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United States v. Bordeaux

United States District Court, D. South Dakota

November 17, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
LAWRENCE BORDEAUX, Defendant.

OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION

ROBERTO A. LANGE, District Judge.

At approximately 3:48 a.m., on March 12, 2014, Rosebud Sioux Tribal police officers Darrin Running Horse and Patrick Iyotte stopped Lawrence Bordeaux for failing to dim his vehicle's headlights when approaching oncoming traffic. T.[1] 29-30, 36. Bordeaux did not have a driver's license and the officers suspected that he was under the influence of something. T. 36-40. They deployed Officer Running Horse's drug dog Cruz, who alerted twice to Bordeaux's vehicle. T. 41-42. The officers then conducted a search, finding a suspected marijuana cigarette and a digital scale in Bordeaux's car and a checkbook containing three rolls of money in his rear pocket. T. 42-43, 79. At the Rosebud Jail, three baggies containing methamphetamine were retrieved from Bordeaux's underwear and crotch area. Ben Estes, a special agent with the Rosebud Sioux Tribal Police Department, interviewed Bordeaux at the jail that same morning. T. 88-89.

A grand jury indicted Bordeaux for conspiracy to distribute and possession with intent to distribute methamphetamine. Doc. 1. Bordeaux filed a motion to suppress his statements and all of the evidence seized from him and the vehicle, which the Government opposed. Docs. 19, 20, 24. Magistrate Judge Mark A. Moreno held an evidentiary hearing during which he received several exhibits into evidence, including a video recording of the traffic stop, an audio recording of Agent Estes interviewing Bordeaux, and Cruz's training and certification records. Judge Moreno also heard testimony from Officer Ruining Horse, Officer Iyotte, Agent Estes, and Bordeaux's mother. Judge Moreno issued a Report and Recommendation recommending that Bordeaux's motion be denied. Doc. 34. Bordeaux now objects to the Report and Recommendation, arguing that the traffic stop, his detention, the search of his vehicle, and his arrest all violate the Fourth Amendment and that the evidence seized from him and his vehicle and his statements to Agent Estes must therefore be suppressed. Bordeaux also contends that certain statements he made to Officer Iyotte violate Miranda v. Arizona, 384 U.S. 436 (1966).

This Court reviews a report and recommendation pursuant to the statutory standards found in 28 U.S.c. § 636(b)(1), which provides in relevant part that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Having conducted a de novo review, this Court adopts most of the Report and Recommendation, but hesitates with respect to the questioning of Bordeaux after the search and seizure of his checkbook at the traffic stop.

I. Traffic Stop

Bordeaux objects to Judge Moreno's factual findings and legal conclusions that his vehicle had its high beams on and that his failure to dim the lights justified the traffic stop. He contends that the video of the stop undermines Judge Moreno's findings and that Officer Running Horse stopped him merely because he was driving in the early morning hours.

A traffic stop is a "seizure" under the Fourth Amendment and must be supported by probable cause or reasonable suspicion. United States v. Gordon, 741 F.3d 872, 876 (8th Cir. 2013). Probable cause for a traffic stop exists "[a]s long as an officer objectively has a reasonable basis for believing that the driver has breached a traffic law." Id . (alteration in original) (quoting United States v. Coney, 456 F.3d 850, 856 (8th Cir. 2006)); (internal quotation marks omitted). This is true even when the traffic violation is minor and the stop is simply "a pretext for other investigation." United States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008). Here, Officers Running Horse and Iyotte stopped Bordeaux for violating the Rosebud Sioux Tribe Law and Order Code, which requires a driver to dim his headlights when meeting oncoming traffic. Rosebud Sioux Tribe Law and Order Code § 6-5-1 (incorporating Chapter 32-17 of the South Dakota Code into the Tribal Traffic Code); S.D. Codified Laws § 32-17-7 (requiring motorists to dim headlights in the face of oncoming traffic).

The hearing transcript and video of the stop show that the officers had an objectively reasonable basis for believing that Bordeaux violated a traffic law. Officer Running Horse testified that Bordeaux passed him going the opposite direction with his headlights on high beam. T. 29-30. Officer Running Horse explained that Bordeaux did not dim his headlights until Officer Running Horse had turned his patrol car around and begun following Bordeaux. T. 31, 34. The video of the stop corroborates Officer Running Horse's testimony. Ex. 1 at 00:00-00:30. It shows Bordeaux pass Officer Running Horse's vehicle going the opposite direction with lights that seem to be on high beam. Careful viewing of the video from when the patrol car is turned around and approaching from behind shows that Bordeaux tilted his headlights downward immediately before Officer Running Horse activated his emergency lights. Ex. 1 at 00:00-00:30.

Although Bordeaux hypothesizes that his headlights could have been angled upwards such that it merely appeared that his brights were on, no evidence supports this hypothesis and it conflicts with both Officer Running Horse's testimony and the video recording. Further, even if Bordeaux's headlights merely appeared to be on high, this would not deprive the officers of probable cause. The relevant question when reviewing a traffic stop is whether it was reasonable for the officer to believe that a traffic violation had been committed, not whether a traffic violation actually occurred. See United States v. Hastings, 685 F.3d 724, 727-28 (8th Cir. 2012) (explaining that it was unnecessary to determine whether the defendant had actually committed a traffic violation because it was objectively reasonable for the officer to believe that the defendant had done so). Nor, as Bordeaux argues, does it matter that the officers never issued him a citation for failing to dim his lights. When, as here, officers have an objectively reasonable basis to believe that a motorist violated a traffic law, the officers' failure to pursue the traffic violation does not undermine the legality of the stop. See United States v. Garrido, 467 F.3d 971, 978 (6th Cir. 2006) (holding that officers' decision to not issue the defendant a citation after pulling him over for following too closely did not render the stop unlawful after the fact). It is irrelevant that the officers may have ignored Bordeaux's traffic violation had they not believed he was committing a more serious crime. United States v. Frasher, 632 F.3d 450, 453 (8th Cir. 2011). Bordeaux's objections to Judge Moreno's factual findings and legal conclusions concerning the initial stop are overruled.

II. Detention at Scene

Bordeaux's next objections focus on his detention and the deployment of the drug dog Cruz. Judge Moreno concluded that the officers reasonably extended the stop to deploy Cruz and that the extension was only a de minimis intrusion on Bordeaux's personal liberty. He also found that extending the stop to deploy Cruz was appropriate because the officers had a reasonable suspicion that Bordeaux possessed or was under the influence of drugs. Bordeaux objects to these conclusions, arguing that the dog sniff was the product of an unlawful seizure. Because Bordeaux's objection is both legal and factual, this Court briefly recounts the circumstances of the dog sniff.

According to the time stamp on the video recording, Officer Running Horse initiated the traffic stop by turning on his emergency lights at 3:48:37 a.m. Ex. 1 at 00:28. He approached the vehicle on the driver's side and informed Bordeaux of the reason for the stop. T. 35-36; Ex. 1 at 01:02. Bordeaux told Officer Running Horse that he was "going after his brother" and admitted that he did not have a driver's license. T. 36. Officer Running Horse observed that Bordeaux's eyes were red, bloodshot, and glossy, that his voice and hands appeared shaky, and that he was nervous and avoided eye contact. T. 37-38. Given these observations and his experience that the early morning hours are an "active" time for inebriated driving, Officer Running Horse suspected that Bordeaux was under the influence of alcohol. T. 38; T. 69.

Officer Running Horse returned to his patrol car for approximately two minutes to check whether Bordeaux had any arrest warrants. T. 38; Ex. 1 at 02:25-04:24. When the check came back clear, Officer Running Horse told Bordeaux to exit his vehicle. T. 39. Bordeaux complied, and was asked whether he had been drinking. T. 39. When he said no, Officer Running Horse asked Bordeaux to take a portable breath test and Bordeaux agreed. T. 39. Officer Iyotte administered the test, which showed that Bordeaux had not been drinking. T. 39-40; Ex. 1. The test results caused Officer Running Horse to suspect that Bordeaux might instead be under the influence of drugs. T. 69; see also T. 64-65. Officer Running Horse deployed Cruz almost immediately after the test was completed. T. 40; Ex. 1 at 04:40-05:43. The dog sniff was concluded within forty-five seconds. Ex. 1 at 05:00-05:43. Cruz alerted to the driver's side window twice. T. 42.[2]

Bordeaux's position on Judge Moreno's first conclusion-that the extension of the traffic stop to deploy Cruz was a de minimis intrusion on Bordeaux's personal liberty-is somewhat confusing. The Fourth Amendment protects against unreasonable seizures. The Eighth Circuit has explained that "when a dog sniff occurs after a very short lapse of time from when the purpose of the traffic stop has been completed, there is a de minimis intrusion, and therefore, under the general rule of reasonableness, the stop does not violate the Fourth Amendment." United States v. Mohamed, 600 F.3d 1000, 1005 (8th Cir. 2010); see also, e.g., United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006) ("[D]og sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions on the defendant's Fourth Amendment rights."). Rather than address this line of Eighth Circuit authority, Bordeaux argues that the officers did not have reasonable suspicion to believe that criminal activity was afoot. Doc. 36 at 3-5. Bordeaux's argument misses the mark, however, as the Eighth Circuit cases finding that a dog sniff was a de minimis intrusion do not turn on the presence of reasonable suspicion. Mohamed, 600 F.3d at 1005; Alexander, 448 F.3d at 1016. Instead, these cases focus on whether the traffic stop was "unreasonably prolonged before" the dog sniff. Alexander, 448 F.3d at 1016. The Eighth Circuit has consistently held that a traffic stop is not unreasonably prolonged when an officer conducts a dog sniff within minutes of concluding the stop. See United States v. Rodriguez, 741 F.3d 905, 907-08 (8th Cir. 2014) (finding that seven to eight minute delay was not unreasonable) cert. granted, 135 S.Ct. 43 (2014); ...


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