USA v. Tuttle et al.

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
MYLES TUTTLE,
Defendant.
CR. 17-50049-01-JLV
ORDER
INTRODUCTION
Defendant filed a motion to suppress statements and a motion to
suppress any evidence generated through a lineup. 	(Dockets 97 & 98). 	The
motions were referred to Magistrate Judge Daneta Wollmann for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the standing order
dated March 9, 2015. 	The magistrate judge conducted a hearing on the
motions and issued a report and recommendation (“R&R”) concluding
defendant’s motions should be denied. 	(Docket 232). 	Defendant timely filed
objections to the R&R.1 	(Docket 240). 	For the reasons stated below,
defendant’s objections are overruled and the report and recommendation is
adopted consistent with this order.
1The court entered an order finding defendant’s objections should be
allowed even though they were “filed outside the time established by [28 U.S.C.]
§ 638(b)(1).” 	(Docket 246).
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DEFENDANT’S OBJECTIONS
Mr. Tuttle’s objections to the R&R are summarized as follows:
1. 	Defendant was in custody and should have been advised of his
Miranda2 rights before being interviewed; and
2. 	The photographic lineup was unduly suggestive.
(Docket 240).
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files
written objections to the magistrate judge’s proposed findings and
recommendations, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 	Id. 	The court may “accept,
reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 	Id. 	See also Fed. R. Crim. P. 59(b)(3). 	The court
completed a de novo review of those portions of the R&R to which objections
were filed.
ANALYSIS
A grand jury indicted Mr. Tuttle on one count of premeditated first degree
murder in violation of 18 U.S.C. §§ 1111(a), 2, 1152 and 1153; one count of
felony murder in violation of 18 U.S.C. §§ 1111(a), 2, 1152 and 1153; one
count of conspiracy to commit assault with a dangerous weapon in violation of
18 U.S.C. § 113(a)(3); and one count of accessory after the fact to first degree
murder in violation of 18 U.S.C. § 3. 	(Docket 129). 	Three other individuals
were indicted with Mr. Tuttle on some of the same counts and other counts of
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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the superseding indictment relating to the death of Vincent Brewer III on
October 16, 2016, at Pine Ridge, South Dakota. 	Id.
Mr. Tuttle filed a motion to suppress two statements purportedly given to
law enforcement.3 	(Docket 97). 	He also filed a motion to suppress any
identification of him which occurred during a series of photographic lineups.
(Docket 98).
The magistrate judge conducted a suppression hearing at which FBI
Special Agents Scott Eicher and Jeff Youngblood testified and three exhibits
were admitted. 	(Dockets 191 & 232). 	Relying on the audio recording of the
hearing, For The Record (“FTR”), the magistrate judge issued the R&R.
(Docket 232 at p. 2 n.1).4
1. 	DEFENDANT WAS IN CUSTODY AND SHOULD HAVE BEEN
ADVISED OF HIS MIRANDA RIGHTS BEFORE BEING
INTERVIEWED
The magistrate judge found “Mr. Tuttle was not in custody [on
October 1, 2016,] for purposes of Miranda, and SA Eicher was not required
to administer Miranda warnings.” 	Id. at p. 11. 	Based on this finding, the
3 During the suppression hearing the parties agreed Mr. Tuttle did not
give any statement on March 28, 2017, while being transferred from the jail at
Winner, South Dakota, to the Pennington County Jail at Rapid City, South
Dakota. 	(Docket 232 at p. 6). 	Because of that agreement, the magistrate
judge only addressed the interview given by Mr. Tuttle on October 1, 2016. 	Id.
4 The report indicates no transcript of the suppression hearing was
prepared. 	(Docket 232 at p. 2 n.1). 	This statement is in error as the
transcript of the suppression hearing was filed before the issuance of the R&R.
See Docket 191. 	The court will cite to the transcript and not to the FTR
referenced by the magistrate judge.
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report recommends defendant’s “[m]otion to [s]uppress [s]tatements be
denied.” 	Id.
Mr. Tuttle objects to the report’s recommendation. 	(Docket 240 at
pp. 1-2). 	Defendant argues the recommendation is erroneous and claims
the facts presented at the suppression hearing were materially different
from the facts found by the magistrate judge. 	Id. at p. 1. 	Defendant
believes the facts material to the court’s de novo review of the evidence
presented include the following:
1. 	[D]efendant was taken into custody at the Walmart Parking
Lot where the vehicle in which he was a passenger was
surrounded by more than 10 police cars transporting police
officers and agents in uniform and with sidearms.
2. 	[D]efendant was asked, after the police officers and police
vehicles surrounded the car in which he was a passenger,
whether he would talk to the police.
3. 	[H]e 	was 	taken 	to 	the 	Lakewood 	police 	department 	in
handcuffs with an armed police officer and put in a small room
with no windows and one door.
4. 	[H]e was then interrogated by an agent.
5. 	[T]here were two different agents physically present not only
one as the Magistrate determined although they may have
been present at different times.
Id. 	Mr. Tuttle argues “[u]nder the circumstances of this case, as testified to
by Agent Eicher and the contents of the videotape played at the hearing, there
can be no question that Myles Tuttle was in custody and should have been
advised of his [Miranda] rights prior to interrogation.” 	Id. at pp. 1-2.
Defendant contends the recommendation of the magistrate judge should be
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rejected and the court should find Mr. Tuttle’s October 1, 2016, “statements
should be suppressed.” 	Id. at p. 2. 	The court will resolve defendant’s
objections in the following development of the material facts.
On October 1, 2016, SA Scott Eicher with the Colorado FBI was
coordinating a kidnapping investigation with the Lakewood, Colorado, Police
Department. 	(Docket 191 at p. 24:1-2). 	The alleged kidnapping victim was
Shay Brewer. 	Id. at p. 24:6-7. 	In order to control the scene at the Lakewood
Walmart where the vehicle in question was located there were three marked
police cars and four or five unmarked police cars. 	Id. at p. 21:5-11. 	There
were approximately 15 special agents and police officers at the scene. 	Id. at
p. 21:12-15. 	The Lakewood Police vehicles conducted the initial intervention
with the suspect vehicle and officers spoke with the occupants. 	Id. at p. 8:1-7.
The occupants were identified as Tyler Schae5 Brewer, Orlando Villaneua and
Mr. Tuttle. 	Id. at p. 8:11-21. 	The intervention occurred around midnight.
Id. at p. 17:21-22.
SA Eicher arrived at the scene a couple of minutes later. 	Id. at p. 8:8.
He spoke with Task Force Officer Mike Thrapp who had talked with Mr. Tuttle
at the scene. 	Id. at p. 9:5-6. 	Officer Thrapp indicated Mr. Tuttle was willing
to speak with law enforcement at the Lakewood Police Department. 	Id. at
5 The transcript refers to Ms. Brewer as “Tyler Shay Brewer.” 	(Docket
191 at p. 8:14-15). 	Ms. Brewer’s middle name is spelled “Schae.” 	See United
States v. Tyler Schae Brewer, CR. 16-502124 (D.S.D. 2016).
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p. 9:6-8. 	Mr. Tuttle consented to being transported to the police department
in a marked unit. 	Id. at p. 9:12-16. 	Pursuant to police department policy,
Mr. Tuttle was handcuffed for officer safety. 	Id. at p. 9:17-24. 	SA Eicher
followed the patrol car containing Mr. Tuttle for the approximate 20-minute
trip from Walmart to the police station. 	Id. at p. 18:8-10.
At the Lakewood Police Department Mr. Tuttle was placed in an interview
room. 	Id. at p. 10:1-7. 	The room contained a table and two chairs with video
recording. 	Id. at p.10:7-11. 	SA Eicher estimated the windowless room was 5′
by 10′ in size. 	Id. at p. 25:17-20. 	According to the video recording, Mr. Tuttle
was placed in the room at 1:00:30. 	Exhibit 2.
Approximately ten minutes later SA Eicher entered the room. 	Id. at
1:10:00. 	At about that same time a uniformed officer entered the room,
conducted a wand scan of Mr. Tuttle’s body and removed the handcuffs. 	Id.;
see also Docket 191 at p. 11:15-17. 	The uniformed officer left the room
approximately forty seconds later. 	Exhibit 2 at 1:10:40. 	SA Eicher, who was
plain clothed, did not have a sidearm or other weapon with him in the interview
room during his time with Mr. Tuttle. 	(Docket 191 at pp. 11:24-12:4; see also
Exhibit 2). 	The door remained unlocked throughout the course of the
interview. 	(Docket 191 at p. 14:6-11). 	SA Eicher testified that at no time did
Mr. Tuttle request to leave the room. 	Id. at p. 29: 17-18.
SA Eicher began the interview by telling Mr. Tuttle he was not under
arrest. 	Exhibit 2 at 1:11:00-10. 	The agent stated he understood Mr. Tuttle
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came voluntarily to the police department. 	Id. at 1:11:10-30. 	Mr. Tuttle gave
an inaudible answer, which did not prompt further questions by the agent
about his understanding of Mr. Tuttle’s cooperation and consent to an
interview. 	Id.
SA Eicher testified “the objective at the police station was to interview
Mr. Tuttle about his knowledge of the passengers that were with him and how
they got from Rapid City to Denver.” 	(Docket 191 at p. 12:13-16). 	The
discussion between SA Eicher and Mr. Tuttle was about the circumstances of
Mr. Tuttle bringing the other two individuals to Denver and was in a
conversational tone. 	Exhibit 2 at 1:11:30-1:15:30. 	About twelve minutes into
the conversation the agent asked Mr. Tuttle to tell the truth and the agent told
him he was not trying to get him in trouble. 	Id. 1:15:30-1:17:20. 	Mr. Tuttle
indicated he did not really know the other individuals, but they had given him
gas money to bring them to Denver. 	Id. at 1:1:17:20-1:18-10. 	When Mr.
Tuttle indicated the car was not his but a friend’s, SA Eicher told him “you’re
digging yourself a hole . . . put yourself in my place—you’re not in trouble . . .
the South Dakota authorities, they don’t want to charge you.” 	Id. at
1:1:19:10-1:21:00. 	At that point Mr. Tuttle indicated he wanted a lawyer. 	Id.
at 1:21:00. 	The agent asked him “you don’t want to talk?” and Mr. Tuttle
answered “I just need to get home.” 	Id. at 1:21:00-1:21:40. 	SA Eicher
interjected “last chance, you’re sure . . . . You’re sure—you can have a lawyer if
you want one.” 	1:22:00-1:22:10. 	Mr. Tuttle replied “charge me if you’re going
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to.” 	Id. at 1:22:30. 	The agent left the room. 	Id. at 1:22:40. 	Mr. Tuttle
remained in the room for approximately thirty minutes longer. 	See Exhibit 2
at 1:22:40-1:45:07; see also Docket 191 at p. 15:23-25. 	SA Eicher escorted
Mr. Tuttle out of the room and walked him to the door of the Lakewood Police
Department, where he was “free to go.” 	(Docket 191 at pp. 15:25-16:3). 	SA
Eicher testified that at no time off-camera was anyone aggressive or
threatening to Mr. Tuttle and no promises were ever conveyed to him. 	Id. at
p. 13:15-23.
The magistrate judge properly identified the law applicable to a custodial
interrogation. 	(Docket 232 at pp. 7-8). 	The magistrate judge specifically
addressed the six factors considered by the United States Court of Appeals for
the Eighth Circuit for determining if an individual is in custody.
(1) whether the suspect was informed that he . . . was free to leave
and 	that 	answering 	was 	voluntary; 	(2) 	whether 	the 	suspect
possessed freedom of movement; (3) whether the suspect initiated
contact or voluntarily acquiesced; (4) whether strong-arm tactics or
strategies were employed; (5) whether the atmosphere was police-
dominated; or, (6) whether the suspect was placed under arrest at
the end of questioning.
Id. at p. 8 (citing United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990)).
The magistrate judge identified the most telling of these factors. 	“The ‘most
obvious and effective means of demonstrating that a suspect has not been
taken into custody’ is an express advisement that the suspect is not under
arrest and that his participation in questioning is voluntary.” 	Id. (citing
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United States v. Brave Heart, 397 F.3d 1035, 1039 (8th Cir. 2005) (quoting
Griffin, 922 F.2d at 1349).
The magistrate judge noted at the end of the “approximately thirteen
minute” interview, “Mr. Tuttle did in fact voluntarily terminate the interview by
stating he no longer wished to talk and he wanted an attorney.” 	Id. at p. 10.
The magistrate judge found “a reasonable person in Mr. Tuttle’s position ‘would
have felt at liberty to end the interrogation and leave.’ ” 	Id. at p. 11 (citing
Brave Heart, 397 F.3d at 1038-39).
The court overrules Mr. Tuttle’s factual objections. 	The court finds Mr.
Tuttle was not in custody and was not subject to a custodial interrogation.
Defendant’s motion to suppress the statement is denied.
2. 	THE PHOTOGRAPHIC LINEUP WAS UNDULY SUGGESTIVE
The magistrate judge found the series of photographs used by FBI
Special Agent Jeff Youngblood during his interviews of Tiffanee Garnier,
Veronica Richards and Emily Dubray was not unduly suggestive. 	(Docket 232
at p. 13). 	Finding that “no due process violation occurred,” the magistrate
judge recommended defendant’s “[m]otion to [s]uppress [a]ny [e]vidence of
[l]ineup should be denied.” 	Id.
Mr. Tuttle objects to the report and recommendation. 	(Docket 240 at
p. 2). 	He argues the way Mr. Tuttle’s photograph was presented to the three
individuals was “unduly suggestive.” 	Id. 	Defendant does not challenge the
findings of the magistrate judge and challenges only the conclusion that no due
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process violation occurred by the identification process employed by SA
Youngblood. 	Mr. Tuttle asks the court to reject the report and
recommendation and suppress the identifications developed by SA Youngblood.
Id.
A summary of the facts developed at the suppression hearing is
necessary to analyze defendant’s objection. 	On October 16, 2016, following a
botched kidnapping of Vincent Brewer, III, a group of individuals shot and
killed him. 	(Docket 232 at p. 5). 	Law enforcement developed a series of
photographs (“photo series”) of several individuals—nine men and five women—
who had been identified as people of interest in the murder of Mr. Brewer and
the investigation into the murder of Annie Colhoff which had occurred several
weeks earlier.6 	Suppression Hearing Exhibit 1. 	The FBI included a
photograph of Mr. Tuttle in the 14 photographs.7 	(Docket 232 at p. 5; see
Exhibit 1 at p. 3.
During an interview conducted by SA Youngblood and another FBI
Special Agent, Ms. Garnier stated Mr. Tuttle had been a driver of one of the
vehicles in the Brewer murder and that after the Colhoff murder he went with
her to Denver. 	Id. 	Near the end of the interview the agents reviewed the
6 The report mistakenly identified the photo series as containing ten men
and five women. 	(Docket 232 at p. 5).
7 Mr. Tuttle’s photograph was number three in the photo series. 	(Docket
191 at p. 49:13-14).
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photo series with Ms. Garnier. 	SA Youngblood testified they showed her “most
of these. 	I think we showed 13 photos to Tiffanee minus her own
photograph. 	So she would have viewed 12 of these photographs.”8 	(Docket
191 at p. 41:2-4). 	Ms. Garnier’s photograph was number ten in the photo
series. 	Id. at p. 50:15.
According to SA Youngblood, Ms. Garnier told the agents she met Mr.
Tuttle through a common friend after the Colhoff murder. 	Id. at p. 70:19-20.
Ms. Garnier was looking for a ride “after Annie Colhoff’s murder to get back to
Denver to get out of this area. . . . She was driven back to Denver by Myles and
his sister in the vehicle that [law enforcement] recovered after Vinny’s murder.”
Id. at pp. 70:15-17 and 71:6-8.
SA Youngblood testified he and the other agent “asked her to take a look
at the photographs and just let us know if she knew any of these individuals, if
she could identify them.” 	Id. at p. 43:15-17. 	SA Youngblood did not highlight
Mr. Tuttle’s photograph in any way. 	Id. at p. 43: 18-20. 	The agent testified
the interview was not to specifically “target Myles Tuttle. . . . Myles Tuttle was
not the intent of these interviews.” 	Id. at pp. 54:10-11 and 55:3-4. 	While
proceeding through the photo series, Ms. Garnier identified Mr. Tuttle by name
8 It is not clear in the record which other photograph was not included in
the photo series to arrive at the twelve photographs shown to Ms. Garnier. 	SA
Youngblood testified one of the later photographs in Exhibit 1 had not yet been
added to the photo series at the time of the Garnier interview because that
individual was not yet a “possible persons [sic] of interest.” 	(Docket 191 at
p. 41:10-14).
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as the individual “she’d seen after Annie Colhoff’s murder and the day of Vinny
Brewer’s murder because he was the driver.” 	Id. at p. 44:5-11.
A few weeks later SA Youngblood interviewed Veronica Richards and
Emily Dubray. 	Id. at p. 44:12-19. 	They were interviewed together at their
home in Pine Ridge, South Dakota. 	Id. at p. 44:20-45:1. 	The agent did not
know why he “interviewed them together, other than that they’re a couple.” 	Id.
at p. 45:4-6. 	Ms. Richards and Ms. Dubray told SA Youngblood they had been
together near White Clay, Nebraska, on the night of the Brewer murder when
they picked up Lisa Brewer and “a skinny, Indian male with dark hair
. . . walking with Lisa carrying a bag that looked like a girl’s bag.” 	Id. at
pp. 45:6-8 and 46:3-5. 	After picking up Lisa Brewer and the “skinny, Indian
male” the women drove them to a residence approximately three miles away.
Id. at pp. 68:18-69:3. 	During the short drive, the women spoke with Lisa
Brewer and not the man. 	Id. at p. 69:13-14.
SA Youngblood instructed the two witnesses to look at the photo series
and “either you know them or you don’t. . . . didn’t want them to guess. 	Did
not want them to feed off of each other. . . . if Emily knew one and Veronica
didn’t that was fine.” 	Id. 	When they got to Mr. Tuttle’s photograph “[b]oth
immediately recognized “him as a skinny, Indian male with dark hair that was
walking with Lisa carrying a bag that looked like a girl’s bag.” 	Id. at p. 46:3-5.
While neither of them knew his name, both “knew his face. . . . They only knew
him by sight.” 	Id. at p. 46:9-11.
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“[C]onvictions based on eyewitness identification at trial following a
pretrial identification by photograph will be set aside on that ground only if the
photographic identification procedure was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification.”
Simmons v. United States, 390 U.S. 377, 384 (1968). 	“In considering such a
claim,” the court must “initially analyze whether the pre-trial identification
procedure was suggestive and unnecessary.” 	United States v. Omar, 786 F.3d
1104, 1108 (8th Cir. 2015). 	If the procedure was suggestive, the court must
then “examine whether the identification technique created a ‘substantial
likelihood of misidentification.’ ” 	Id. (citing Perry v. New Hampshire, 565 U.S.
228, 239 (2012) (internal citation omitted).
The magistrate judge compared the photo series method employed by SA
Youngblood with the procedure used by law enforcement in Omar. 	(Docket
232 at p. 12). 	Without going through the step-by-step similarities described
by the magistrate judge, the court adopts the comparison developed in the
report. 	The “identification procedure” employed by SA Youngblood with all
three witnesses “did not imply that [Mr. Tuttle] was the person in the picture.
Nor did it impermissibly suggest that [Mr. Tuttle] had engaged in wrongdoing.
[Mr. Tuttle’s] picture was simply one in a series of photographs about which
the witnesses were asked a non-suggestive question. 	Such an identification
procedure is not impermissibly suggestive.” 	Id. (citing Omar, 796 F.3d at
1108-09).
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Mr. Tuttle’s second objection to the R&R is overruled.
ORDER
Based on the above analysis, it is
ORDERED that defendant’s objections (Docket 240) are overruled.
IT IS FURTHER ORDERED that the report and recommendation (Docket
232) is adopted consistent with this order.
IT IS FURTHER ORDERED that defendant’s motions to suppress
(Dockets 97 & 98) are denied.
Dated December 6, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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