United States v. Long

• Decision Date: 06 June 2014
• Docket Number: No. CR 13–30028–RAL.,CR 13–30028–RAL.
• Citation: 30 F.Supp.3d 835
• Court: U.S. District Court — District of South Dakota
• Parties: UNITED STATES of America, Plaintiff, v. Jason LONG, Defendant.

30 F.Supp.3d 835

UNITED STATES of America, Plaintiff

v.Jason LONG, Defendant.

No. CR 13–30028–RAL.

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

Signed June 6, 2014.

Jay P. Miller, U.S. Attorney's Office, Pierre, SD, Kathryn Rich, U.S. Attorney's Office, Rapid City, SD, for Plaintiff.

Justin Lee Bell, May, Adam, Gerdes & Thompson, Pierre, SD, for Defendant.

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

ROBERTO A. LANGE, District Judge.

I. INTRODUCTION

Defendant Jason Long (“Long”) originally was indicted for one count of possession with intent to distribute a controlled substance, AM 2201, in violation of 21 U.S.C. § 841(a)(1). Doc. 1. A Superseding Indictment added two counts of possessing with the intent to distribute a controlled substance analog, a substance called XLR–11, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count III also alleges aiding and abetting under 18 U.S.C. § 2. Doc. 50.

Long filed a Motion to Suppress Evidence and Statements, Doc. 28. Magistrate Judge Mark A. Moreno held an evidentiary hearing on the Motion to Suppress on December 5 and 6, 2013. Doc. 60. At the suppression hearing, the parties raised additional arguments. Tr. 270.¹ Judge Moreno directed the parties to submit further briefing on the newly raised arguments and held another evidentiary hearing on January 9, 2014. Tr. 270, 274–76. In his Report and Recommendation Concerning Motion to Suppress Evidence and Statements (“Report and Recommendation”), Doc. 74, Judge Moreno recommended that the Motion to Suppress be granted in part and denied in part. Doc. 74 at 1. Both parties objected. Docs. 89, 90.

This Court reviews a report and recommendation under 28 U.S.C. § 636(b)(1), which provides in pertinent part that “[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” This Court has conducted a de novo review of the record and proposed findings, adopts in part Judge Moreno's Report and Recommendation, sustains the Government's Objection to the Report and Recommendation, overrules Long's Objections to the Report and Recommendation, and denies Long's Motion to Suppress.

II. FACTS

A. Officer Spargur's Entry into the OC Store

Officer Shane Spargur is a police officer with the Bureau of Indian Affairs (“BIA”) for the Lower Brule Agency. Tr. 83. Officer Spargur was patrolling the Lower Brule Sioux Reservation (“the Reservation”) in the pre-dawn hours of Saturday, July 28, 2012, when he spotted three young people around 4:20 a.m. Tr. 90–91. The Lower Brule Sioux Tribe (“Tribe”) has an 11:00 p.m. curfew during the summer for juveniles. Tr. 91. Officer Spargur believed these individuals to be under eighteen, so he made contact with them to discuss their being out past curfew. Tr. 91. Two of the individuals had fireworks. Tr. 91, 195. The Tribe permits fireworks to be shot off only on the dates immediately surrounding the Fourth of July holiday. Tr. 91–92. Because shooting off fireworks after July 5 is not permitted on the Reservation, Officer Spargur confiscated the fireworks and asked the group where they got their fireworks. Tr. 91–92. One told Officer Spargur that “he just bought them down at the OC Store.”² Tr. 92, 196.

The OC Store was two blocks from where Officer Spargur contacted the juveniles, so he went to the store to speak with its proprietor, Jason Long, about selling fireworks out of season. Tr. 92–93. Officer Spargur had never been to the OC Store before July 28, 2012, but knew Long from a previous interaction at Long's house on the Reservation. Tr. 93–94, 101, 239. Long's house where Officer Spargur previously had contacted Long was a separate residence from the building that housed the OC Store. Tr. 94, 101, 239.

The OC Store was in a commercial building that appears to be paneled with corrugated aluminum siding. See Ex. 1.³ A sign that says “Sioux Boys” sat on the roof above the entrance and, because of this sign, some people in the community sometimes referred to the store as the “old Sioux Boys” store. Ex. 1; Tr. 64, 95. The OC Store's main door was located on the side of the building adjacent to an area where the gas pumps were located. Ex. 1. A screen door was attached to the main door's exterior frame. Ex. 1. These doors—the main outside door and its screen door—did not open directly into the OC Store, but opened into a small rectangular area that serves as the store's entryway. Tr. 98. A metal door with a glass panel divided the entryway from the store. Ex. 5; Tr. 97. Thus, to get into the store from the parking lot, customers passed through three doors: the screen door, the main door that leads into the entryway, and the metal door with the glass panel that leads from the entryway into the store. Tr. 97–98.

Officer Spargur arrived at the OC Store around 4:30 a.m. Tr. 195. The OC Store did not have posted hours and Officer Spargur did not see an open sign or a closed sign.⁴ Tr. 200, 206. From the parking lot, Officer Spargur could hear music coming from the store. Tr. 200. The store was not fully lit. One light near the street about twenty-five feet from the main door and one flood light attached to the building provided some exterior lighting. Tr. 196–200. The store's other floodlights, the lights attached to the gas pumps, and the light in the entryway were off. Tr. 196–201.

Both the screen door and the main door were unlocked, so Officer Spargur opened them and stepped into the OC Store's entryway. Tr. 97–98, 200–01. The metal door separating the entryway from the store was closed, but Officer Spargur could look through the door's glass panel into the store. Tr. 97–101, 202. Officer Spargur testified that the store was not fully lit, that most of the lights were off, but that it was lit well enough to permit him to “see from the door to the back areas with the merchandise stands.” Tr. 101, 202–03, 206. He had not been to the store before so he was unsure whether this lighting was consistent with it being open or closed. Tr. 203, Officer Spargur did not have a warrant to enter the business. Tr. 104.

The OC Store was somewhat of a convenience store with rows of merchandise and a counter. Exs. 6, 8, The store had DVDs to rent, stand-up arcade games to play, and products for sale that include coffee, tobacco products, sunglasses, board games, and soft drinks. Ex. 6. Part of the back portion of the store was cordoned off by a blanket or a sheet. Ex. 6; Tr. 203. Officer Spargur testified that most of the light was coming from the back of the store near the blanket. Tr. 202–03, 206.

Officer Spargur was “unsure of whether or not the store was open or closed,” Tr. 207, but ultimately believed the store was open when he arrived because of the lighting, the music, and the doors being unlocked. Tr. 101–03. Also, one of the juveniles had told him that the group “just bought” fireworks from the OC Store. Tr. 92, 196, Because he was unsure whether the store was open, Officer Spargur decided to knock on the metal door and announce his presence before entering. Tr. 207–08. He knocked and announced twice, but received no response. Tr. 102, 209. Officer Spargur then opened the metal door, stood in the doorway, and called for Long while identifying himself. Tr. 102, 209–10. Officer Spargur saw Long's young son, Jason Long, Jr., within the store. Tr. 103, 209–10. The two had little, if any, interaction; Officer Spargur did not know whether Jason Long, Jr. even looked at him, and the boy did not speak with Officer Spargur or invite him to enter. Tr. 103–04, 208. Officer Spargur entered the OC Store and walked toward the back to talk with whomever was inside. Tr. 209–10.

Officer Spargur went to the rear of the OC Store where it had a concession or dining area with rows of booths similar to a small fast food restaurant's dining area. Tr. 104, 212, 243. In the dining area, there was one man sitting at a table and another person asleep on a different table. Tr. 104–05. The person who was awake identified him self as Freedom Long when Officer Spargur asked his identity. Tr. 104. Officer Spargur asked Freedom about the juveniles. Tr. 104–05. Freedom confirmed that the juveniles had been in the store, but said that he did not sell them fireworks. Tr. 105. Officer Spargur then asked to speak with Jason Long. Tr. 105. Freedom responded that Long was sleeping in his room. Tr. 105–06. Officer Spargur asked Freedom if he would go into Long's room, wake him, and bring him out. Tr. 106. Freedom went to Long's room and left Officer Spargur in the dining area. Tr. 107.

Once Freedom was gone, Officer Spargur noticed a small red and black resealable pouch on one of the tables in the dining area. Tr. 107–08. Officer Spargur recognized this pouch as one that would normally hold synthetic marijuana. Tr. 107, 217–18. Officer Spargur had received training at two different law enforcement positions on how to identify synthetic marijuana. Tr. 84–89, 108. Possessing synthetic drugs is illegal on the Reservation. Tr. 33. Officer Spargur did not seize the pouch. Tr. 109.

Freedom returned alone from Long's room saying that Long was sleeping. Tr. 109–10. Officer Spargur asked Freedom a second time to awaken Long; Freedom complied, left for Long's room, and then returned with Long. Tr. 110, 214–15. Officer Spargur told Long that he was there to ask him questions about fireworks and that no fireworks could be sold after the 5th of July. Tr. 110–11. Long acknowledged knowing that fireworks could not be sold after the 5th of July, and then Freedom interjected that the OC Store did not sell the juveniles fireworks. Tr. 110–11. Officer Spargur noticed that Freedom had slurred speech and slow movement which led Officer Spargur to suspect that Freedom was under the influence of something. Tr. 111. Officer Spargur then apologized for waking Long up and left. Tr. 111.

B. Application for Warrant and...