USA v. Sierra et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JESSE SIERRA and DUSTIN SIERRA,
Defendants.
5:19-CR-50110-JLV
REPORT AND RECOMMENDATION
Pending is Defendant Jesse Sierra’s Motion to Suppress (Doc. 228),
which Dustin Sierra moved for joinder.1 A hearing was held on Wednesday,
July 7, 2021. 	Defendants were personally present and represented by their
attorneys of record. 	The Government was represented by the Assistant United
States Attorney Heather Sazama. 	Four witnesses testified at the hearing, and
forty-four exhibits were received into evidence. 	Post-hearing briefing concluded
on September 13, 2021. 	Based on careful consideration of all the evidence,
and counsel’s written and oral arguments, the Court respectfully makes the
following:
RECOMMENDATION
It is respectfully recommended that Defendant Jesse Sierra’s Motion to
Suppress be denied.
1 The government accurately sets forth the confusing nature of the pleadings as it
pertains to this suppression motion. Nevertheless, the court addresses the merits of
the motion as it relates to both Defendants’ request to suppress the evidence arising
from the search of Michael Sierra’s property on July 25, 2019.
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JURISDICTION
Defendant Jesse Sierra is charged in a Superseding Indictment with
Kidnapping in violation of 18 U.S.C. §§ 1201(a)(2), 1153, and 2; Aggravated
Sexual Abuse by Force, in violation of 18 U.S.C. §§ 2241(a)(1), 2246(2)(A), and
1153; Aggravated Sexual Abuse by Force, in violation of 18 U.S.C. §§
2241(a)(1), 2246(2)(B), and 1153; Interstate Domestic Violence, in violation of
18 U.S.C. §§ 2261(a)(2) and 2; Assault Resulting in Serious Bodily Injury, in
violation of 18 U.S.C. §§ 113(a)(6), 1153 and 2; Assault by Strangulation of a
Dating Partner, in violation of 18 U.S.C. §§ 113(a)(8), 1153 and 2; Kidnapping
in violation of 18 U.S.C. §§ 1201 and 1153; Aggravated Sexual Abuse by Force,
in violation of 18 U.S.C. §§ 2241(a)(1), 2246(2)(B) and 1153; Assault Resulting
in Serious Bodily Injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153;
Interstate Domestic Violence, in violation of 18 U.S.C. § 2261(a)(2); and Assault
by Strangulation of a Dating Partner, in violation of 18 U.S.C. §§ 113(a)(8) and
1153. 	(Doc. 201).
Defendant Dustin Sierra is charged in a Superseding Indictment with
Kidnapping, in violation of 18 U.S.C. §§ 1201, 1153 and 2; Interstate Domestic
Violence, in violation of 18 U.S.C. §§ 2261(a)(2) and 2; Assault Resulting in
Serious Bodily Injury, in violation of 18 U.S.C. §§ 113(a)(6), 1153 and 2; and
Assault by Strangulation of a Dating Partner, in violation of 18 U.S.C. §§
113(a)(8), 1153 and 2. 	(Doc. 201). 	The pending Motion was referred to the
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Chief Judge Jeffrey
L. Viken’s Standing Order dated April 1, 2018.
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PRODEDURAL HISTORY
Defendant Jesse Sierra’s motion seeks to suppress specific evidence that
was seized pursuant to the July 25, 2019, search warrant. 	Specifically, he
seeks to suppress “signs of digging” or a “gravesite” and a “metal garden tool
with wooden handle.” 	(Doc. 229 at p. 1). 	These items were located following a
search of Michael Sierra, Sr.’s2 property which consists of approximately 600
acres. 	Jesse Sierra argues that Mike Sierra did not consent to the search of
the property. 	(Id. at p. 8). 	Jesse Sierra further argues that he had a
reasonable expectation of privacy in the 600 acres, and therefore has standing
to challenge the search, because he was invited there and was a member of the
corporation who managed the garden. 	(Id. at p. 9). 	Jesse Sierra additionally
argues that while the search warrant particularly describes a camper located
on Mike Sierra’s property that was to be searched, the warrant lacked
particularity as to searching the rest of Mike Sierra’s property for evidence of
signs of digging, a gravesite or metal garden tool with wooden handle. 	(Id. at p.
15). 	Finally, Jesse Sierra argues that the United States v. Leon good faith
exception does not apply because five days prior, Mike Sierra informed two
tribal officers that they would need a federal warrant to search his property;
the search team exceeded the scope of the warrant; and reasonably well-
trained officers would have known that the search beyond the parameters of
the particularized warrant was illegal. 	(Id. at pp. 8, 16).
2 Michael Sierra, Sr. is the father of both Defendants. 	(Doc. 250 at pp. 144,
155-156). 	Hereinafter he will be referred to as “Mike Sierra.”
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The government opposes the motion arguing that Jesse Sierra lacks
standing to challenge the search because he did not have a legitimate
expectation of privacy in the area that was searched; to-wit: an open field well
away from any areas that could be considered intimately associated with the
activities of the home or within the curtilage of the home. 	(Doc. 236 at pp. 4-7).
At the outset of the evidentiary hearing, the court asked the parties to
focus the evidence to the issues that were raised in the pre-hearing briefing: 1)
whether the Defendants had standing to challenge the search; 2) whether the
search exceeded the scope of the search warrant; and 3) whether an exception,
such as the open fields doctrine applied. 	(Doc. 250 at pp. 7-8). 	During the
evidentiary hearing, it became apparent that the parties approached presenting
evidence in differing legal frameworks. 	The government’s evidence, in part,
presented evidence to support that the search warrant was valid because the
entirety of the search warrant packet (warrant, application, affidavit, and
attachments) described the location to be searched. 	In contrast, the
Defendants approached the hearing from a legal framework that the court
could only consider the four corners of the search warrant to determine the
scope of the search. 	(Doc. 250 at pp. 127-128). 	Since the single page of the
search warrant did not describe the gravesite, Defendants approached the
hearing as if this was essentially a warrantless search. 	(Id.). 	The court took a
recess during the hearing to have the parties conduct additional research, so
that the evidence presented could be more narrowly tailored to the legal issues
in dispute. 	Upon resuming the hearing, the court indicated that it would
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decide the issue as to whether the search warrant was sufficiently particular
and whether the search was conducted pursuant to the scope of the warrant.
If the court upheld the search on this basis, no additional testimony would be
taken. 	If the court found the search was unconstitutional on its face and Leon
did not apply, then additional testimony would be taken as to the issues of
standing and expectation of privacy/open fields.
FACTS
In July of 2019, BIA Agent Molanna Clifford was investigating the
disappearance of Esther Wolfe. 	(Id. at p. 11). 	On July 25, 2019, Agent Clifford
presented an application for a search warrant, an affidavit in support of the
application, Attachment A, and the search warrant to a United States
Magistrate Judge.3 (Id. at pp. 12-16). 	Agent Clifford testified that an Assistant
United States Attorney assisted her with preparing the search warrant. 	(Id. at
pp. 11, 15). 	This “packet” of documents is located at Exhibit 42.
The affidavit sets forth a thirteen-page summary of the investigation into
the disappearance and sexual assault of Esther Wolfe. 	The affidavit described
Ms. Wolfe’s seven-day abduction commencing on July 13, 2019, until her
release on July 21, 2019. 	(Ex. 42). 	The affidavit set forth numerous locations
and property where various criminal activity occurred during the weeklong
ordeal including a blue Chevrolet Avalanche, Dustin Sierra’s residence, a
3 Magistrate judges may properly issue report and recommendations regarding
search warrants they previously authorized. 	See United States v. Campbell,
No. 12-CR-40039-KES, 2012 WL 6042757 (D.S.D. Dec. 5, 2012) (adopting R&R
of magistrate judge who also issued search warrant challenged in suppression
motion).
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camper on Mike Sierra’s property, a shallow grave on Mike Sierra’s property, a
blue abandoned house near Louella Youngman’s residence, and a motel room
in Crawford, Nebraska. 	(Id. at Bates 0792-0794).
The caption of the search warrant application, the caption of the
affidavit, and the caption of the search warrant all read as follows:
IN THE MATTER OF THE SEARCH OF: The residence of Dustin
Sierra, 430 BIA 35, Oglala, SD 57770; a blue Chevrolet Avalanche,
VIN 3GNEK12A16G165262, registered to Robert Little; an
abandoned blue building on the property of Louella Youngman in
the Number Four housing area near Pine Ridge, SD; a property
described as a camper located at the residence belonging to
Mike Sierra, on Bettelyoun Rd. Rt. 94, in Oglala, SD; and the
person or body of Jesse Sierra to consist of buccal swabs.
(Id. at Bates 0785, 0786, 0801) (emphasis added).
The application for the search warrant stated that Agent Clifford “…ha[s]
reason to believe that on the following person or property (identify the person or
describe the property to be searched and give its location): 	See Attachment A.
located in the District of South Dakota, there is now concealed (identify the
person or describe the property to be seized): See Attachment A.”
(Id. at Bates 0785). 	In Attachment A, it lists several items to be seized
including the following:
2. Christmas lights and the victim’s discarded clothing to include
shoes and a blue work smock at the camper located at the
residence of Mike Sierra.
3. Evidence of a shallow grave near the garden at the residence of
Mike Sierra in Oglala, SD, to include any shovels or items used to
dig the shallow grave.
(Id. at Bates 0799).
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After placing Agent Clifford under oath, the magistrate judge found
probable cause to authorize the search, and signed and dated the application,
the affidavit, and the search warrant. 	(Id. at Bates 0785-0801). 	The search
warrant did not identify or incorporate Attachment A. 	However, the warrant
referenced the affidavit in support of the search warrant and incorporated it by
reference. 	In turn, the affidavit describes the following property to be searched:
42. 	Based on the foregoing, I submit there is probable cause to
believe that evidence of a crime may be found in a camper on the
property of Mike Sierra on Bettelyoun Rd near Route 94 in Oglala,
SD. 	I submit there is probable cause to believe that evidence of
Aggravated Sexual Assault by Force, in violation of 18 U.S.C. §§
2241(a)(1) and 1153, Assault Resulting in Serious Bodily Injury, in
violation of 18 U.S.C. §§ 113(a)(6) and 1153, and Assault by
Strangulation of a Dating Partner, in violation of 18 U.S.C. §§
113(a)(8) and 1153, has occurred and I request a search warrant
be issued authorizing the search and seizure of items in
Attachment A.
(Id. at Bates 0797-0798).
The relevant potions of Attachment A are set forth above. 	The search
warrant packet was presented, signed and executed on July 25, 2019. 	Agent
Clifford testified that based on her knowledge, training, and experience the
attachments are part and parcel of the search warrant. 	(Doc. 250 at pp. 19,
70-71).
Later that day, Agent Clifford and the search team met in Oglala, South
Dakota in a church parking lot off Highway 18. 	(Id. at p. 22). 	FBI Special
Agent Stephen Beery briefed the search team and presented the entire packet
of documents containing the search warrant, application, affidavit and
Attachment A. 	(Id. at pp. 23, 75-76). 	Agent Beery testified that during the
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briefing, he went over safety protocols, their deadly force policy, some specific
details of what exactly they were looking for, where they were going, each
member of the search team’s responsibility and the subjects of the search
warrant. 	Agent Beery told the search team that they had the authority to
search and look for all of the items that were listed in Attachment A. 	(Id. at p.
125). 	The search warrant packet was made available to each of the members of
the search warrant team. 	(Id. at pp. 76, 119). 	The search warrant packet
accompanied members of the search team to each location they searched. 	(Id.).
The court finds that Agent Beery’s testimony is credible.
The search team first went to Dustin Sierra’s residence around 3:30
p.m., and then proceeded to Mike Sierra’s residence arriving at approximately
5:30 p.m. 	(Id. at pp. 23-24, 40-41). 	When the search team arrived at Mike
Sierra’s residence, Agent Beery explained to Mike Sierra why they were there
and what they were looking for, which included a conversation about the
search warrant packet. 	(Id. at p. 77). 	Agent Beery testified that he gave a copy
of the warrant to Mike Sierra. 	(Id. at p. 108). 	Although he could not recall
specifically, Agent Beery testified that he gave more than the single page of the
warrant to Mike Sierra, as it is his practice to leave attachments. 	(Id. at p.
109).
Mike Sierra testified that Agent Beery only gave him the single page of
the search warrant. 	(Id. at pp. 144-145). 	This document would be Exhibit 42,
Bates 0801. 	He denied that a packet of documents was given to him. 	(Doc.
250 at p. 145). 	The court had an opportunity to observe Mike Sierra’s
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demeanor and responsiveness to questioning and finds him not credible. 	In
addition to the apparent bias in favor of his sons, Mike Sierra testified to things
that were simply not credible. 	For example, when asked if he was aware that
the agents found Christmas lights and the garden tool on his property, he
responded, “I had Christmas lights all over that place out there.” 	(Id. at p.
148). 	One only need review Exhibits 1-30 which shows expansive open fields
and no sources of power to conclude that Mike Sierra’s testimony is untruthful
and an effort to explain away what could be construed as damaging evidence in
his sons’ case. 	On another occasion when asked how far it is from his house to
the camper, he replied “according to the FBI, it took them 13 minutes to get
down there.” 	(Id. at p. 147). 	When questioned how he was aware of this
specific information contained in the 302 report, he denied reviewing his sons’
discovery and gave evasive answers about hearing it from “talking to different
people.” 	(Id. at p. 153). 	Finally, Mike Sierra testified that Jesse Sierra and
Dustin Sierra4 had never used alcohol or drugs. 	(Id. at p. 161). 	At least as it
pertains to Jesse Sierra, the court knows this to be untrue, given Jesse Sierra’s
prior criminal history. 	(See Doc. 16). 	For all these reasons, the court finds
Mike Sierra not credible and places little to no weight on his testimony.
Mike Sierra’s property consists of approximately 600 acres of contiguous
land. 	(Doc. 250 at pp. 120, 146). 	It is located in a remote area of the Pine
4 Although the transcript does not specifically identify Jesse and Dustin, the
court recalls with particularity that Mike Sierra nodded his head towards the
Defendants who were present in the courtroom, thus identifying “these boys”
as Jesse Sierra and Dustin Sierra.
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Ridge Indian Reservation. 	(Id. at pp. 104-105, 143). 	There is what the parties
referred to as a “straw bale house,” which is where Mike Sierra resides. 	The
camper, described in the warrant, was located in excess of 3,500 feet away
from the straw bale house. 	(Ex. 43-44).
Shortly after arriving on the property, Agent Clifford called Esther Wolfe
to get a better idea of where the garden area with the shallow grave was
located.5 (Id. at pp. 41, 50). 	Agent Clifford relayed the information concerning
the direction of the shallow grave to Agent Beery.
After the initial meeting with Mike Sierra, the agents started to branch
out into their own roles to conduct the various searches. 	Three agents, along
with Mike Sierra, went to the location of the camper. 	Agent Clifford testified
that Mike Sierra offered to show her and two of the agents where the camper
was located, and the foursome departed in the direction of the camper. 	(Id. at
pp. 44, 147).
Agent Beery and other members of the search team took off in a westerly
direction from Mike Sierra’s house into an open field in search of the
“gravesite.” 	(Id. at p. 78). 	As it turned out, the “gravesite” was located nowhere
near the camper. 	(Id. at p. 64). 	In fact, it was over 1,000 feet from the straw
bale house, in the opposite direction of where the camper was located. 	(Ex.
43). 	The search near the “gravesite” revealed a garden tool, Christmas lights,
5 Agent Clifford contacted Esther Wolfe approximately six or seven times
throughout the day while they performed searches at the various locations.
The information Esther provided regarding where items were located was
generally accurate. 	(Id. at p. 63).
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and disturbed areas of dirt. 	(Id. at pp. 84-87). 	This evidence is the subject of
the motion to suppress. 	At the conclusion of the search, Mike Sierra was
provided a property receipt documenting what items were seized from his
property. 	(Id. at p. 148).
Agent Clifford testified that she believed that she had authority to search
the property because she had a federal search warrant. 	It was Agent Clifford’s
understanding that the warrant gave her access to go wherever she needed to
go on Mike Sierra’s land. 	(Id. at pp. 26, 54, 59). 	Agent Beery testified that he
limited his search to everything in the warrant and the attachment that
accompanied it, and that he believed everything that they searched and seized
was covered by the warrant. 	(Id. at pp. 101, 110). 	Similarly, Officer Amber
Twiss testified that she believed that she had authority to look for everything
listed in Attachment A. 	(Id at p. 124).
In post hearing briefing, Defendants argue that the first section of the
warrant, which identifies the person or property to be searched and its
location, lacks particularity in that it fails to particularly describe the entire
property of Michael Sierra for a search of where a dig site might be found.
Defendants argue that nothing about the grounds of Mike Sierra are referenced
in the first section of the warrant. 	(Doc. 259 at pp. 3, 7). 	Defendants also
argue that the warrant fails to incorporate by reference Attachment A. 	The
United States opposes the motion. (Doc. 258).
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DISCUSSION
I. 	Search Warrant Particularity and Incorporation
The Warrant Clause of the Fourth Amendment provides that “no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” 	U.S. Const. Amend. IV. “Particularity prohibits
the government from conducting ‘general, exploratory rummaging of a person’s
belongings.’” 	United States v. Sigillito, 759 F.3d 913, 923 (8th Cir. 2014)
(quoting United States v. Saunders, 957 F.2d 1488, 1491 (8th Cir. 1992)). 	“To
satisfy the particularity requirement of the Fourth Amendment, the warrant
must be sufficiently definite to enable the searching officers to identify the
property authorized to be seized.” 	United States v. Summage, 481 F.3d 1075,
1079 (8th Cir. 2007) (internal quotation omitted); see Groh v. Ramirez, 540
U.S. 551, 559–63, 561 n.4 (2004) (holding that search was illegal because
warrant provided no particularity, did not incorporate affidavit, and affidavit
did not accompany the warrant, there could “be no written assurance that the
Magistrate actually found probable cause to search for, and to seize, every item
mentioned in the affidavit.”).
A. The incorporation requirement
The Eighth Circuit has recognized that a warrant which does not on its
face identify items to be seized may nevertheless satisfy the particularity
requirement by incorporating a supporting document. 	See, e.g., United States
v. Hamilton, 591 F.3d 1017, 1024 (8th Cir. 2010). 	A warrant will be read to
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incorporate an affidavit “if the warrant uses appropriate words of incorporation,
and if the supporting document accompanies the warrant.” 	Groh, 540 U.S. at
557–58; see United States v. Curry, 911 F.2d 72, 77 (8th Cir. 1990) (“[A]
description in the supporting affidavit can supply the requisite particularity if
‘a) the affidavit accompanies the warrant, and b) the warrant uses suitable
words of reference which incorporate the affidavit therein.’” (quoting United
States v. Strand, 761 F.2d 449, 453 (8th Cir. 1985))).
In Groh, the Supreme Court found the search warrant at issue violated
the Fourth Amendment because “the warrant did not incorporate other
documents by reference, nor did either the affidavit or the application (which
had been placed under seal) accompany the warrant.” 	Groh, 540 U.S. at 558.
Significantly, the Court stated “[t]he mere fact that the Magistrate issued a
warrant does not necessarily establish that he agreed that the scope of the
search should be as broad as the affiant’s request. 	Even though petitioner
acted with restraint in conducting the search, ‘the inescapable fact is that this
restraint was imposed by the agents themselves, not by a judicial officer.’” 	Id.
at 561 (citing Katz v. United States, 389 U.S. 347, 356 (1967)).
However, “[n]ot every Fourth Amendment violation results in exclusion of
the evidence obtained pursuant to a defective search warrant.” 	Hamilton, 591
F.3d at 1027. 	“Because the purpose of the exclusionary rule is to safeguard
Fourth Amendment rights generally through its deterrent effect, it applies only
where it results in appreciable deterrence.” 	United States v. Szczerba, 897
F.3d 929, 937 (8th Cir. 2018) (internal citations and quotations omitted);
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United States v. Leon, 468 U.S. 897, 909 (1984) (establishing good faith
exception to exclusionary rule). 	“For exclusion to be appropriate, the
deterrence benefits of suppression must outweigh its heavy costs.” 	Davis v.
United States, 564 U.S. 229, 237 (2011).
“When law enforcement officers ‘exhibit deliberate, reckless, or grossly
negligent disregard for Fourth Amendment rights, the deterrent value of
exclusion is strong and tends to outweigh the resulting costs.’” 	Szczerba, 897
F.3d at 938 (quoting Davis, 564 U.S. at 238) (additional quotations omitted).
“But ‘when police mistakes are the result of negligence . . . rather than
systemic error or reckless disregard of constitutional requirements, any
marginal deterrence does not pay its way.’” 	Id. (quoting Herring v. United
States, 555 U.S. 135, 144 (2009)) (additional quotations and alterations
omitted). 	Suppression remains an appropriate remedy if, “depending on the
circumstances of the particular case, a warrant [is] so facially deficient—i.e., in
failing to particularize the place to be searched or the things to be seized—that
the executing officers cannot reasonably presume it to be valid.” 	Leon, 468
U.S. at 923.
The Eighth Circuit recently applied Groh to a search warrant involving
facts similar to this case. 	Szczerba, 897 F.3d 929. 	There, the warrant neither
listed items to be seized nor used any incorporating language referencing the
affidavit. 	Id. at 937. 	The Eighth Circuit found that for those reasons it lacked
particularity. 	Further, the warrant did not incorporate the affidavit by merely
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mentioning it in the warrant’s averment of probable cause. 	Id. (citing Groh,
540 U.S. at 555, 558; Strand, 761 F.2d at 453; Curry, 911 F.2d at 77).
However, the court found that suppression was not appropriate because
“the warrant was not so obviously deficient that any reasonable officer would
have known that it was constitutionally fatal.” 	Id. at 938. 	Significantly, the
warrant “clearly and immediately presented to the reader’s eye” the two
locations to be searched, which were the subject of the affidavit. 	Id. (internal
quotations omitted). 	The warrant also specifically referred to the affidavit,
which clearly described the locations to be searched and the items to be seized.
Id. 	The issuing judge signed the supporting affidavit, and the affiant brought
the affidavit and the warrant with her to supervise the search. 	Id. at 939.
“That the affidavit was signed by the issuing judge and that it accompanied the
warrant” distinguished Szczerba from Groh. 	Id. 	Further, application of the
exclusionary rule would not result in any appreciable deterrence of police
misconduct. 	Id. 	While the affiant acted negligently in drafting the warrant,
she conducted the search in accordance with the Fourth Amendment by
concealing no facts from the judge and carefully securing the warrant. 	Id.
B. Suppression is not appropriate
Szczerba controls this case. 	The search warrant in this case lacked
particularity in that it did not incorporate the affidavit or Attachment A by
reference in the first section which identifies the person or property to be
searched. 	It merely referenced “a property described as a camper located at the
residence belonging to Mike Sierra, on Bettelyoun [Rd]., Rt. 94, in Oglala, SD.”
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Of significance, though, is the second section finding probable cause to search
the property as outlined in the affidavit that was incorporated by reference.6
Therefore, suppression is not appropriate.
This case presents a more compliant search warrant than in Szczerba.
Here, the warrant describes the place to be searched as the camper located at
Mike Sierra’s residence; albeit, it fails to describe the garden area to be
searched. 	Defendant Jesse Sierra concedes that if the warrant would have
referred to Attachment A in the first section of the search warrant, the
particularity requirement would be met. 	(Doc. 259 at p. 7). 	It strains to reason
that if Attachment A was inserted in the first section, as opposed to the second
section by reference to the affidavit as was done here, the first scenario is
constitutional, while the second is unconstitutional. 	While this factor presents
a close call, the remaining factors of Szczerba weigh heavily in favor of
upholding the validity of the search. 	First, the search warrant referred to and
incorporated the affidavit, which clearly described in six numbered paragraphs
the places to be searched and items to be seized, along with eight numbered
paragraphs in Attachment A. 	(Ex. 42 at Bates 0796-0799). 	Second, the
issuing magistrate judge signed the application, affidavit, and search warrant,
which Agent Clifford presented in a packet. 	The court therefore has written
6 The court finds Defendant Jesse Sierra’s argument that the warrant lacks
particularity because it failed to incorporate by reference Attachment A,
without merit. 	The warrant incorporates the affidavit by reference and the
affidavit repeatedly refers to Attachment A requesting that the court issue a
search warrant for the items in Attachment A. 	The warrant incorporates by
reference the affidavit, of which Attachment A is an integral part. 	Therefore, by
extension, Attachment A is incorporated into the warrant.
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assurance that “the Magistrate actually found probable cause to search for,
and to seize, every item mentioned in the affidavit.” 	Groh, 540 U.S. at 560.
And third, the court finds that law enforcement brought the affidavit,
Attachment A, and the search warrant to supervise the search. 	This case
therefore is distinguishable from Groh. 	Szczerba, 897 F.3d at 939.
Like in Szczerba, application of the exclusionary rule here would not
result in appreciable deterrence of police misconduct. 	Id; Leon, 468 U.S. at
909. 	Law enforcement acted negligently by failing to incorporate the affidavit
and attachments in the first section of the search warrant. 	However, the
search team’s actions were objectively reasonable in believing the warrant,
bundled together with the carefully constructed supporting documents and
authorized by a neutral magistrate judge, authorized the seizure of the items
removed from Mike Sierra’s residence on July 25, 2019. 	See Hamilton, 591
F.3d at 1030. 	The search team “with full knowledge of the items authorized to
be seized, carefully executed the warrant, seizing only those items included in
the list of items in the affidavit.” 	Id. at 1029. 	Agent Clifford adhered to the
requirements of the Fourth Amendment by presenting a detailed application to
the magistrate judge and concealing no facts in the application. (Doc. 250 at
pp. 16-17, 22); see Szczerba, 897 F.3d at 939. 	The facts of this case “certainly
did not reflect the type of deliberate, reckless, or grossly negligent disregard for
the Fourth Amendment that the exclusionary rule can effectively deter.”
Szczerba, 897 F.3d at 939. 	Under these facts, the court finds the warrant was
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not “so obviously deficient” that no reasonable officer would presume it valid.
Groh, 540 U.S. at 558.
Therefore, suppression of the evidence obtained through the search of
Mike Sierra’s property, including evidence of a shallow grave, digging tools and
Christmas lights, which was specifically listed in Attachment A, is not
warranted in this case.
CONCLUSION
For the aforementioned reasons, it is respectfully recommended that the
Motion to Suppress be denied, consistent with the above analysis.
Alternatively, should the court not adopt this report and
recommendation, it is recommended that the court permit a second evidentiary
hearing take place before this magistrate judge to complete the record as to the
remaining issues of standing and whether Defendants had a reasonable
expectation of privacy on Mike Sierra’s property.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
District Court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 11th day of March, 2022.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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