United States v. Waln

UNITED STATES OF AMERICA, Plaintiff, v. JESSE J. WALN, JEREMIAH R. WALN,DOMINIC JOSEPH STONEMAN Defendants.

3:17-CR-30004(01)(02)(04)-RAL

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

December 5, 2017

OPINION AND ORDER DENYING MOTIONS TO SUPPRESS

Tribal police received information that Jeremy Waln, Jesse Waln, and Dominic Stoneman were involved in one or more burglaries in Mission, South Dakota. The police executed a search warrant on the Wains' home and found guns and other items that had been reported stolen. Following the search, tribal police questioned Jesse while he was in jail. Stoneman and the Wains moved to suppress evidence seized from the Wains' home. Docs. 134, 136, 161. Jesse also moved to suppress his statements to tribal police and the buccal swabs he provided during his interview. Magistrate Judge Mark A. Moreno conducted an evidentiary hearing and then recommended denying the defendants' motions. The defendants have now objected to that recommendation. Docs. 235, 243, 244. For the reasons explained below, this Court denies the defendants' motions to suppress.

I. Facts

Brothers Jeremy and Jesse Waln lived with their mother Debra Waln in Mission, South Dakota. Debra's neighbors included Patricia Burnette, who lived across the street, T. 27, Ex. 4, and Beau Westover, who lived roughly three to four blocks east of Debra next to the Cherry Todd Electric Building, T. 28, Ex. 4.

Burnette's home was burglarized in May 2016. T. 25. The thieves took cash, jewelry, and electronics, as well as a poster autographed by basketball legend Michael Jordan. Ex. 2. Westover's home was burglarized approximately six months later over Veterans Day weekend. T. 32. Many items were stolen from Westover's home, including fourteen firearms and multiple boxes of ammunition. T. 24, 32; Ex. 2.

While investigating the Westover burglary, tribal police discovered that someone had cut two holes in the fence surrounding the Cherry Todd lot. One hole was on the west side of the lot near Debra Waln's house, and the other hole was on the east side of the lot next to Westover's home. Ex. 4a; T. 24, 28-31.

On November 17, 2016, Robert Sedlmajer, a special agent with the Rosebud Sioux Tribe, received information that Bobbi Bush had the autographed Michael Jordan poster stolen from Burnette's home. T. 34-35. Bush told Agent Sedlmajer that Jesse Waln had given her the poster and tried to sell it to her for $2,500. T. 35, 42. Agent Sedlmajer took the poster and confirmed with Burnette that it was the poster stolen from her home. T. 43.

Shortly after recovering the poster, Agent Sedlmajer received a call from Marlin Enno, Rosebud's chief law enforcement administrator, saying that the police had located items stolen from the Westover residence. T. 36. Chief Enno explained that Star Eastman had come to the police department to speak with Calvin Waln Jr., a captain with the Rosebud police (Captain Waln) and the brother of Jesse and Jeremy. According to Chief Enno, Eastman told Captain Waln that Jeremy and Jesse had taken¹ firearms from a house and had hid some of them in a treeline near the home of their father, Calvin Waln Sr. T. 39. Chief Enno relayed that he and other officers had then gone to Calvin Sr.'s home where they found a Benelli shotgun and other items in a nearby tree line. T. 36, 39-40. Agent Sedlmajer confirmed with Westover that the Benelli shotgun found in the tree line had been stolen from Westover's home. T. 38.

Agent Sedlmajer also spoke to Captain Waln about his conversation with Eastman. T. 40-41. Captain Waln explained that Eastman had told him that Jeremy, Jesse, Stoneman, and others had broken into a house near the Cherry Todd building and stolen firearms and other items, T. 41, 105, 128, 132, 140, 141,143, 152; Def. Ex. C; that she saw Jeremy with four of the stolen guns, including a shotgun, while at Debra's residence, T. 39, 41, 105,140, Ex. C; and that she said that Jeremy had hidden guns and other stolen property in the tree line near Calvin Sr.'s home, T. 140, 143, 151-52, Ex. C.

Based on the evidence police had recovered from Calvin Sr.'s property and the information from Eastman, Burnette, and Westover, Agent Sedlmajer prepared an affidavit for a search warrant for Debra's house. T. 41-43. Agent Sedlmajer then telephoned a tribal judge, explained that he was applying for a warrant, and faxed the judge the affidavit and an inventory list of the stolen items the police would be looking for in Debra's house. T. 47-48, 110. After receiving the affidavit, the tribal judge called Agent Sedlmajer back and had him read the affidavit aloud. T. 47-48, 110-13. The tribal judge placed Agent Sedlmajer under oath and Agent Sedlmajer confirmed that everything in the affidavit was correct. T. 47-48, 110-13. Thetribal judge did not ask Agent Sedlmajer any questions and Agent Sedlmajer did not provide him any information beyond that contained in the affidavit. T. 49, 113.

The tribal judge granted a warrant to search Debra's residence for the items listed in the inventory Agent Sedlmajer had provided. Ex. 2. Jeremy and Jesse were home when officers executed the warrant on the evening of November 17, 2016. T. 51. The officers arrested Jeremy and Jesse after finding items belonging to Westover and Burnette in the home. T. 55-56.

Agent Sedlmajer and Kory Provost, a special agent with the Tribe, interviewed Jesse at the Rosebud jail the next day. T. 57, 60. Agent Sedlmajer read Jesse his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Jesse agreed to speak with the agents. T. 59-61; Ex. 3. Jesse made incriminating statements and agreed to provide a buccal swab. T. 65-69.

A few months later, a grand jury indicted Jeremy and Jesse for burglary, larceny, and possession of stolen firearms. Doc. 1. Stoneman was indicted for burglary and larceny. Doc. 1. Judge Moreno recommended denying the defendants' motions to suppress, finding that Stoneman lacked standing to challenge the search of Debra's home, that the evidence seized from the home was admissible under the good-faith exception in United States v. Leon, 468 U.S. 897 (1984), that Jesse executed a valid waiver of his Miranda rights, and that Jesse's statements and consent to the buccal swabs were voluntary.

This Court reviews a report and recommendation under the statutory standards found in 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." 28 U.S.C. § 636(b)(1). Having conducted a de novo review, this Court adopts the report and recommendation in full.

II. Analysis

A. Stoneman's ability to challenge search of Debra's house

As Judge Moreno explained, Fourth Amendment rights are personal and may not be asserted vicariously. United States v. Trejo, 135 F. Supp. 3d 1023, 1030 (D.S.D. 2015). Thus, a defendant challenging the constitutionality of a search under the Fourth Amendment must establish that he himself had "a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143 (1978). To meet this burden, the defendant must show that he exhibited a subjective expectation of privacy in the place searched and that this expectation is objectively reasonable. Trejo, 135 F. Supp. 3d at 1030. Stoneman has failed to meet this burden because he has neither explained how he had a legitimate expectation of privacy in Debra's home nor offered any evidence to suggest that such an expectation existed. His motion to suppress is therefore denied.

B. Good-faith exception

Under Leon, the exclusionary rule does not apply when police perform a search in "objectively reasonable reliance" on a warrant later found to be invalid. 468 U.S. at 922; Massachusetts v. Sheppard, 468 U.S. 981, 987-91 (1984). The rationale for this "good-faith" exception is that excluding evidence in cases where the police have a reasonable good-faith belief that a warrant is valid would do little to deter police misconduct. Leon, 468 U.S. at 919-21. An officer's reliance is not objectively reasonable, and the good-faith exception is therefore inapplicable, in four circumstances: (1) when the warrant is based on knowingly or recklessly made falsehoods in the officer's affidavit; (2) when the issuing judge has "wholly abandoned his judicial role;" (3) when the information provided to the judge includes so little indicia of probable cause that the officer's belief in its existence is "entirely unreasonable;" and (4) when a warrant is "so facially deficient—i.e., in failing to particularize the place to be searched or thethings to be seized—that the executing officers cannot reasonably presume it to be valid." Id. at 923.

The defendants' main argument against the good-faith exception is that the affidavit was so lacking in probable cause that Agent Sedlmajer's belief in its existence was "entirely unreasonable." Probable cause to search "exists if the warrant application and affidavit describe circumstances showing 'a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Montes-Medina, 570 F.3d 1052, 1059 (8th Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). Here, the affidavit explained that the Burnette and Westover residences had been burglarized of the items listed in the attached inventory, including an autographed Michael Jordan poster from the Burnette home and a Benelli Super Nova 12 gauge shotgun from the Westover home. Ex. 2. In recounting Captain Waln's interview with Eastman, the affidavit described how Eastman had said she was at Jeremy's residence (that is, Debra's home) from November 13 through November 16, 2016, that she had seen firearms at Jeremy's residence, and that she had gone with Jeremy to Calvin Sr.'s property where Jeremy "left some of the items," including a "black shotgun."...