United States v. Strawther

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UNITED STATES OF AMERICA, Plaintiff, v. KUJALI STRAWTHER, Defendant.

No. 4:22-40133-KES

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

July 5, 2023

ORDER ADOPTING REPORT & RECOMMENDATION AS AMENDED AND DENYING MOTION TO SUPPRESS

KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

Defendant Kujali Strawther, is charged with one count of possession of an unregistered machinegun in violation of 26 U.S.C §§ 5841, 5861(c), and 5871, one count of possession of a machine gun in violation of 18 U.S.C. § 922(o), and one count of possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Docket 19. Strawther moves to suppress all evidence that law enforcement officers located during the search of his vehicle because he argues that officers did not have reasonable suspicion to stop his car. Docket 28. Strawther further argues that officers violated the Fourth Amendment when they extended the stop of his vehicle and performed a search. Id. He contends any statements he made are fruit of the poisonous tree. Id.

The court referred Strawther's motion to Magistrate Judge Veronica Duffy under 28 U.S.C. § 636(b)(1)(B). After holding an evidentiary hearing, Magistrate Judge Duffy recommended denying Strawther's motion to suppress.

Docket 42 at 19; see also Docket 30. Strawther filed objections to the Report and Recommendation. Docket 43. After a de novo review of the Report and Recommendation and the record, the court adopts the Report and Recommendation as modified below and denies Strawther's motion to suppress.

LEGAL STANDARD

This court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 59 of the Federal Rules of Criminal 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 Crim. P. 59(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). 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).

FACTS

After a de novo review of the transcript of the evidentiary hearing and the exhibits received into evidence, the court makes the following factual findings:

On November 21, 2022, at approximately 2 p.m., Kujali Strawther was driving a rental car eastbound on Interstate 90 (I-90). See Docket 36 at 9, 16.

South Dakota Highway Patrol Trooper Eric Peterson and South Dakota Highway Patrol Sergeant Josh Olson were on stationary patrol near mile marker 395 on I-90. Id. at 10, 27. Peterson noticed that Strawther's vehicle, a new model white SUV, appeared to be exceeding the posted speed limit of 65 miles per hour and estimated the vehicle's speed to be closer to 80 miles per hour. Id. at 10, 12. Peterson then used his radar device on the vehicle which indicated a speed of 74 miles per hour. Id. at 12.

Peterson confirmed the speeding violation with Olson and then exited onto I-90 to follow Strawther onto the Marion Road exit. Id. at 14. After running a series of pre-stop checks, Peterson turned on his lights approximately at the intersection of North 60th Street and Marion Road. Id. Peterson followed Strawther a short distance to West 61st Street where the vehicle came to a stop. Id. at 74; see also Exhibit C (showing stop location marked with TS by Peterson).

Peterson exited his vehicle and approached the passenger side of Strawther's vehicle. Exhibit 3 at 1:35-45. In the vehicle, he observed Strawther, who was driving, an adult female passenger identified as Ms. Benton, and four children. See Docket 36 at 15-16. Peterson asked Strawther for his driver's license and registration. Id. at 16. Strawther and the passenger informed Peterson that the vehicle was a rental and showed him the rental agreement. Id.; see also Docket 33. Peterson told Strawther that he intended to issue a courtesy warning for the speeding violation and asked Strawther to come back to the passenger seat of Peterson's patrol vehicle. Docket 36 at 17-18.

Strawther came to the patrol vehicle and sat in the passenger seat. Exhibit 3 at 4:10-25. Peterson and Strawther exchanged small talk while in the vehicle together. See Exhibit 5 at 00:13-3:58.^[1] Strawther got into Peterson's patrol car at approximately four and a half minutes into the stop. Exhibit 4 at 4:29. Strawther was wearing a high collared shirt and a loose, zipped coat. Id.

After Strawther had been sitting and speaking with Peterson for a few minutes, Benton left the SUV and appeared to check on the children in the backseat. Exhibit 3 at 8:05. Peterson informed Strawther that he was going to exit the patrol vehicle to check on the passengers of the SUV and to check the SUV's VIN number. Exhibit 5 at 3:58; Docket 36 at 20. Strawther told Peterson “go ahead.” Exhibit 5 at 4:00. Peterson left the patrol vehicle and spoke with Benton. Exhibit 3 at 8:23. Peterson testified that Benton told him that she was changing a diaper for one of the children. Docket 36 at 20. Peterson also testified that he smelled the odor of burnt marijuana while speaking with the passenger. Id. at 20-21.

Peterson returned to the patrol vehicle and informed Strawther that he smelled burnt marijuana in the car. Exhibit 5 at 5:30. He asked Strawther whether he had smoked any marijuana. Id. at 5:47. Strawther reported that he had smoked marijuana in the vehicle back in California. Id. at 6:05. Trooper Peterson testified that he could see Strawther “really open[] his eyes” and Strawther's “heartbeat begin to pound more underneath his clothing in his stomach, and . . . his bottom lip quivering.” Docket 36 at 21.

The Magistrate Judge found Peterson's description of Strawther's physicality in this moment not credible. Docket 42 at 6. She found that Peterson could not have seen Strawther's heartbeat in his stomach through Strawther's positioning and high-collared shirt and loose coat. Id. This court reviewed the video evidence and agrees with this finding. Though Strawther was animated during the conversation, the court did not see his lip quiver. Rather, the video demonstrates that Strawther gestured with his hands and that his eyes were wide. Exhibit 4 at 9:45-10:36. His demeanor appeared nervous. Id. But the court credits the remainder of Peterson's testimony, as it is corroborated by the video and audio evidence.

Peterson left the patrol vehicle and again spoke to Benton, asking her if she was the one who smoked or possessed marijuana. Docket 36 at 21. She reported that she did not smoke marijuana but that Strawther may have some marijuana in a “sling-type bag.” Id. Peterson again returned to the patrol vehicle and asked Strawther whether he had a South Dakota medical marijuana card. Exhibit 5 at 8:11. Strawther replied that he did not. Id. at 8:13. Peterson informed Strawther that he was going to search the vehicle based on the smell of marijuana. Id. at 8:26. Peterson told Strawther that “honesty is the best policy.” Id. at 9:56. Strawther responded that he had approximately two pounds of marijuana in the back of the car. Id. at 10:02-10:14.

Peterson called for assistance for the search. Docket 36 at 23-24. Trooper Dan Hup responded approximately five and a half minutes later, seventeen minutes into the stop. Exhibit 3 at 17:41. Sergeant Olson also arrived at the stop. See Exhibit 6 at 3:47. Trooper Hup testified that he smelled the odor of marijuana emanating from the car, though he did not voice that observation at the time of the stop. Docket 36 at 54, 56.

Approximately twenty-one minutes into the stop, the officers began to search the vehicle. Almost immediately, they located three bags of marijuana - totaling 2.13 pounds - located in a duffle bag in the back of the vehicle. Exhibit 3 at 21:17-21:34. No other drug paraphernalia was found in the car. See Docket 36 at 56.

Peterson testified that he found a gun in the female passenger's purse that was located on the passenger-side floor. Docket 36 at 24-25. The firearm appeared to be modified to fire like an automatic weapon. Id. at 25. Officers then arrested Strawther for possession of a prohibited firearm. Id.

DISCUSSION

Strawther raises two objections to the Report and Recommendations. Docket 43 at 1. First, Strawther objects to the magistrate judge's finding that Trooper Peterson possessed reasonable suspicion to stop Strawther for speeding. Id. at 2-3. Second, Strawther objects to the finding that the officers had cause to extend the stop and perform a search of the vehicle. Id. at 3-5. The court considers each objection in turn.

I. Whether Trooper Peterson Possessed Reasonable Suspicion to Stop Strawther for Speeding

The Fourth Amendment of the United States Constitution forbids “unreasonable searches and seizures.” “A traffic stop for a suspected violation of law is a ‘seizure' of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.” Heien v. North Carolina, 574 U.S 54, 60 (2014) (citing Brendlin v. California, 551 U.S. 249, 255-59 (2007)). The Supreme Court has held that an officer may conduct an investigatory stop “when a law enforcement officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.' ” See Navarette v. California, 572 U.S. 393, 396 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). “[T]he Fourth...