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United States v. Linder

September 2, 2010


The opinion of the court was delivered by: Roberto A. Lange United States District Judge



This matter is before the Court on the Report and Recommendation (Doc. 28) issued by Magistrate Judge Mark A. Moreno, which recommends that this Court grant in part and deny in part Defendant Justin Linder's motion to suppress evidence. (Doc. 14). Linder filed a statement of objections (Doc. 34) to the findings and factual determinations made in the Report and Recommendation, as allowed by 28 U.S.C. § 636(b)(1).

In considering a magistrate judge's recommendation on a dispositive matter, such as a motion to suppress evidence, a district court must make a "de novodetermination of those portions of the report or... recommendations to which objection is made." 28 U.S.C. § 636(b)(1). A de novo review requires a district court to make its own determination of disputed issues. See United States v. Portmann, 207 F.3d 1032, 1033 (8th Cir. 2000).

Linder objects to the factual findings of Magistrate Judge Moreno. When a defendant objects to the factual findings of the magistrate judge, the district court must make its ownde novo determination of the facts with no deference to the magistrate judge's findings. See 28 U.S.C. § 636(b)(1). In order to make a proper de novo review of a magistrate judge's report of factual findings, the district court must make an independent review of the record, including tapes of evidence and the transcript of evidentiary hearings before the magistrate judge. See Portmann, 207 F.3d at 1033. This Court has conducted a de novoreview of the record, including the transcripts of the evidentiary hearing on Linder's motion to suppress the statement (Doc. 62).


On November 28, 2009, South Dakota Highway Trooper Michael Peterson pulled Linder over for speeding on South Dakota Highway 45. (T. 17-18).*fn1 After stopping Linder, Trooper Peterson brought Linder back to the patrol car to issue Linder a citation for driving 80 miles per hour in a 65 miles per hour zone. (T. 18). While seated next to Linder in the patrol car, Trooper Peterson detected the odor of burnt marijuana emanating from Linder and asked Linder if anyone in his vehicle had been smoking marijuana.*fn2 (T. 19). Linder denied that anyone in his car had been smoking marijuana, to which Trooper Peterson responded that someone had been because Trooper Peterson could smell it. (Ex. 2 at 14:50). During this exchange, Trooper Peterson told Linder that he was not saying that Linder had marijuana, but that someone had been smoking it. (Id. at 14:50). Linder responded that he understood and that no one in his vehicle had been smoking marijuana. Id. While completing Linder's speeding citation, Trooper Peterson again asserted that someone must have been smoking marijuana in Linder's car, and that they would have to figure something out because Trooper Peterson was "not going to drop it." (Id. at 14:51).

Linder persisted in his denial. (Id. at 14:51-55).

After asking Linder for his height and weight so as to complete the speeding citation, Trooper Peterson told Linder that "I am not going to yell at you about it, but I am not going to drop it ok? I know that somebody smoked in there and I am going to search your vehicle and if I find anything..." (Id. at 14:52).*fn3 A few minutes after telling Linder this, Trooper Peterson told Linder that he had given Linder a chance to think about what he wanted to say and again asked Linder why he smelled like burnt marijuana. (Id. at 14:54). Linder then admitted that his cousin had been smoking marijuana in his car, but stated that there was no longer any marijuana in the vehicle as his cousin had smoked the remainder of it. (Id. at 14:55). Trooper Peterson then asked whether there were any weapons in Linder's vehicle. (Id. at 14:55). Linder responded that there may be a few knives in the back of his car. Id. When asked, Linder denied that he had any drugs or paraphernalia on his person, but refused Trooper Peterson's request to search him.*fn4 (Id. at 14:55-56).

At Trooper Peterson's request, Linder got out of and walked to the front of the patrol car so that Trooper Peterson could search him. (Ex. 2 at 1:56). Once there, Trooper Peterson told Linder to place his hands behind his back and interlace his fingers. Id. Before doing so, Linder asked Trooper Peterson whether he was under arrest; Trooper Peterson responded that he was not. (T. 21). Linder then told Trooper Peterson that he had methamphetamine, took a plastic bag containing methamphetamine out of his left front pants pocket, and placed it on the hood of the patrol car. (T. 22). Immediately after this, Trooper Peterson began handcuffing Linder. (T. 22). While being handcuffed, Linder told Trooper Peterson that he had more methamphetamine in the car.*fn5 (T. 23). Upon hearing this, Trooper Peterson searched Linder for drugs and then walked him toward the back of the patrol car. (Ex. 2 at 14:57). While placing Linder in the back seat of the patrol car, Trooper Peterson asked Linder if he was going to find anything else in the car, to which Linder responded "[y]eah, you are going to find some more dope, man." Id. Trooper Peterson next inquired whether the drugs would be green or white, to which Linder replied "White. It's in the center console." (Ex. 2 at 14:57).

Once Linder's two passengers were out of the vehicle, Trooper Peterson then searched Linder's vehicle, finding a marijuana pipe on the front passenger seat as well as a bag of methamphetamine in the center console. (T. 24-25). After completing the search, Trooper Peterson returned to the patrol car and read Linder the Miranda warnings. Linder then said,"I want an attorney, sir." (T. 26). Trooper Peterson did not ask Linder any further questions after this exchange. (T. 27).

Trooper Peterson transported Linder to the Hand County Sheriff's Office and then to the Beadle County Jail, where Linder was booked. (T. 27). While at the Beadle County Jail, Trooper Peterson performed another search on Linder, during which he found, in Linder's back pocket, a small metal baby spoon with white powder on it. (T. 27). Trooper Peterson also collected a urine sample from Linder, which tested positive for the presence of amphetamine and cocaine.

A day or so later, Linder was released from custody on the state drug charges. On December 1, 2009, Linder was detained at the Lyman County Sheriff's office and was interviewed by four law enforcement officials, including Special Agent Dane Rasmussen of the South Dakota Division of Criminal Investigation ("DCI"). (T. 6). At the beginning of the interview, Rasmussen read Linder his Miranda rights. The interview was chiefly concerned with a string of burglaries taking place in Central South Dakota, but Linder's drug arrest was discussed as well. (T. 9). At one point during the interview, Rasmussen inquired whether either of Linder's passengers had been arrested on drug charges. (Ex. 1 at 21:00). Linder responded by explaining that the passengers were not arrested "because I am driving and I take the blame for my shit." (Id. at 21:00-22). Rasmussen then asked Linder whose methamphetamine was in the car, to which Linder replied "I ain't going to say that, I got a court date coming up, come on man, let's be for real here. I know you could be called to testify against me or anyone in here could be." (Id. at 22:00). Linder made known that he did not wish to speak further regarding ownership of the drugs.

Later in the interview, one of the law enforcement officials asked Linder what time it was when he was arrested for the drug offense. (Id. at 21:20; T. 11). Linder said that it was probably around two or three in the afternoon, and that "[t]he trooper said he smelled marijuana in the car, or whatever, you know, which gave him his probable cause. Nothing I could do about the smell in the car." (Ex. 1 at 21:20). Linder then said, "they caught me with stuff, you know, it's my stuff, it's my car, of course I am going to take the blame. If I did it, I did it. I am not going to let my little brother go down on anything else."*fn6 (Id. at 27:30). Two minutes later, Linder said "I know you guys can't even ask me another question if I say I want an attorney." ...

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