## The Honorable Richard H. Battey, Chief Judge, United States District Court for 1 

## the District of South Dakota.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-3615

___________ United States of America, *

Plaintiff - Appellee, * Appeal from the United States

v. * District of South Dakota. Joseph F. Hornbeck, *

Defendant - Appellant. * *

* District Court for the

*

*

*

___________ Submitted: March 11, 1997 Filed: July 7, 1997

___________ Before MAGILL, JOHN R. GIBSON, and MURPHY, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge. Joseph Hornbeck was charged with possessing marijuana with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1994). Hornbeck pled guilty and w as sentenced to time served and three years of supervised release. Hornbeck's guilty plea rese rved the issues that are the basis of this appeal. These issues are whether the district court erred in admitting both the evidence obtained pursuant to a tribal search

1

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warrant and Hornbeck's statement to an FBI agent. We affirm the district court's judgment.

On September 30, 1995, Stanley Star Comes Out, a criminal investigator for the Oglala Sioux Tribal Public Safety Commission, exec uted a tribal search warrant for Hornbeck's residence and seized property found there. Tribal law required that the return be filed wi th the tribal court within the time limit shown on the warrant, a date which must be

within ten days after the warrant was issued. Oglala Sioux Crim. Code, Chapter 8, § 3-2

. A warrant is void under tribal law if not timely returned. Id. Stanley Star Comes Out testified that he returned the warrant to th e tribal prosecutor, but no return was filed with the tribal court. He also stated that he ha d prepared an inventory and gi ven a copy to Hornbeck's spouse. Hornbeck testified that he did not receive a copy of the inventory.

On March 11, 1996, Hornbeck was arrested on a federal arrest warrant and held at the Kyle, South Dakota jail. The next day, FBI special agent Mark Vukelich was at the jail on another matter and learned that Hornbeck wa s in custody there. He served Hornbeck with the federal arrest warrant pertaining to this case and advised him of his rights. Hornbeck read and signed an Interrogation/Advice of Rights form and indicated his willingness to be interviewed. Hornbeck made certain statements to Vukelich before requesting that Vukelich
cease questioni ng him. Vukelich asked no further questions after Hornbeck invoked his right to silence. O n March 13, 1996, Hornbeck made his initial appearance before a magistrate in Rapid City, South Dakota.

Hornbeck filed motions to suppress both the evidence obtained from the search of his home and hi s statement to Vukelich . An evidentiary hearing was held before a

## The Honorable Marshall P. Young, United States Magistrate Judge for th e 2 

## District of South Dakota. The district court issued two orders addressing and denying Hornbeck's mo tions. 3 

## The court issued the second order because Hornbeck requested a specific ruling o n whether the delay between his initial detention and appearance before the magistrate was unreasonable. Horn beck contends that Federal Rule of Criminal Procedure 41, governin g 4 

## fed eral search warrants, is inapplicable here, while the prosecution relies on severa l cases under Rule 41. Rule 41 does not apply here be cause federal authorities were not involved in applying f

or or executing the warrant. See United States v. Bieri , 21 F.3d 811, 816 ( 8th Cir.), cert. denied , 513 U.S. 878 (1994). Cf. United States v. Moore , 956 F.2d 843, 847 n.3 (8th Cir. 1992) ("A search conducted with significan t invo lvement of federal officers must comply with federal law."). Even assuming that Rul e 41 applied, however, we would nevertheless conclude that the evidence wa s prope rly admitted. "We apply the exclusionary rule to violations of Rule 41 only if a defendant is prejudiced or reckless disregard of proper procedure is evident." Bieri , 21 F.3d at 816; see also Uni ted States v. Freeman , 897 F.2d 346, 349 (8th Cir. 1990); United State s v. Burgard , 551 F.2d 190, 193 (8th Cir. 1977). The district cour t admitted the search evidence under this standard and emphasiz ed that the search would have t aken place regardless of the alleged tribal law violations because the violations primarily took place after the search. -3- magistrate judge, who made findings of fact and recommended denial of the motions to suppress. The district 2 court acce pted the magistrate's findings and recommendations and denied Hornbeck's motions to suppress. 3 Hornbeck now appeals.

I. We may reverse the district court's factual find ings as to the alleged illegal search only if they are clearly
erroneous. Un ited States v. Martinez , 78 F.3d 399, 401 (8th Cir. 1996). We review de novo the court' s conclusion about the constitutionality of the search. Id. Hornbeck argues that the district court should have suppressed the search evidence because the warrant was void under tribal law due to the failure to timely file the return and provide him with an inventory of property sei zed. Hornbeck's reliance on tribal law, however, is erroneous. Federal, not tribal or state, law governs th e admissibility of this evidence. "The question whether evidence obtained by state 4

## The search of Hornbeck's residence involved tribal, and not state, authorities, 5 

## but c ases involving searches by state authorities are relevant because the search o f Hornbeck's residence and searches by state authorities are non-federal. In Eng , we suggested that in some circumstances principles of comity ma y 6 

## weigh in favor of a federal court suppressing evidence seized in violation of state law. 753 F.2d at 686. There is no such principle at stake here; this ruling does not impact the tribal court or tribal law. -4- officers and used

against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the

search and seizure had been made by federal officers." Preston v. United States , 376 U.S. 364, 366 (1964). As we have explained:

5 In a federal prosecution, we evaluate a challenge to a sea rch conducted by state authorities under federal Fourth Amendment standards. . . . A court must exami ne the legality of a search by state officers as if made by federal officers. We recently concluded in United States v. Moore , 956 F.2d 843 , 847 (8th Cir. 1992), that "evidence seized by state officers in conformity with th e Fourth Amendment will not be suppressed in a federal prosection because state law wa s violated."
Bier i , 21 F.3d at 816 (citations omitted); accord United States v. Johnson , 12 F.3d 827, 835 (8th Cir.), cert

. denied , 511 U.S. 1095 (1994); United States v. Tate , 821 F.2d 1328, 1 330 (8th Cir. 1987), cert. denied , 484 U.S. 1011 (1988); United States v. Eng , 753 F.2d 683, 686 (8th Cir. 1985). 6

### -5- Hornbeck's argument is based solely upon alleged violations of tribal law. He does not argue that the
sea rchand seizure violated the Constitution or other federal law. Hornbeck's briefs mention the Fourth Amendmen t and the Constitution in passing, but do not explain how they were implicated by the allege d violations of tribal law. This is insufficient as a matter of law. The exclusionary rule is a "blunt instrument" and "[f]or that reason courts should be wary in extending the exclusionary rule in search and seizure cases t o violations which are not of constitutional magnitude." Unite d States v. Burke , 517 F.2d 377, 386 (2d Cir. 1975); see also Freeman , 897 F.2d at 348. Because Hornbeck has alleged no constitutional violation here, the district court properly denied his motion to suppress the evidence from the search of his home.

II.
Hornbeck next contends that his statement to FBI agent Vukelich was inadmissible becaus e approximately fifteen hours elapsed between his arrest and his statement, and approximately forty hours elapsed betw een his arrest and his appearance before the magistrate. "We review the question of whether a confession is voluntary as a question of law subject to de novo consideration . However, we review determination of the facts underlying this legal conclusion under the clearly erroneous standard." United States v. Casal , 915 F.2d 1225, 1228 (8th Cir. 1990) (citation omitted), cert. denied , 499 U.S. 941 (1991). The admissibility of Hornbeck's incriminating statement is governed by 18 U.S.C. § 3501 (1994). It provides, in pa rt, that a confession "shall be admissible in evidence if it is voluntarily given." 18 U.S.C. § 3501(a). A confession is no t inadmissible solely because of delay in bringing the defendant before a magistrate if the confession was voluntary and made within six hours af ter the defendant's arrest or detention. Id. § 3501(c). A confession made more than six hours after arrest or detention may nevertheless be admissible if the confession was voluntary and the delay was reaso nable, taking into consideration the means of transportation and the travel

## 18 U.S.C. § 3501(b) provides: 7 

## The trial jud ge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of th e confession, including (1) the time elapsing between arrest and arraignment of the d efendant making the confession, if it was made after arrest an d before arraignment, (2) whether such defendant knew the nature of th e offense with which he was charged or of which he was suspected at the timeof making the confession, (3) whether or not such defendant wa s advised or knew that he was n ot required to make any statement and that any such s tatement could be used against him, (4) whether or not suc h defe ndant had been advised prior to questioning of his right to th e assistance of counsel, and (5) wheth er or not such defendant was without th e assistance of counsel when questioned and when giving suc h confession.
-6- distance to the nearest magistrate. Id. See , e.g. , United States v. Bear Killer , 534 F.2d 1253, 1256, 1257 n.3 (8th Cir.) (holding that statements given nine and one-half and twelve hours after arrest were voluntary; th e nearest magistrate was 100 miles away), cert. denied , 429 U.S. 846 (1976).

Th e district court found that Hornbeck was in custody approximately 15.7 hours before he made hi s statement. Therefore, under 18 U.S.C. § 3501, Hornbeck's statement was properly admitted only if the following two requirements were met : First, the delay in bringing Hornbeck before a magistrate was reasonable. Second, Hornbeck's statement was voluntary. As to the reasonableness of the delay, the dist rict court found that Rapid City, the location of the nearest magistrate, was a one and one-half hour drive away from Kyle. In addition, Hornbeck stayed overnight in the Kyle jail because he was arrested at 7:43 p.m. The court found no evidence in the record suggesting that the delay was a law enforcement tactic to obtain a confession. Considering the circumstances, the court held that the time lapse between Hornbeck's arrest and arraignment was reasonable.

The district court evaluated the evidence in light of the factors set forth in 18 U.S.C. § 3501(b) t o determine whether Hornbeck's statement was voluntary. Agent 7

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Vukelich testified that he served Hornbeck with the federal arrest wa rrant, advised him of his rights, and informed him that he was not required to talk with th e authorities. Hornbeck also read and signed an Interrogation/Advice of Rights form and in dicated his willingness to be interviewed. Although Hornbeck was represented by a tribal attorney on two other cases in tribal court, there was no evidence that Hornbeck informed Vukelich of this or that Vukelich wa s otherwise aware of it. Hornbeck did not indicate to Vukelich that he desired to speak with a n att orney. When Hornbeck invoked his right to remain silent, Vukelich asked no further questions and had n o further discussion with Hornbeck.

The district court also considered other circumstances of the interview in making its voluntarines s determination. The interview room was approximately ten feet by ten feet a nd had a desk, chairs, and a telephone. Vukelich's firearm was not visible during the interview. Vukelich was abl e to calm Hornbeck's initial nervousness by asking him simple background q uestions, and Vukelich did not threaten Hornbeck. The court concluded that Hornbeck's statement was voluntary and admissible and therefore denied his motion to suppress.

Af ter reviewing the record as a whole, we hold that the district court's findings regarding th e circumst ances of Hornbeck's statement are not clearly erroneous. Those findings support the conclusion tha t Hornbeck made his statement voluntarily, an d that the delay in bringing him before a magistrate was reasonable. Therefore, Hornbeck's statement was properly admitted into evidence under 18 U.S.C. § 3501. Accordingly, we affirm the judgment of the district court.

### -8- A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.