USA v. Walking Eagle

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOSHUA WALKING EAGLE,
Defendant.
3:20-CR-30117-RAL-1
REPORT AND
RECOMMENDATION FOR
DISPOSITION OF MOTION
TO SUPPRESS
In this second-degree murder, assault, and firearm case, Joshua Walking Eagle
moves to suppress all statements he made and any physical evidence acquired during
the initial stages of a homicide investigation. While most of Walking Eagle’s statements
were legitimately obtained, three of a tribal agent’s inquiries – and the responses to
them 	– 	ran 	afoul 	of 	Miranda1 	and 	require 	suppression 	as 	substantive, 	but 	not
impeachment, 	evidence. 	And 	because 	there 	was 	no 	improper 	search 	or 	seizure
conducted during the investigation, no Fourth Amendment issue arises that could
otherwise call for the exclusion of evidence.
BACKGROUND
Just after 3:00 p.m. on May 29, 2020, Rosebud Sioux Tribe Law Enforcement
Services (RSTLES) received reports that a black SUV with a passenger hanging out of
1 Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 1 of 19 PageID #: <pageID>

2
the window was stopped on the road near the All Stop convenience store in Rosebud,
South 	Dakota. 	RSTLES 	and 	Rosebud 	Sioux 	Tribe 	Emergency 	Medical 	Services
(RSTEMS) responded and observed a middle-aged male with massive head trauma
from a gunshot wound on the ground next to the SUV. The male, later identified as
Lloyd Walking Eagle (Lloyd), was deceased. Witnesses stated that when the SUV
stopped, the driver, Roger Good Shield, Jr. (Good Shield), got out of the vehicle and
walked away.
RSTLES then received a call for service reporting that Good Shield was injured at
a residence in the Fairgrounds Housing Community. Officers arrived, located Good
Shield, observed that he was bleeding from the head, and had an ambulance transport
him to the Rosebud IHS hospital. After Good Shield was treated and released, RSTLES
arrested him.
In the meantime, RSTLES Special Agent Mark Kettell talked to witnesses who
previously observed the SUV in front of Tanya Walking Eagle’s (Tanya) residence, in
the same Community as officers found Good Shield. Witnesses reported that, after what
sounded like gunshots, several men scattered from Tanya’s driveway, the SUV sped
away, and a male with long hair and tattoos ran into the residence. Officers met with
Tanya and asked if they could look inside the house for the male witnesses described.
Tanya consented and unlocked the door to allow officers entry.
At around 5:00 p.m., Kettell and three other officers announced themselves as
they entered the home and located Walking Eagle sleeping in a bedroom. With
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 2 of 19 PageID #: <pageID>

3
sidearms drawn, they roused Walking Eagle and asked whether he had any weapons.
Walking Eagle said “no,” and requested assistance. Kettell helped Walking Eagle up
and informed him that he was not under arrest, but that officers would be putting
handcuffs on him until they knew what was going on.
Kettell stated that they were conducting an investigation and wanted to know
whether Walking Eagle lived in the house. RSTLES Officer Joshua Antman advised
Kettell that Walking Eagle was visiting from Rapid City. When asked whether anyone
else was in the residence, Walking Eagle stated that he could not answer the question
because he had been asleep, but “pretty much no,” there was no one else. After officers
led Walking Eagle outside, Antman conducted a sweep of the interior for other
occupants, found none, and exited the home to watch Walking Eagle.
Once seated on the front porch of the residence, Walking Eagle asked, “What
happened?” Antman responded, “That’s what we’re here to find out.” Walking Eagle
remarked that he had been laying down inside after drinking and working on a vehicle.
After a pause, Walking Eagle asked if he could smoke a cigarette before officers took
him away. Antman clarified that Walking Eagle was not under arrest, but because of
the nature of the incident and Walking Eagle’s oppositional behavior in the past, he
would remain handcuffed. Walking Eagle nodded and acknowledged his history of
resisting officers.
For their records, officers began to take pictures of Walking Eagle’s bruises,
injuries he said happened earlier. Then, hearing the wails of a distraught family
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 3 of 19 PageID #: <pageID>

4
member coming from the street, Walking Eagle repeatedly asked what happened and
noted that it was his “Auntie” yelling. Antman replied that officers were trying to
figure out what was going on. As Walking Eagle continued his attempts to find out
“what happened,” Kettell returned to the porch and asserted that people witnessed
Walking Eagle standing outside before running into Tanya’s house. Again, Walking
Eagle asked, “What happened?” Kettell told Walking Eagle that while he was not under
arrest, officers wanted to talk with him at the station about the incident.
Once more, Walking Eagle asked, “What happened?” Kettell answered, yet
again, that was what officers were trying to find out. Ever persistent, Walking Eagle
asked, “What the f*** happened?” Kettell retorted that witnesses saw Walking Eagle
had been at “the vehicle” and declared that he needed to know what Walking Eagle
knew. When Walking Eagle began to explain that he had been working on the window
of the car out front, officers informed him they were talking about a different vehicle.
Walking Eagle continued and remarked that he did not have a “ride” and had been
intoxicated so he went in the home to sleep.
Kettell advised Walking Eagle that officers needed to know “what happened out
here with the black SUV.” Walking Eagle asked, “Who?” In response, Kettell reiterated
that people saw him outside and that he was “conducting a homicide investigation.”
Walking Eagle riposted, “What the f***?” and “Who?” At this point, Lloyd’s family
began to walk up the driveway toward the house.
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 4 of 19 PageID #: <pageID>

5
The group wept as they approached Walking Eagle, yelled at him, hugged him,
and informed him that Lloyd, Walking Eagle’s uncle, was gone. As the grieving clan
made their way into the house, they briefly conversed with Walking Eagle about
Lloyd’s death. Reacting to their comments, Walking Eagle told the kinfolk that Lloyd
had just been there with him and started crying.
Once the group were all in the home, Kettell requested Walking Eagle to take a
PBT. Walking Eagle acquiesced and blew a 0.096. Afterward, Walking Eagle began to
describe his life situation. Kettell redirected Walking Eagle saying, “I just, I just need
you to tell us the truth though, that’s what we got to get down to, okay?” In rejoinder,
Walking Eagle moaned and asked, “Who the f*** did this, man?” Again, Kettell
explained that officers were trying to figure that out.
After one family member came and hugged Walking Eagle, Kettell informed
Walking Eagle that officers were going to remove the handcuffs, but that they needed to
talk with him when he was sober. Once uncuffed, Walking Eagle grieved on the porch
while relatives sat with him there. As officers walked away from him toward the street,
Walking Eagle exclaimed, “Who the f*** did this man? F*** he was just out here, we was
all ready to come out. Alls we had to do was just go to Grass Mountain and get the
window and put it in there. He was just here! When I went to sleep, he was just here.”
The 	next 	day, 	May 	30, 	2020, 	Kettell 	and 	FBI 	Special 	Agent 	Kent 	Brown
interviewed Good Shield at the Rosebud Sioux Tribe Adult Correctional Facility.
During the interview, Good Shield said that he drove to Walking Eagle’s home,
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 5 of 19 PageID #: <pageID>

6
stopped, and asked Victor Clairmont (Clairmont) why the people in the driveway were
“dogging” him. When Clairmont and Walking Eagle backed away from the driver’s
door, Lloyd opened the front passenger side door and reached in, purportedly to put
the vehicle in park. As Lloyd did this, Good Shield felt a “flash” from the driver side
and noticed blood on his eye.
After the shot, Good Shield sped away from the scene but stopped about a
quarter mile away at the All Stop because his eye was bleeding and he could not see
anymore. He then removed the keys and walked, along the road, toward his house.
Good Shield reported that he saw Walking Eagle with a shotgun earlier but maintained
that he did not see any guns during the incident and did not know who shot Lloyd. An
autopsy report conducted on June 1, 2020, showed that the cause of Lloyd’s death was a
shotgun wound to his head.
Roughly three months later, a federal grand jury indicted Walking Eagle on
second degree murder and firearm use charges.2 Walking Eagle then moved to suppress
all statements and physical evidence obtained during his interaction with officers at
Tanya’s residence.3 The government responded, opposing the motion.4 Following the
2 Docket No. 1 (citing 18 U.S.C. §§ 1153, 1111, and 924(c)(1)(A)).
3 Docket Nos. 48, 49 (motion and supporting memorandum).
4 Docket No. 50 (response).
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 6 of 19 PageID #: <pageID>

7
evidentiary hearing held on Walking Eagle’s motion, the grand jury superseded the
indictment, adding six new assault and firearm charges.5
DISCUSSION
A. Miranda
Walking Eagle first claims that while in custody, officers interrogated him
without warnings in violation of Miranda. He says his statements, made during the
interrogation, should be excluded.6 The Court agrees, but only in part.
Reinforcing 	the 	Fifth 	Amendment, 	the 	Miranda 	decision 	requires 	law
enforcement officers to warn suspects of their rights before engaging in custodial
interrogation.7 Interrogation is any question, word, or action that an officer should
know is “reasonably likely to elicit an incriminating response.”8 Custody,9 for purposes
of Miranda, exists when: (1) a suspect is formally arrested, or (2) the suspect’s “freedom
5 Docket No. 67 (adding charges under 18 U.S.C. §§ 113(a)(1), 113(a)(3), 113(a)(6),
924(c)(10(A).
6 Docket No. 49 at 4-5.
7 See Miranda, 384 U.S. at 444 (failing to provide timely warning may lead to the
prosecution’s inability to use statements stemming from the interrogation).
8 Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
9 See Howes v. Fields, 565 U.S. 499, 508-09 (2012) (“As used in our Miranda case
law, ‘custody’ is a term of art that specifies circumstances that are thought
generally to present a serious danger of coercion.”).
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 7 of 19 PageID #: <pageID>

8
of 	movement” 	is 	restricted 	to 	a 	“degree 	associated 	with 	a 	formal 	arrest.”10 	In
determining the extent to which a suspect’s freedom of movement was restricted, a
court must delve into the circumstances surrounding the interrogation and decide
whether a reasonable person would “have felt he [ ] was at liberty to terminate the
interrogation and leave.”11
Relevant factors in the custody determination include, “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.”12 The Eighth Circuit has set forth common “indicia” which
tend to either mitigate or aggravate an atmosphere of custodial interrogation.13 These
indicia, while instructive, are not dispositive or exhaustive.14 They are merely one way
to ascertain whether the suspect’s movement was curtailed, as though he was under
10 California v. Beheler, 463 U.S. 1121, 1125 (1983).
11 J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011).
12 Howes, 565 U.S. at 509.
13 See United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990).
14 See id.; see also United States v. Thomas, 664 F.3d 217, 222 (8th Cir. 2011); United
States v. Brave Heart, 397 F.3d 1035, 1039 (8th Cir. 2005); United States v. Czichary,
378 F.3d 822, 827 (8th Cir. 2004).
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 8 of 19 PageID #: <pageID>

9
formal arrest, and subjected to the same inherently coercive pressures as the station
house questioning at issue in Miranda.15
1. Within the Home
In Orozco v. Texas, the Supreme Court addressed custodial interrogation under
strikingly similar circumstances and found a Miranda violation.16 There, several hours
after a murder, a woman admitted four officers into the defendant’s bedroom at a
boardinghouse.17 Officers woke the defendant and proceeded to vigorously question
him about his whereabouts that night and a pistol, with one officer later testifying that
the defendant had not been free to leave.18 In that context, despite being questioned in
the familiar setting of his own room, the Court held that Miranda applied and that
officers 	had 	violated 	it 	when 	they 	failed 	to 	give 	the 	required 	warnings 	before
interrogating the defendant.19
Here, a couple of hours after a gun-related homicide, four officers entered a
home with the owner’s consent.20 Inside, officers drew their weapons and roused
15 See Howes, 565 U.S. at 509.
16 Orozco v. Texas, 394 U.S. 324, 327 (1969).
17 Id. at 325.
18 Id. at 325-26.
19 Id. at 326-27.
20 See Mot. Hr’g Ex. 2 at 7 (Dec. 28, 2021) (“Tonya [sic] unlocked the door and let
myself, Officer Roe, Officer Dillon and Officer Antman in the residence”).
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 9 of 19 PageID #: <pageID>

10
Walking Eagle, told him to show his hands, informed him that he was not under arrest,
and handcuffed him.21 Kettell testified that, while shackled, Walking Eagle was not free
to leave.22 As in Orozco, Walking Eagle was not free to leave when officers questioned
him.23 Given these circumstances, the Court finds that Walking Eagle was in custody
from the moment officers woke him up.
Unlike Orozco though, the questioning of Walking Eagle that followed did not
venture into the realm of suppressible interrogation.24 Under the public safety exception
to Miranda, a suspect's answers to questions from police officers are admissible without
any Miranda warning so long as the questions are “reasonably prompted by a concern
for public safety” and are not merely designed to “solicit testimonial evidence.”25 In the
home, Kettell asked only general questions: whether Walking Eagle had any weapons,
21 See Mot. Hr’g Ex. 13 at 07:05-07:40.
22 See Mot. Hr’g Tr. 35 (Dec. 28, 2021) (“Q. And he was not free to leave? A. Not
while he was handcuffed, no.”).
23 See Orozco, 394 U.S. at 326 (“the [Miranda] opinion iterated and reiterated the
absolute necessity for officers interrogating people ‘in custody’ to give the
described warnings”).
24 See New York v. Quarles, 467 U.S. 649, 659 n.8 (1984) (distinguishing Quarles
from Orozco by noting that the questioning in Orozco was clearly investigatory
and “did not in any way relate to an objectively reasonable need to protect the
police or the public from any immediate danger associated with the weapon”).
25 United States v. Everman, 528 F.3d 570, 572 (8th Cir. 2008).
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 10 of 19 PageID #: <pageID>

11
if 	he 	lived 	there, 	and 	if 	anyone 	else 	was 	within.26 	And 	because 	officers 	were
investigating a shooting in an unknown environment and had not yet completed a
protective sweep of the residence, such inquiries were reasonably necessary to ensure
their safety.27 Thus, irrespective of whether Kettle’s questions could be construed as
interrogatory, Walking Eagle’s answers may be admitted into evidence under the public
safety exception.28
2. On the Porch - Handcuffed
At some point, officers removed Walking Eagle, still handcuffed, from the home
and seated him on the front porch.29 Antman stood a few feet away and made small talk
26 See Mot. Hr’g Ex. 13 at 07:15-08:35.
27 See Everman, 528 F.3d at 572 (“The public to be protected can include the
officers themselves.”); see also Lamb v. State, 127 Nev. 26, 34, 251 P.3d 700, 705
(2011) (“Quarles covers officer safety, as well as public safety,” and “encompasses
questions necessary to secure the safety of police officers”).
28 See United States v. Noonan, 745 F.3d 934, 937 (8th Cir. 2014) (“the risk of police
officers 	being 	injured 	by 	the 	mishandling 	of 	unknown 	firearms 	or 	drug
paraphernalia provides a sufficient public safety basis to ask a suspect who has
been arrested and secured whether there are weapons or contraband in a car or
apartment that the police are about to search”); United States v. Williams, 181 F. 3d
945, 953-54 (8th Cir. 1999) (although suspect’s hands were cuffed, officers “could
not have known if any armed individuals were present in the apartment or
preparing to enter [it;]” nor could they have “known whether [ ] hazardous
weapons were present [ ] that could cause them harm if they happened upon
them unexpectedly or mishandled them in some way”).
29 See Mot. Hr’g Ex. 14 at 00:15.
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 11 of 19 PageID #: <pageID>

12
with Walking Eagle until the other officers returned.30 Kettell and Antman both testified
that Walking Eagle was not free to leave at this point and that if he had tried to, he
would have been apprehended.31 While handcuffed on the porch, Walking Eagle was
not at liberty to end the encounter and remained in custody.
Even so, did officers say or ask anything that was “reasonably likely to elicit an
incriminating response?”32 For the most part, the utterances officers made on the porch
were appropriate follow up to volunteered statements and questions from Walking
Eagle.33 But three of Kettell’s remarks are problematic.
The first involves the following exchange:
Walking Eagle: What the f*** happened?
Kettell: But, you know the people tell me that you were at the vehicle.
Middle of the day, people saw you. Okay? So I need to know what you
know. You understand?34
30 See Mot. Hr’g Tr. 47 (“Due to the nature of the incident, it was my instincts …
just to kind of keep small talk … to gauge Josh.”).
31 See Mot. Hr’g Tr. 35 (“Q. And he was not free to leave? A. Not while he was
handcuffed, no.”); 52 (“Q. [] If he had fled, would you have chased him? A.
Yes.”).
32 Innis, 446 U.S. at 301.
33 See Miranda, 384 U.S. at 478 (“volunteered statements of any kind are not
barred by the Fifth Amendment and their admissibility is not affected by the
[Miranda holding]”); United States v. Jackson, 852 F.3d 764, 771-774 (8th Cir. 2017)
(no interrogation because of limited follow-up to volunteered statements).
34 See Mot. Hr’g Ex. 14 at 04:53-05:02.
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 12 of 19 PageID #: <pageID>

13
The initial portion of the statement where Kettell described the facts of the situation is a
proper response to Walking Eagle’s volunteered question.35 Kettell, however, went
further stating, “I need to know what you know.” By doing so, Kettell went outside the
scope of Walking Eagle’s question and inquired into an area that was reasonably likely
to generate an incriminating response from a suspect in custody.36
The other two concerning moments arise from Kettell’s statements, “Yeah, but
we need to know what happened out here with the black SUV,”37 and “I just, I just need
you to tell us the truth though, that’s what we got to get down to, okay.”38 Given the
situational context and his knowledge that a man fitting Walking Eagle’s description
had recently fled into Tanya’s home from the scene of a shooting homicide, Kettell’s
requests for information directly related to the substantive offense and were reasonably
35 See United States v. Wipf, 397 F.3d 677, 687 (8th Cir. 2005) (“‘law enforcement
officer's mere description of the evidence and of potential charges against a
suspect, in direct response to the suspect's importuning, hardly can be classified
as interrogatory.’” (quoting United States v. Conley, 156 F.3d 78, 83 (1st Cir.
1998))); United States v. Waters, 5:18-CR-50015-JLV, 2019 WL 2145336, at *4-5
(D.S.D. Feb. 2, 2019), R & R adopted, 2019 WL 1857120 (D.S.D. Apr. 23, 2019)
(finding that while one statement was suppressible, the vast majority were
volunteered, 	involved 	public 	safety, 	or 	were 	in 	response 	to 	follow 	up
clarification).
36 See United States v. Becerra, 958 F.3d 725, 729-30 (8th Cir. 2020) (finding that an
officer “expanded the scope of the exchange beyond the subject of [defendant’s]
original statement with a question that was likely to elicit an incriminating
response”).
37 See Mot. Hr’g Ex. 14 at 05:20-05:23.
38 See Mot. Hr’g Ex. 14 at 09:20-09:24.
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 13 of 19 PageID #: <pageID>

14
likely to foster an incriminating response from Walking Eagle.39 Consequently, the three
requests, and any responses Walking Eagle gave to them, are 	subject to suppression
and may not be used in the government’s case-in-chief at trial.40
3. On the Porch – Uncuffed
In the final stretch of time before the confrontation ended, whether the removal
of Walking Eagle’s handcuffs dispelled his prior custodial status or not, no further
communication took place that amounted to interrogation.41 Officers had a brief and
limited dialogue with Walking Eagle. Their primary spokesperson, Kettell: (1) advised
he was going to remove the cuffs; (2) informed Walking Eagle he was not under arrest;
(3) said he wanted to visit when Walking Eagle was sober; and (4) informed Walking
Eagle they brought him outside just to talk.42 After officers took the cuffs off Walking
Eagle, they stepped away and left him to his own devices. The timeframe in which
Walking Eagle was uncuffed presents no Miranda issue.
39 See Jackson, 852 F.3d at 771-74 (finding that officers crossed the line from
permissible inquiry into interrogation when they should reasonably have known
the information sought was directly relevant to substantive offense).
40 Miranda, 384 U.S. at 444.
41 See Mot. Hr’g Ex. 15 at 00:00-05:13.
42 See Mot. Hr’g Ex. 15 at 00:23-00:30, 00:57-01:03.
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 14 of 19 PageID #: <pageID>

15
4. Impeachment
Although Kettell’s three requests for information went beyond what is permitted
under Miranda, the requests, and Walking Eagle’s responses to them, may still be used
at trial. “Statements taken without Miranda warnings (though not actually compelled)
can be used to impeach a defendant's testimony at trial … though the fruits of actually
compelled testimony cannot.”43
A court must look at the totality of the circumstances and consider, among other
things, the conduct of the officers and the characteristics of the accused, to determine
whether a statement was voluntary or compelled.44 “A statement is voluntary if it is ‘the
product of an essentially free and unconstrained choice by its maker.’”45 If, however,
statements are “extracted by threats, violence or express or implied promises sufficient
to overbear [the defendant’s] will and [to] critically impair his capacity for self-
43 United States v. Patane, 542 U.S. 630, 639 (2004).
44 See United States v. Daniels, 775 F.3d 1001, 1004-05 (8th Cir. 2014) (“We consider,
among other things, the degree of police coercion, the length of the interrogation,
its location, its continuity, and the defendant's maturity, education, physical
condition, and mental condition.”).
45 United States v. Anaya, 715 F.Supp.2d 916, 931 (D.S.D. 2010) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 225–26 (1973)).
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 15 of 19 PageID #: <pageID>

16
determination,” then they are considered involuntary.46 The government bears the
burden of proving voluntariness by a preponderance of the evidence.47
Walking Eagle’s statements were the product of his own free will. Although he
had been drinking earlier (which the PBT results confirmed), Walking Eagle maintained
he was not intoxicated.48 And as someone familiar with the criminal justice system,49 he
was cooperative50 and made his statements in plain view of a clan, milling about, at the
scene.51 The recordings contain no trace of threats, coercion, misleading promises, or
other impropriety on the part of officers during the relatively short lived encounter.52
Walking Eagle’s statements were voluntary and are thus admissible as impeachment
evidence should he choose to take the witness stand and testify.
46 United States v. LeBrun, 363 F.3d 715, 724 (8th Cir. 2004).
47 Id.
48 See Mot. Hr’g Ex. 16 at 01:30 (Walking Eagle: “I’m not intoxicated”).
49 See United States v. Vinton, 631 F.3d 476, 482 (8th Cir. 2011) (“A history of
interaction 	with 	the criminal 	justice 	system 	supports an 	inference 	that 	an
interviewee is familiar with his constitutional rights and that his statements to
the police are voluntary.”); Docket No. 15 at 4-7.
50 See Mot. Hr’g Tr. 39 (“Q. Was he generally cooperative with you? A. Yes, he
was.”).
51 See Mot. Hr’g Exs. 14-16.
52 See Colorado v. Connelly, 479 U.S. 157, 167 (1986) (“coercive police activity is a
necessary predicate to the finding that a confession is not ‘voluntary’”); Mot.
Hr’g Exs. 13-16.
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 16 of 19 PageID #: <pageID>

17
B. Fruit of the Poisonous Tree
Walking Eagle’s second, and last, claim is that because “the search of his person
was without a warrant and therefore unlawful,” all evidence obtained during the
incident must be suppressed as “fruit of the poisonous tree.”53 The only potential search
the Court observed from the recorded footage was a glimpse in the home of what
appears to be a permissible Terry frisk.54 Officers had the consent of the homeowner
(Tanya) to enter and search the house.55 And they had reason to believe Walking Eagle
was involved in a homicide that had just occurred.56 Any search of the residence and
Walking Eagle and any seizure of evidence from them, via camera recordings or
otherwise, were consonant with the Fourth Amendment and did not cultivate a virulent
tree from which tainted fruit could develop.
53 Docket No. 24 at 9-10.
54 See Terry v. Ohio, 392 U.S. 1, 30-31 (1968).
55 Mot. Hr’g Ex. 13 at 07:50; Mot. Hr’g Tr. 9 (“Q. Did you eventually get consent
from the homeowner to search that residence? A. Yes, we did.”).
56 United States v. Lawes, 292 F.3d 123, 127 (2d Cir. 2002) (finding reasonable
suspicion when subject matched the description of murder suspect); Adkins v.
Commonwealth, 96 S.W.3d 779, 787 (Ky. 2003) (“When an officer believes he is
confronting a murder suspect, he has presumptive reason to believe that he is
dealing with an armed and dangerous person.”); see generally 4 Wayne R. LaFave,
Search and Seizure, § 9.6(a) at 872-73 (6th ed. 2020) (noting that courts generally
view the right to frisk as being “automatic” when a suspect is stopped upon
suspicion of having committed a homicide).
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 17 of 19 PageID #: <pageID>

18
CONCLUSION
Officers entered Tanya’s home with her consent. Whatever search for and seizure
of 	evidence 	that 	took 	place 	inside 	was 	reasonable 	and 	in 	accord 	with 	Fourth
Amendment strictures. And while his conversations with Walking Eagle (in and outside
the residence) were by and large acceptable, Kettell’s three inquiries into what Walking
Eagle knew about Lloyd’s shooting death and the black SUV were improper. But
because Walking Eagle’s responses to the inquiries -- though obtained in violation of
Miranda -- were voluntary, they are admissible to impeach any contrary trial testimony
he may give.
RECOMMENDATION
In accordance with the authorities and legal analysis set forth in this report, and
the record now before the Court, it is
RECOMMENDED that Walking Eagle’s Motion to Suppress57 be granted in part.
To the extent the Motion seeks to exclude, as substantive evidence (but not for
impeachment purposes), Walking Eagle’s responses to (1) “So I need to know what you
know. You understand?” (2) “Yeah, but we need to know what happened out here with
the black SUV,” and (3) “I just, I just need you to tell us the truth though, that’s what we
57See Docket No. 48; see also Docket No. 47 (setting the jury trial for January 25,
2022).
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 18 of 19 PageID #: <pageID>

19
got to get down to,” the Motion should be granted. In all other respects, the Motion
should be denied.
NOTICE
The parties consented to a reduced time of five days to file their objections to this
report and recommendation, given the proximity of the trial.58 Unless an extension of
time for cause is later obtained,59 failure to file timely objections will result in the waiver
of the right to appeal questions of fact.60 Objections must “identify[] those issues on
which further review is desired[.]”61
Dated this 12th day of January, 2022, at Pierre, South Dakota.
BY THE COURT:
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
58
Mot. Hr’g Tr. 60.
59See 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)).
60See Thompson, 897 F.2d at 357; Nash, 781 at 667.
61Arn, 474 U.S. at 155.
Case 3:20-cr-30117-RAL Document 69 Filed 01/12/22 Page 19 of 19 PageID #: <pageID>