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United States v. Trejo

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

July 15, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
BRANDON JERAYE TREJO, Defendant

Page 1024

          For Brandon Jeraye Trejo, Defendant: Randall B. Turner, LEAD ATTORNEY, Federal Public Defender's Office, Pierre, SD.

         For USA, Plaintiff: Jay P. Miller, LEAD ATTORNEY, U.S. Attorney's Office, Pierre Office, Pierre, SD.

Page 1025

         OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION

         ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         A 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

Page 1026

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.

         I. Facts

         On 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.

         Trooper 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.

         Although 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 7:22:00-7:22:35.

         Back in 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.

         Trooper 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.

         Trooper 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

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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.

         Trooper 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.

         Trooper 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.

         Zara 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 7:47:04-7:50:00.

         A 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

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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 ...


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