USA v. White Horse et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JEROME WHITE HORSE, JR.,
Defendant.
3:20-CR-30058(01)-RAL
REPORT AND
RECOMMENDATION FOR
DISPOSITION OF MOTION
TO SUPPRESS STATEMENTS
Tribal officers questioned Jerome White Horse, Jr., at the scene of a vehicle
accident and assailment and again in a contiguous house he was an occupant of. 	In a
pretrial motion, White Horse seeks to suppress the statements he made, both in and
outside the residence. 	Because he was never questioned while in custody and the
officers lawfully entered the home with consent, the Court recommends that White
Horse’s suppression motion be denied.
BACKGROUND
Some time after 10:00 p.m. on February 12, 2020, Ramon Marrufo, a lieutenant
with the Cheyenne River Sioux Tribe (CRST), responded to and arrived at a vehicle
accident and alleged assault in Cherry Creek, South Dakota. 	Marrufo made contact
with Lawrence (Larry) Lafferty who was bleeding profusely from the head. 	Marrufo
rendered first aid to Lafferty and then began photographing the site. 	While taking
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 1 of 17 PageID #: <pageID>

2
pictures, Marrufo asked White Horse, who was in the vicinity, what happened to
Lafferty and the windows on Lafferty’s truck. 	White Horse replied, “Yeah, yeah, we,
we did that. He was trying to assault us with his pickup there.”1 Marrufo again asked
“what happened,” after which he inquired whether Lafferty was trying to drive off.
White Horse answered affirmatively to the latter inquiry and then relayed what he saw
and heard, pointing at times to certain places.2 Upon identifying White Horse, Marrufo
quizzed him about how Lafferty’s vehicle was parked, which way it was facing, and its
path of travel. 	White Horse provided the requested information – orally and with
directional 	gestures.3 	Marrufo 	continued 	to 	take 	snapshots and 	investigate 	and
eventually left the scene.
Two to three hours later, Marrufo and CRST Officer Ronald Red Owl went back
to the scene and knocked on the front door to the house White Horse earlier stated he
lived in.4 It was cold that night and the ground had a blanket of snow and frost on it.5
An unidentified man opened the door. 	When Marrufo asked for Jerome, the man
1Mot. Hrg. Ex. 3, 07:06-07:10 (Feb. 5, 2021).
2See id. at 07:12-07:34.
3See id. at 07:35-08:19.
4See Mot. Hrg. Tr. 17-18 (Feb. 5, 2021); Mot. Hrg. Ex. 1 at 00:01-00:21; Mot. Hrg.
Ex. 3 at 07:02-07:03.
5See Mot. Hrg. Ex. 3; Mot. Hrg. Ex. 1 at 00:01-00:20.
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 2 of 17 PageID #: <pageID>

3
turned and motioned toward someone on the couch, and walked away.6 White Horse
promptly greeted the officers as they entered and stood in the living room, a few feet
away from the door.7 There, the officers questioned White Horse about the assault for
roughly four minutes, beginning with what happened.8 	Donna Straight Head, the
owner of the house, joined White Horse and answered some of the officers’ questions.9
The officers did not Mirandize White Horse before interrogating him, even though he
was a focus of their investigation.10 At the end of the interview, Marrufo thanked White
Horse and shook hands with both White Horse and Straight Head before leaving.11
White Horse was never handcuffed or confined while questioned or arrested when the
dialogue ended.12
Lieutenant Marrufo captured his interactions with White Horse on body camera
recordings he made at the scene and in the doorway of Straight Head’s house.13 They
provide video and audio accounts of Marrufo and White Horse’s conversations.
6See Mot. Hrg. Ex. 1 at 00:22-00:30.
7See id. at 00:30-00:34.
8See id. at 00:36-04:40.
9See id. at 01:46-04:41.
10See Mot. Hrg. Tr. 11, 14-15, 18, 22.
11See Mot. Hrg. Ex. 1 at 04:38-40, 04:42-04:43.
12See Mot. Hrg. Ex. 1.
13See Mot. Hrg. Exs. 1, 3.
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 3 of 17 PageID #: <pageID>

4
Tragically, Lafferty did not survive his injuries. 	A grand jury later indicted
White Horse for second degree murder (of Lafferty), assault with a dangerous weapon
(a garden hoe), and assault resulting in serious bodily injury. 	White Horse moved to
suppress his statements on Miranda and Fourth Amendment grounds. 	The Court held
an evidentiary hearing on the motion at which it heard testimony from Lieutenant
Marrufo and received four exhibits into evidence (the two recordings just mentioned
and transcripts of them).
DISCUSSION
A. Statements
At the outset, White Horse claims his statements, at the scene and inside the
residence, were obtained in violation of Miranda. 	He was subjected to custodial
interrogation, he says, with no Miranda advisement. 	It appears undisputed that the
officers’ questioning of him, in both places, amounted to “interrogation,” for purposes
of Miranda.14 The issue then is whether White Horse was in custody when he made his
statements to the officers at each location. 	If so, they must be suppressed because the
officers gave no Miranda warnings before questioning him. 	If not, the statements are
admissible as substantive evidence.
14See Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (interrogation includes direct
questioning or any practice reasonably likely to evoke an incriminating response from a
suspect).
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 4 of 17 PageID #: <pageID>

5
Officers need not administer Miranda warnings to everyone they question.15
Instead, “warnings are required only where there has been a restriction on a person’s
freedom as to render him ‘in custody.’”16
“Custody” is a “term of art” that describes circumstances generally thought “to
present a serious danger of coercion.”17 The central issue in the custody determination
“is simply whether there [was] a formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest.”18 	“Two distinct inquiries are essential to
this determination: 	First, what were the circumstances surrounding the interrogation;
and second, given those circumstances, would a reasonably person have felt he [ ] was
not at liberty to terminate the interrogation and leave.”19 “[T]he critical [question] is not
whether the interview took place in a coercive or police dominated environment, but
rather, whether the [suspect’s] ‘freedom to depart was restricted in any way.’”20 When
gauging 	the 	suspect’s 	freedom 	of 	movement, 	a 	court 	must 	examine 	“all 	of 	the
15See Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
16Id.
17Howes v. Fields, 565 U.S. 499, 508-09 (2012).
18California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (internal quotation
omitted).
19Thompson v. Keohane, 516 U.S. 99, 112 (1995) (footnote omitted); see also J.D.B. v.
North Carolina, 564 U.S. 261, 270 (2011) (quoting Thompson and emphasizing that the
custody determination has “two discrete inquiries”).
20United States v. LeBrun, 363 F.3d 715, 720 (8th Cir. 2004) (en banc) (quoting
Mathiason, 429 U.S. at 495).
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 5 of 17 PageID #: <pageID>

6
circumstances surrounding the interrogation.”21 	Pertinent facts include, but are not
limited to, “the location of the questioning, its duration, statements made during the
interview, the presence or absence of physical restraints during the questioning, and the
release of the [suspect] at the end of the questioning.”22 In its review, a court must keep
in mind that “the [custody] determination is based on the objective circumstances of the
interrogation, not the subjective views harbored by either the interrogating officers or
the person being questioned.”23
1. At the Scene
Miranda 	specifically 	exempted 	from 	its 	purview 	“[g]eneral 	on-the-scene
questioning as to facts surrounding a crime or general questioning of citizens in the fact
finding process[,]” which do not present “the compelling atmosphere inherent in the
process 	of 	in-custody 	interrogation[.]”24 	Lieutenant 	Marrufo’s 	questions 	were
appropriate and typical, given the circumstances involved. 	Consistent with his duties
as a police officer, Marrufo, as a first responder, attempted to determine what happened
21Howes, 565 U.S. at 509 (quoting Stansbury v. California, 511 U.S. 318, 322, 325
(1994) (per curiam)).
22Howes, 565 U.S. at 509 (citations omitted); see also United States v. Czichray, 378
F.3d 822, 827-28 (8th Cir. 2004) (explaining that there is no requirement that the six
“non-exhaustive” Griffin factors be followed ritualistically and that courts should
consider “whether the historical facts, as opposed to the one-step-removed Griffin factors,
establish custody”).
23LeBrun, 363 F.3d at 720 (quoting Stansbury, 511 U.S. at 322-23).
24
384 U.S. at 477-78.
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 6 of 17 PageID #: <pageID>

7
and how the players and evidence all fit together. His questions were open-ended, non-
accusatory, and investigative. 	Questions such as “what happened,” do not implicate
Miranda and require warnings in advance.25
2. In the Home
The same is true of Lieutenant Marrufo and Officer Red Owl’s follow-up
questions in Straight Head’s living room. 	The Eighth Circuit has repeatedly observed
that questioning a suspect “on his own turf” is “not indicative of the type of inherently
coercive setting that normally accompanies a custodial interrogation.”26 Miranda itself,
juxtaposed the police station, where “the investigator possesses all of the advantages,”
with the suspect’s “own home” where “he may be confident, indignant, or recalcitrant .
. . 	more keenly aware of his rights and more reluctant to tell of his indiscretions and
criminal behavior. . . .”27
25See United States v. Looking Elk, CR. 10-50090-JLV, 2011 WL 835888 at *9 (D.S.D.
March 4, 2011) (“general on-the-scene questioning includes questions such as “what
happened,” “who was in the vehicle,” and “who was driving,” when a vehicular
accident has occurred); United States v. Porras-Palma, CR. 10-50044-JLV, 2010 WL
2484090 at *6 (D.S.D. May 24, 2010), R&R adopted, 2010 WL 2464864 (D.S.D. June 15,
2010) (modest number of questions asked of defendant that elicited an incriminating
statement about his legal status in the United States were part of a vehicle accident
reconstruction and did not violate Miranda.)
26United States v. Williams, 760 F.3d 811, 815 (8th Cir. 2014); see generally 2 Wayne
R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure, §6.6(e), pp.
822-23 & nn. 67-70 (4th ed. 2015 & Dec. 2020 update).
27
384 U.S. at 449-50 (internal quotations omitted).
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 7 of 17 PageID #: <pageID>

8
In the Supreme Court’s only decision involving the applicability of Miranda to
questioning of a suspect in a private home absent formal arrest, the Court concluded
that the suspect “hardly found himself in the custodial situation described by the
Miranda Court as the basis for its holding.”28 	The Court explained that “the principal
psychological factor” of concern in Miranda was “isolating the suspect in unfamiliar
surroundings 	‘for 	no 	purpose 	other 	than 	to 	subjugate 	[him] 	to 	the 	will 	of 	his
examiner.’”29 	The teaching in that case, which involved a three-hour interrogation in
the dining room of a residence, was that such noncustodial interrogation could lead (in
some 	situations) 	to 	the 	exclusion 	of 	involuntary 	statements 	under 	the 	Fifth
Amendment, 	but 	that 	the 	interview 	was 	not 	so 	inherently 	coercive 	to 	require
compliance with Miranda’s prophylactic rule.30
Lieutenant Marrufo and Officer Red Owl interviewed White Horse in a familiar
and relaxed setting. 	The officers asked a modest number of questions, for about four
minutes, and then left the residence. 	Straight Head participated in the interview and
periodically interjected answers to questions. At no time was White Horse ever isolated
from Straight Head or restrained in any way. 	To the contrary, he was free to move
about the living room, and did so, during the interview.
28Beckwith v. United States, 425 U.S. 341, 347 (1976).
29Id. at 346 & n.7 (quoting Miranda, 384 U.S. at 457).
30Id. at 347-48.
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 8 of 17 PageID #: <pageID>

9
White 	Horse 	voluntarily 	acquiesced 	to 	questions 	posed 	to 	him, 	candidly
acknowledging he hit Lafferty (showing his right fist), and insisting he was the only one
who assaulted Lafferty (pointing to himself).31 	The atmosphere of the encounter was
not police dominated. 	Neither officer employed any strong-arm tactics or deceptive
stratagems to goad White Horse into making inculpatory admissions. 	Nor did the
officers ever display weapons or have physical contact with White Horse. 	And at no
time did the officers say or intimate to White Horse that there would be criminal
repercussions for his conduct. 	Importantly, the officers never made any show of force
or took action comparable to, much less the functional equivalent of, an arrest. 	In the
end, White Horse was not arrested after confessing and could do whatever he desired
when the agents left.32
White Horse’s personal characteristics – including whatever his intellectual
functioning may have been at the time – did not transform the interrogation into a
31See Mot. Hrg. Ex. 1, 01:32-01:41, 03:09-03:12, 03:44-03:52.
32See United States v. Galceran, 301 F.3d 927, 931 (8th Cir. 2002) (observing that the
lack of an arrest is “a very important factor weighing against custody”); see also
Mathiason, 429 U.S. at 495 (stressing that after questioning, defendant left “the police
station without hindrance”).
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 9 of 17 PageID #: <pageID>

10
custodial one.33 He was 60 years old when he met with the officers34 and, based on the
recording,35 did not appear to have any difficulty responding to questions or exhibit any
unusual intellectual deficit or mental impairment.36
It is true that Lieutenant Marrufo and Officer Red Owl did not tell White Horse
that (1) the questioning was voluntary; (2) he was free to leave or request the officers to
33See J.D.B., 564 U.S. at 270-71 (whether a suspect is in “custody” is an objective
inquiry that “involves no consideration of the ‘actual mindset’ of the particular suspect
subject to police questioning”; such an inquiry “avoids burdening police with the task
of anticipating the idiosyncricies of every individual suspect and defining how the
particular traits affect each suspect’s subjective state of mind”); Yarborough v. Alvarado,
541 U.S. 652, 668 (2004) (officers are under no duty “to consider . . . contingent
psychological factors when deciding when suspects should be advised of their Miranda
rights”); Berkemer v. McCarty, 468 U.S. 420, 423, 439 (1984) (although the suspect’s
inebriation was readily apparent to officers at the scene, the Supreme Court’s analysis
did not advert to this or any other individualized consideration in concluding that the
traffic stop did not qualify as the equivalent of a “formal arrest”); Beheler, 463 U.S. at
1124-25 (it was “irrelevant” that police knew defendant “had been drinking earlier in
the day” and was “emotionally distraught”; he was not in custody under the objective
reasonable-person 	standard); 	Perrin, 	659 	F.3d 	at 	721 	(defendant’s 	sub-average
intelligence and mental deficits did not establish custody); United States v. Little, 18 F.3d
1499, 1505 (8th Cir. 1994) (particular personal traits of defendant are irrelevant to the
objective “reasonable person” test for police-citizen encounter other than to the extent
they may have been known to the officer and influenced the officer’s conduct).
34See Dkt. No. 15.
35See Mot. Hrg. Ex. 1.
36See Perrin, 659 F.3d at 721; see also Dkt No. 15 (White Horse had 11 1/2 years of
formal 	education 	and 	could 	read, 	write, 	and 	understand 	the 	English 	language);
Galceran, 301 F.3d at 931 (defendant’s claims that he was mentally ill, suicidal, and had
been hearing voices did not make his interrogating custodial).
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 10 of 17 PageID #: <pageID>

11
do so; and (3) he was not under arrest.37 But the failure to provide such warnings does
not mean that a suspect is in custody, especially if the totality of the circumstances show
otherwise.38
Taking into account and weighing the circumstances surrounding the statements
in the home, a reasonable person in White Horse’s position would not have understood
he was in custody while speaking to Lieutenant Marrufo and Officer Red Owl. 	The
officers 	thus 	did 	not 	have 	to 	warn 	White 	Horse 	of 	his 	Miranda 	rights 	before
interviewing him.39
B. Entry into the Home
1. Standing
A defendant must have “standing” to invoke the Exclusionary Rule.40 To obtain
relief under the Rule, the defendant must show that he had a legitimate expectation of
privacy in the invaded place.41
37See Griffin, 922 F.2d at 1349.
38See United States v. Flores-Sandoval, 474 F.3d 1142, 1147 (8th Cir. 2007) (suspect
was not in custody despite not being informed he was free to leave); United States v.
Mottl, 946 F.2d 1366, 1370-71 (8th Cir. 1991) (even though officers failed to tell the
suspect that he could terminate the interview at will and that they did not intend to
arrest him, the totality of the circumstances established that he was not in custody); see
also LeBrun, 363 F.3d 719-24 (resolving the custody issue with nary a mention of Griffin
or the factors discussed in it).
39See United States v. Giboney, 863 F.3d 1022, 1027-29 (8th Cir. 2017); Williams, 760
F.3d at 814-15; Perrin, 659 F.3d at 720-22; Czichray, 378 F.3d at 826-30.
40See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 11 of 17 PageID #: <pageID>

12
White Horse had a lawful right to be in the residence on February 12-13. 	As an
overnight guest and occupant at the time, he has standing to contest the warrantless
entry into the house.42 The Government concedes that standing exists and that White
Horse can challenge the propriety of the officers’ home entry.43
2. Consent
White Horse also claims the warrantless entry into Straight Head’s residence
violated the Fourth Amendment. 	As he sees it, Lieutenant Marrufo and Officer Red
Owl were required, but failed to obtain, a warrant before entering the house and
interviewing him.
The Fourth Amendment protects “[t]he right of the people to be secure in their . .
. houses . . . against unreasonable searches and seizures.”44 “In the absence of a warrant,
a search is unreasonable only if it falls within a specific exception to the warrant
41See Minnesota v. Olson, 495 U.S. 91, 95 (1990).
42See Minnesota v. Olson, 495 U.S. 91, 96-100 (1990); see also United States v. Dickson,
64 F.3d 409, 410 (8th Cir. 1995) (testimony that the defendant “had been staying in the
apartment and questioned ‘for a couple of days’ as a guest, alone sufficient to establish
standing); State v. Tullous, 2005 S.D. 5, ¶16, 692 N.W.2d 790, 794 (the defendant had
standing, as he “regularly stayed overnight” and at times baby-sat for a child in the
house); see generally 6 Wayne R. LaFave, Search and Seizure, §11.3(b) at pp. 190-94 & nn.
102-08 (6th ed. 2020).
43See Mot. Hrg. Tr. 4-5.
44
U.S. Const. amend. IV.
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 12 of 17 PageID #: <pageID>

13
requirement.”45 	One recognized exception is the voluntary consent of an individual
possessing authority over the premises.46 	That person might be a homeowner,47 or a
fellow occupant who shares common authority over the property with another person.48
The exception even extends to entries with the permission of a person the police
reasonably, but erroneously, believe to possess shared authority as an occupant.49
While one person’s consent of a jointly occupied home is generally sufficient to
justify a warrantless entry, there is a narrow exception to this rule. 	A “physically
present inhabitant’s express refusal of consent to a police entry into the residence is
dispositive as to him, regardless of the consent of a fellow occupant.50 	The rule,
however, is limited to situations in which the objecting occupant is present.51 Thus, for
consent to be vitiated, the complaining occupant must be personally present unless
45Riley v. California, 573 U.S. 373, 382 (2014).
46See Georgia v. Randolph, 547 U.S. 103, 109 (2006); Illinois v. Rodriguez, 497 U.S. 177,
181 (1990).
47See Fernandez v. California, 571 U.S. 292, 298-99 (2014); Schneckloth v. Bustamonte,
412 U.S. 218, 222 (1973).
48See United States v. Matlock, 415 U.S. 164, 170 (1974).
49See Rodriguez, 497 U.S. at 186.
50See Randolph, 547 U.S. at 122-23.
51See Fernandez, 571 U.S. at 301.
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 13 of 17 PageID #: <pageID>

14
“there is evidence that the police have removed [him or her] from the entrance for the
sake of avoiding possible objection.”52
Consent may be express or implied.53 	Implied consent is established when an
occupant willingly allows, by words and action and without objection, officers to enter
the residence.54 	“There is no requirement that consent be in response to an officer’s
request.”55 “In fact, consent given without a specific request indicates voluntariness.”56
The precise question is not whether any of the home occupants consented
subjectively, but whether their conduct would have caused a reasonable person to
believe they collectively consented to the entry of the residence.57 	Having reviewed
Lieutenant Marrufo’s body-camera recording,58 the Court concludes that the occupants’
actions would have engendered just such a belief.
52Id. at 302 (quoting Randolph, 547 U.S. at 121).
53See United States v. Williams, 521 F.3d 902, 906 (8th Cir. 2008); United States v.
Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006); see also United States v. Turbyfill, 525 F.2d 57,
59 (8th Cir. 1975) (an invitation or consent to enter a house may be implied as well as
expressed).
54See United States v. Rodriguez, 834 F.3d 937, 941 (8th Cir. 2016); United States v.
Faler, 832 F.3d 849, 853 (8th Cir. 2016).
55Williams, 521 F.3d at 907 (citing Florida v. Royer, 460 U.S. 491, 497 (1983)).
56Williams, 521 F.3d at 907.
57See id.; United States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001).
58See Mot. Hrg. Ex. 1.
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 14 of 17 PageID #: <pageID>

15
The recording shows that Lieutenant Marrufo and Officer Red Owl’s belief – that
they had consent from one or more occupants to enter – was objectively reasonable.
Although none of the occupants affirmatively expressed consent to the officers’ entry –
either verbally or nonverbally – the occupants also did not try to close the front door,
protest when the officers walked into the house, or asked them to leave. 	The
unidentified occupant, who opened the front door, stepped back and pointed White
Horse out when Marrufo asked for White Horse. 	An objectively reasonable officer
could interpret that series of actions as an invitation to enter.59 	Nothing any of the
occupants said or did, after the front door opened, gave the officers reason to believe
they could not walk in and talk to White Horse or anyone else inside the residence.
Because the home entry was consensual, the officers had a legitimate basis for being in
the living room when they spoke with White Horse and Straight Head.
C. Fruit of the Poisonous Tree
White Horse lastly claims the statements he made to Lieutenant Marrufo and
Officer Red Owl were the product of the officers’ illegal entry into the home and must
59See Rodriguez, 834 F.3d at 941; Faler, 832 F.3d at 853; see also United States v. Greer,
607 F.3d 559, 563-64 (8th Cir. 2010) (when defendant “opened the door to the porch and
stepped back, he impliedly invited the officers to enter”); United States v. Smith, 973 F.2d
1374, 1376 (8th Cir. 1992) (implying consent when the defendant’s wife stepped aside
and motioned for officers to enter); Turbyfill, 525 F.3d at 58-59 (the occupant’s action in
opening the door and stepping back constituted an implied invitation to enter).
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 15 of 17 PageID #: <pageID>

16
be suppressed under the Exclusionary Rule.60 	But because there was no Fourth
Amendment or “poisonous tree” for any “tainted fruit” to grow or fall from, White
Horse’s statements are fully admissible against him as substantive evidence at trial.61
CONCLUSION
White Horse’s statements to Lieutenant Marrufo and Officer Red Owl, at the
scene and in Straight Head’s home, were not in response to custodial interrogation.
And the officers’ entry into the residence, and questioning of him in the living room of
it, was consensual. No basis, therefore, exists to exclude the statements under Miranda,
the Fourth Amendment, or as “tainted fruit.” 	Stymied by the facts and the law, White
Horse cannot prevail on his suppression motion.
RECOMMENDATION
Based on the authorities and legal analysis discussed in this report and the
record now before the Court, it is hereby
60See Wong-Sun v. United States, 371 U.S. 471, 487 (1963).
61See United States v. Crisolis-Gonzalez, 742 F.3d 830, 838 (8th Cir. 2014); United
States v. Goodale, 738 F.3d 917, 922 (8th Cir. 2013); see also United States v. Bravebird, 3:16-
CR-30061(01)-RAL, 2016 WL 6603170 at *6 (D.S.D. Nov. 8, 2016) (inasmuch as occupant
had the apparent authority to consent to a search of the residence, the statements
defendant made to a tribal agent later on were not subject to exclusion under the fruit of
the poisonous tree doctrine); United States v. Zastrow, 4:16-CR-40004-KES, 2016 WL
11407824 at **3, 6 (D.S.D. 	June 9, 2016), R&R adopted, 2016 WL 3546240 (D.S.D. June 24,
2016) (because the police did not violate defendant’s Fourth Amendment rights in the
consensual search that resulted in discovery of the shotgun, his subsequent statements
need not be suppressed as the fruit of a poisonous tree).
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 16 of 17 PageID #: <pageID>

17
RECOMMENDED 	that 	White 	Horse’s 	Motion 	to 	Suppress 	Statements62 be
denied in its entirety.
NOTICE
The 	parties 	have 	14 	calendar 	days 	after 	service 	of 	this 	report 	and
recommendation to file their objections to the same.63 Unless an extension of time for
cause is later obtained,64 failure to file timely objections will result in the waiver of the
right to appeal questions of fact.65 	Objections must “identify[] those issues on which
further review is desired[.]”66
Dated this 11th day of February, 2021, at Pierre, South Dakota.
BY THE COURT:
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
62See Dkt. No. 105.
63See 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(b).
64See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990); Nash v. Black, 781 F.2d 665,
667 & n.3 (8th Cir. 1986) (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)).
65See Thompson, 897 F.2d at 357; Nash, 781 at 667.
66Arn, 474 U.S. at 155.
Case 3:20-cr-30058-RAL Document 115 Filed 02/11/21 Page 17 of 17 PageID #: <pageID>