United States v. Bird

UNITED STATES OF AMERICA, Plaintiff, v. PATRICK RED BIRD, Defendant.

3:20-30026-RAL

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

October 19, 2020

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART MOTION TO SUPPRESS AND DENYING MOTION FOR PRODUCTION IN PART AND GRANTING MOTION TO QUASH

The Government charged Patrick Red Bird with assaulting, resisting, and impeding a federal officer in violation of 18 U.S.C. §§ 111(a) and 111(b). Doc. 1. Red Bird moved to dismiss the indictment, or in the alternative, suppress evidence of the assault and certain post-arrest statements on the basis that the officers violated his Fourth and Fifth Amendment rights. Doc. 29. Magistrate Judge Mark A. Moreno held a suppression hearing. Docs. 37, 40, 44. Thereafter, Judge Moreno filed a Report and Recommendation, recommending that Red Bird's motion be granted in part and denied in part. Doc. 56. Red Bird filed objections to the Report and Recommendation, challenging some of Judge Moreno's factual findings and legal conclusions. Doc. 63.

In addition to objecting to the Report and Recommendation, Red Bird also appeals two of Judge Moreno's decisions relating to discovery. First, Red Bird appeals Judge Moreno's opinion and order granting in part and denying in part defendant's motion for production of law enforcement records and files to the extent that Judge Moreno declined an in camera review of the law enforcement personnel records and files belonging to former Todd County Sheriff Deputy Wesley Sudbeck and Mission City Chief of Police Barry Bailey. Doc. 61. Red Bird also appeals Judge Moreno's opinion and order granting the government's motion to quash the subpoena duces tecum served by Red Bird on Rosebud Sioux Tribal Police Officer Bryan Waukazoo. Doc. 62. This Court will take up all three matters, addressing each in turn.

I. Motion to Dismiss the Indictment, or in the Alternative Suppress

A. Factual Background

On December 27, 2019, Officer Bryan Waukazoo received a call from dispatch that a male subject in Mission, South Dakota, was hitting the backs of cars and that the same male subject had fallen face first in a snowbank. Mot. Hr'g Tr. at 9. Officer Waukazoo responded to the call and observed a man matching dispatch's description. Mot. Hr'g Tr. at 9. Officer Waukazoo observed the man sit down and fall over. Mot. Hr'g Tr. at 10. Then the man jumped up as another subject approached him, and it appeared to Officer Waukazoo that the man was trying to fight the newcomer. Mot. Hr'g Tr. at 10. At that time, Officer Waukazoo exited his patrol vehicle and identified himself. Mot. Hr'g Tr. at 10. In response, the man walked away hastily, eventually breaking into a run. Mot. Hr'g Tr. at 10.

Officer Waukazoo got back into his patrol vehicle to search for the man, and he requested assistance from Sheriff Sudbeck and Chief Bailey. Mot. Hr'g Tr. at 10-11. Once Sheriff Sudbeck and Chief Bailey had arrived, all three officers proceeded to look for the man on foot. Mot. Hr'g Tr. at 11. In doing so, they observed tracks in the snow leading up to a red trailer home. Mot. Hr'g Tr. at 11. To Officer Waukazoo, the trailer home appeared abandoned, and the front door was missing a doorknob. Mot. Hr'g Tr. at 11. The officers announced themselves and knocked at the door; because the door had no doorknob, each time they knocked, the door opened further. Mot. Hr'g Tr. at 11, 30. After the door had opened enough to reveal the interior of the trailer home, the officers decided to enter and search for the male subject, room by room. Mot. Hr'g Tr. at 11.

Once inside, the officers found the man that Officer Waukazoo had encountered earlier, hiding in a bedroom closet. Mot. Hr'g Tr. at 11. They identified him as Patrick Red Bird, the defendant in this case. Mot. Hr'g Tr. at 31-32. Thereafter, they placed Red Bird under arrest, and Officer Waukazoo escorted Red Bird to a patrol vehicle to transport him to the Rosebud jail. Mot. Hr'g Tr. at 11-12. While in the back of the patrol car en route to the jail, Red Bird slipped his handcuffs from behind his body to the front of his body and freed one of his hands from the wrist restraints. Mot. Hr'g Tr. at 12. Upon noting that Red Bird freed his hand, Officer Waukazoo stopped the vehicle to fix Red Bird's wrist restraints. Mot. Hr'g Tr. at 12. But once again, Red Bird slipped his handcuffs from behind his body to the front of his body. Mot. Hr'g Tr. at 12. When Officer Waukazoo attempted to restrain Red Bird once more, Red Bird pulled away and shoved Officer Waukazoo in an effort to escape. Mot. Hr'g Tr. at 12-13. Then a struggle ensued. Mot. Hr'g Tr. at 13. At some point, Red Bird allegedly grabbed hold of, and began to squeeze, Officer Waukazoo's neck and throat. Mot. Hr'g Tr. at 12-13, 75-77, 89-90. Officer Waukazoo delivered four punches to the face to break Red Bird's grip. Mot. Hr'g Tr. at 13, 77. Once Red Bird had loosened his grip, Officer Waukazoo forced Red Bird into the car and sprayed him with an OC agent. Mot. Hr'g Tr. at 13, 78. Finally, Red Bird quit resisting, and the officers were able to successfully transport him to the jail. Mot. Hr'g Tr. at 13.

B. Discussion

This Court reviews a report and recommendation under 28 U.S.C. § 636(b)(1), which provides in relevant 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." However, "[i]n the absence of an objection, the district court is not required 'to give any more consideration to the magistrate's report than the court considers appropriate.'"United States v. Murillo-Figueroa, 862 F. Supp. 2d 863, 866 (N.D. Iowa 2012) (quoting Thomas v. Arn, 474 U.S. 140, 150 (1985)). Having conducted a de novo review of those portions of the Report and Recommendation to which Red Bird objects, this Court adopts the Report and Recommendation as supplemented by this opinion.

1. Dismissal of Indictment

Red Bird's primary argument is that the indictment should be dismissed because the governmental officials engaged in outrageous conduct in violation of the Due Process Clause of the Fifth Amendment. Like the Supreme Court in United States v. Russell, 411 U.S. 423, 431-32 (1973), the Eighth Circuit has "left open the possibility that, in rare instances, the investigative methods employed by law enforcement could be 'so outrageous that due process bars the government from invoking the judicial process to obtain a conviction.'" United States v. Combs, 827 F.3d 790, 794 (8th Cir. 2016) (quoting United States v. King, 351 F.3d 859, 867 (8th Cir. 2003)). This defense will rarely apply as it is "reserved for conduct that falls within the narrow band of the most intolerable government conduct." Combs, 827 F.3d at 794-95 (cleaned up and citation omitted); see also United States v. Hunt, 171 F.3d 1192, 1195 (8th Cir. 1999) ("The level of outrageousness needed to prove a due process violation is quite high . . . .") (cleaned up and citation omitted)). Such conduct violates "fundamental fairness" and shocks "the universal sense of justice." Combs, 827 F.3d at 794-95 (quoting Russell, 411 U.S. at 432). While the defense is similar to and often raised with the defense of entrapment, the defenses are distinguishable in that the defense of entrapment focuses on the predisposition of the defendant whereas the defense of outrageous government conduct focuses on the government's actions. Hunt, 171 F.3d at 1195.

Red Bird argues that the indictment should be dismissed because of the government's allegedly outrageous conduct which he describes as "entering the home without a warrant to arrest[him] for minor misdemeanor offenses based on ambiguous evidence, some of which did not even occur in the officers' presence." Doc. 63 at 4. After examining all the facts and circumstances surrounding this case, the defense is simply not applicable here. The government's conduct falls well short of outrageous government conduct violative of the Due Process Clause of the Fifth Amendment, and there is no claim that the government somehow entrapped Red Bird or induced him to engage in the criminal activity at issue. Judge Moreno properly concluded that dismissal was not warranted.

2. Suppression of Evidence

In the alternative, Red Bird argues that the conduct giving rise to the indictment should be suppressed based on the Fourth Amendment. Absent special circumstances, the Supreme Court has "consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant." Steagald v. United States, 451 U.S. 204, 211-12 (1981). But of course, "because the ultimate touchstone of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain exceptions." Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (cleaned up and citations omitted). The government bears the burden of showing that an exception exists. United States v. James, 353 F.3d 606, 613 (8th Cir. 2003).

Here, it is undisputed that the officers entered the trailer home without a warrant to arrest Red Bird. Judge Moreno found that the officers' actions were justified because they acted under the reasonable, but mistaken, belief that the trailer home was abandoned and were in hot pursuit of a fleeing suspect. Red Bird challenges both of these legal conclusions as well as many of the factual findings underlying these conclusions. However, this Court need not address thoseobjections because, as found by Judge Moreno, Red Bird's conduct after the arrest provided an independent basis for a second, legitimate arrest.

The Eighth Circuit has recognized that "resistance to an illegal arrest can furnish grounds for a second, legitimate arrest." United States v. Sledge, 460 F.3d 963,966 (8th Cir. 2006) (quoting United States v. Schmidt, 403 F.3d 1009, 1016 (8th...