United States District Court, D. South Dakota, Central Division
Brandon Jeraye Trejo, Defendant: Randall B. Turner, LEAD
ATTORNEY, Federal Public Defender's Office, Pierre, SD.
USA, Plaintiff: Jay P. Miller, LEAD ATTORNEY, U.S.
Attorney's Office, Pierre Office, Pierre, SD.
AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION
A. LANGE, UNITED STATES DISTRICT JUDGE.
highway patrol trooper stopped a vehicle for speeding and
found methamphetamine in a duffel bag located therein.
Defendant Brandon Trejo, a passenger in the vehicle, was
arrested and charged with possession with intent to
distribute a controlled substance. Trejo moved to suppress
the methamphetamine, alleging violations
of the Fourth Amendment. The magistrate judge recommended
denying Trejo's motion to suppress and Trejo has now
filed objections to that recommendation. For the reasons
explained below, this Court adopts the Report and
Recommendation in part but remands certain issues to the
magistrate judge for a hearing.
November 14, 2014, at approximately 7:14 p.m., Trooper Brian
Biehl of the South Dakota Highway Patrol stopped a GMC Denali
with Colorado license plates for speeding on U.S. Highway 18.
T. 20-21, 56-57; Ex. 1 at 7:14:00. There were five occupants
in the Denali: Abraham Garsia, the driver; Trejo, the
front-seat passenger; Jennifer Hernandez and an infant child,
the middle-row passengers; and a young boy, the far rear-row
passenger. T. 23-24.
Biehl approached the vehicle and asked Garsia for his
driver's license. T. 62; Ex. 1 at 7:14:20-35. Garsia said
that he did not have a driver's license or any
identification and that he was driving because his wife,
Hernandez, was caring for the infant. T. 62; Ex. 1 at
7:14:36-52. Garsia then accompanied Trooper Biehl to the
patrol car, where Trooper Biehl attempted to run a license
check on Garsia. T. 63-64; Ex. 1 at 7:15:05-7:15:30. While
doing so, Trooper Biehl asked where the occupants were
traveling from, what they had done, where Garsia lived, and
what he did for a living. T. 70; Ex. 1 at 7:15:38-7:16:18.
Garsia explained that he and the occupants had been in
Minnesota visiting friends and family who had purchased a new
house, that they had been gone for a week, and that they were
returning to Denver, where Garsia lived and owned a
barbershop with five employees. T. 70; Ex. 1 at
7:15:39-7:20:35. Garsia also informed Trooper Biehl that he
and his wife owned the Denali. T. 25; Ex. 1 at
7:19:57-7:20:05. A license plate check confirmed that
Hernandez was the registered owner of the Denali. T. 24.
Trooper Biehl ran at least two checks on his computer, he was
unable to find any record of Garsia having a driver's
license or state identification card. T. 64-65. Trooper Biehl
returned to the Denali to see whether Hernandez and Trejo had
driver's licenses. T. 67; Ex. 1 at 7:21:58. When asked by
Trooper Biehl about their travel itinerary, Hernandez and
Trejo explained that they had been at the Mall of America and
that they had stayed in a hotel while in Minnesota. Ex. 1 at
the patrol car, Trooper Biehl ran computer checks on Trejo
and Hernandez and talked more with Garsia about the trip, his
friends in Minnesota and their new house, and Trejo's
occupation. Ex. 1 at 7:22:57-7:27:50. Garsia said that he
thought Trejo worked at a painting company and that their
friends' new house in Minnesota was nice. Ex. 1 at
7:22:57-7:27:50. Trooper Biehl informed Garsia that he still
could not find any information on Garsia in his computer
search and confirmed that he was spelling Garsia's name
correctly. Ex. 1 at 7:26:35-7:27:30. Trooper Biehl suspected
that Garsia was lying about his identify to avoid being
arrested on an outstanding warrant. T. 66-67.
Biehl went back to the Denali, returned the driver's
licenses to Trejo and Hernandez, and spoke with them again.
T. 71; Ex. 1 at 7:27:55-7:28:50. Trejo said that he worked at
a body shop, and both he and Hernandez said that they did not
know anybody in Minnesota. T. 71; Ex. 1 at 7:27:57-7:28:50.
Biehl returned to the patrol car where he questioned Garsia
further. Ex. 1 at 7:29:10-7:32:00. Garsia said that he and
Hernandez had visited friends at their
new house while Trejo spent time with his own friends. T. 72;
Ex. 1 at 7:29:10-7:30:50. Trooper Biehl could see
Garsia's carotid artery pounding in his neck and believed
Garsia to be excessively anxious. T. 73. Trooper Biehl
informed Garsia that there were significant differences
between Garsia's story and what Hernandez and Trejo were
saying. Ex. 1 at 7:30:50-7:31:00. He told Garsia that he was
a drug dog handler and asked Garsia whether he would find any
drugs or large amounts of cash in the Denali. Ex. 1 at
7:31:00-7:32:00. Garsia denied having any drugs in the Denali
but admitted that Hernandez had approximately $5,000 in her
wallet that they had brought for the trip. T. 74; Ex. 1 at
7:31:00-7:32:00. The amount of cash and Garsia's travel
route concerned Trooper Biehl. T. 74-75. Trooper Biehl
testified at the suppression hearing that he sees large
amounts of drugs transported on U.S. Highway 18, that
Colorado is a " source" state for drugs, and that
Minneapolis is a " destination" city for drugs. T.
75. Trooper Biehl suspected that the $5,000 were drug
proceeds. T. 76.
Biehl went back to the Denali again and questioned Hernandez
about the cash she had in her purse. T. 76; Ex. 1 at
7:32:45-7:34:26. Hernandez looked in her purse and said that
she had approximately $2,000, but Trooper Biehl could tell
that the actual amount was substantially more. T. 76-77; Ex.
1 at 7:32:45-7:34:26. Hernandez also said that although
Garsia used to own a barber shop, he had sold it and now
worked for someone. Ex. 7:32:45-7:34:26. Trejo reaffirmed
that he did not know anyone in Minnesota and that he, Garsia,
and Hernandez had been at the Mall of America. T. 71; Ex. 1
at 7:33:00-7:33:22, 7:35:00-7:35:25.
Biehl returned to the patrol car and asked Garsia for consent
to search the Denali. T. 77; Ex. 1 at 7:34:50-7:34:59. After
Garsia refused, Trooper Biehl recounted the travelers'
inconsistent stories and informed Garsia that he was going to
deploy his drug dog, Zara. T. 77-78; Ex. 1 at
7:34:50-7:36:56. He stated that if Zara did not indicate to
the Denali, the only remaining issue was to identify Garsia
in the computer system. T. 69, 78; Ex. 1 at 7:36:20-7:36:31.
alerted to the Denali's rear door by increasing her
breathing and making a slight head check; she then indicated
twice to the Denali's rear passenger door by sitting and
staring at it. T. 78-80, 98-99; Ex. 1 at 7:36:58-7:37:44.
Trooper Biehl returned Zara to the patrol car and announced
that he was going to search the Denali once another officer
arrived. Ex. 1 at 7:37:50-7:39:50. While waiting, Garsia gave
Trooper Biehl a different spelling of his last name than he
had given before. Ex.1 at 7:47:04-7:50:00. Trooper Biehl was
able to find at least some information about Garsia in the
computer system using the new spelling. T. 89-90; Ex.1 at
deputy sheriff arrived at approximately 7:55 p.m., after
which Trejo, Hernandez, and the two children were transferred
to the deputy's patrol car. Ex. 1 at 7:55:00-7:58:25.
Trooper Biehl then searched the Denali, finding approximately
$12,000 in Hernandez's purse and a duffel bag that
contained a pound of methamphetamine and several documents
bearing Trejo's name. T. 81, 100; Ex. 1 at
7:58:20-8:04:35, 8:07:35-8:07:45, 8:14:12-8:14:22,
8:23:50-8:24:20, 8:30:28-8:30:32, 8:31:18-8:31:23,
8:34:30-8:35:00, 8:37:20-8:37:27. Upon learning that Trooper
Biehl had discovered methamphetamine in the duffel bag,
Garsia stated multiple times that the bag belonged to Trejo.
Ex. 1 at 8:07:20-8:08:13, 8:09:05-8:09:11; 8:14:12-8:14:40,
8:15:50-8:16:23, 8:17:40-8:17:55, 8:40:40-8:40:50. Trejo was
handcuffed, placed under
arrest for possession of a controlled substance, and read his
rights under Miranda v. Arizona,384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d ...