United States v. Thomas

1

UNITED STATES OF AMERICA, Plaintiff, v. ANTOINE RAY THOMAS, Defendant.

No. 4:22-CR-40046-1

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

August 29, 2023

REPORT AND RECOMMENDATION

VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

Defendant Antoine Ray Thomas is before the court on a superseding indictment charging him with conspiracy to distribute controlled substances and possession of a firearm by a prohibited person. See Docket No. 35. Mr. Thomas has filed two motions to suppress certain evidence. See Docket Nos. 96 and 106. The United States (“government”) resists the motions. See Docket Nos. 100 and 109. This matter has been referred to this magistrate judge for holding an evidentiary hearing and recommending a disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and DSD L.R. 57.11.

FACTS

An evidentiary hearing was held on August 10, 2023. Mr. Thomas attended in person along with his lawyer, Angel Runnels. The government was represented by its Special Assistant United States Attorney, Elizabeth Ebert.

Three witnesses testified and 2 exhibits were received into evidence. From this testimony and these exhibits the court makes the following findings of fact.^[1]

Officer Grant VanVoorst testified that he is a K9 officer with sixteen years of experience at the Sioux Falls, South Dakota Police Department-ten years as a K9 officer. K9 officers run dogs for the dual purpose of criminal apprehension and narcotics matters, including interdiction. Narcotics detectives use K9 officers as a tool for investigation. Officer VanVoorst was working in his K9 officer capacity, in full uniform in a marked patrol vehicle, on the night of February 10, 2022.

At approximately 8:12 p.m. on February 10, Officer VanVoorst initiated a traffic stop in Sioux Falls involving defendant Antoine Thomas. Ex. 1, clip 1 at 01:02; clip 2 at 20:11:53. Officer VanVoorst testified that when he initiated the traffic stop, he did not know the identity of the driver.

Officer VanVoorst testified that on that day, the Sioux Falls undercover narcotics unit was surveilling a house. The unit observed “multiple individuals” leave this house. The unit believed that a suspect, Rigoberto Hernandez, may have been in the vehicle that Officer VanVoorst was following. Officer VanVoorst testified that “this [stop] was targeted for narcotics” and he was “looking for a reason” to stop the vehicle.

The first video footage from Officer VanVoorst's dashcam shows the vehicles waiting at a red light at the intersection of 14th Street and Cliff Avenue in Sioux Falls, facing eastbound. Ex. 1, clip 1 at 00:06. Officer VanVoorst's patrol car^[2] and Mr. Thomas' vehicle were in the left turn lane with a Toyota Tundra pickup truck between them. Id.

When the light turned green, Mr. Thomas' vehicle, the Tundra pickup, and ultimately Officer VanVoorst's patrol car turned left (northbound) onto Cliff Avenue. Ex. 1, clip 1 at 00:27. During this sequence, no vehicles appear at the intersection in the oncoming westbound lanes of 14th Street either traveling through or attempting to make a right (northbound) turn on to Cliff Avenue. Id. Cliff Avenue at this intersection is a five-lane road consisting of two southbound lanes, a middle left turn lane, and two northbound lanes. Id. at 00:35. The dashcam footage does not reveal which lane Mr. Thomas drove into when completing his left turn. Id.

Officer VanVoorst testified that when turning into multiple lanes of same direction traffic, the law requires a driver to first establish himself in the nearest lane (here, the left northbound lane), before proceeding into an outside lane. Officer VanVoorst testified that he observed Mr. Thomas' Trailblazer make an illegal wide turn directly into the outside lane of Cliff Avenue. Officer VanVoorst also testified that as he completed his left turn, Mr. Thomas' vehicle was already in the outside lane and that he did not notice any blinkers activated on Mr. Thomas' vehicle that would indicate an intention to go into the outside lane.

The first time post-turn that Mr. Thomas' vehicle comes into frame in the dashcam footage is when it is in the outside lane. Ex. 1, clip 1 at 00:33. On cross-examination, Officer VanVoorst agreed with defense counsel that the location of Mr. Thomas' car as it comes into view in the dashcam footage was the same location Officer VanVoorst's patrol car legally entered the outside lane after first turning into the near lane. On direct testimony, Officer VanVoorst denied any possibility that Mr. Thomas quickly established himself first in the near lane and then proceeded to the outside lane. He testified that the existence of emergency lights on a vehicle on Cliff Avenue in the distance did not negate the legal requirement of a driver to first establish himself in the nearest lane. He testified on redirect that a clear [outside] lane also does not negate the requirement that a driver first establish himself in the inside lane before moving to the outside lane.

Officer VanVoorst testified that based on this wide turn, he initiated a traffic stop. A voice on the police radio can be heard saying “the guy we're looking for is Rigoberto Hernandez . . . FYI.” Ex. 1, clip 2 at 20:11:27. Officer VanVoorst replied that “he” made a wide turn and that he was going to “light him up.” Id. He called in a black, dealer-plated Chevrolet Trailblazer, and said “I'll take a 54.” Ex. 1, clip 2 at 20:11:53. Officer VanVoorst testified that a “54” is a request for cover (backup). Officer VanVoorst turned on his blue and red lights, and from Cliff Avenue, Mr. Thomas turned right (east) on to 12th Street and pulled over to the curb. Ex. 1, clip 1 at 01:02.

Officer VanVoorst then approached Mr. Thomas' vehicle with a flashlight, and Mr. Thomas lowered the window about a quarter length. Ex. 1, clip 2 at 20:12:19. Officer VanVoorst greeted Mr. Thomas, notified him of the reason for the stop, and asked for his driver's license. Id. Mr. Thomas then produced his wallet. He was lightly shaking and slightly fumbling through his wallet, but ultimately retrieved and remitted his license to Officer VanVoorst. Id. at 20:12:34. Officer VanVoorst testified that he incorrectly testified at the state court grand jury that Mr. Thomas first handed him his debit card when asked for his license. On redirect, he testified that the video should control what the actual events were, and that he did not make the incorrect statement at grand jury to lie or be untruthful. He also stated that he did not misstate this fact to ensure Mr. Thomas' state court indictment.

Officer VanVoorst asked Mr. Thomas why he was visiting from California (Mr. Thomas' driver's license was from California). Mr. Thomas' response is inaudible. Id. Officer VanVoorst then told Mr. Thomas he was going to “make sure [Mr. Thomas] was good,” and then he would get Mr. Thomas out of there. Id.

Officer VanVoorst testified that it was during this initial approach of Mr. Thomas' vehicle that he first smelled raw marijuana “coming from inside the vehicle,” and that the detection of the scent of raw marijuana is part of his specialized training as a K9 officer. Based on that same training, he testified that there is a difference in smell between raw marijuana and hemp. He testified that he did not alert Mr. Thomas to his awareness of the smell because that could have jeopardized his safety or caused Mr. Thomas to drive away or flee on foot. Officer VanVoorst testified that it was at this point that the investigation expanded in scope from a traffic stop to a narcotics investigation. Officer VanVoorst testified that he had incorrectly noted in his police report that it was at this moment when he called for cover. He actually called for cover when he initiated the stop. On redirect, Officer VanVoorst testified that it is police department custom for cover to be automatically dispatched after dark-on any traffic stop. Officers Pollema and Horn testified the same.

When Officer VanVoorst returned to his patrol car, he called in Mr. Thomas' name on the radio. Id. at 20:13:44. The voice on the other end told Officer VanVoorst, “You're gonna want your dog” and “He's part of this group.” Id. at 20:13:51. Officer VanVoorst testified that he did not at this time tell the voice on the other end that he had smelled marijuana on his first interaction with Mr. Thomas. He also testified that it was unnecessary to do so.

Officer VanVoorst testified that on this return to the patrol car, he also ran Mr. Thomas' ID through the NCIC database and asked for “the cover unit to come up and talk to me.” He stated that the reason he asked for the cover unit to come up and talk with him was because of his detection of marijuana, and his desire to explore the source of the smell. He did not include in his direct testimony that during this time, he also called Mr. Thomas' name into the narcotics radio channel. He was asked about that omission on crossexamination, and he testified that he was able to do two things at once.

At approximately 8:15 p.m., Officers Richard (Ricky) Horn and Tanner Pollema arrived on the scene. Id. at 20:15:11.

Officer Pollema testified that he has been a patrol officer with the Sioux Falls Police Department for about 3 1/2 years. Due to a delay caused by his military deployment, Officer Pollema began his field training in January of 2022 and was still participating in this training at the time of Mr. Thomas' arrest. Officer Horn was Officer Pollema's field training officer.

Officer Horn testified that he has been a patrol officer with the Sioux Falls Police Department for approximately 7 years. He has been a field training officer for approximately 3 years. A field training officer (FTO) trains new...