United States v. Lebeau
| Decision Date | 10 June 2015 |
| Docket Number | 5:14-CR-50048-KES |
| Court | U.S. District Court — District of South Dakota |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. GERALD WAYNE LEBEAU, a/k/a GERS LEBEAU NEIL THOMAS LEBEAU, Defendants. |
REPORT AND RECOMMENDATION
Pending before this Court are the following Motions:
An evidentiary hearing was held on March 11-13, 2015. Defendant Gerald LeBeau (hereinafter "Gers") was personally present and represented by his attorney of record, George Grassby. Defendant Neil LeBeau (hereinafter "Neil") was personally present and represented by his attorney of record, John M. Fitzgerald. The Government was represented by Ted McBride. Fifteen (15) witnesses testified at the hearing. Forty-two (42) exhibits were received into evidence. Both parties have submitted briefs prior to the hearing and subsequent to the hearing. Based on a careful consideration of all the evidence, and counsel's arguments, the Court respectfully makes the following findings of fact and conclusions of law:
JURISDICTION
Defendant Gerald LeBeau is charged in a Superseding Indictment with Possession with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), Conspiracy to Distribute a Controlled Substance (Cocaine) in violation 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B), Conspiracy to Distribute a Controlled Substance (Marihuana) in violation 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(D), and Witness Tampering in violation of 18 U.S.C. § 1512(B)(1).
Defendant Neil LeBeau is charged in a Superseding Indictment with Conspiracy to Distribute a Controlled Substance (Cocaine) in violation 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B), and Conspiracy to Distribute a Controlled Substance (Marihuana) in violation 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(D).
The pending Motions were referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Honorable Jeffrey L. Viken's Standing Order dated March 9, 2015.
FACTUAL BACKGROUND
Gerald LeBeau, a/k/a Gers LeBeau has been the subject of a couple of investigations over the past 23 years during Special FBI Agent Dan Cooper's tenure in Rapid City. In 2002, Gers was convicted in the District of South Dakota of Possession with Intent to Distribute and received a 120 month prison sentence. During the course of the 2002 investigation, Gers threatened to kill a law enforcement officer and his family. Gers also took efforts to escape law enforcement, such as diving out of a window and leading officers on a high speed chase. From 2011 to 2013, law enforcement had reports from independent sources that Gers possessed guns, waived guns, threatened to shoot people, and threatened to have a shoot-out with police because he did not want to go back to prison. (Hr'g Tr. 234). From 2011 through the date of their arrest, Gers LeBeau and Neil LeBeau were the subject of an open and active FBI investigation involving illegal narcotics.
On January 10, 2014, a Special Agent from Montana, Jeff Young Blood, was effectuating a search warrant of a hotel room at Cadillac Jack's Casino in Dead wood, South Dakota. This search was conducted in an unrelated case involving Lloyd Nickel. While executing the search warrant for Lloyd Nickel's hotel room, hotel staff informed Agent Young Blood that a female1 who had accompanied Lloyd Nickel was still in the hotel and she was presently in the company of Gerald LeBeau. (Hr'g Tr. 134, 229-231, 250-251, 476-477, 426).
Unfamiliar with the history of Gerald LeBeau, Agent Young Blood contacted local Agent Dan Cooper to see if he was familiar with Gerald LeBeau. Agent Cooper informed Agent Young Blood of Gers' criminal history involving narcotics. Lloyd Nickel's hotel room and Ger's hotel room were on the same floor of the hotel. Given the concern that Agent Young Blood was in the middle of executing the search warrant, and that the female occupant of the hotel room was believed to be at large in the hotel and in the company of a suspected drug dealer (Gers), who was also at large in the hotel. Agent Cooper, along with Agent Lyle Tolsma and Agent Shawn Sheridan, went to Cadillac Jack's to assist Agent Young Blood.
When the additional Agents arrived at Cadillac Jack's, hotel staff informed law enforcement that the female who had affiliated with Lloyd Nickel, was now in the company of Gers LeBeau. (Hr'g Tr. 185). Officer Tolsma and Officer Sheridan reviewed hotel surveillance footage showing the female, whom staff had identified as the female with Lloyd Nickel, enter Gers' hotel room. Wanting to speak with the female, law enforcement concocted a plan to have the hotel manager, Tim Atyeo, stand outside of Gers' hotel room while hotel staff telephoned Gers' room and ask Gers to the step outside to talk to the general manager. Gers opened his hotel room door and law enforcement asked him to step out of the room so they could speak to him. Gers stepped out of the hotel room into the hall where he was patted down and handcuffed. (Hr'g Tr. 254). Law enforcement inquired of Gers as to the identity of the female in the room. Officers testified that they informed Gers that they needed to speak with the female in the room. Gers stated that her name was Katrina, he did not know her last name, and that she was from Albuquerque. Gers called to the female, "Katrina" and according to the testimony of law enforcement, Gers indicated to the officers to go ahead. (Hr'g Tr. 321, 346). While in the hallway, Gers and Marlin LeBeau2 remained cuffed and detained and were not free to leave. (Hr'g Tr. 296). From review of the audio tape, law enforcement was not threatening or aggressive. Gers was cooperative and did not vocalize any protest when law enforcement indicated that they were going ahead with entering the hotel room. The quality of the audio tape makes it very difficult to decipher every conversation that took place.
The hotel room door was still ajar (Hr'g Tr. 283, 321) and Agent Tolsma knocked on the door and the female responded with, "Hello?" (Ex. 10 at 3:07). Agent Tolsma pushed open the door, entered the room and spoke to the female. While Agent Tolsma made contact with the female, Agent Sheridan conducted a protective sweep of the hotel room. Agent Tolsma testified that he felt that he had consent to enter the room to speak with the female, but that he did not have consent to search the room. (Hr'g Tr. 256). Gers' former attorney also stated that the agents had permission to enter the room to speak with or to remove the female, but did not have consent to search the room. (Mot. Suppress 1, ECF No. 31). While conducting the protective sweep, Agent Sheridan observed a white powdery substance located on a counter by the sink in plain view. (Hr'g Tr. 257)
The female was removed from Gers' hotel room and taken to another room for an interview. Gers and Marlin LeBeau were brought back into the room. Law enforcement repositioned their handcuffs from behind the back to place them in the front. Agent Tolsma told Gers that they were there to identify the female and that they wanted to interview him. Agent Tolsma informed Gers that he was not under arrest and that he did not have to talk to law enforcement if he did not want to. (Hr'g Tr. 259). Gers informed the officers of how he met the female and why she was in his hotel room. Agent Tolsma asked Gers for consent to search the hotel room and prepared a permission to search form. (Ex. 11). Initially, the form identified Room 452, the Dillinger Suite, as the place to be searched. Gers signed the permission to search form. Agent Tolsma and Agent Sheridan both testified that they witnessed Gers signing the permission form. (Hr'g Tr. 263, 350).
The audio tape stopped working during the time frame that Gers signed Exhibit 11. Upon discovering that the tape had malfunctioned, Agent Tolsma secured the battery and approached Gers again regarding the consent form. The audio tape verifies that Gers confirmed that he previously signed the permission to search form. (Ex. 10, Ch. 2 at :014). Gers followed up by stating, "I've got nothing to hide." Id.
Gers LeBeau had the odor of alcohol on him. However, he did not show any signs of intoxication from drugs or alcohol. (Hr'g Tr. 140, 141, 271, 430-431). When he was booked into the jail, he was administered a preliminary breath test ("PBT") which registered a .036 (Hr'g Tr. 102).
While searching his hotel room, Agent Tolsma asked Gers of they could also search his 1992 Thunderbird. Gers verbally agreed to allow law enforcement to search the Thunderbird. (Ex. 10, Ch. 2 at 39:40). Using a different pen, Agent Tolsma added the search of the Thunderbird to the permission form. Agent Tolsma and Agent Sheridan initialed the form. Gers did not initial the form.
Agent Cooper searched Gers' Thunderbird. After discovering the large quantity of cocaine in Gers' car, Agent Cooper placed Gers under arrest. He was escorted to the parking lot and placed in the patrol car. Agent Sheridan read Gers his Miranda rights. (Hr'g Tr. 140). Gers indicated that he understood his rights and wanted a lawyer before he said anything. Agent Cooper testified that after Gers asked for a...
To continue reading
Request your trial