United States v. Paul Riesselman

Filing

OPINION FILED - THE COURT: KERMIT E. BYE, MICHAEL J. MELLOY and LAURIE SMITH CAMP. Kermit E. Bye, Authoring Judge (PUBLISHED) [3810292] [11-1161]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1161
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United States of America,
Appellee,
v.
Paul Benjamin Riesselman,
Appellant.

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*
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* Appeal from the United States
* District Court for the Northern
* District of Iowa.
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*
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Submitted: June 17, 2011
Filed: July 22, 2011
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Before BYE and MELLOY, Circuit Judges, and SMITH CAMP,1 District Judge.
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BYE, Circuit Judge.
Paul Riesselman was charged with conspiracy to distribute methamphetamine,
distribution of methamphetamine, being an unlawful user of methamphetamine in
possession of firearms, and unlawfully possessing an unregistered sawed-off shotgun.
Riesselman filed a motion to suppress certain evidence, which the district court2
1

The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, sitting by designation.
2

The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa, adopting the report and recommendations of the Honorable Paul A.
Zoss, United States Magistrate Judge for the Northern District of Iowa.

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denied in part and granted in part. Riesselman appeals, arguing the district court erred
in denying the suppression of physical evidence seized pursuant to a search warrant
he alleges was invalid, as well as statements he made following an illegal search of
his person. We affirm.
I.
In March 2008, a confidential informant provided information to Special Agent
Todd Jones of the Iowa Division of Narcotics Enforcement (“DNE”) indicating
Riesselman possessed methamphetamine and weapons at his residence. Between
March and June 2008, the informant continued to work with the DNE and met with
Riesselman to discuss methamphetamine transactions. In May 2008, the informant
purchased a small amount of methamphetamine from Riesselman.
In response to the information received from the informant, Jones contacted
Special Agent Darin Heideman, a federally-certified task force officer, to assist in the
preparation and signing of a federal search warrant for Riesselman’s home in Vail,
Iowa. Heideman prepared an affidavit and application for a search warrant, which
was signed by a magistrate judge on July 3, 2008. The items sought were indicated
by a reference to “Attachment 1,” which included a list of documents, drug
paraphernalia, weapons, and other items. The warrant did not authorize the search of
any persons, only Riesselman’s residence.
Prior to the execution of the search warrant, Heideman provided Jones with a
copy of the search warrant, including Attachment 1, and the affidavit in support of the
warrant application. On July 9, 2008, Jones and Heideman, along with other officers,
executed the search warrant on Riesselman’s property. There was no plan to arrest
Riesselman, but during the search, officers detained him, searched him, and seized a
small amount of methamphetamine found in his pocket. Officers also seized a cell
phone found on his person.
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Following the discovery of methamphetamine on Riesselman’s person,
Jones—who was not involved in the search of Riesselman’s person—read Riesselman
his Miranda rights, to which Riesselman replied he understood and was willing to
speak with the officers. Jones then asked Heideman—who was also not involved in
the search of Riesselman’s person—to interview Riesselman inside his residence. As
they walked inside, Riesselman asked Heideman whether he should have an attorney
present. Heideman responded they were “just talking,” but indicated he would inform
the prosecutor if Riesselman cooperated with the questioning. When inside,
Heideman again informed Riesselman of his rights, and Riesselman acknowledged he
understood.
The interview began with only Heideman questioning Riesselman and with no
recording. Heideman asked Riesselman about the drugs found in his pocket, his drug
usage, his work history, and the weapons found at his residence. After approximately
thirty to forty-five minutes, Jones joined the interview and recorded the remainder of
the conversation. Jones also questioned Riesselman about his drug history and his
drug transactions. Riesselman admitted to distributing about one pound of
methamphetamine, using other drugs, and possessing firearms.
Following the interview and at the conclusion of the search, Jones and
Heideman released Riesselman and provided him with a copy of the search warrant.
However, the officers failed to provide Riesselman with Attachment 1 referenced in
the search warrant. Jones returned Riesselman’s cell phone, left a copy of the
inventory on the kitchen table, and photographed both items to show they had been
left.
Riesselman was charged with conspiracy to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 960(a); distribution of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a);
being an unlawful user of methamphetamine in possession of firearms in violation of
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18 U.S.C. §§ 922(g)(3) and 924(a)(2); and unlawfully possessing an unregistered
sawed-off shotgun in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871.
Riesselman filed a motion to suppress the evidence of the drugs and cell phone found
on him during the search of his person because the search was not authorized by the
search warrant. Also, Riesselman sought to suppress other physical evidence seized
pursuant to the warrant because the incorporated Attachment 1 did not accompany his
copy of the search warrant after the search concluded. Finally, Riesselman sought to
suppress the statements he made during the interview following the search of his
person, alleging they were a product of the illegal search.
The motion was referred to the magistrate judge, who conducted two
evidentiary hearings on the matter and filed a report, recommending Riesselman’s
motion be granted in part and denied in part. After Riesselman filed objections to the
magistrate judge’s report and recommendation, the district court reviewed de novo the
magistrate judge’s recommended disposition of Riesselman’s motion. The district
court adopted the magistrate judge’s findings of fact and ultimately agreed with the
recommendation, granting the motion as to the drugs and cell phone unlawfully seized
from Riesselman, and denying the motion as to the fruits of the warrant and the
statements obtained during the interview. With regard to the fruits of the search
warrant, the district court determined the search warrant adequately referenced
Attachment 1 and the attachment accompanied the search warrant, satisfying the
Fourth Amendment’s particularity requirement. With regard to Riesselman’s
statements made in the interview following the unlawful search of his person, the
district court concluded Riesselman failed to prove the discovery of methamphetamine
was the but-for cause of making his statements and the government successfully
showed the statements were sufficiently attenuated by other circumstances to purge
the taint of the unlawful search.
Following the district court’s denial of the motion to suppress, Riesselman
entered a conditional plea of guilty to conspiracy to distribute as well as unlawful
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possession of an unregistered firearm and was sentenced to seventy-five months’
imprisonment. Riesselman reserved the right to appeal all issues raised in his motion
to suppress and he now raises two issues on appeal. First, he claims the district court
erred in denying the suppression of all the fruits of the search warrant. Second,
Riesselman claims the district court erred in denying suppression of his incriminating
statements made after an unlawful search of his person.
II.
We review the district court’s legal conclusions for the denial of a motion to
suppress de novo, but its factual findings for clear error. United States v. Vanover,
630 F.3d 1108, 1114 (8th Cir. 2011). “We ‘will affirm the district court’s denial of
a motion to suppress evidence unless it is unsupported by substantial evidence, based
on an erroneous interpretation of applicable law, or, based on the entire record, it is
clear a mistake was made.’” Id. (quoting United States v. Munoz, 590 F.3d 916, 920
(8th Cir. 2010)).
A.
Riesselman first argues the district court improperly denied suppression of
physical evidence obtained from the search warrant because the search warrant was
not sufficiently particular when the officers failed to provide him with the referenced
Attachment 1 at the conclusion of the search. As required by the Fourth Amendment,
search warrants must particularly describe a place to be searched and things to be
seized. See U.S. Const. amend. IV (“[N]o Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be
search, and the persons or things to be seized.”). Although a search warrant must be
particular, adequate reference to an affidavit or attachment listing items to be searched
or seized can satisfy the requirement. United States v. Hamilton, 591 F.3d 1017, 1024
(8th Cir. 2010).
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The district court determined a clear incorporation of Attachment 1, including
a full list of items subject to seizure, and the presence of Attachment 1 with the search
warrant at the search scene satisfied the Fourth Amendment’s particularity
requirement. That the copy of Attachment 1 was not provided to Riesselman after the
search concluded was of no consequence because a complete copy of the search
warrant was present at the time of the search, limiting the items the officers could
seize. Based on the facts, we agree the search warrant was sufficiently particular for
several reasons.
First, the search warrant in this case indicated Attachment 1 in the space
designated for items to be searched. Such a reference sufficiently incorporated the
attachment. See United States v. Curry, 911 F.2d 72, 77 (8th Cir. 1990) (noting
suitable words of incorporation include “see attached affidavit”); United States v.
Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976) (per curiam) (holding “U. S. currency
as described in the affidavit” was a suitable way of incorporating the affidavit).
Second, the record supports the finding that the officers brought the attachment
to the scene of the search. Although it is not entirely clear whether a referenced
attachment is required to accompany a search warrant from its issuance to the
conclusion of the search, compare Curry, 911 F.2d at 77 n.4 (stating “the affidavit
must both accompany the warrant and be incorporated into it” but failing to provide
any indication of when these events must occur), with Rickert v. Sweeney, 813 F.2d
907, 909 (8th Cir. 1987) (stating “[a]n affidavit may provide the necessary
particularity for a warrant if it is either incorporated into or attached to the warrant”),
we are convinced the search warrant in the case before us was sufficiently particular
because the attachment was present at the scene of the search. Rickert, 813 F.2d at
909 (“Sufficient particularity may . . . be provided even if the affidavit is merely
present at the search.”); see also Groh v. Ramirez, 540 U.S. 551, 560 (2004) (an
individual is protected if “the particular items described in the affidavit are . . . at least
incorporated by reference, and the affidavit [is] present at the search”). The presence
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of the attachment indicated it was available for Riesselman and other parties to
observe at the time of the search. See Johnson, 541 F.2d at 1316. Additionally, its
presence limited the scope of the search to the items listed in the attachment. Id.
(“[T]he affidavit . . . removes any doubt as to . . . the presence of adequate limitations
on the executing officers’ discretion which otherwise might have been raised.”).
Based on the absence of the attachment from the copy of the warrant he
received, Riesselman argues suppression is warranted because he was not provided
with the knowledge of what items were to be seized, nor was he ensured the search
was lawfully authorized and conducted. We are not persuaded by this argument.
Here, the referenced attachment accompanied the warrant application, and was
reviewed by the magistrate judge when the warrant was issued. Riesselman does not
contest the validity of the warrant at the time it was issued. We recognize
Riesselman’s concern as to the search possibly exceeding the scope of the warrant if
he is not privy to the list of items to be seized; however, we conclude a validly issued
search warrant adequately referencing an attachment and the availability of the
attachment at the scene of the search prevent the type of impermissible officer conduct
Riesselman is concerned about because items seized beyond the purview of the
warrant are subject to suppression. See Baranski v. United States, 515 F.3d 857, 86061 (8th Cir. 2008) (holding the search warrant satisfied the particularity requirement
because a magistrate approved the search with reference to the incorporated affidavit
and had an opportunity to limit the scope of the search, and no constitutional violation
occurred because the officers performed the search reasonably according to the
warrant’s limits).
Therefore, we hold the district court properly found the warrant to be
sufficiently particular despite the failure to provide the attachment to Riesselman at
the conclusion of the search.

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B.
Having rejected Riesselman’s Fourth Amendment challenge, we turn to his
argument contending the fruits of the search should nevertheless be suppressed under
Federal Rule of Criminal Procedure 41(f)(1)(C). The rule states, “[t]he officer
executing the warrant must give a copy of the warrant and a receipt for the property
taken to the person from whom, or from whose premises, the property was taken or
leave a copy of the warrant and receipt at the place where the officer took the
property.” Fed. R. Crim. P. 41(f)(1)(C). As the district court found, Attachment 1
was not included with the search warrant copy given to Riesselman and, thus, we
agree the officers failed to “give a copy of the warrant” to Riesselman at the
conclusion of the search in violation of the Rule.
However, even if Rule 41 is violated, exclusion of evidence acquired during the
search “is required only if a defendant is prejudiced or if reckless disregard of proper
procedure is evident.” United States v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006)
(citing United States v. Bieri, 21 F.3d 811, 816 (8th Cir. 1994)). Riesselman failed
to show the withholding of Attachment 1 prejudiced him because the officers provided
him with an inventory of the items seized when they left his residence. See id.
(holding defendant “did not suffer any prejudice” merely because officers failed to
provide him with an attachment listing property to be seized). Riesselman also failed
to show the violation was reckless because the record indicates a full copy of the
search warrant was available at the search, and although mistaken, the officer thought
he had provided Riesselman with all the papers in his possession. As a result, the
district court properly denied suppression of evidence seized pursuant to the search
warrant in spite of the failure to provide the attachment to Riesselman.

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III.
Riesselman also challenges the district court’s unwillingness to suppress
statements he made subsequent to an unlawful search of his person. Evidence
obtained in violation of the Fourth Amendment is subject to the exclusionary rule and,
therefore, “cannot be used in a criminal proceeding against the victim of the illegal
search and seizure.” United States v. Calandra, 414 U.S. 338, 347 (1974). “[T]he
exclusionary rule reaches not only primary evidence obtained as a direct result of an
illegal search or seizure, but also evidence later discovered and found to be derivative
of an illegality or ‘fruit of the poisonous tree.’” Segura v. United States, 468 U.S.
796, 804 (1984) (citations omitted). Additionally, “[v]erbal statements obtained as a
result of a Fourth Amendment violation are as much subject to the exclusionary rule
as are items of physical evidence discovered during an illegal search.” United States
v. Yousif, 308 F.3d 820, 832 (8th Cir. 2002) (citing Wong Sun v. United States, 371
U.S. 471, 485 (1963)).
However, the evidence should only be excluded if the “illegality is at least a
but-for cause of obtaining the evidence.” United States v. Olivera-Mendez, 484 F.3d
505, 511 (8th Cir. 2007). In order to determine whether challenged evidence is the
fruit of an illegal search or seizure, “the defendant bears the initial burden of
establishing the factual nexus between the constitutional violation and the challenged
evidence.” United States v. Marasco, 487 F.3d 543, 547 (8th Cir. 2007). Once the
defendant comes forward with specific evidence demonstrating taint, the ultimate
burden of persuasion to show the evidence is untainted lies with the government.
Alderman v. United States, 394 U.S. 165, 183 (1969). In other words, the government
must show the evidence obtained after the illegal search was not “come at by
exploitation of that illegality [but] instead by means sufficiently distinguishable to be
purged of the primary taint.” Wong Sun, 371 U.S. at 488.

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A.
In Riesselman’s case, the prosecution conceded the pat-down search was neither
authorized by the search warrant nor reasonable under the circumstances. Thus, the
search of Riesselman’s person violated his Fourth Amendment right against
unreasonable searches and seizures, and any evidence stemming from the search may
be excluded as “fruits” so long as Riesselman is able to first prove a “factual nexus
between the constitutional violation and the challenged evidence.” Marasco, 487 U.S.
at 547.
Riesselman contends his statements were made as a direct result of the officers’
discovery of the drugs on his person. Moreover, he argues the district court
improperly relied in part on the officers’ motivation for questioning him in its
analysis. We agree with Riesselman’s latter assertion regarding the district court’s
focus on the officers’ motivation because the proper inquiry focuses on whether
Riesselman would have made the statements to the officers if the officers had not
illegally searched and seized drugs from his person. See Wong Sun, 371 U.S. at 486
(focusing on whether statements were “an act of free will” following an illegal
search). However, despite the district court’s initial error in phrasing, it later applied
the correct analysis by stating Riesselman offered no convincing evidence to show he
was influenced by the finding of drugs on his person to make incriminating statements
to the officers. We agree with the district court’s conclusion.
Particularly, the district court noted Riesselman offered no other evidence
beyond his own testimony that he would not have spoken to the officers if the drugs
had not been discovered. The district court rejected Riesselman’s testimony, agreeing
with the magistrate judge that the statement was “self-serving” and “smacks of recent
invention” as Riesselman did not make such an assertion until after the magistrate
judge found “if Riesselman had testified that he was so fearful or otherwise swayed
by emotion at the discovery of the drugs in his pocket that he was motivated to speak
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to the officers, then a different result might be warranted.” Furthermore, the district
court determined the officers questioned Riesselman about drug transactions with the
confidential informant and weapons found at his residence rather than solely about the
drugs found on his person. Based on the district court’s findings and the entire record,
we agree Riesselman failed the but-for test because he did not provide sufficient
evidence to prove a nexus between the illegal search of his person and his statements
made to the officers. Therefore, we hold the district court did not err in denying
suppression of the statements made after the illegal search of Riesselman’s person.
B.
Even if Riesselman was correct and the district court did err in finding no nexus
between the illegal search of his person and his statements made thereafter, we
nevertheless uphold the district court’s decision because the government successfully
showed the statements were sufficiently attenuated from the illegal search such that
the statements were voluntarily provided by Riesselman.
As previously stated, once the defendant comes forward with specific evidence
demonstrating taint, the government has the ultimate burden of persuasion to show the
evidence is not tainted. Alderman, 394 U.S. at 183. Evidence showing statements
after an illegal search were voluntary is a means of demonstrating the evidence is
attenuated from the taint. See United States v. Vega-Rico, 417 F.3d 976, 979 (8th Cir.
2005). In order to determine whether statements provided are voluntary to purge the
taint of the illegal search, we must consider the giving of Miranda warnings, the
“temporal proximity” of the illegal search and the statements made, the “presence of
intervening circumstances,” and “the purpose and flagrancy of the official
misconduct.” United States v. Lakoskey, 462 F.3d 965, 975 (8th Cir. 2006).
Three of these four factors indicate Riesselman’s statements were voluntary.
First, Riesselman received Miranda warnings twice: the first from Jones after the
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illegal discovery of methamphetamine on his person, and the second from Heideman
before questioning began. Riesselman acknowledged his rights by signing a form in
the presence on Heideman. These events occurred before the statements were made
but after the illegal search and thus they tend to indicate the voluntariness of
Riesselman’s statements. See Rawlings v. Kentucky, 448 U.S. 98, 107 (1980) (stating
the giving of Miranda warnings is an “important, although not dispositive” factor).
Second, several intervening circumstances occurred in the admittedly short time
between the illegal search and the statements, making it more probable the statements
were a product of Riesselman’s free will rather than of the illegal search. To start
with, there was a change of location. After an officer found drugs on Riesselman’s
person, Heideman alone escorted Riesselman indoors. See Vega-Rico, 417 F.3d at
980 (finding it significant that interview was conducted in different location). Then,
even though Riesselman was detained, Heideman indicated to Riesselman that they
were “just talking,” and he was never formally placed under arrest. See Rawlings, 448
U.S. at 108 (“congenial” discussion with officers during illegal detention led to
petitioner’s confession). Inside his residence, Riesselman made the statements to
Heideman and Jones, neither of whom made the initial illegal seizure of the drugs
from his person. See Vega-Rico, 417 F.3d at 980 (discussing the relevance of another
officer, who was not involved in the initial Fourth Amendment violation, conducting
the interview). We conclude such intervening circumstances tend to show Riesselman
understood his choice to speak with the officers was voluntary.3

3

The only contrary evidence presented was Riesselman’s testimony regarding
his feeling of being compelled to speak because the drugs were found in his pocket.
However, the district court found his testimony not credible. See United States v.
Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003) (“[C]redibility determinations [by the
district court] are virtually unreviewable on appeal.”) (internal quotation marks and
citations omitted). We provide deference to the district court’s factual findings, see
Vanover, 630 F.3d at 1114 (facts are reviewed for clear error), and the district court
was correct in determining Riesselman’s statements were voluntary.
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Third, as to “the purpose and flagrancy of the official misconduct,” no evidence
indicates the search of Riesselman’s person was conducted in bad faith. Although the
officers had a copy of the search warrant, which did not authorize a search of
Riesselman’s person, the officers had a valid search warrant for other purposes. Also,
as the district court determined, the officers did not focus their questioning on the
discovery of drugs on his person but rather on drug transactions and weapons
generally, and the record supports the finding that the officers already planned, before
finding the drugs on his person, to interview Riesselman the day of the search. Contra
Brown v. Illinois, 422 U.S. 590, 605 (1975) (excluding fruits of the illegal arrest
where police had flagrant purpose when they “embarked upon [the] expedition for
evidence in the hope that something might turn up”). Thus, with no flagrant
misconduct, there are sufficient indications that the statements were voluntary.
The only factor to the contrary is the “temporal proximity” of the illegal search
and the statements made. This factor weighs less in favor of finding the statements
were voluntary because Riesselman made the incriminating statements shortly
following the illegal search of his person. See Lakoskey, 462 F.3d at 975 (holding
voluntary consent did not “right the officers’ constitutional wrong” as the consent was
made “on the heels of the illegal entry”). However, about fifteen to twenty minutes
passed between the illegal search of Riesselman’s person and the start of the
interview. Considering this time span along with the intervening circumstances and
double Miranda warnings, we do not find this factor undermines the voluntariness of
Riesselman’s statements. See Rawlings, 448 U.S. at 108 (holding that while only
forty-five minutes passed between the illegal detention and challenged statements, the
conditions were not strict, which outweighed the short time period). Even more, we
find relevant the fact of Riesselman’s statements occurring in close temporal
proximity to the lawful search of his residence. See United States v. Becker, 333 F.3d
858, 862 (8th Cir. 2003) (finding consent not too close in proximity to an unlawful
detention when it was preceded by a lawful detention).

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Based on the analysis of the factors listed above, we are convinced the
government was able to show that the statements were acquired by means sufficiently
distinguishable from the illegal search of Riesselman’s person and Riesselman
voluntarily provided his incriminating statements. See Wong Sun, 371 U.S. at 488.
As such, we hold the district court properly denied suppression of the statements
Riesselman made following the unlawful search of his person.
IV.
We affirm the district court’s decision to grant in part and deny in part
Riesselman’s motion to suppress.
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