United States v. Rederick

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART MOTION TO SUPPRESS

KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE.

Defendant, Larry Dean Rederick, is charged with possession of a controlled substance with intent to distribute and conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846. Docket 58. Rederick moves to suppress all evidence obtained during a stop and search of his vehicles and evidence obtained pursuant to search warrants for his home and cell phone. Docket 42. Rederick contends that this evidence was obtained in violation of the Fourth Amendment to the United States Constitution.^[1] Id. The motion was referred to a United States magistrate judge for a report and recommendation under 28 U.S.C. § 636(b)(1)(B). After holding an evidentiary

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hearing, Magistrate Judge Veronica Duffy recommended that Rederick's motion to suppress be denied in part and granted in part. Docket 55. Rederick objects to several of the magistrate judge's factual findings and to most parts of the Report and Recommendation denying his motion to suppress. Docket 62.

LEGAL STANDARD

This court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Because motions to suppress evidence are considered dispositive matters, a magistrate judge's recommendation regarding such a motion is subject to de novo review. 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980) (holding dispositive motions under 28 U.S.C. § 636(b)(1) are subject to de novo review by the district court). In conducting a de novo review, this court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

FACTUAL BACKGROUND

According to the testimony given and the exhibits offered at the evidentiary hearing, the pertinent facts are as follows:

In May 2019, Ryan Pennock, an agent with the South Dakota Division of Criminal Investigation began a narcotics investigation into Larry Rederick.

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Docket 56 at 7. On May 28, 2019, Agent Pennock interviewed Person #1, who was then in jail for possession of suspected methamphetamine. Id. at 8. Person #1 told Agent Pennock that Rederick, whom she had met two weeks prior, had supplied her with methamphetamine. Id. She also conveyed to Agent Pennock that Rederick referred to himself as “Cartel, ” she believed he always had at least two ounces of methamphetamine on him, and she had recently accompanied him to Irene, South Dakota, where she believed he had acquired a kilogram of methamphetamine. Id. at 9. Person #1 also identified Rederick's residence and described multiple locations around that property where she believed Rederick stored drugs. Id. at 10.

That same day, Agent Pennock interviewed Person #2, who was also in jail for possession of suspected methamphetamine and who had been introduced to Rederick by the same person that introduced Person #1 to Rederick. Id. at 8, 10-11. Person #2 told Agent Pennock that she had received user amounts of methamphetamine from Rederick on multiple occasions, as well as two grams of psilocybin mushrooms. Id. at 11. Person #2 also described “frequent come-and-go traffic” at Rederick's residence and that Rederick had discussed needing to “re-up” from a location that was approximately five hours away. Id. at 11-12. Agent Pennock understood the come-and-go traffic and the reference to a “re-up” to be consistent with drug distribution. Id. at 12.

In October 2019, Agent Pennock interviewed Person #3, who had been arrested while in possession of seven ounces of methamphetamine and who identified himself as a methamphetamine distributor. Id. at 12-13. Person #3

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told Agent Pennock that he had arranged to sell Rederick one pound of methamphetamine, but that this sale had not been completed. Id. at 13. Person #3's phone was seized by law enforcement, and after a forensic examination of the phone, Agent Pennock viewed text messages between Person #3 and another individual that appeared to discuss taking over Rederick's drug distribution. Id. at 14-15. He also viewed text messages between Person #3 and a phone number Agent Pennock knew to be associated with Rederick that discussed drug transactions between them. Id. at 15-17.

Also in October 2019, Agent Pennock was contacted by Person #4, who was then in jail. Id. at 18-19, 21. Person #4 told Agent Pennock that in July 2019, when he was working for Rederick as a mechanic, he had observed Rederick smoke methamphetamine and Rederick had provided him with methamphetamine. Id. Person #4 also described seeing Rederick remove a duffel bag from the toolbox of his truck, inside of which Person #4 believed there was about 10 pounds of methamphetamine, divided into six or seven packages. Id. at 19-20. Rederick cut open one of these packages in front of Person #4 and gave him two grams of methamphetamine from it. Id. at 20. Person #4 also reported that Rederick said the source of the methamphetamine was Kansas City and that he had traveled to Omaha to get it. Id.

In December 2019, Agent Pennock also spoke with a Yankton Police Department confidential informant (CI) who reported receiving methamphetamine several times from Rederick and being told by Rederick that he sourced his methamphetamine from the Omaha area. Id. at 21-23. The CI

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also stated that he had been to Rederick's residence and had seen methamphetamine there as well. Id. at 23.

Following the conversation with the CI, Agent Pennock applied for and received a pen register, which allowed him to see the phone numbers Rederick was communicating with, and a warrant for cell site location information, which allowed him to track the general location of Rederick's phone. Id. at 23-24. From the pen register information, Agent Pennock learned that Rederick was communicating with Lance Willits, and Pennock learned from a Nebraska narcotics investigator that Willits was involved in narcotics. Id. at 24-25.

On January 3, 2020, Agent Pennock learned from the electronic surveillance that Rederick was returning from Texas, and he instructed officers to stop Rederick if they had probable cause. Id. at 36-37. Officers pulled Rederick over, and Trooper Jansen, of South Dakota Highway Patrol, and his dog, Rex, conducted a search of Rederick's vehicle. Id. at 37-38. Rex indicated to the presence of drugs, but the officers did not find any drugs. Id. at 38-39.

On January 9, 2020, Agent Pennock learned from the electronic surveillance that Rederick had left his residence and was travelling south on Highway 81, while in frequent communication via text messages with Willits. Id. at 25-26. Around four o'clock in the afternoon, this data showed Rederick arriving at Willits's residence, which was not far from Norfolk, Nebraska. Id. at 25-27. Around the time of Rederick's arrival, Rederick and Willits stopped communicating via text message. Id. at 27. This was Rederick's third visit to Willits's residence of which Agent Pennock was aware. Id. at 42.

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Agent Pennock had followed Rederick to this general area and parked at a nearby restaurant to avoid electronic surveillance he had previously observed at Willits's residence. Id. at 27-28. He continued to monitor the pen register and cell site information, and he contacted members of the South Dakota Highway Patrol, including Troopers Eric Peterson and Cody Jansen, to inform them that he would like to have Rederick stopped upon his return to South Dakota because he believed this trip to be narcotics related. Id. at 26-28, 61.

Around five o'clock, the electronic surveillance data indicated that Rederick had left Willits's residence and gone to Norfolk, Nebraska. Id. at 29. Then, shortly before 7 o'clock, it showed Rederick and Willits communicating again via text message, and shortly thereafter, it indicated Rederick had returned to Willits's residence. Id. At 8 o'clock, Agent Pennock observed a vehicle he believed to be Rederick's driving past where Agent Pennock was parked. Id. Agent Pennock began following Rederick back toward South Dakota, and he informed the Highway Patrol officers with whom he had been in contact of his observations from the electronic surveillance, and he asked them to stop Rederick, preferably by developing their own probable cause so as to not jeopardize the narcotics investigation into Rederick. Id. at 29-32.

Based on Agent Pennock's description of the vehicle and electronic surveillance updates, Trooper Peterson saw Rederick's vehicle cross into South Dakota and began following it. Id. at 63. Rederick was driving a pick-up truck that was towing a trailer with a sedan on the trailer. Id. at 29. Trooper Peterson testified that the license plate on the trailer was not properly illuminated in

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accordance with South Dakota law. Id. at 64. Based on this, Trooper Peterson initiated a traffic stop and Rederick pulled over. Id.

Trooper Peterson made contact with Rederick through the driver's seat window, and he asked Rederick to come back to his squad car with him to complete a warning, which Rederick did. Id. at 65-66. While completing a warning, Trooper Peterson requested that Trooper Jansen and Rex come to his location. Id. at 72-73. When Trooper Jansen arrived, Trooper Petersen asked him to run Rex around Rederick's truck and trailer. Id. at 135.