing a firearm after previously being convicted of a misdemeanor crime of domestic violence, a violation of 18 U.S.C. § 922(g)(9). He did so after the district court¹ denied his motion to suppress a firearm and ammunition seized from his vehicle and statements that he made the day following his seizure. On appeal, he argues that the district court erred in denying his motion to suppress. We affirm.

Mr. Terry, who is not an Indian, argues that tribal police officers acted in excess of their authority by seizing him and violated the Constitution when they searched his vehicle. We hold that the tribal officers acted within the scope of their authority and that the search complied with the requirements of the fourth amendment. Mr. Terry also maintains that the district court erred in denying his motion to suppress statements that he made the day after his seizure. He asserts that these statements were the fruit of the improper seizure and of a question asked of him the previous evening without the benefit of Miranda warnings. We conclude that the statements made after Mr. Terry received Miranda warnings are admissible because he knowingly and voluntarily waived his Miranda rights, and his earlier unwarned statement did not result from coercion or a calculated effort to undermine his will.

I.

Sergeant Jackson Ten Fingers, of the Oglala Sioux Tribe Department of Public Safety, received a call late one night to go to the Robert Bettelyoun residence to investigate a domestic violence complaint that Mr. Terry's wife, Lynn Bettelyoun, had made against her husband. The dispatcher informed Sergeant Ten Fingers that Mr. Terry was in an older, yellow pickup truck and that Ms. Bettelyoun had obtained a protection order against Mr. Terry in North Platte, Nebraska. Sergeant Ten Fingers met Tribal Officers Steve Hawk and Dan Crazy Thunder and passed on information about the call that he had received to them. They then proceeded to the Bettelyoun residence with Sergeant Ten Fingers in one vehicle and Officers Hawk and Crazy Thunder in another.

Upon arriving at the Bettelyoun residence, located near Oglala, South Dakota, on the Pine Ridge Indian Reservation, the tribal officers observed a yellow pickup truck. Sergeant Ten Fingers approached the pickup and asked the occupant to exit the vehicle. When the occupant did so, Sergeant Ten Fingers smelled alcohol on his breath. Sergeant Ten Fingers then handcuffed him and placed him in the back seat of his patrol car. The officers identified the suspect as Randy Terry. At that time, the officers did not know if Mr. Terry was an Indian: Their common practice was to detain a suspect first and then determine race, and they followed that practice in the instant case.

Either before or after Mr. Terry exited his truck, Officer Hawk observed a box of Remington ammunition on the truck's dashboard. Officer Hawk then searched the vehicle, finding a rifle and a pack of beer behind the seat. Sergeant Ten Fingers was inside the Bettelyoun residence speaking with Ms. Bettelyoun at the time. Sergeant Ten Fingers testified at the hearing on the suppression motion that when he returned from speaking with Ms. Bettelyoun, he advised Mr. Terry that "he was under arrest" for domestic violence "and was going to be detained for the Shannon County Sheriff." Sergeant Ten Fingers further testified that he later "arrest[ed]" Mr. Terry "to be detained for the Shannon County Sheriff" for driving while intoxicated, spouse abuse, liquor violation, and disorderly conduct, all tribal ordinance violations.

Mr. Terry agreed to have tribal officers drive his vehicle to the tribal jail rather than having it towed. As he drove the pickup, it occurred to Sergeant Ten Fingers that Mr. Terry was probably not an Indian because it would be unlikely that an Indian from Pine Ridge would be subject to a Nebraska protection order. Sergeant Ten Fingers therefore called James Daggett, the sheriff of Shannon County, South Dakota, to advise him that he might be holding a non-Indian. At the time, the sheriff was at home in Hermosa, South Dakota, approximately eighty miles from the Pine Ridge Reservation. Sheriff Daggett asked Sergeant Ten Fingers to hold Mr. Terry overnight until he could pick him up the next morning. It was not unusual for Sheriff Daggett to ask the tribal police to hold a suspect for up to eight hours because, at the time, he had only one patrol car and a single part-time deputy.

When Mr. Terry arrived at the Pine Ridge tribal jail, Bureau of Indian Affairs Special Agent Fred Bennett, without giving a Miranda warning, asked him if he had been previously convicted of domestic violence. (Agent Bennett had already reviewed a printout that listed the defendant's prior charges but omitted the dispositions for some of them.) Mr. Terry responded affirmatively and stated that the domestic violence conviction was in 1999. Although Mr. Terry seemed eager to talk, Agent Bennett refused to continue the conversation because the defendant appeared intoxicated. The following day, Agent Bennett interviewed Mr. Terry at the Pine Ridge tribal jail. Mr. Terry was informed of and chose to waive his Miranda rights and spoke with Agent Bennett about the previous night's events. Sheriff Daggett took custody of Mr. Terry later that day.

II.

When reviewing a denial of a motion to suppress, we examine the factual findings underlying the district court's conclusion for clear error and review de novo the ultimate question of whether the fourth amendment has been violated. United States v. White, 356 F.3d 865, 868 (8th Cir.2004). The fourth amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

Mr. Terry contends first that the tribal officers were not reasonable in believing that they had authority to seize him in the manner that they did. Mr. Terry correctly asserts that he is not subject to the criminal jurisdiction of the Oglala Tribe because he is not an Indian. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 212, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). But tribal police officers do not lack authority to detain non-Indians whose conduct disturbs the public order on their reservation.

The Supreme Court has recognized that tribal law enforcement authorities possess "traditional and undisputed power to exclude persons whom they deem to be undesirable from tribal lands," and therefore have "the power to restrain those who disturb public order on the reservation, and if necessary to eject them." Duro v. Reina, 495 U.S. 676, 696-97, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). "Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities." Id. at 697, 110 S.Ct. 2053; see also Strate v. A-1 Contractors, 520 U.S. 438, 456 n. 11, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). Because the power of tribal authorities to exclude non-Indian law violators from the reservation would be meaningless if tribal police were not empowered to investigate such violations, tribal police must have such power. See Ortiz-Barraza v. United States, 512 F.2d 1176, 1180 (9th Cir.1975). When exercising this power, however, tribal officers must avoid effecting a constitutionally unreasonable search or seizure. See 25 U.S.C. § 1302(2).

We conclude that the Oglala tribal officers' detention of Mr. Terry falls within the rule of Duro. Sergeant Ten Fingers alerted Sheriff Daggett after it occurred to him that Mr. Terry was probably not an Indian and approximately a half-hour after receiving the initial call regarding the disturbance at the Bettelyoun residence. Although Sergeant Ten Fingers testified that he "arrested" Mr. Terry "to be detained for the Shannon County Sheriff" on a number of tribal charges, we do not think that the record indicates that tribal officers ever required or even intended to require Mr. Terry to submit to the criminal jurisdiction of the Oglala Tribe. Cf. Oliphant, 435 U.S. at 195, 212, 98 S.Ct. 1011. They held Mr. Terry pursuant to the express instructions and authority of Sheriff Daggett. Furthermore, we cannot say that the tribal officers held Mr. Terry for an unreasonable amount of time in the circumstances, since Sheriff Daggett was eighty miles away on a rainy night and his only deputy was unavailable.

Having concluded that the tribal officers had authority to seize Mr. Terry, we now turn to his argument that the tribal officers acted unreasonably in searching his vehicle. At the time that the tribal officers stopped Mr. Terry they clearly had a reasonable and articulable suspicion that "criminal activity may be afoot." See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). They were responding to a 911 call reporting that a man in a yellow pickup was causing a disturbance and attempting to enter the Bettelyoun residence, and upon arriving at that residence they observed the defendant in a yellow pickup on the Bettelyouns' property. After approaching him, Sergeant Ten Fingers smelled alcohol on Mr. Terry's breath. These circumstances provided an adequate basis for the officers to...