United States v. Costa

1

UNITED STATES OF AMERICA, Plaintiff, v. JUSTINA LYNN COSTA, a/k/a JUSTINA SNOW, Defendant.

No. 3:23-CR-30092-RAL

United States District Court, D. South Dakota, Central Division

December 8, 2023

REPORT AND RECOMMENDATION FOR DISPOSITION OF MOTION TO SUPPRESS

MARK A. MORENO UNITED STATES MAGISTRATE JUDGE

In this drug case, the Court must decide three interrelated questions: whether officers had (1) a legitimate basis to make a traffic stop; (2) reasonable grounds to extend the stop; and (3) probable cause to search the stopped vehicle. Answering these questions all in the affirmative, the Court recommends that the pending motion to suppress-drug evidence seized from the vehicle search-be denied.

BACKGROUND

Shortly before 8:00 a.m. on June 15, 2023, Ziebach County Sherriff Gary Cudmore received a call from Cheyenne River tribal dispatch about a blue vehicle with out-of-state license plates driving all over the road on U.S. Highway 212, west of Eagle Butte, South Dakota. Cudmore responded, located the vehicle, and began to follow it. As he did so, Cudmore briefed Cheyenne River Sioux Tribe Sergeant Jeremy Reede on the situation. Reede, who was in his unmarked vehicle nearby turned around and got behind Cudmore's truck.

While trailing the vehicle, a blue Ford Mustang, Cudmore observed it swerve across the fog line^[1] and move completely onto the shoulder. After a couple of seconds, the Mustang jerked back into its lane. Seeing what he believed to be a lane violation, Cudmore activated his overhead lights and stopped the car.

Cudmore and Reede contacted the driver who identified herself as Justina Snow. Cudmore asked Snow for her license, insurance and registration. As she reached into the glove box to retrieve the latter documents, Cudmore noticed sores on her arms indicative of needle marks and drug use. Reede decided to go get his K-9, Rowdy, housed two miles away, to sniff the car for drugs. In tandem, Cudmore requested dispatch to run checks on Snow's name, license status, and vehicle registration. Dispatch informed Cudmore that Snow had a warrant for her arrest out of California. Cudmore asked dispatch to find out whether California wanted Snow held on the warrant.

Roughly eight minutes after departing the scene, Reede returned and deployed Rowdy. The dog exhibited alert behavior at the driver and passenger side doors of the Mustang. Reede determined that Rowdy's behavior provided probable cause to search the vehicle. Cudmore and Reede searched the car and found, on the rear floorboard of it, a plastic bag that contained large shards of methamphetamine. Cudmore arrested Snow and transported her to the Meade County Jail in Sturgis.

About three months later, a federal grand jury indicted Snow charging her with possession with intent to distribute a controlled substance. She subsequently moved to suppress the items officers discovered, and seized, when they searched her vehicle and then supplemented her motion.^[2] The government responded to the motion and supplement, opposing suppression altogether.^[3]

DISCUSSION

I. Traffic Stop

Snow first claims that Cudmore lacked probable cause or reasonable suspicion to believe she committed a traffic offense and therefore had no lawful basis to stop her.^[4] She alleges that her single line crossing failed to provide sufficient cause for Cudmore's stop.^[5]Because the stop was unlawful, Snow says, all evidence gleaned from it is fruit of a poisonous tree and subject to exclusion.^[6] In response, the government argues that the single lane crossing was enough to garner probable cause and that Snow's slow speed- 25 miles-per-hour under the limit-was a secondary reason for the stop.^[7] The latter argument-that Snow's sluggish rate of travel supported Cudmore's stop-does not, however, hold water given Cudmore's testimony that Snow's vehicle was not impeding traffic.^[8]

The stop of a motor vehicle is a “seizure” of its occupants that must be conducted in accordance with the Fourth Amendment.^[9] A traffic stop comports with the Amendment if it is supported by probable cause or reasonable suspicion.^[10]

Probable cause for a stop exists “[a]s long as an officer objectively has a reasonable basis for believing that the driver has breached a traffic law.”^[11] “[A] minor traffic violation provides probable cause for a traffic stop, even if it is mere pretext for a narcotics search.”^[12]

The less-rigorous standard of reasonable suspicion arises when an officer “is aware of particularized, objective facts which, taken together with rational inferences from these facts, reasonably warrant suspicion a crime is being committed.”^[13] An officer “must be able to articulate something more than an ‘inchoate and unparticularized suspicion' or ‘hunch.'”^[14] Some minimal level of “objective justification” for making the stop is required.^[15]

A. Single Fog Line Crossing Enough To Justify Stop

Cudmore stopped Snow's vehicle for crossing the fog line, one-time, in violation of the “practicable lane statute.”^[16] Snow insists that Cudmore's traffic stop was inadequately based on “a single crossing of a lane line.”^[17]

Cudmore testified that Snow's vehicle “went clear outside of the fog line onto the shoulder [before] it jerked back into its lane.”^[18] He clarified that her car was “probably two tire widths” over the fog line.^[19] And he said that the driving aberration occurred on a straightaway, when there was no oncoming traffic^[20] and it was not raining.^[21] Cudmore's observation of Snow's “practicable lane” violation was enough to give him probable cause for the stop.^[22]

In State v. Hett,^[23] the South Dakota Supreme Court affirmed a lower court's determination that there was “reasonable and articulable suspicion [the defendant] had violated the practicable lane statute [based on a single instance of] crossing over the fog line.”^[24] The court's holding rested on the officer's observation of one fog line crossing of “at least a tire width” in a location with “a long, straight stretch of smooth, dry highway with no significant curves or apparent obstructions or barriers in the [vehicle's] lane of travel.”^[25]

Similarly, the Eighth Circuit held that an officer had probable cause to stop a vehicle for violating South Dakota's practicable lane statute when the passenger side wheels of the vehicle crossed the fog line one time.^[26] And other courts, applying statutes much like the one in South Dakota, have held that officers had an objectively reasonable basis to stop a person (1) who crossed the fog line once by “about a foot... for a few seconds” when no factors made it impractical for him to remain in a single lane,^[27] and (2) when the right wheels of an individual's car went over the fog line once for two seconds and it was practicable for him to remain within his lane.^[28]

Snow's movements-across the fog line to the shoulder and back-were at least as stark as courts that have approved stops under practicable lane laws like South Dakota's. Her irregular driving engendered reason to suspect she had committed an infringement of the state lane law.

B. Stop Supported By Other Circumstances

Even if Snow's solitary fog line crossing and shoulder driving are deemed insufficient to support the stop of her car, there is additional evidence in the record to justify the stop.^[29] Aside from the lane departure and return, Cudmore considered that (1) someone had just reported a blue vehicle, with out-of-state plates, was “all over the road”; and (2) the vehicle was travelling 40 mph in a 65 mph zone and weaving within its lane.^[30]Cudmore thought the driver of the vehicle might be intoxicated or impaired.^[31] His dash camera also reflects a dangling mirror and a badly damaged one on either side of Snow's car.^[32] These equipment dilapidations and the safety concerns they created, the report Cudmore received, and his own observations (including the sudden “jerk” of the car from the shoulder back to the roadway^[33]) combined to provide reasonable suspicion for the stop.^[34]

C. Any Mistake Was Reasonable And Did Not Invalidate Stop

In any event, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.'”^[35] “To be reasonable is not to be perfect, and the [] Amendment allows some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law and the community's protection.'”^[36] The Supreme Court has recognized that seizures based on mistakes of fact can be reasonable.^[37] And the Court has done so for mistakes of law, including ones made in the context of an investigatory stop of a vehicle for a traffic violation.^[38]

The real question at this stage is not whether Cudmore erred in interpreting the state “practicable lane” statute and believing that Snow had violated it, but whether he so obviously erred that no objectively reasonable officer could have reached the same conclusion he did at the time of the stop. Stated differently and more succinctly, was it reasonable for Cudmore to suspect that Snow's driving was illegal? If so, then there was no violation of the Fourth Amendment.

“It is well established that mistakes of law or fact, if objectively reasonable, may still justify a valid stop.”^[39] The Eighth Circuit has consistently upheld traffic stops where “an expert defense attorney, and even a federal judge, ultimately might conclude that the plain language of the [statute] technically requires” a different legal conclusion than that reached by officers in the field.^[40]

So even if Cudmore was wrong about whether the “practicable lane” statute was infringed by Snow's lane and shoulder exchange, his error of law was reasonable. He should not be expected to interpret a statute with the subtlety and...