United States v. Castro Diaz

UNITED STATES OF AMERICA, Plaintiff, v. CRISTIAN HUMBERTO CASTRO DIAZ, Defendants.

CR. 18-50069-02-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

January 27, 2020

ORDER

INTRODUCTION

A grand jury indicted Cristian Castro Diaz, together with three other defendants, in a multiple-count indictment. (Docket 1). Mr. Castro Diaz is charged with count I: conspiracy to distribute a controlled substance, methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846, and count II: distribution of a controlled substance, heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Id.

Pending before the court is defendant's motion to suppress all physical evidence and statements obtained as the result of the stop of a vehicle being driven by the defendant. (Docket 95). The United States opposes defendant's motion. (Docket 116). Defendant's suppression motion was referred to Magistrate Judge Daneta Wollmann for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the court's April 1, 2018, standing order. An evidentiary hearing was held on March 19, 2019. (Dockets 128 & 132).

Following post-hearing briefing, Magistrate Judge Wollmann issued an amended report and recommendation ("R&R"). (Docket 185). The magistrate judge recommended the defendant's motion to suppress be granted. Id. at p. 30. The government timely filed objections to the R&R. (Docket 187). Mr. Castro Diaz filed a response to the government's objections. (Docket 189). For the reasons stated below, the government's objections are granted in part and denied in part.

GOVERNMENT'S OBJECTIONS

The government's objections to the R&R are summarized as follows:

1. The government objects generally to the recommendation that defendant's motion to suppress be granted.

2. The government objects to the citation of the testimony of South Dakota Division of Criminal Investigation ("DCI") Special Agent ("S.A.") Preston Palmer because he did not testify but rather DCI S.A. Preston Patterson testified.¹

3. The government objects to the finding the testimony of Pennington County Sheriff's Office Sergeant Casey Kenrick was not credible.

4. The government objects to the finding an alleged lane violation was not objectively reasonable and was an unconstitutional rationale for the stop.

5. The government objects to the finding the testimony of South Dakota Highway Patrol ("SDHP") Trooper Clay Kartak was not credible.

6. The government objects to the finding the alleged first following-too-closely violation was not objectively reasonable and was an unconstitutional rationale for the stop.

7. The government objects to the finding the alleged second following-too-closely violation² was not objectively reasonable and was an unconstitutional rationale for the stop.

8. The government objects to the conclusion the stop of the defendant's vehicle violated the Fourth Amendment.

9. The government objects to the conclusion the drug dog sweep was unconstitutional.

(Docket 187 at pp. 1-4). For these reasons, the government argues the court should "sustain the United States' objections to the R&R and deny the defendant's motion to suppress." Id. at p. 24.

Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. See also Fed. R. Crim. P. 59(b)(3). The court completed a de novo review of those portions of the R&R to which objectionswere filed. The government's objections will be addressed in groups deemed most efficient.

ANALYSIS

The court completed a de novo review of the transcript of the suppression hearing,³ the video and audio recordings ("video recording") produced by Trooper Kartak's patrol car camera, the video recording of the storage unit, and the photographs relevant to resolving the government's objections. (Docket 132 and suppression hearing exhibits 1-5, 7-11, 110, 112 & 113). Unless otherwise indicated, the court's findings of fact are consistent with the findings made by the magistrate judge.

GENERAL OBJECTIONS

The government objects generally to the recommendation that defendant's motion to suppress be granted. (Docket 187 ¶ 1). "Congress has mandated that the district court give de novo review to those portions of a Magistrate's report and recommendation to which objections are made." Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994) (referencing 28 U.S.C. § 636(b)(1)). "There is a court-created exception in some circuits: '[T]he district court need not conduct de novo review when a party makes general and conclusoryobjections that do not direct the court to a specific error in the magistrate judge's proposed findings and recommendations.' " Id. (citing Johnson v. Knable, 934 F.2d 319 (4th Cir. 1991) (unpublished opinion) (citing Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982); United States v. Merz, 376 U.S. 192, 199, 84 (1964); Pendleton v. Rumsfeld, 628 F.2d 102, 105-06 (D.C. Cir. 1980)). "There is language in an Eighth Circuit case which indicates this Circuit's approval of such an exception." Id. (referencing Branch v. Martin, 86 F.2d 1043 (8th Cir. 1989) ("In the present case, plaintiff's objections to the magistrate's factual conclusions were timely filed and specific enough to trigger de novo review). See, e.g., Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984) (per curiam) (no de novo review if objections are untimely or general)"). "[D]e novo review is not required 'when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate judge's proposed findings and recommendations.' " Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (citing Belk, 15 F.3d at 815) (citations omitted).

The court will address the government's specific objections to the R&R as they are "certainly definite enough to require de novo review." Id. (citing Belk, 15 F.3d at 815). The court is not compelled to evaluate the government's generalized and conclusory objection.

The government's first objection (Docket 187 ¶ 1) to the R&R is overruled.

FACTUAL BACKGROUND

Neither party objected to the magistrate judge's summary of the factual background associated with the activities at co-defendant Cathy Well's storage unit off Deadwood Avenue in Rapid City, South Dakota; the activities occurring in and around her home in Box Elder, South Dakota; or the brief activities occurring at the Sinclair gas station. See Docket 185 at pp. 2-5. What is significant surrounding this evidence is the magistrate judge's finding that throughout "this time, the two males' identity [occupants of the Honda Ridgeline] was still unknown to law enforcement." Id. at p. 5. S.A. Palmer "testified that the goal of law enforcement in stopping the vehicle 'was to identify the two male subjects inside the white Ridgeline.' " Id. (referencing Docket 132 at p. 24:17-18). The coordinated plan of law enforcement was "that the highway patrol [as uniformed officers] would execute a traffic stop of the Honda Ridgeline." Id. at p. 6.

In preparation for attempting to identify a traffic violation by the Ridgeline, Sergeant Kenrick, in an unmarked tan minivan, followed the vehicle south on Highway 79 out of Rapid City. Id. At the same time, Trooper Kartak and Trooper Griffith "positioned themselves in the median crossover of the divided, [four]-lane Highway 79, approximately one mile south of Rapid City . . . [with both of their patrol vehicles] parked facing north." Id. at p. 7. Trooper Kartak testified their parked position was at mile marker 73. (Docket 132 at p. 134:5-6).

The government identified three separate traffic violations by the Ridgeline which justified the traffic stop: (1) a lane violation; (2) a first following-too-closely violation; and (3) a second following-too-closely violation. (Docket 185 at pp. 10, 13 & 16). S.A. Patterson testified these traffic violations, not the underlying drug investigation, were the justification for the traffic stop. (Docket 132 at p. 79:9-16). The court will address the alleged traffic violations in chronological order.

1. THE LANE VIOLATION

Sergeant Kenrick testified as he followed the Ridgeline south on Highway 79, the patrol vehicles of Trooper Kartak and Trooper Griffith could be seen ahead parked in the median crossover. (Docket 132 at p. 83:21-24). As Sergeant Kenrick and the Ridgeline approached the median crossover, "[a]t that point [the Ridgeline] slowed down, so [Sergeant Kenrick] had to get into the left lane to go around him." Id. at pp. 83:25-84:1. Sergeant Kenrick stated "it was right around the time we went by the troopers is when I was passing the Ridgeline." Id. at p. 85:22-24. After passing the Ridgeline, the officer testified he was watching the Ridgeline in the minivan's rearview mirror. Id. at p. 88:4-5. He estimates being "five or six car lengths ahead of" the Ridgeline when he observed it "driving straight down the middle—over the center line" between the two south bound lanes. Id. at pp. 84:3-5 and 88:16-7. Sergeant Kenrick testified the driver of the Ridgeline was "looking up at his mirror back at the troopers that we passed in the crossover[.]" Id. at p. 84:3-4. According toSergeant Kenrick the "Ridgeline was in the right lane . . . it swerve[d] over into the left lane, straddling the lane, and then back into the right lane." Id. at p. 92:3-5. He described the lane violation as "[t]he driver's side, two tires, the front and back crossed the center line, straddling it, and then went back over into the right lane." Id. at pp. 93:24-94:1. Sergeant Kenrick "called the violation in and just continued at the speed limit." Id. at p. 88:17-19.

Although Trooper...