United States v. Cummings

1

UNITED STATES OF AMERICA, Plaintiff, v. CURTIS CUMMINGS, Defendant.

No. 5:23-CR-50096-JLV-03

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

January 12, 2024

REPORT AND RECOMMENDATION ON MOTION TO SUPPRESS EVIDENCE (DOC. 38)

DANETA WOLLMANN, United States Magistrate Judge.

Curtis Cummings filed a Motion to Suppress Evidence (Doc. 38) and memorandum in support of his motion to suppress evidence (Doc. 40). Cummings requested an evidentiary hearing be held. (Doc. 40, p. 3). The United States filed a response in opposition to the motion. (Doc. 45).

An evidentiary hearing was held on November 7, 2023. Cummings was personally present and represented by his attorney of record, Conor Duffy. The United States was represented by the Assistant United States Attorney, Gina Nelson.

Based on a careful consideration of all the evidence and counsel's arguments, the Court respectfully recommends that Cummings' Motion to Suppress (Docs. 38) be denied.^[1]

JURISDICTION

Cummings is charged in an Indictment with Distribution of a Controlled Substance Resulting in Death in violation of 21 U.S.C §§ 841(a)(1) and 841(b)(1)(C)) and Conspiracy to Distribute a Controlled Substance in violation of 21 U.S.C §§ 846, 841(a)(1), and 841(b)(1)(A)). (Doc. 1). The pending motions were referred to the Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and United States District Court District of South Dakota's local rules, LR 57.11(B).

FACTUAL BACKGROUND

On November 28, 2022, Alan Landeros, Deputy with the Larimer County Sheriff's Office, was on patrol. FTR 10:05 a.m Deputy Landeros testified that he parked at an O-Reilly's Auto Parts store in Wellington, Colorado. Id. Wellington is a small town, located right off Interstate 25 and is the last place to obtain gas or food before leaving Colorado and entering Wyoming. Id. at 10:07 a.m Deputy Landeros testified that due to Wellington's location, drug transactions frequently occur there. Id.

Deputy Landeros testified that he frequently chooses to park at the O-Reilly's Auto Parts because it is located directly off on Interstate 25 and gives him a 360 view of every car that is entering and leaving Wellington from the Interstate and a vantage point to conduct surveillance on three gas stations. Id. at 10:06 a.m.

At approximately midnight, he “observed an older Chevy Suburban with South Dakota plates and [] a Subaru Sudan with Colorado license plates.” Id. at 10:08 a.m. He testified that he conducted a license plate check and learned that the registered owner of the Subaru was a male on probation for possession of illegal narcotics. Id. Deputy Landeros stated it was clear that the vehicles were together because the male, later identified as Cummings, was going back and forth between the vehicles, cleaned the windshields of both vehicles, and took a dog and dog bed from the Subaru to the Suburban. Id. at 10:09 a.m. Deputy Landeros saw the driver of the Subaru, later identified to be Katey McGruder,^[2]exit the gas station, without carrying any merchandise. Id.

Deputy Landeros testified that his suspicions were heightened due to the totality of the circumstances, namely the car's location in a high crime area, time of day, and fact that no other cars were around. Id. at 10:10 a.m. Deputy Landeros was also suspicious that the Subaru's registered owner was not the driver, which he observed as the driver was a female and not a male. Id. Additionally, he was suspicious because the registered owner had a criminal history of possession of illegal narcotics, which raised concern as people in the drug industry often share vehicles. Id.

A man, identified to be Cummings, entered the Suburban, left the parking lot, and headed southbound. Id. at 10:12 a.m. The Subaru did not follow the Suburban; Deputy Landeros “thought that was weird because it was very evident that they were together.” Id. Deputy Landeros testified that he felt that the “Suburban was trying to bait [him] away from the Subaru.” Id. Approximately two to three minutes later, the Subaru left the parking lot and headed southbound. Id. Deputy Landeros drove behind the Subaru and followed it without activating his lights or siren. Id. at 10:13 a.m. Deputy Landeros observed the Subaru make a quick and abrupt left-hand turn into the first opportunity that it had, which was a parking lot of a closed McDonalds. Id.

Deputy Landeros lost visual of where the Suburban went once it drove southbound because he was focused on the Subaru. Id. at 10:14 a.m. To conduct further surveillance of the Subaru, Deputy Landeros drove around the corner to a stop where he was hidden. Id. Deputy Landeros saw the Suburban parked right next to the Subaru; so, the two vehicles were parked right next to each other in “probably the most dark and hidden corner of that parking lot.” Id. at 10:14-15 a.m. Deputy Landeros used binoculars and saw Cummings transport items between the vehicles. Id. at 10:15 a.m. Deputy Landeros observed that Cummings took his jacket off, so he was just wearing a t-shirt; Deputy Landeros “thought was very odd because it was very cold outside.” Id. Deputy Landeros testified that Cummings “100 percent [] knew that [he] was watching him because he kept looking back at [him].” Id. at 10:16 a.m.

Deputy Landeros testified that Cummings behavior was concerning, namely Cummings' display of excessive paranoia. Id. Deputy Landeros testified that the fact that McDonald's was “obviously closed” and where the vehicles “were parked heighted [his] suspicion that they were essentially trying to hide from” him. Id.

The vehicles remained in the McDonald's parking lot for approximately five minutes. Id. at 10:17 a.m. The Suburban backed out of the parking spot and drove around the McDonald's. Id. The Subaru drove completely around the closed drive though. Id. Deputy Landeros began to follow the Suburban. Id. As soon as Deputy Landeros was behind the Suburban, it made a “quick and abrupt” right-hand turn into the gas station parking lot. Id. at 10:1710:19 a.m. Deputy Landeros resumed his position at the O-Reilly's Auto Parts store. Id. at 10:18 a.m. The Subaru drove into the gas station parking lot and parked next to the Suburban. Id. at 10:20 a.m. The occupants did not exit their vehicles. Id. Approximately two to three minutes later, the Suburban left the parking lot. Id. at 10:21 a.m.

At that point, Deputy Landeros drove behind the Suburban and the Subaru started following Deputy Landeros. Id. at 10:21 a.m. Deputy Landeros saw the Suburban make a wide turn, driving outside of his lane of traffic, and drive onto Interstate 25 onramp headed northbound. Id. at 10:21 & 10:47 a.m. At that point Deputy Landeros conducted a traffic stop.^[3]Id. at 10:22 a.m.

When Deputy Landeros turned on his emergency lights, the Suburban immediately braked and “almost jerk[ed] to the right off of the roadway.” Id. at 10:25 a.m. The Suburban did not completely stop but continued to “slow roll.” Id. Deputy Landeros was concerned the Suburban might flee. Id.

When Deputy Landeros approached the Suburban, Cummings was holding his ID, almost completely outside of the window. Id. at 10:26 a.m.; Exhibit 2.^[4]FTR 10:26 a.m. Deputy Landeros explained to Cummings the suspicious nature of his behavior. Id. Cummings explained that he and McGruder, his fiance, traveled to Longmont, Colorado to purchase the Subaru from a friend. Id. Cummings said he gave cash to McGruder for food at McDonalds before they realized it was closed. Id. at 10:27 a.m. Deputy Landeros did not believe Cummings' story because he did not see Cummings give McGruder any money nor any attempt to get food. Id.

While the stop was occurring, the Subaru drove past Deputy Landeros and “slowly stop[ped] aways in front of the Suburban.” Id. at 10:22 a.m. Cummings repeatedly requested that Deputy Landeros talk to McGruder for information. Id. at 10:28 a.m. Deputy Landeros believed Cummings was trying to divert his attention towards the Subaru and away from the Suburban. Id. Eventually McGruder drove off and left. Id. at 10:29 a.m. After the search was completed, the Subaru returned. Id. at 10:34 a.m.

Deputy Landeros checked Cummings driver's license and it was “clear and valid.” Id. at 10:30 a.m. Deputy Landeros went back to Cummings to confirm his story. Id. Deputy Landeros testified that Cummings still appeared to be quite nervous and was repeating what appeared to be a rehearsed story. Id. at 10:32 a.m. Cummings now changed his story and stated that it was his friend's truck, and he was borrowing it. Id. Deputy Landeros asked for documentation to verify who his friend is. Id. Cummings provided proof of car insurance to Deputy Landeros. Id. at 10:31 a.m.

While Deputy Landeros was looking at Cummings' car insurance, Corporal Kaley arrived. Id. at 10:32 a.m. Prior to Deputy Landeros observing the traffic violation, Deputy Landeros contacted Corporal Kaley, deputy with the Larimer County Colorado Sherrif's Office, to inform him that he was watching a vehicle and requested that Corporal Kaley start heading north in case he was able to stop the vehicle. Id. at 10:24 a.m.

Corporal Kaley was working the midnight shift with his dog “Lukin.” Id. at 10:57 a.m. Corporal Kaley has been a K-9 handler for approximately five years. Id. at 10:53 a.m. Corporal Kaley testified as to his own and Lukin's training and experience. Id. at 10:53-54 a.m. Corporal Kaley testified that Lukin alerts by snapping his head back, closed mouth sniffing, and if he is close to the substance, he becomes aggressive and bites, barks, and scratches. Id. at 10:56 a.m.

At approximately 1:11 a.m., Lukin began his sniff for narcotics. Id. at 11:00 a.m. Corporal Kaley walked Lukin to the Suburban's driver's side headlight. Id. Corporal...