USA v. Ulrich

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TANYA ROCHELLE ULRICH,
Defendant.
4:22-CR-40020-LLP
REPORT AND RECOMMENDATION
INTRODUCTION
Defendant Tanya Rochelle Ulrich is before the court on an indictment
charging her with concealing a person from arrest. 	See Docket No. 1.
Ms. Ulrich has moved to suppress certain evidence. 	See Docket No. 32. 	The
United States (“government”) resists the motion. 	See Docket No. 41. 	This
matter has been referred to this magistrate judge for holding an evidentiary
hearing and recommending a disposition pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 57.11.
FACTS
An evidentiary hearing was held on September 22, 2022. 	Ms. Ulrich was
there in person along with her lawyer, Amanda Kippley, Assistant Federal
Public Defender. 	The government was represented by its Assistant United
States Attorney, Jeff Clapper. 	Two witnesses testified and eleven exhibits were
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received into evidence. 	From this testimony and these exhibits, the court
makes the following findings of fact.
A. 	Ms. Fries’ Indictment and First Arrest
A federal arrest warrant was issued for Jaime Jo Fries in May 2021 on
an indictment charging her with conspiracy to distribute a controlled
substance. 	JF Docket No. 1 & 41. 	DUSM Jack Valentine testified that he was
assigned this case shortly after the warrant was issued. 	To locate Ms. Fries,
DUSM Valentine and his supervisor, SDUSM Gary Bunt, spoke with Ms. Fries’
mother, Debra McDaniel, at her home located at
.
DUSM Valentine and SDUSM Bunt testified that Ms. McDaniel agreed to
work with them on locating Ms. Fries on the condition that she remain
anonymous. 	Ms. McDaniel indicated Ms. Fries would be living with her
boyfriend, Nick Lamm, somewhere in the Whittier area of Sioux Falls.
Ms. McDaniel also told the Marshals that Ms. Fries would be driving a silver
Mercedes or BMW, Mr. Lamm would be driving a black Suburban with a
Nebraska license plate, and indicated Ms. Fries had a dog.
DUSM Valentine testified that during surveillance of an apartment at
, officers spotted a woman walking a
black lab around the property. 	DUSM Valentine also testified that members of
the Dakota Territory Fugitive Task Force (“DTFTF”) discovered a silver
1 Documents from Ms. Fries’ criminal case, United States v. Brockhouse et al,
4:21-cr-40071-KES (D.S.D.), will be cited using the court’s assigned docket
number preceded by “JF.”
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Mercedes bearing South Dakota license plate 	parked next to a black
Suburban with a Nebraska license plate. 	DUSM Valentine indicated at this
point, officers spoke with the property owner, received confirmation Ms. Fries
lived in the building, and eventually arrested Ms. Fries and Mr. Lamm.
DUSM Valentine stated that Ms. McDaniel’s information proved to be reliable.
B. 	Ms. Fries’ Report of Apparent Violation and Second Arrest
A federal arrest warrant was issued for Ms. Fries on August 13, 2021, in
connection with an ex parte motion for revocation of pre-trial release. 	JF
Docket Nos. 47 & 48. 	Again, DUSM Valentine was assigned to this case.
DUSM Valentine and SDUSM Bunt were provided a personal data sheet for
Ms. Fries by the United States Probation Office which indicated Ms. Fries’ last
known address was 	. 	See
Docket No. 45, p. 5. 	DUSM Valentine and SDUSM Bunt testified that due to
their previous involvement in locating Ms. Fries, they knew that address to
belong to Ms. Fries’ mother, Ms. McDaniel.
On August 18, 2021, DUSM Valentine and SDUSM Bunt went to
Ms. Fries’ last known address and discovered Ms. Fries was no longer residing
with Ms. McDaniel, although her children lived there. 	DUSM Valentine and
SDUSM Bunt testified that they asked Ms. McDaniel to again help locate
Ms. Fries, as she proved to be reliable previously, and Ms. McDaniel agreed.
Ms. McDaniel informed the Marshals that Ms. Fries was living with someone
named “Tanya” in an apartment near
. 	From their experience, DUSM Valentine and SDUSM Bunt indicated
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they knew this to be the apartment complex located at
. 	Ms. McDaniel explained that to get to the right apartment in
the complex, officers would need to go downstairs, and it would be the first
door on the right. 	Ms. McDaniel further expressed that Ms. Fries may have
been working as a food delivery service driver.
The same day, DUSM Valentine and DTFTF travelled to the Dakota
Avenue apartment and spotted a silver Mercedes bearing South Dakota license
plate 	parked in the complex lot. 	DUSM Valentine testified that by
following the directions provided by Ms. McDaniel (downstairs and first door on
the right), officers approached 	DUSM Valentine testified that an
individual named “Tanya”2 answered the door. 	DUSM Valentine testified that
“Tanya” told them Ms. Fries was not living in the apartment and denied the
officer’s consent to enter the unit. 	But, during their conversation,
DUSM Valentine testified that he could see a black dog walking throughout the
apartment that looked like the one he saw with Ms. Fries in May 2021.
DUSM Valentine and DTFTF then left the property.
DUSM Valentine testified that after their initial visit, he reached out to
Ms. McDaniel again. 	Ms. McDaniel indicated that she did not know where else
Ms. Fries would be staying. 	DUSM Valentine testified that when he indicated
to Ms. McDaniel that he spotted a black dog, Ms. McDaniel stated he was at
2 This individual would later be identified as the defendant, Tanya Rochelle
Ulrich.
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the right apartment and that Ms. Fries would be wherever the black dog and its
new puppies were.
DUSM Valentine testified that on August 23, 2021, he reviewed text
messages between Ms. Fries and her boyfriend, Nick Lamm. 	DUSM Valentine
indicated that these text messages discussed Ms. Ulrich on multiple occasions.
For example, Ms. Fries texted an apology to Mr. Lamm that her phone had died
because “Tanya had her lower cut off when I was there charging it.”
DUSM Valentine believed Ms. Fries meant to say “power” instead of “lower.”
Another text from Mr. Lamm asked Ms. Fries why she was spending so much
time at Tanya’s apartment when she never liked her in the past.
With this additional evidence, DUSM Valentine, SDUSM Bunt, and
members of the DTFTF returned to 	at 	at
around 9:00 am on August 24, 2021. 	DUSM Valentine and SDUSM Bunt both
testified that they went to Ms. Ulrich’s apartment early in the morning to
ensure Ms. Fries would be present and not working as a driver during a lunch
or dinner rush. 	Upon approaching the apartment complex, DUSM Valentine
and SDUSM Bunt indicated they spotted the same silver Mercedes bearing
license plate 	known to be owned by Ms. Fries.
Initially, DUSM Valentine approached Ms. Ulrich’s apartment while
SDUSM Bunt remained outside the complex to watch the perimeter. 	After
knocking, DUSM Valentine testified that Tanya answered the door again and
he also saw the black dog as well as some puppies inside the apartment. 	After
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being denied consent to enter, DUSM Valentine requested SDUSM Bunt to
come in and assist.
SDUSM Bunt testified that he was able to locate 	by
following the directions provided to him by Ms. McDaniel. 	Once he arrived at
the apartment, SDUSM Bunt stated he was able to see a black dog walking
around behind Ms. Ulrich, but he did not see any puppies. 	SDUSM Bunt
testified that he thought “it was reasonable to believe” Ms. Fries was inside
Ms. Ulrich’s apartment. 	SDUSM Bunt indicated this belief was based on his
knowledge that Ms. Fries was likely not at work early in the morning, the fact
that he spotted both the vehicle and dog known to be owned by Ms. Fries, and
Ms. McDaniel’s correct description and location of Ms. Ulrich’s apartment.
SDUSM Bunt then gave the order for DUSM Valentine and members of
DTFTF to enter Ms. Ulrich’s apartment. 	Ms. Ulrich unsuccessfully tried to
block the officers’ entry into the apartment. 	Upon entering, Ms. Fries was
located in the back bedroom of Ms. Ulrich’s apartment. 	Ms. Fries was then
arrested and taken into custody for questioning.
C. 	Statements by Ms. Fries and Ms. Ulrich
DUSM Valentine and ICE-TFO Jason Von Haden conducted an interview
of Ms. Fries on August 24, 2021, at approximately 1:00 pm. 	See Exhibit H.3
This interview was conducted at the Federal Courthouse in Sioux Falls, South
Dakota. 	At the start of the interview, DUSM Valentine administered Miranda4
3 This interview was only audio recorded.
4 Miranda v. Arizona, 384 U.S. 436 (1966).
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warnings to Ms. Fries. 	Exhibit H, 01:30. 	Ms. Fries indicated she understood
her rights and agreed to waive them. 	Id. at 02:10. 	Ms. Fries indicated that she
really wasn’t staying at Ms. Ulrich’s apartment but was just keeping her stuff
there. 	Id. at 02:58. 	Ms. Fries stated she arrived at Ms. Ulrich’s apartment the
previous evening, or August 23, 2021. 	Id. at 04:09. 	Ms. Fries stated she was
given a key to the apartment by Ms. Ulrich several weeks prior. 	Id. at 04:38.
Ms. Fries then invoked her right to counsel and the interview concluded. 	Id. at
06:17.
On December 7, 2021, Ms. Fries was again interviewed by
DUSM Valentine. 	During this interview, Ms. Fries indicated that she moved
into Ms. Ulrich’s apartment on August 1, 2021, was present at the apartment
during the Marshals’ first visit on August 18, and Ms. Ulrich told her that law
enforcement was looking for her.
A federal arrest warrant was issued for Tanya Rochelle Ulrich March 1,
2022, on an indictment charging her with concealing a person from arrest.
See Docket No. 1. 	Ms. Ulrich was arrested on March 3, 2022. 	Later that day,
Ms. Ulrich was interviewed by DUSM Valentine and SA David Hohn at the
Federal Courthouse in Sioux Falls. 	See Exhibit I.5
At the start of the interview, SA Hohn administered Miranda warnings to
Ms. Ulrich. 	Id. at 12:04. 	Ms. Ulrich then signed a form indicating that she
understood her rights. 	Id. at 12:51. 	The purpose of the interview was to
determine the extent of Ms. Fries’ presence at Ms. Ulrich’s apartment in
5 This interview was audio and video recorded.
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August 2021. 	At first, Ms. Ulrich denied that Ms. Fries lived at the apartment
and denied that Ms. Fries was at the apartment during the Marshals’ first visit
on August 18. 	Id. at 17:28. 	Ms. Ulrich also denied knowing Ms. Fries was at
her apartment on August 24. 	Id. at 18:00. 	Ms. Ulrich then denied giving
Ms. Fries a key to her apartment. 	Id. at 21:51.
DUSM Valentine stated to Ms. Ulrich that he knew Ms. Fries was at her
apartment during the first visit, second visit, and in between. 	Id. at 43:37.
DUSM Valentine and SA Hohn stated that they had witnesses that could place
Ms. Fries at Ms. Ulrich’s apartment during this time period. 	Id. at 45:13.
Eventually, Ms. Ulrich admitted that she knew Ms. Fries was at her apartment
and that the only reason she let her stay was because Ms. Fries threatened her
child. 	Id. at 48:30.
On March 28, 2022, Ms. Fries was interviewed a third time after her
sentencing hearing. 	During this interview, Ms. Fries indicated that she did not
have an official agreement with Ms. Ulrich to live at her apartment, but stated
she would help take care of Ms. Ulrich’s child and pay rent. 	Ms. Fries also
denied threatening Ms. Ulrich. 6
Ms. Ulrich now moves to suppress the evidence of Ms. Fries being found
in her apartment and the statements made by her and Ms. Fries under the
Fourth Amendment. 	See Docket No. 32. 	Ms. Ulrich asserts that with only an
arrest warrant for Ms. Fries, it was unlawful for law enforcement to enter her
6 These interviews were not recorded. 	However, at the suppression hearing, the
government proffered the facts surrounding the interviews and Ms. Ulrich did
not object.
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apartment because there were no exigent circumstances, no consent, and no
search warrant. 	Docket No. 33, p. 4. 	Ms. Ulrich also argues the statements
made by Ms. Ulrich and Ms. Fries after the illegal search should be suppressed
as “fruit of the poisonous tree.” 	Docket No. 33, p. 5.
DISCUSSION
A. 	Whether Law Enforcement Had the Authority to Search Ms. Ulrich’s
House
Ms. Ulrich argues that because there were no exigent circumstances, no
consent, and no search warrant, law enforcement’s entry and search was
unlawful. 	Docket No. 33, p. 5. 	“The Fourth Amendment provides that ‘[t]he
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.’ ” 	Lange v.
California, ___ U.S. ___, 141 S.Ct. 2011, 2017 (2021); U.S. Const. amend. IV.
“The ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” 	Id.
(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).
“[A]n arrest warrant founded on probable cause implicitly carries with it
the limited authority to enter a dwelling in which the suspect lives when there
is reason to believe the suspect is within.” 	United States v. Bennett, 972 F.3d
966, 971 (8th Cir. 2020) (quoting United States v. Glover, 746 F.3d 369, 373
(8th Cir. 2014)); see also Payton v. New York, 445 U.S. 573, 603 (1980). 	“If
officers wish to execute an arrest warrant not at the person’s home, but at a
different person’s home . . . [o]fficers must either obtain a search warrant for
the other person’s home or have exigent circumstances or consent to enter.”
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Glover, 746 F.3d at 373 (citing Steagald v. United States, 451 U.S. 204, 2015-
26 (1981)).
But this “does not prevent police entry if the arresting officers executing
the arrest warrant at the third person’s home have a reasonable belief that the
suspect resides at the place to be entered and have reason to believe that the
suspect is present at the time the warrant is executed.” 	United States v.
Collins, 699 F.3d 1039, 1041-42 (8th Cir. 2012) (quoting United States v.
Powell, 379 F.3d 520, 523 (8th Cir. 2004)) (emphasis added); Bennett, 972 F.3d
at 971. 	“Whether the officers had reasonable belief is based upon the ‘totality
of the circumstances’ known to the officers prior to entry.” 	Glover, 746 F.3d at
373 (citing United States v. Junkman, 160 F.3d 1191, 1193 (8th Cir. 1998)).
“The officers’ assessment need not in fact be correct; rather, they need only
reasonabl[e] belie[f].” 	Powell, 379 F.3d at 523 (internal citations omitted).
While there may not have been exigency, consent, or a search warrant,
the court finds that law enforcement had a “reasonable belief” Ms. Fries was
both residing at Ms. Ulrich’s apartment and present at the time the arrest
warrant was executed based on the information provided by Ms. Fries’ mother,
Ms. McDaniel. 	Bennett, 972 F.3d at 971. 	“[I]f information from an informant
is shown to be reliable because of independent corroboration, then it is a
permissible inference that the informant is reliable and that therefore other
information that the informant provides, though uncorroborated, is also
reliable.” 	Glover, 746 F.3d at 373 (quoting United States v. Williams, 10 F.3d
590, 593 (8th Cir. 1993)).
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Before Ms. Fries’ arrest on August 24, 2021, Ms. McDaniel proved to be a
reliable source of information on locating Ms. Fries. 	After a federal arrest
warrant on a new indictment was issued for Ms. Fries in May 2021,
DUSM Valentine and SDUSM Bunt spoke with Ms. McDaniel. 	Docket No. 45,
p. 11. 	Ms. McDaniel stated Ms. Fries would be with her boyfriend, Nick Lamm,
would be driving a silver Mercedes or BMW, Mr. Lamm would be driving a
black Suburban with Nebraska license plates, and Ms. Fries had a dog. 	Id.
DUSM Valentine testified that during surveillance, members of DTFTF
spotted a woman walking a black lab outside an apartment at
and discovered a silver Mercedes bearing South Dakota
license plate 	parked next to a black Suburban bearing a Nebraska
license plate in the parking lot of the building. 	Ms. Fries was eventually
located and arrested at this 	apartment building. 	These
findings by the DUSM Valentine and DTFTF independently corroborated
Ms. McDaniel’s information.
Given Ms. McDaniel’s prior reliable information and the new information
she provided on the whereabouts of Ms. Fries, DUSM Valentine and SDUSM
Bunt had “reasonable belief” that Ms. Fries resided at Ms. Ulrich’s apartment
and was present at the apartment on the morning of August 24, 2021. 	First,
Ms. Fries was not at her last known location according to the U.S. Probation
Office, 	, as that was Ms. McDaniel’s residence and
Ms. Fries had moved out. 	Second, when DUSM Valentine followed the
instructions given by Ms. McDaniel on how to locate the apartment Ms. Fries
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was staying at (go downstairs in the complex and it will be the first door on the
right) an individual named “Tanya” answered the door. 	Ms. McDaniel believed
Ms. Fries was living with someone named “Tanya.” 	The court notes that
Ms. McDaniel was the primary caregiver to Ms. Fries’ children and the children
were living with Ms. McDaniel full-time. 	Thus, Ms. McDaniel was no ordinary
anonymous “tipster.” 	Her relationship to Ms. Fries coupled with her primary
role in caring for Ms. Fries’ children made her privy to information about
Ms. Fries’ location, lending another layer of reliability to the information she
gave law enforcement.
Third, both times officers visited Ms. Ulrich’s apartment, the same silver
Mercedes bearing license plate 	known to be owned by Ms. Fries was
parked in the complex lot. 	Fourth, knowing Ms. Fries may have been a food
delivery service driver, DUSM Valentine and SDUSM Bunt both testified that
they went to Ms. Ulrich’s apartment early in the morning to ensure Ms. Fries
would be present and not working during a lunch or dinner rush. 	Fifth, DUSM
Valentine observed a black dog in Ms. Ulrich’s apartment on August 18 and
August 24, observed puppies in Ms. Ulrich’s apartment on August 24, and
SDUSM Bunt observed the black dog on August 24. 	Again, Ms. McDaniel
conveyed Ms. Fries would be wherever the dog and puppies were. 	Finally,
DUSM Valentine’s review of Ms. Fries’ text messages with Mr. Lamm revealed
that Ms. Fries was spending a large amount of time with an individual
named “Tanya.”
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With this evidence, it is clear to the court that DUSM Valentine and
SDUSM Bunt were able to again corroborate Ms. McDaniel’s information and
reasonably believed that Ms. Fries was residing and currently present at
Ms. Ulrich’s apartment on the morning of August 24. 	Because the court has
found that “officers had reasonable belief [] based upon the ‘totality of the
circumstances’ known to the officers prior to entry,” there was no Fourth
Amendment violation. 	Glover, 746 F.3d at 373.
Ms. Ulrich rejects this conclusion, stating DUSM Valentine and
SDUSM Bunt lacked sufficient reasonable belief that Ms. Fries was residing at
Ms. Ulrich’s apartment because: (1) the information they received between the
August 18 visit and the August 24 visit changed nothing, (2) there was no
allegation in the U.S. Probation Office’s report of apparent violation that
Ms. Fries had changed her address, and (3) SDUSM Bunt did not have
sufficient information to give the order to enter Ms. Ulrich’s apartment on
August 24. 	The court does not find these arguments persuasive.
First, between the August 18 and August 24 visit, DUSM Valentine
reached out to Ms. McDaniel again, who indicated that she “[didn’t] know
where else [Ms. Fries] would be.” 	Docket No. 45, p. 12. 	Ms. McDaniel also
informed DUSM Valentine to look out for a litter of puppies. 	Id. 	During this
period, DUSM Valentine also reviewed text messages between Ms. Fries and
her boyfriend, Mr. Lamm, which repeatedly mentioned Ms. Ulrich. 	The texts
were sent on June 9, June 21, and July 17, 2021. 	This additional information
obtained by DUSM Valentine solidified officers’ reasonable belief that Ms. Fries
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was residing at Ms. Ulrich’s apartment, especially with the discovery of the
puppies during the second visit on August 24.
Next, Ms. Ulrich is correct in that there was no allegation that Ms. Fries
changed her address in the Probation office’s report of apparent violation of
pretrial release conditions. 	See Docket No. 45, pp. 1-2. 	But this alone is not
dispositive. 	When DUSM Valentine and SDUSM Bunt went to Ms. Fries’ last
known address according to the Probation office, they discovered it to be
Ms. McDaniel’s residence and Ms. Fries was no longer residing there. 	With this
and the information provided by Ms. McDaniel, officers formed a reasonable
belief that Ms. Fries was residing elsewhere at Ms. Ulrich’s apartment.
Finally, Ms. Ulrich attempts to argue that SDUSM Bunt did not have
sufficient information himself to order the entry into Ms. Ulrich’s apartment on
August 24, as many of the indicia of reasonable belief were observed by
DUSM Valentine. 	SDUSM Bunt testified that he accompanied DUSM Valentine
during his initial conversation with Ms. McDaniel in May 2021, where he was
told about Ms. Fries’ vehicle, Ms. Fries’ dog, and that she would be living with
her boyfriend who drove a black Suburban with a Nebraska license plate.
SDUSM Bunt also testified that he again accompanied DUSM Valentine
to speak with Ms. McDaniel after Ms. Fries’ pretrial release arrest warrant was
issued and was told about where Ms. Fries may have been living, Ms. Fries’
vehicle, Ms. Fries’ black dog, and Ms. Fries’ potential occupation as a food
delivery service driver. 	SDUSM Bunt also testified that he was aware of
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DUSM Valentine’s efforts to find Ms. Fries at Ms. Ulrich’s apartment on
August 18.
SDUSM Bunt testified that on August 24, he started outside to watch the
perimeter and observed Ms. Fries’ silver Mercedes. 	When he was called inside
by DUSM Valentine, he knew how to get to the specific apartment based on the
directions given to him by Ms. McDaniel (downstairs and the first door on the
right) and observed a black dog in Ms. Ulrich’s apartment. 	Based on his own
observations and the communicated observations of DUSM Valentine, SDUSM
Bunt had sufficient “reasonable belief [] based upon the totality of the
circumstances known to the officers prior to entry.” 	Glover, 746 F.3d at 373.
Thus, because the officers executing Ms. Fries’ arrest warrant at
Ms. Ulrich’s home had a reasonable belief that Ms. Fries resided and was
currently present at Ms. Ulrich’s apartment at the time the warrant was
executed, Ms. Ulrich’s Fourth Amendment rights were not violated. 	Collins,
699 F.3d at 1041-42.
A final argument offered by Ms. Ulrich is something of a red herring. 	She
points out that two of the texts between Ms. Fries and Mr. Lamm were dated
prior to June 23, 2021. 	At the hearing, Ms. Ulrich introduced into evidence the
lease for 	in which Ms. Ulrich lived and Ms. Fries was found. 	See
Exhibit G. 	The beginning of the lease was June 23, 2021, after the date of the
two texts in June. 	Thus, Ms. Ulrich attempts to argue that even if the texts
showed Ms. Fries was living with Ms. Ulrich in June, she was not necessarily
living with Ms. Ulrich in August after Ms. Ulrich moved.
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But the lease agreement actually supports the court’s findings that the
officers had a reasonable belief that Ms. Fries was residing at Ms. Ulrich’s
apartment. 	Ms. Fries texted Mr. Lamm on June 21 apologizing that her phone
had been dead because Tanya had had her “[p]ower cut off” while Ms. Fries was
at Tanya’s place. 	It would not have been possible for Ms. Ulrich to have her
power cut off at 	because the lease for that apartment provided
that the landlord would pay all utilities. 	See Exhibit G at p. 2, Docket No. 45
at p. 15. 	The court assumes, without so holding, that Ms. Fries lived with
Ms. Ulrich in both apartments, the one she was living in in June when her
power was cut off and the one she moved to thereafter, 	The
July 17, 2021, text between Lamm and Fries—after Ms. Ulrich entered into the
new lease--further supports this conclusion.
But a conclusion to this end is unnecessary. 	The officers did not have
Exhibit G. 	With or without that document, the court holds the Marshals had a
reasonable belief that Ms. Fries was residing in
B. 	Whether the Statements Made by Ms. Ulrich and Ms. Fries Should be
Suppressed
Ms. Ulrich asserts that all statements made by her and Ms. Fries after
the search of her home should be suppressed. 	Docket No. 30, p. 5. 	The
government rejects this, arguing that Ms. Fries’ statements “should not be
suppressed because they came from a source independent of any illegality.”
Docket No. 41, pp. 10-12.
The exclusionary rule is “a deterrent sanction that bars the prosecution
from introducing evidence obtained by way of a Fourth Amendment violation.”
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Davis v. United States, 564 U.S. 229, 231 (2011). 	“[T]he exclusionary rule bars
the admission of physical evidence and live witness testimony obtained directly
or indirectly through the exploitation of police illegality.” 	Hamilton v. Nix, 809
F.2d 463, 465 (8th Cir. 1987) (citing Wong Sun v. United States, 371 U.S. 471,
484-85 (1963)). 	This includes “verbal evidence which derives so immediately
from an unlawful entry and an unauthorized arrest.” 	Wong Sun, 371 U.S.
at 485.
But there are several exceptions to the exclusionary rule. 	“First, the
independent source doctrine allows trial courts to admit evidence obtained in
an unlawful search if officers independently acquired it from a separate,
independent source.” 	Utah v. Strieff, 579 U.S. 232, 238 (2016) (citing Murray
v. United States, 487 U.S. 533, 537 (1988)). 	The underlying principle of this
doctrine is that “while the government should not profit from its illegal activity,
neither should it be placed in a worse position than it would otherwise have
occupied.” 	United States v. Baez, 983 F.3d 1029, 1037 (8th Cir. 2020) (quoting
Murray, 487 U.S. at 542).
Another exception to the exclusionary rule is the attenuation doctrine.
Strieff, 579 U.S. at 238. 	Under this doctrine, “[e]vidence is admissible when
the connection between unconstitutional police conduct and the evidence is
remote or has been interrupted by some intervening circumstance, so that ‘the
interest protected by the constitutional guarantee that has been violated would
not be served by suppression of the evidence obtained.’ ” 	Id. (quoting Hudson
v. Michigan, 547 U.S. 586, 593 (2006)). 	The court must consider three factors
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in determining whether the attenuation doctrine applies: (1) “the temporal
proximity between the unconstitutional conduct and the discovery of evidence,”
(2) “the presence of intervening circumstances,” and (3) “the purpose and
flagrancy of the official misconduct.” 	Id. at 239 (quoting Brown v. Illinois, 422
U.S. 590, 603-04 (1975)).
Because this court found that Ms. Ulrich’s Fourth Amendment rights
were not violated by the search of her apartment, the exclusionary rule does
not apply to either her or Ms. Fries’ statements. 	There was no constitutional
violation so these statements are not “fruit of the poisonous tree” and should
not be suppressed.
Even if this court were to find that there was a Fourth Amendment
violation, the attenuation doctrine would apply to the statements made by
Ms. Ulrich and Ms. Fries. 	There are four interviews at issue—Ms. Fries’ first
interview after her arrest on August 24, 2021, Ms. Fries’ follow-up interviews in
December 2021 and March 2022, and Ms. Ulrich’s interview after her arrest in
March 2022. 	Docket No. 33, pp. 6-7. 	Ms. Ulrich argues that the statements
made at each of these interviews “derive immediately from the unlawful search
of Ms. Ulrich’s apartment,” and should be suppressed. 	The court disagrees.
First, the temporal proximity between the alleged unlawful entry and the
statements made by Ms. Ulrich and Ms. Fries weighs against suppression.
Ms. Fries’ interview on August 24 occurred approximately four hours after the
alleged constitutional violation and the other interviews in question occurred
several months later. 	The Supreme Court and Eighth Circuit have made clear
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that for the temporal proximity factor to favor suppression, the statements
need to occur shortly after the alleged constitutional violation. 	See Strieff, 579
U.S. at 239-240 (“found that the confession should be suppressed, relying in
part on the less than two hours that separated the unconstitutional arrest and
the confession.”) (quoting Brown, 422 U.S. at 604); United States v.
Riesselman, 646 F.3d 1072, 1081 (8 th Cir. 2011) (because Miranda
advisements were given with other intervening circumstances, the defendant’s
statements given fifteen to twenty minutes after the illegal search did not weigh
against attenuation); United States v. Lakoskey, 462 F.3d 965, 975 (8th
Cir. 2006) (“such consent did not right the officers’ constitutional wrong
because [the defendant’s] acquiescence came immediately on the heels of the
illegal entry.”).
For example, in Wong Sun, defendant Toy’s statements given to police in
his bedroom after police unlawfully entered his residence were suppressed as
fruit of the poisonous tree because the statements were taken in the same
place and immediately upon the heels of the Fourth Amendment violation.
Wong Sun, 371 U.S. at 484-85. 	However, Wong Sun’s statements, which were
taken after Wong Sun’s unlawful arrest (also a Fourth Amendment violation)
were not suppressed because the statement was taken a few days after Wong
Sun’s illegal arrest, in a different location, and after he was advised of his right
to withhold information. 	Id. at 476, 491. 	The Court held that the
circumstances surrounding Wong Sun’s statement rendered the taint of the
Fourth Amendment violation “so attenuated as to dissipate the taint.” 	Id.
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Similarly, in United States v. Brooks, the Eighth Circuit determined that
there was a “sufficient passage of time” to attenuate the defendant’s statements
when investigators questioned the defendant around two hours after the initial
allegedly unlawful seizure and arrest. 	United States v. Brooks, 22 F.4th 773,
780 (8th Cir. 2022). 	The court held that after two hours, the investigator’s
questioning “did not come hard on the heels of an unlawful arrest, but rather
after a period of time that allowed for pause and reflection.” 	Id. 	The same is
true here. 	Based on the approximate four-hour gap between the apartment
entry and the August 24 interview of Ms. Fries and the several-month gap with
the remaining interviews of the two women, any taint from the alleged Fourth
Amendment violation was sufficiently purged. 	Wong Sun, 371 U.S. at 491.
There were several other intervening circumstances that weigh against
suppression. 	The interviews took place at a different location than the alleged
Fourth Amendment violation. 	See United States v. Vega-Rico, 417 F.3d 976,
980 (8th Cir. 2005) (the fact the interview was conducted in a different location
was significant); Riesselman, 646 F.3d at 1080 (the interview’s “change of
location” was an intervening circumstance.). 	Officers also administered
Miranda warnings and obtained waivers of those warnings from both
Ms. Ulrich and Ms. Fries. 	See Exhibit H, Exhibit I, Testimony of DUSM
Valentine. 	“Providing Miranda warnings is an ‘important, although not
dispositive,’ factor that weighs against suppression.” 	United States v.
Yorgensen, 845 F.3d 908, 914 (8th Cir. 2017). 	These intervening
circumstances “tend to show [Ms. Ulrich and Ms. Fries] understood [their]
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choice to speak with the officers was voluntary.” 	Riesselman, 646 F.3d at
1081.
As to “the purpose and flagrancy of the official misconduct,” Ms. Ulrich
has provided no evidence showing that the entry into her apartment was a
purposeful violation or conducted in bad faith. 	“For the violation to be flagrant,
more severe police misconduct is required than the mere absence of prior
cause for the seizure.” 	United States v. Lowry, 935 F.3d 638, 643 (8th
Cir. 2019) (quoting Strieff, 579 U.S. at 243). 	Flagrant conduct is demonstrated
when: “(1) the impropriety of the official’s misconduct was obvious or the
official knew, at the time, that his conduct was likely unconstitutional but
engaged in it nevertheless; and (2) the misconduct was investigatory in design
and purpose and executed in the hope that something might turn up.” 	United
States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006) (quoting Brown, 422 U.S.
at 605). 	Quite the opposite, here, officers had “reasonable belief” Ms. Fries was
residing and currently present in Ms. Ulrich’s apartment on the morning of
August 24. 	Merely arguing that officers did not have proper cause to enter
Ms. Ulrich’s apartment is insufficient.
Therefore, because of the large temporal gaps between the alleged
constitutional violation and the statements made by Ms. Ulrich and Ms. Fries,
the presence of intervening circumstances, and the lack of any flagrant officer
misconduct, the court finds that the attenuation doctrine applies, and the
statements made should not be suppressed.
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CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends DENYING Ms. Ulrich’s motion to suppress [Docket
No. 32] in its entirety.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific to require de novo review by the district
court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d
665 (8th Cir. 1986).
DATED this 5th day of October, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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