                 United States Court of Appeals
                                           FOR THE EIGHTH CIRCUIT
                                                ___________

                                               No. 96-3615
                                                ___________
United States of America,                               *
                                                        *
                 Plaintiff - Appellee,                  *    Appeal from the United States
                                                        *    District Court for the
       v.                                               *    District of South Dakota.
                                                        *
Joseph F. Hornbeck,                                     *
                                                        *
                 Defendant - Appellant.                 *
                                                        *

                                                ___________

                                     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 was sentenced to time served and three years of supervised
release. Hornbeck's guilty plea reserved the issues that are the basis of this appeal. These issues are whether the
district court1 erred in admitting both the evidence obtained pursuant to a tribal search




        1
       The Honorable Richard H. Battey, Chief Judge, United States District Court for
the District of South Dakota.
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, executed a tribal search warrant for Hornbeck's residence and seized property found
there. Tribal law required that the return be filed with 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 the tribal prosecutor, but no return was filed with the tribal court. He also stated that he had
prepared an inventory and given 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 was 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 questioning him. Vukelich asked no further questions after Hornbeck invoked his right to silence. On
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 his
statement to Vukelich. An evidentiary hearing was held before a




                                                        -2-
magistrate judge,2 who made findings of fact and recommended denial of the motions to suppress. The district
court accepted 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 findings as to the alleged illegal search only if they are clearly
erroneous. United 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
seized. Hornbeck's reliance on tribal law, however, is erroneous. Federal, not tribal or state, law governs the
admissibility of this evidence.4 "The question whether evidence obtained by state


        2
        The Honorable Marshall P. Young, United States Magistrate Judge for the
District of South Dakota.
        3
      The district court issued two orders addressing and denying Hornbeck's motions.
The court issued the second order because Hornbeck requested a specific ruling on
whether the delay between his initial detention and appearance before the magistrate
was unreasonable.
        4
       Hornbeck contends that Federal Rule of Criminal Procedure 41, governing
federal search warrants, is inapplicable here, while the prosecution relies on several
cases under Rule 41. Rule 41 does not apply here because federal authorities were not
involved in applying for 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 significant
involvement of federal officers must comply with federal law."). Even assuming that
Rule 41 applied, however, we would nevertheless conclude that the evidence was
properly 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 United States v. Freeman, 897 F.2d 346, 349 (8th Cir. 1990);
United States v. Burgard, 551 F.2d 190, 193 (8th Cir. 1977). The district court
admitted the search evidence under this standard and emphasized that the search would
have taken place regardless of the alleged tribal law violations because the violations
primarily took place after the search.
                                                        -3-
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).5 As we have explained:

        In a federal prosecution, we evaluate a challenge to a search conducted by state authorities under
        federal Fourth Amendment standards. . . . A court must examine 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 the
        Fourth Amendment will not be suppressed in a federal prosection because state law was
        violated."

Bieri, 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, 1330 (8th Cir. 1987), cert. denied, 484 U.S.
1011 (1988); United States v. Eng, 753 F.2d 683, 686 (8th Cir. 1985).6




        5
       The search of Hornbeck's residence involved tribal, and not state, authorities,
but cases involving searches by state authorities are relevant because the search of
Hornbeck's residence and searches by state authorities are non-federal.
        6
        In Eng, we suggested that in some circumstances principles of comity may
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-
        Hornbeck's argument is based solely upon alleged violations of tribal law. He does not argue that the
search and seizure violated the Constitution or other federal law. Hornbeck's briefs mention the Fourth
Amendment and the Constitution in passing, but do not explain how they were implicated by the alleged
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 to
violations which are not of constitutional magnitude." United 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 because
approximately fifteen hours elapsed between his arrest and his statement, and approximately forty hours elapsed
between 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 part, that a confession "shall be admissible in evidence if it is voluntarily given." 18 U.S.C. §
3501(a). A confession is not inadmissible solely because of delay in bringing the defendant before a magistrate
if the confession was voluntary and made within six hours after 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 reasonable, taking into consideration the means of transportation and the travel




                                                        -5-
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; the
nearest magistrate was 100 miles away), cert. denied, 429 U.S. 846 (1976).

        The district court found that Hornbeck was in custody approximately 15.7 hours before he made his
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 district 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) to
determine whether Hornbeck's statement was voluntary.7 Agent




        7
         18 U.S.C. § 3501(b) provides:

               The trial judge in determining the issue of voluntariness shall take
        into consideration all the circumstances surrounding the giving of the
        confession, including (1) the time elapsing between arrest and arraignment
        of the defendant making the confession, if it was made after arrest and
        before arraignment, (2) whether such defendant knew the nature of the
        offense with which he was charged or of which he was suspected at the
        time of making the confession, (3) whether or not such defendant was
        advised or knew that he was not required to make any statement and that
        any such statement could be used against him, (4) whether or not such
        defendant had been advised prior to questioning of his right to the
        assistance of counsel, and (5) whether or not such defendant was without
        the assistance of counsel when questioned and when giving such
        confession.
                                                        -6-
Vukelich testified that he served Hornbeck with the federal arrest warrant, advised him of his rights, and informed
him that he was not required to talk with the authorities. Hornbeck also read and signed an Interrogation/Advice
of Rights form and indicated 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 was otherwise aware of it. Hornbeck did not indicate to Vukelich that he desired to speak with an
attorney. When Hornbeck invoked his right to remain silent, Vukelich asked no further questions and had no
further discussion with Hornbeck.

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

        After reviewing the record as a whole, we hold that the district court's findings regarding the
circumstances of Hornbeck's statement are not clearly erroneous. Those findings support the conclusion that
Hornbeck made his statement voluntarily, and 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.




                                                       -7-
A true copy.

        Attest:

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




                                       -8-
