The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING DEFENDANT PHOMMAHAXAY'S MOTION TO SUPPRESS EVIDENCE
Before the Court is Defendant Kichong Phommahaxay's Motion to Suppress Evidence filed on April 9, 2010. See Docket No. 71. An evidentiary hearing was held in Bismarck, North Dakota on June 3, 2010. The Court reserved ruling on the motion and allowed the parties to file supplemental briefs. Both parties filed briefs on July 16, 2010. See Docket Nos. 110 and 111. The Court denies the motion for the reasons set forth below.
Defendant Kichong Phommahaxay was indicted on two counts -- conspiracy to possess with the intent to distribute and distribute cocaine, and possession of cocaine with the intent to distribute. See Docket No. 1. On April 9, 2010, Phommahaxay filed a motion to suppress evidence. See Docket No. 71. Phommahaxay states:
In this case, the law enforcement officers illegally detained the defendants and held them under arrest while they searched the hotel room and while they waited for a search warrant at a time when they did not have probable cause. Because this was in contravention of the Fourth Amendment to the United States Constitution, Mr. Phommahaxay requests the suppression of all evidence.
Additionally, the information submitted to obtain a search warrant was insufficient to establish probable cause. Therefore, the search of the hotel room was unlawful and in violation of the Fourth Amendment to the United States Constitution. Accordingly, Mr. Phommahaxay moves to suppress all of the illegally obtained evidence.
See Docket No. 71. In his brief filed after the evidentiary hearing, Phommahaxay states:
Law enforcement did not have a warrant to enter and search Room 224 of Four Bears Lodge and there was no probable cause nor any attendant exigent circumstances to excuse the warrant requirement. Therefore, the entry into and search of Room 224 was unlawful and in contravention of the Fourth Amendment to the United States Constitution. Accordingly, suppression of the fruits of the poisonous tree is necessary and just.
Phommahaxay contends that on September 11, 2009, law enforcement officers unlawfully detained him in a hotel room at the Four Bears Casino and Lodge in New Town, North Dakota while federal authorities obtained a search warrant for the room. In his supplemental brief, Phommahaxay also contends law enforcement officers unlawfully entered the hotel room without a warrant. The Government contends that the detention pending the issuance of the search warrant was appropriate and reasonable and that law enforcement officers had consent to enter the hotel room.
The evidence reveals that at approximately 3:23 a.m. on September 11, 2009, Security Supervisor Catlin Sitting Bear from the Four Bears Casino and Lodge contacted Three Affiliated Tribes Officer Charles Hunger after noticing an odor of marijuana coming from the hotel room occupied by Phommahaxay and others, namely, room 224. The casino security officer and Officer Hunger went to the hotel room, knocked, and Zachanah Walker answered. Officer Hunger noticed an odor of marijuana outside the room and discussed the same with Walker. Walker denied using the substance. Officer Hunger testified Walker gave consent to the casino security officer for Officer Hunger and the casino security officer to enter the room. According to Officer Hunger, Walker denied anyone was smoking marijuana in the hotel room and invited Officer Hunger and the casino security officer to look around the room. The casino security officer testified in an affidavit filed after the suppression hearing that he and Officer Hunger entered the room without asking Walker for his consent. See Docket No. 111-2. He testified Walker did not invite them into the room and did not tell them they could look around the room. See Docket No. 111-2. Once inside, Officer Hunger observed alcoholic beverage containers, drugs (including multiple marijuana cigarettes and a line of white powdery substance), and a digital scale in plain view. Officer Hunger also observed a small plastic baggy lying next to the white powder on a table. Officer Hunger asked Walker if there were more drugs in the room and Walker produced a handbag which contained additional marijuana cigarettes and multiple plastic baggies containing a white substance. The presence of these items indicated the likelihood of drug distribution. Photographs were taken of the hotel room and its contents. See Docket No. 96-1.
There were three other individuals in the hotel room when the officers arrived: Phommahaxay, Stephanie Butler, and a 17-year old Indian male. Officer Hunger detained and removed the individuals from the room and contacted federal authorities to obtain a search warrant for the hotel room. Officer Hunger waited to conduct a search of the room until the arrival of federal authorities and the search warrant. Officer Hunger also contacted the McKenzie County Sheriff's Department to take custody of Phommahaxay because he is a non-Indian.
Phommahaxay was transported to the tribal law enforcement center in New Town, North Dakota. FBI Agent Scott Williams and BIA Agent Gerald White conducted interviews of the individuals who were in the hotel room. A third agent, FBI Special Agent Michael Holt, was assigned to obtain a federal search warrant for the hotel room. FBI Agent Williams began interviewing Phommahaxay at approximately 5:50 a.m. and concluded the interview at 7:35 a.m. The McKenzie County Sheriff arrived at the tribal law enforcement center at approximately 9:36 a.m. and took custody of Phommahaxay. A search warrant was obtained from Magistrate Judge Charles S. Miller, Jr. at 11:45 a.m. on September 11, 2009 in Bismarck, North Dakota. The search warrant was faxed to the officers in New Town, and the search warrant was executed the same day. See Docket 96-1. The record reveals that the search of ...