The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATION, SUSTAINING IN PART AND OVERRULING IN PART OBJECTIONS, AND GRANTING MOTION TO SUPPRESS
Before the court is a motion to suppress evidence filed by defendant Jason Little on January 15, 2010. (Docket 20). Mr. Little's suppression motion was referred to Magistrate Judge Veronica Duffy for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the standing order dated June 11, 2007. A suppression hearing was held before the magistrate judge on February 2, 2010. Magistrate Judge Duffy issued her report and recommendation on February 3, 2010. (Docket 26). The government filed its notice of appeal (Docket 27) on February 17, 2010, as its objections to the report and recommendation under § 636(b)(1)(C). The defendant filed his response to the notice of appeal. (Docket 28).
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1)(C), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is then required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
THE GOVERNMENT'S OBJECTIONS The government's objections to the report and recommendation of the magistrate judge consist of two minor factual objections:
1. That the Little vehicle was "almost exactly two seconds behind [the pickup and trailer]" and not "two to three seconds" as determined by the magistrate judge.
2. That the concrete curb [the median] separating northbound traffic from southbound traffic was a "standard curb" height and not "eight to ten inches high" as determined by the magistrate judge.
(Docket 27, p. 2). Otherwise, the government acknowledged that the report and recommendation of the magistrate judge "accurately sets out the facts surrounding the case." Id. The government also objects to the magistrate judge's legal conclusions regarding interpretation of S.D.C.L. § 32-26-22 and the determination of the arresting officer's application of that statute to justify the stop of Mr. Little's vehicle. (Docket 27, p. 3).
Based upon the limited nature of the government's objections, the facts, unless otherwise indicated, will be those found by the magistrate judge and contained in her report and recommendation. (Docket 26).
Officer Josh Twedt had been a police officer with the Rapid City Police Department for a little over two years at the time of the stop in question. No evidence of any other law enforcement experience on Officer Twedt's behalf was introduced. On September 16, 2009, shortly after 4 p.m., Officer Twedt was on duty and parked at the intersection of South Highway 79 and Old Folsom Road. Officer Twedt's patrol vehicle was parked on the shoulder of Old Folsom Road on the east side of Highway 79, facing west. Across Highway 79 from Officer Twedt was the Rapid City landfill. This location is on the outskirts of the municipality of Rapid City, which is located to the north of Officer Twedt's location. The speed limit on Highway 79 was 55 miles per hour (mph).
At this location, Highway 79 is a divided highway. There are two northbound lanes and two southbound lanes. The two directions of traffic are separated from each other by a concrete median enclosed by a curb. This curb tapers to a point before ending at the intersection of Old Folsom Road and Highway 79 to enable traffic to turn off of and onto the highway.
At its widest point, the raised median dividing traffic at this location on Highway 79 is several yards across.
Officer Twedt's patrol car video, which was admitted into evidence, depicts a sunny, clear day with excellent visibility. (See Exhibit 1). Southbound traffic is well-spaced, but steady. Northbound traffic is noticeably sparse. In the first 41 seconds of the video tape, nine vehicles pass by Officer Twedt's location traveling south on Highway 79. A tenth southbound vehicle on Highway 79, a white van, pulls into the separate left turn lane, waiting for northbound traffic to clear so the white van can then turn east onto Old Folsom Road where Officer Twedt's patrol car is situated.
A full 41 seconds of the video plays before the first northbound vehicle is observed. A second northbound vehicle, a pickup truck pulling a small trailer (the "pickup"), follows four seconds after the first vehicle. Mr. Little's vehicle, a white sport utility vehicle, also traveling north, then comes through the video view two seconds after the pickup.*fn1 Both the pickup and Mr. Little's SUV were in the right-hand lane when they passed by Officer Twedt at the intersection of Highway 79 and Old Folsom Road. After Mr. Little's SUV passes, the white van, which had been waiting to turn left, makes its turn east onto Old Folsom Road.
Approximately 320 yards to the north from Officer Twedt's location, another Rapid City police officer, Officer LaHaie, had made a traffic stop on Highway 79.*fn2 Officer LaHaie and the vehicle he had stopped were parked on the right-hand shoulder of the northbound lanes of Highway 79. Officer LaHaie had his amber emergency lights activated during his traffic stop.
Immediately after passing through the intersection, both the pickup and Mr. Little's SUV moved from the right lane to the left-hand lane of travel continuing northbound.*fn3 One second later on the video, which also records the activities of Officer Twedt's patrol car, the brakes activated signal is on-- indicating that Officer Twedt has depressed his brake petal--and one second later his patrol car is in motion, with his emergency lights and siren activated.
Officer Twedt testified, though it is not visible on the video, that Mr. Little failed to use his turn signal when moving from the right-hand lane to the left-hand lane of traffic. No testimony was elicited at the hearing as to whether the pickup in front of Mr. Little's SUV used a turn signal when that vehicle moved from the right-hand lane over to the left-hand lane. The pickup moved over first or in tandem with Mr. Little's lane change.*fn4 The driver of the pickup never hit his brakes, never swerved, and never deviated from his course of travel in any way in response to Mr. Little's lane change. Officer Twedt testified, and the court finds, that Mr. Little was following at an adequate and safe distance behind the pickup.
When the video shows Officer Twedt's vehicle pulling onto Highway 79 to follow Mr. Little's SUV, there is a long unbroken stretch of open highway between the officer and Mr. Little.*fn5 Officer Twedt testified, and it is evident on the video, that there were no vehicles traveling anywhere near the rear of Mr. Little's vehicle or in the lane next to Mr. Little's vehicle. Officer Twedt's patrol car was the only vehicle behind Mr. Little's SUV.
After passing Officer LaHaie's location, Mr. Little's SUV moved from the left-hand lane to the right-hand lane and he used his turn signal when doing so. Mr. Little's SUV then stopped and parked appropriately on the right shoulder of the road, where ...