United States District Court, D. South Dakota, Central Division
REPORT AND RECOMMENDATION ON REMAND FOR DISPOSITION OF MOTION TO SUPPRESS
MARK A. MORENO UNITED STATES MAGISTRATE JUDGE
A vehicle was searched after alerts and indications from a drug dog. Inside, a duffel bag was found with a pound of methamphetamine in it. The bag also contained documents with Brandon Trejo's name on them. Trejo, who was a passenger in the vehicle, seeks to suppress this evidence. While he has standing to object to the search, because there was probable cause for it, his suppression motion must be denied.
The facts of the case have already been set forth in this Court's initial report and the District Court's opinion. A brief recitation of certain salient facts though is necessary to put the issues on remand in proper context.
During the evening hours of November 14, 2014, Trooper Brian Biehl, of the South Dakota Highway Patrol, stopped a GMC Denali with Colorado license plates for speeding on U.S. Highway 18, approximately 10 miles west of Winner, South Dakota. There were five occupants in the Denali: Abraham Garsia, the driver; Trejo, the front seat passenger; Jennifer Hernandez (the vehicle owner) and an infant child, both middle row passengers; and a young boy, a passenger in the far rear row.
Garsia did not have a driver's license. His responses to Trooper Biehl's inquiries were inconsistent with what Trejo and Hernandez told the trooper. And Garsia also appeared to be quite anxious.
Given the divergent information that had been provided, Garsia's excessive nervousness and the fact that his name could not be found in multiple record checks, Trooper Biehl informed Garsia he was a drug dog handler and canvassed Garsia about whether his drug dog would indicate to the odor of drugs coming from the Denali. Garsia answered in the negative. The trooper then asked Garsia if he would consent to a search of the vehicle. Garsia refused, saying a warrant was needed from a judge.
A minute or so later, Trooper Biehl deployed his drug dog, Zara. The dog alerted to the vehicle's rear doors, increasing her breathing and making a slight head check, and proceeded to indicate two times to the vehicle's rear passenger door seam by sitting and staring at it.
After a sheriff's deputy arrived at the scene, Trooper Biehl began searching the interior of the Denali. While doing so, he found almost $12, 000 in Hernandez's purse and a one-pound package of methamphetamine, along with several documents bearing Trejo's name, in a duffel bag. Garsia maintained that the bag belonged to Trejo, and stated this multiple times. Ultimately, Trejo was handcuffed, placed under arrest for possession of a controlled substance and taken to Winner where he was jailed.
A grand jury indicted Trejo for possession with intent to distribute a controlled substance. He moved to suppress the drugs and cash seized from the Denali and for the production of Zara's field performance, standard training and certification records. The Government resisted the motion and objected to Trejo's request for field and training records.
This Court held an evidentiary hearing and issued a report recommending that the motion be denied. The Court opined that because Trejo lacked standing to contest the vehicle search, he could not obtain copies of Zara's field, training and certification records or challenge the dog's reliability and the probable cause - based on her indications - for the search.
The District Court adopted the report and recommendation in part but remanded the case for a determination as to whether Trejo had a legitimate expectation of privacy in the duffel bag and to hear evidence concerning Zara's reliability if in fact Trejo had such an interest. The Court also ordered the Government to provide Trejo with the records of the dog's certifications and recent standard training, as well as the accompanying scoresheets, but not her field performance records.
The Government thereafter produced the required records and scoresheets. Following the production of these documents, the Court held another evidentiary hearing to address the expectation of privacy and drug dog reliability issues. At the hearing, the parties stipulated to the Court taking judicial notice of the entire record from the prior hearing (held on April 15, 2015), ...