MICHAEL D. NELSON, Magistrate Judge.
This matter is before the Court on the Motion to Sever (
The Court held an evidentiary hearing on the motions on February 21, 2019. Charles was present with his attorney, Mark W. Bubak, and Krista was present with her attorney, David Stickman. The government was represented by Assistant United States Attorney, Kelli Ceraolo. Omaha Nation police officers, Jeremy Gilpin and Benjamin Carrillo, testified on behalf of the government. The Court received into evidence, without objection, Exhibits 101-102 offered by Krista, Exhibit 103 offered by Charles, and Exhibit 1 offered by the government. A transcript (TR.) of the hearing was prepared and filed on February 23, 2019. (
Defendants are each charged in a three-count Indictment with kidnapping, felony child abuse/neglect, and false imprisonment involving a minor Indian child, C.H., during the period of January 1, 2018, to September 15, 2018, within the exterior boundaries of the Omaha Nation Indian Reservation in the District of Nebraska. (
Jeremy Gilpin, a police officer with the Omaha Nation Law Enforcement Services, testified that he was on duty on September 15, 2018, when he received a report
Based on Ms. Freemont's report, Officer Gilpin, Sergeant Benjamin Carrillo, and Officer Simmonds went to Krista and Charles' residence at approximately 2:20 a.m. to do a welfare check. When the officers arrived at the residence, they saw multiple vehicles and an intoxicated couple standing outside the garage, which was open. The couple stated there were no children at the residence. (TR. 18, 46). Officer Gilpin testified that he knocked on the front door to the residence and someone opened it from the inside and let him in. Officer Gilpin observed multiple people in the living room and kitchen area, alcoholic beverages on table counters and floor, and a person that appeared to be passed out on the couch. (TR. 19-20). Sergeant Carrillo knocked on the door to the residence from the garage, but the individuals inside did not open the door for him. (TR. 30). The woman standing outside the garage when officers arrived then helped Sergeant Carrillo gain access to the residence from the garage. (TR. 46-47).
After entering the residence, Sergeant Carrillo began looking for the child and located him in a dark basement utility room that had no carpet or drywall and had a bad "porta-potty" odor. The door to the room was locked and had an alarm. (TR. 48-49, 59). Sergeant Carrillo testified that the child was clothed and did not look physically injured but was crying and smelled like urine. The child also stated he was hungry. (TR. 54-56, 59-60, 63). Sergeant Carrillo took the child out of the room and sat him down on some furniture in the basement while Sergeant Carrillo checked the basement bedrooms and advised the other officers he located the child. Sergeant Carrillo asked the other officers to start giving everyone breathalyzers and to take intoxicated individuals into protective custody.
After the officers left the residence, Lieutenant Bertucci asked Officers Gilpin and Simmonds to return to the residence to secure it for a search warrant and advised them that Charles "was back up at the residence." (TR. 22-23). When Officers Gilpin and Simmonds returned to the residence, Officer Simmonds saw movement inside the kitchen, but no one answered the front door. Officer Gilpin went to the back of the residence and knocked on the window and shined his flashlight at Ronnie Miller, Jr. and Tim Grant, whom Officer Gilpin recognized and knew did not live there. (TR. 23). Ronnie opened the sliding glass back door for Officer Gilpin, who re-entered the residence to see if anyone else was inside and to verify if Charles was there. (TR. 24). Four individuals, none of them Charles, were removed from the residence. (TR. 37-38, 42). Officer Gilpin called FBI Agent Steve Friend for direction, and Agent Friend advised Officer Gilpin to take photographs of the residence since Gilpin was already inside; Officer Simmonds then took pictures inside the residence. (TR. 24-25, 35). No search warrant for the residence was ever obtained. (TR. 30-31). Both defendants have now moved for separate trials and to suppress any evidence
The government asserts that the Defendants are properly joined for trial and that both warrantless entries into Defendants' residence were lawful under exigent circumstances and the community caretaking function of the officers, and that all evidence and statements obtained as a result are admissible.
Both Defendants move for severance under Federal Rule of Criminal Procedure 14. While "[t]here is a preference in the federal system for joint trials of defendants who are indicted together," Zafiro v. United States, 506 U.S. 534, 537 (1993), Fed. R. Crim. P. 14(a) provides that if joinder "appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). Properly joined defendants should be severed under Rule 14 "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539. The defendant seeking severance carries a heavy burden and "must show `real prejudice,' that is, `something more than the mere fact that he would have had a better chance for acquittal had he been tried separately." United States v. Mickelson, 378 F.3d 810, 817 (8th Cir. 2004))(quoting United States v. Oakie, 12 F.3d 1436, 1441 (8th Cir. 1993)).
Neither defendant challenges joinder under Fed. R. Crim. P. 8(b). Instead, they argue a joint trial would be prejudicial under Fed. R. Crim. P. 14. Krista argues that a joint trial would violate her Sixth Amendment right to confront witnesses against her based on her inability to confront or cross-examine Charles regarding his statements that C.H. is occasionally locked in the basement storage room to protect their daughters and to allow him to "calm down" to avoid lashing out; that C.H. is normally is locked in storage for "a few hours or so;" that "there may have been a time that [C.H.] might have been there for a night;" and that the storage room door is locked when C.H. is confined. See Exhibit 102. Likewise, Charles argues that he would be prejudiced should any of Krista's statements be introduced during a joint trial without being provided an opportunity to cross-examine her. The government argues that Charles' statements are not directly incriminatory to either defendant and that Krista's statements do not incriminate Charles. The government asserts that, to the extent any prejudice exists, it can be cured by redaction and a limiting jury instruction.
In Bruton v. United States, 391 U.S. 123 (1968), the United States Supreme Court held that "a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant." Richardson v. Marsh, 481 U.S. 200, 207 (1987)(citing Bruton, 391 U.S. at 135-36)). However, Bruton is inapplicable where a codefendant's statement does not incriminate the defendant on its face. See United States v. Gayekpar, 678 F.3d 629, 637 (8th Cir. 2012)(citing Richardson v. Marsh, 481 U.S. 200, 208 (1987)). "[T]he Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Richardson, 481 U.S. at 211. Thus, "[w]here a defendant's redacted confession does not refer directly to the codefendant himself, and becomes incriminating only in combination with other evidence, the Constitution permits the normal presumption that a jury will follow an instruction to disregard the confession when considering a verdict for the codefendant." Gayekpar, 678 F.3d at 637.
The Court concludes that neither Defendants' statements require severance under Bruton because they are not facially incriminatory. Krista's statements do not implicate Charles on their face. Although no recording of Krista's interview was offered as evidence, the Court determines as much based upon Defendants' statements as reported by the interviewing law enforcement officer, Agent Friend. (Ex. 102, 103). With respect to Charles' statements, he does not refer to any specific wrong-doing. Moreover, most of his statements do not mention Krista by name or otherwise implicate her as being involved in the specific behavior described. Charles' statement that they "check on C.H. periodically during his confinement" can be redacted by omitting any reference to Krista. At most, the remaining statements tend to inculpate either defendant only when considered with other evidence received at trial. The Eighth Circuit and other circuits have upheld defendants' statements "so long as the redacted confession or admission does not facially incriminate or lead the jury directly to the nontestifying declarant's codefendant." United States v. Edwards, 159 F.3d 1117, 1125 (8th Cir. 1998). Therefore, Bruton is not applicable. See Gayekpar, 678 F.3d at 637. The Court finds that redaction of Charles' statements in conjunction with a limiting instruction avoids the necessity of severance.
Krista and Charles argue that the officers' first warrantless entry into their residence was not excused by exigent circumstances. (
The undersigned magistrate judge concludes that, based on the information known to the officers, it was objectively reasonable for them to conclude their warrantless entry into Krista and Charles' home was lawful under the community caretaker exception. In this case, Officer Gilpin received a report from an extremely upset and crying individual at 2:00 a.m. regarding her observation of a handicapped child locked in a dark, empty basement room armed with an alarm. The reporting individual recognized the child and knew there had been previous incidents of neglect involving the child. The reporting individual informed officers that she was at the residence for a party where everyone had been drinking. When officers arrived, there were multiple vehicles out front and two intoxicated individuals outside the residence denied that there were any children at the residence. The reporting party was concerned in making her report because she had been consuming alcohol and did not want to be arrested herself, but nevertheless wanted to talk to an officer in person about what she had seen. (TR. 39-40). The undersigned considers that, when viewed objectively, these circumstances provided officers with reasonable basis to believe that emergency existed requiring their attention to preserve the safety of the child. Because exigent circumstances existed, officers did not need a warrant to enter the residence, and any subsequent evidence or statements obtained as a result of this entry do not need to be suppressed.
Krista and Charles argue that, even if exigent circumstances permitted law enforcement's first warrantless entry into the residence, the second warrantless entry into the residence was certainly unlawful because the child had already been removed from the home and therefore any evidence obtained as a result of the second entry must be suppressed. (
The plain view doctrine allows an officer to seize, without a warrant, an item (1) that is in plain view, (2) while observed from a lawful vantage point, and (3) its incriminating character is immediately apparent. United States v. Banks, 514 F.3d 769, 773 (8th Cir. 2008). Once lawfully inside a home, police may seize obviously incriminating items that are in plain view. United States v. Chipps, 410 F.3d 438, 442-43 (8th Cir. 2005). Generally, recording "visual images of a scene by means of photography does not amount to a seizure because it does not meaningfully interfere with any possessory interest," and therefore officers can lawfully "record by photography scenes presented to their plain view." Bills v. Aseltine, 958 F.2d 697, 707 (6th Cir.1992); see also United States v. Espinoza, 641 F.2d 153, 167 (4th Cir. 1981)(finding that an officer lawfully on the premises during the execution of a search warrant did not exceed the scope of the warrant by taking the photographs of what he saw in plain view). The plain view doctrine encompasses photographs taken of evidence in plain view "to that extent seizing those views themselves as evidence." Espinoza, 641 F.2d at 167.
"Courts have been willing to allow officers to seize evidence based on the plain view exception when the police reenter a home and retrieve evidence that they viewed during an initial search based on exigent circumstances." United States v. Hill, 2011 WL 1486023, at *9 (D. Minn. Mar. 31, 2011), report and recommendation adopted, No. CRIM. 11-15(1) DWF, 2011 WL 1483782 (D. Minn. Apr. 19, 2011)(citing Harris v. Ford, 369 Fed. Appx. 881, 888 (10th Cir. 2010)). Such re-entry is characterized as a continuation of the first entry, even if no officer from the first entry remains on the scene. See id.; see also People v. Martin, 2003 WL 22221964, *4-*5, (Mich. Ct. App. Sept. 25, 2003)("[W]hen police officers enter a private residence pursuant to exigent circumstances and observe evidence in plain view but do not seize the evidence, a subsequent warrantless entry shortly after the first entry to process evidence that could have legally been seized by the officer who first viewed the evidence does not violate the Fourth Amendment[.]"). Additionally, officers are permitted to secure access to an area to be searched "[f]or purposes of officer safety and to prevent the destruction of incriminating evidence[.]" See United States v. Bausby, 720 F.3d 652, 657 (8th Cir. 2013)(citing United States v. Roby, 122 F.3d 1120, 1125 (8th Cir. 1997)).
In this case, after the child and intoxicated individuals were removed from the residence, officers returned shortly thereafter to secure the residence. (TR. 37). After the officers re-entered Defendants' residence, they proceeded to remove four more individuals. Securing a crime scene and preventing destruction of evidence justifies the officers' re-entry into the residence within a short period of time after exiting the residence. See Bausby, 720 F.3d at 657. The officers then photographed the interior of the house. The officers did not expand the scope or nature of their initial entry, and only took photographs of the interior of the residence that they had lawfully viewed in plain sight during the justified entry into the residence pursuant to exigent circumstances. The undersigned concludes that, once legally inside the residence, the officers were not required to leave the residence to get a search warrant to take such photographs of areas viewed in plain sight during the officers' justified entry into the residence. It would have been unreasonable to expect the officers to take the photographs during their first entry into the residence because the officers were preoccupied with finding the child, believing that he was in danger. The officers' second entry into the residence occurred a relatively short period of time after officers first left the residence to transport intoxicated individuals and after Sergeant Carrillo had left with the child. Under the circumstances, the undersigned concludes that the photographs taken during the second entry into the Defendants' home do not need to be suppressed.
Krista only objects to her statements as fruit of the unlawful warrantless entries into the residence. Because the undersigned magistrate judge concludes the warrantless entries were lawful, Krista's motion to suppress her subsequent statements obtained as a result of such entries also should be denied.
In sum, the undersigned magistrate judge concludes that exigent circumstances existed permitting law enforcement to enter the residence without a warrant, and that any evidence or statements obtained as a result of such entries do not need to be suppressed.
Upon consideration,
Pursuant to NECrimR
