Lawrence E. Lupien v. Harold W. Clarke

1The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2595
___________
United States of America, *
*
Appellee, *
* Appeal from the United
v. * States District Court for the
* District of South Dakota.
Randy Lynn Terry, *
*
Appellant. *
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Submitted: December 14, 2004
Filed: March 7, 2005
___________
Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Randy Terry entered a conditional plea of guilty to possessing a firearm after
previously being convicted of a misdemeanor crime of domestic violence, a violation
of 18 U.S.C. § 922(g)(9). He did so after the district court 1 denied his motion to
suppress a firearm and ammunition seized from his vehicle and statements that he
made the day following his seizure. On appeal, he argues that the district court erred
in denying his motion to suppress. We affirm.

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Mr. Terry, who is not an Indian, argues that tribal police officers acted in
excess of their authority by seizing him and violated the Constitution when they
searched his vehicle. We hold that the tribal officers acted within the scope of their
authority and that the search complied with the requirements of the fourth
amendment. Mr. Terry also maintains that the district court erred in denying his
motion to suppress statements that he made the day after his seizure. He asserts that
these statements were the fruit of the improper seizure and of a question asked of him
the previous evening without the benefit of Miranda warnings. We conclude that the
statements made after Mr. Terry received Miranda warnings are admissible because
he knowingly and voluntarily waived his Miranda rights, and his earlier unwarned
statement did not result from coercion or a calculated effort to undermine his will.
I.
Sergeant Jackson Ten Fingers, of the Oglala Sioux Tribe Department of Public
Safety, received a call late one night to go to the Robert Bettelyoun residence to
investigate a domestic violence complaint that Mr. Terry's wife, Lynn Bettelyoun, had
made against her husband. The dispatcher informed Sergeant Ten Fingers that
Mr. Terry was in an older, yellow pickup truck and that Ms. Bettelyoun had obtained
a protection order against Mr. Terry in North Platte, Nebraska. Sergeant Ten Fingers
met Tribal Officers Steve Hawk and Dan Crazy Thunder and passed on information
about the call that he had received to them. They then proceeded to the Bettelyoun
residence with Sergeant Ten Fingers in one vehicle and Officers Hawk and Crazy
Thunder in another.
Upon arriving at the Bettelyoun residence, located near Oglala, South Dakota,
on the Pine Ridge Indian Reservation, the tribal officers observed a yellow pickup
truck. Sergeant Ten Fingers approached the pickup and asked the occupant to exit
the vehicle. When the occupant did so, Sergeant Ten Fingers smelled alcohol on his
breath. Sergeant Ten Fingers then handcuffed him and placed him in the back seat
of his patrol car. The officers identified the suspect as Randy Terry. At that time, the

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officers did not know if Mr. Terry was an Indian: Their common practice was to
detain a suspect first and then determine race, and they followed that practice in the
instant case.
Either before or after Mr. Terry exited his truck, Officer Hawk observed a box
of Remington ammunition on the truck's dashboard. Officer Hawk then searched the
vehicle, finding a rifle and a pack of beer behind the seat. Sergeant Ten Fingers was
inside the Bettelyoun residence speaking with Ms. Bettelyoun at the time. Sergeant
Ten Fingers testified at the hearing on the suppression motion that when he returned
from speaking with Ms. Bettelyoun, he advised Mr. Terry that "he was under arrest"
for domestic violence "and was going to be detained for the Shannon County Sheriff."
Sergeant Ten Fingers further testified that he later "arrest[ed]" Mr. Terry "to be
detained for the Shannon County Sheriff" for driving while intoxicated, spouse abuse,
liquor violation, and disorderly conduct, all tribal ordinance violations.
Mr. Terry agreed to have tribal officers drive his vehicle to the tribal jail rather
than having it towed. As he drove the pickup, it occurred to Sergeant Ten Fingers
that Mr. Terry was probably not an Indian because it would be unlikely that an Indian
from Pine Ridge would be subject to a Nebraska protection order. Sergeant Ten
Fingers therefore called James Daggett, the sheriff of Shannon County, South Dakota,
to advise him that he might be holding a non-Indian. At the time, the sheriff was at
home in Hermosa, South Dakota, approximately eighty miles from the Pine Ridge
Reservation. Sheriff Daggett asked Sergeant Ten Fingers to hold Mr. Terry overnight
until he could pick him up the next morning. It was not unusual for Sheriff Daggett
to ask the tribal police to hold a suspect for up to eight hours because, at the time, he
had only one patrol car and a single part-time deputy.
When Mr. Terry arrived at the Pine Ridge tribal jail, Bureau of Indian Affairs
Special Agent Fred Bennett, without giving a Miranda warning, asked him if he had
been previously convicted of domestic violence. (Agent Bennett had already

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reviewed a printout that listed the defendant's prior charges but omitted the
dispositions for some of them.) Mr. Terry responded affirmatively and stated that the
domestic violence conviction was in 1999. Although Mr. Terry seemed eager to talk,
Agent Bennett refused to continue the conversation because the defendant appeared
intoxicated. The following day, Agent Bennett interviewed Mr. Terry at the Pine
Ridge tribal jail. Mr. Terry was informed of and chose to waive his Miranda rights
and spoke with Agent Bennett about the previous night's events. Sheriff Daggett took
custody of Mr. Terry later that day.
II.
When reviewing a denial of a motion to suppress, we examine the factual
findings underlying the district court's conclusion for clear error and review de novo
the ultimate question of whether the fourth amendment has been violated. United
States v. White, 356 F.3d 865, 868 (8th Cir. 2004). The fourth amendment protects
"[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const. amend. IV. "The
touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S.
248, 250 (1991).
Mr. Terry contends first that the tribal officers were not reasonable in believing
that they had authority to seize him in the manner that they did. Mr. Terry correctly
asserts that he is not subject to the criminal jurisdiction of the Oglala Tribe because
he is not an Indian. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 212
(1978). But tribal police officers do not lack authority to detain non-Indians whose
conduct disturbs the public order on their reservation.
The Supreme Court has recognized that tribal law enforcement authorities
possess "traditional and undisputed power to exclude persons whom they deem to be
undesirable from tribal lands," and therefore have "the power to restrain those who
disturb public order on the reservation, and if necessary to eject them." Duro v.

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Reina, 495 U.S. 676, 696-97 (1990). "Where jurisdiction to try and punish an
offender rests outside the tribe, tribal officers may exercise their power to detain the
offender and transport him to the proper authorities." Id. at 697; see also Strate v. A-1
Contractors, 520 U.S. 438, 456 n.11 (1997). Because the power of tribal authorities
to exclude non-Indian law violators from the reservation would be meaningless if
tribal police were not empowered to investigate such violations, tribal police must
have such power. See Ortiz-Barraza v. United States, 512 F.2d 1176, 1180 (9th Cir.
1975). When exercising this power, however, tribal officers must avoid effecting a
constitutionally unreasonable search or seizure. See 25 U.S.C. § 1302(2).
We conclude that the Oglala tribal officers' detention of Mr. Terry falls within
the rule of Duro. Sergeant Ten Fingers alerted Sheriff Daggett after it occurred to
him that Mr. Terry was probably not an Indian and approximately a half-hour after
receiving the initial call regarding the disturbance at the Bettelyoun residence.
Although Sergeant Ten Fingers testified that he "arrested" Mr. Terry "to be detained
for the Shannon County Sheriff" on a number of tribal charges, we do not think that
the record indicates that tribal officers ever required or even intended to require
Mr. Terry to submit to the criminal jurisdiction of the Oglala Tribe. Cf. Oliphant,
435 U.S. at 195, 212. They held Mr. Terry pursuant to the express instructions and
authority of Sheriff Daggett. Furthermore, we cannot say that the tribal officers held
Mr. Terry for an unreasonable amount of time in the circumstances, since Sheriff
Daggett was eighty miles away on a rainy night and his only deputy was unavailable.
Having concluded that the tribal officers had authority to seize Mr. Terry, we
now turn to his argument that the tribal officers acted unreasonably in searching his
vehicle. At the time that the tribal officers stopped Mr. Terry they clearly had a
reasonable and articulable suspicion that "criminal activity may be afoot." See Terry
v. Ohio, 392 U.S. 1, 30 (1968). They were responding to a 911 call reporting that a
man in a yellow pickup was causing a disturbance and attempting to enter the
Bettelyoun residence, and upon arriving at that residence they observed the defendant

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in a yellow pickup on the Bettelyouns' property. After approaching him, Sergeant
Ten Fingers smelled alcohol on Mr. Terry's breath. These circumstances provided an
adequate basis for the officers to suspect that criminal activity was afoot.
As we have said, at some point in the course of the encounter Officer Hawk
observed a box of Remington ammunition on the dashboard of Mr. Terry's vehicle.
He recognized what it was by the distinctive green and yellow markings on the box.
The district court held that Officer Hawk properly seized the ammunition pursuant
to the plain-view doctrine. For evidence to be legally seized pursuant to the plain-
view doctrine, the officer must not have violated the fourth amendment to be in the
place where the evidence could be plainly viewed, the incriminating nature of the
evidence must have been immediately apparent, and the officer must have had "a
lawful right of access to the object." Horton v. California, 496 U.S. 128, 136-37
(1990). On appeal, Mr. Terry argues only that the district court erred in concluding
that the second requirement was satisfied.
The defendant argues that the incriminating nature of the ammunition could not
have been immediately apparent to Officer Hawk because the officer did not know
of the protection order at the time that he noticed the ammunition. (A person subject
to a protection order is generally prohibited from possessing firearms or ammunition.
See 18 U.S.C. 922(g)(8).) The district court found, however, that Officer Hawk knew
of the protection order at the time he saw the ammunition, and that finding is not
entirely without foundation in the record.
But even if Officer Hawk had no personal knowledge of the protection order
at the time he observed the ammunition, we conclude that there was no constitutional
violation here. Where officers work together on an investigation, we have used the
so-called "collective knowledge" theory to impute the knowledge of one officer to
others. United States v. Gillette, 245 F.3d 1032, 1034 (8th Cir. 2001), cert. denied,
534 U.S. 982 (2001). We impute information if there has been "some degree of

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communication" between the officers. United States v. Gonzales, 220 F.3d 922, 925
(8th Cir. 2000). This requirement distinguishes officers functioning as a team from
officers acting as independent actors who merely happen to be investigating the same
subject. See Gillette, 245 F.3d at 1034. In the instant case, Sergeant Ten Fingers met
and communicated with Officers Hawk and Crazy Thunder before proceeding as a
team onto the Bettelyoun property, providing the requisite coordination and
communication to impute Sergeant Ten Fingers's knowledge of the protection order
to Officer Hawk.
The legal discovery of the contraband ammunition in Mr. Terry's vehicle
sufficed to create probable cause for Officer Hawk to believe that other parts of the
vehicle contained additional contraband or evidence. See United States v. Fladten,
230 F.3d 1083, 1086 (8th Cir. 2000) (per curiam). Thus, his warrantless search of the
vehicle was proper under the so-called "automobile exception" to the warrant
requirement. See United States v. Rowland, 341 F.3d 774, 784-85 (8th Cir. 2003),
cert. denied, 540 U.S. 1093 (2003). Accordingly, there is no basis for suppressing
the firearm that Officer Hawk uncovered as a result of that search.
Mr. Terry also challenges the district court's conclusion that statements that he
made to Agent Bennett during the second interview should not be suppressed. In
Missouri v. Seibert, 124 S. Ct. 2601 (2004), the Supreme Court considered the
admissibility of statements made after belated Miranda warnings during continuing
interrogations. In that case, a divided Court disapproved of a two-stage interrogation
technique in which the police deliberately failed to provide Miranda warnings before
an initial round of questioning until they elicited a confession from the suspect; the
police then sought to have the suspect repeat the confession in a second interview that
was conducted after Miranda warnings were given. An opinion written by Justice
Souter and joined by Justices Stevens, Ginsburg, and Breyer described the controlling
question as whether "a reasonable person in the suspect's shoes" would have
understood the Miranda warnings as conveying a message that the suspect retained

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a genuine choice about continuing to talk. Id. 2612-13 (plurality opinion). These
Justices distinguished Oregon v. Elstad, 470 U.S. 298 (1985), which held that a
suspect who has answered unwarned questions may, absent coercion, validly waive
his rights and provide admissible statements after being warned, by looking to several
relevant considerations "that bear on whether Miranda warnings delivered midstream
could ... accomplish their object." Seibert, 124 S. Ct. at 2612. These considerations
include "the completeness and detail of the questions and answers" in the first round
of questioning, the degree to which the content of the two rounds overlap, the timing
and setting of the rounds of questioning, the continuity of law enforcement personnel,
and the degree to which the first and second rounds of questioning are treated as
continuous. Id. Justice Breyer, while "join[ing] the plurality's opinion in full," id. at
2614 (Breyer, J., concurring), wrote separately to advocate a test that would "exclude
the 'fruits' of the initial unwarned questioning unless the failure to warn was in good
faith," id. at 2613.
Justice Kennedy, who provided the fifth vote for the majority, wrote a
concurring opinion advocating a different approach. He focused on the subjective
intent of the police and sought to determine whether the two-stage interrogation was
intentionally used to undermine the efficacy of the Miranda warnings. Id. at 2615-16
(Kennedy, J., concurring in judgment). In his view, absent that intent the principles
of Elstad controlled the outcome. See Seibert, 124 S. Ct. at 2616. Justice O'Connor
wrote a dissent that Chief Justice Rehnquist and Justices Scalia and Thomas joined.
In their minds, the legitimacy of the two-stage interrogation procedure would depend
first on whether the initial statement was involuntary. If it was, they would ask
whether the taint from the involuntary examination had dissipated through the
passage of time or a change in circumstances. Id. at 2619 (O'Connor, J., dissenting).
"In addition, [the] second statement should be suppressed if [the suspect] showed that
it was involuntary despite the Miranda warnings." Id.

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We conclude at the very least that a majority of the Court would uphold the
district court's decision not to suppress the statements that Mr. Terry made during the
second interview. The district court found "no evidence in the record of coercive or
threatening tactics at either interview," and neither do we. There is no evidence that
the police engaged in a deliberate strategy to undermine the Miranda warnings.
Accordingly, the concerns of Justice Kennedy (and likely those of Justice Breyer) in
Seibert are not present here. Neither is there any evidence that Mr. Terry's initial
statement was involuntary. In fact, after being asked the initial question, Mr. Terry
wanted to continue talking with Agent Bennett, but Agent Bennett terminated the
interview because he thought that Mr. Terry was too intoxicated to continue. Because
Mr. Terry's initial statement was voluntary and there is no claim that the second
statement was involuntary, the four dissenting Justices would also conclude that
Mr. Terry does not have a valid fifth amendment claim.
We also think that the Justices who joined in Justice Souter's opinion would
conclude that Mr. Terry's statements are admissible. Although some of the
considerations in that opinion might tend to undermine the district court's conclusion,
we believe that a reasonable person in Mr. Terry's shoes would have understood the
Miranda warnings that he was given as conveying a message that he retained a
genuine choice about continuing to talk. While both interviews were conducted at
the Pine Ridge jail by Agent Bennett, and the overlapping content of the questioning
is critically relevant to this charge, these considerations alone do not tell the whole
story. During the initial interview, Agent Bennett asked Mr. Terry only one question.
He then waited overnight before renewing the interrogation. His second interview
covered more ground, discussing both the firearm and the events at the Bettelyoun
property the previous night. And, as stated earlier, there is no evidence that Agent
Bennett used the multi-stage interrogation in a calculated way to undermine the
Miranda warning.

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For all of the above reasons, we conclude that the district court properly
decided not to suppress the statements that Mr. Terry made during the second
interview.
III.
Accordingly, we affirm the judgment of the district court.
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