United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING AND MODIFYING REPORT AND RECOMMENDATION
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.
NATURE AND PROCEDURE OF CASE
Defendant, Angela Marie Johnson, is charged with interstate travel in aid of a racketeering enterprise under 18 U.S.C. § 1952(a)(1). Johnson moves to suppress all physical evidence seized from her vehicle during a traffic stop. Johnson contends that the evidence was obtained in violation of the Fourth Amendment to the United States Constitution. Docket 35. The motion was referred to a United States magistrate judge for a report and recommendation under 28 U.S.C. § 636(b)(1)(B).
Evidentiary hearings were held on February 4, 2016, and March 10, 2016. Two witnesses testified and a number of exhibits were received at the hearings. The magistrate judge issued a report and recommended denial of Johnson’s motion to suppress. Docket 61. Both Johnson and the government filed objections to the report and recommendation. Docket 69; Docket 70. For the following reasons, the court adopts and modifies the report and recommendation.
This court’s review of a magistrate judge’s report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge’s recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Because motions to suppress evidence are considered dispositive matters, a magistrate judge’s recommendation regarding such a motion is subject to de novo review. 28 U.S.C. § 636(b)(1)(A); see also United States v. Raddatz, 447 U.S. 667, 673 (1980). In conducting a de novo review, this court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
According to the testimony given and the exhibits introduced at the evidentiary hearings, the pertinent facts are as follows:
Trooper Brian Biehl is a police service dog handler for the South Dakota Highway Patrol (SDHP). He testified that he has been employed by the SDHP for fifteen years and has been a canine officer since 2011. Trooper Biehl works with Zara, a drug detection dog. Trooper Biehl has only worked with Zara, and Zara has only worked with Trooper Biehl. They have been certified and have operated as a team since August 2011. Trooper Biehl and Zara undergo yearly recertification training. Their most recent recertification prior to this incident came in October 2014. Trooper Biehl and Zara also train together on a weekly basis.
Trooper Biehl testified that Zara is trained to detect the odor of drugs, not necessarily the physical presence of drugs. More specifically, Zara is trained to detect the odor of marijuana, methamphetamine, cocaine, mushrooms, and ecstasy. Docket 53 at 11. Trooper Biehl explained that Zara will display two distinct behaviors when she detects drug odors. First, Zara will give an “alert, ” which Trooper Biehl described as natural, unlearned behavior manifested by “a difference . . . in [Zara’s] breathing pattern or a head check or something like that.” Id. Zara may also alert by displaying an increased search intensity or by becoming more excited. But Trooper Biehl explained that Zara is “pretty high strung” and that she can alert quickly and subtly. Id. at 17. An alert by itself does not, however, mean that the odor of drugs are present because “an alert can be just that there was a different odor there that [Zara] wasn’t used to.” Id. at 32. Rather, Zara will “indicate” when she detects drug odors by “sit[ting] and star[ing] in the area where the strongest odor is coming from.” Id. at 11. Trooper Biehl testified that “[y]ou need to have an alert prior to a valid indication.” Id. Unlike an alert, however, an indication is a trained behavior. According to Trooper Biehl, Zara’s alert can be difficult for an untrained individual to detect, but an indication is “very easy to see” once the dog’s trained behavior is known. Id. at 12.
Trooper Biehl explained that Zara can react to certain words and phrases. Trooper Biehl acknowledged that he tends to deliver “the same sort of canned speech when [he] break[s] it to the driver that [he’d] like to walk the dog around the vehicle[.]” Id. at 28. He agreed that Zara can recognize those words and that she becomes more excited. Id. at 28-29. Trooper Biehl likewise agreed that his words can act as “cues” to Zara “about what’s supposed to happen next.” Id. at 29. Trooper Biehl testified that he uses the word “geef” as a signal to Zara that they are working and for her to begin sniffing. Id. at 28. He explained that he will place his hand near an area where he wants Zara to check. Id. at 27. Trooper Biehl testified that he gives Zara verbal praise when she indicates, such as “good girl” or “good geef, ” and that he pretends to throw a toy away from the vehicle to get Zara back into his patrol car. Id. at 29-30.
Trooper Biehl observed Johnson travelling west across Interstate 90 in South Dakota on January 15, 2015. He initiated a traffic stop, and the stop was recorded by Trooper Biehl’s dashboard camera. A copy of that video is designated as Exhibit B in the record. The court has reviewed the video, and finds the following facts were proven by the greater weight of the evidence:
Johnson pulled over onto the right-hand shoulder of the Interstate. She is fully stopped by 15:05:15 on the video. Her vehicle has California license plates. Trooper Biehl approached her vehicle from the passenger side and asked Johnson for her license and registration. He also asked where Johnson lives. She replied, “Oceanside.”
Trooper Biehl told Johnson that he was going to issue a warning ticket to her. He explained that Johnson was driving in excess of the speed limit. Trooper Biehl asked Johnson to step out of her vehicle and to come back to Trooper Biehl’s patrol car. Although Johnson’s response is inaudible, Trooper Biehl replied that “that’s how we do it here. Just come on back to the car with me for a minute.” See Exhibit B at 15:06:18-21.
Johnson’s path to the passenger seat of Trooper Biehl’s patrol car took her directly through the dashboard camera’s field of view. A still-frame image of Johnson taken from 15:06:31 on the video also appears in the record as Exhibit C. Johnson is wearing a long-sleeve winter coat and a stocking cap pulled down over her ears. She is also wearing a knitted scarf that is wrapped around her neck several times. Her neck is concealed from view by the scarf.
Inside the patrol car, Trooper Biehl asked Johnson how she was doing. Johnson replied that she was on the way to a funeral. Trooper Biehl asked where the funeral was being held. Johnson responded, “Oceanside.” Trooper Biehl asked where Johnson was coming from. Johnson responded, “A friend’s house.” Trooper Biehl asked if Johnson’s friend lived in South Dakota. “No, ” Johnson explained, her friend lived in “Cape Cod.” Trooper Biehl remarked that “that’s a long way away” and asked how long Johnson had been out there. Johnson replied that she was in Cape Cod for about a week. Trooper Biehl then asked whose funeral Johnson was attending, and Johnson explained that it was her mother’s funeral. Trooper Biehl replied that he was sorry to hear that. See Exhibit B at 15:05:41- 15:07:20. After several seconds of silence, Trooper Biehl repeated his question and asked if she was visiting friends in Cape Cod. Johnson replied “yeah.” Trooper Biehl asked what Johnson did back in California. Her response is inaudible. Trooper Biehl inquired if she had lived in California all her life. Johnson responded “no, ” but said that she had lived there for about fifteen years. She added that her husband takes care of developmentally disabled people. See Exhibit B at 15:07:48-15:08:41.
Trooper Biehl asked if Johnson had recently purchased her vehicle. Johnson responded affirmatively. Trooper Biehl asked how fast her speedometer said she was going, and Johnson responded “seventy-five.” Trooper Biehl explained that he recorded her speed at seventy-eight, and opined that the size of Johnson’s tires could be throwing off her speedometer. Trooper Biehl then asked if Johnson’s mother had been sick, but Johnson’s response is inaudible. See Exhibit B at 15:08:52-15:09:55.
A period of silence follows the previous exchange. It is broken at 15:11:15 on the video. Trooper Biehl informed Johnson that he is only writing her a warning ticket. He advised her to reduce her speed a few miles per hour to compensate for her large tires. Trooper Biehl then advised Johnson that he is a canine officer with the South Dakota Highway Patrol. He explained that his dog is trained to indicate to the odor of drugs, but not necessarily to the presence of drugs themselves. Although Zara has been mostly quiet until this point, she began to bark and whine after Trooper Biehl mentioned the specifics of her training. See Exhibit B at 15:11:15-33.
Trooper Biehl asked if there would be any reason that his dog would indicate to the odor of drugs coming from Johnson’s vehicle. Johnson replied, “absolutely not.” Trooper Biehl inquired if Johnson had any prescription drugs or large amounts of currency in the vehicle. Johnson again replied, “absolutely not.” Trooper Biehl asked if Johnson would consent to a search of her vehicle. Johnson refused. Trooper Biehl then explained that he would walk his dog around the outside of the vehicle. Zara can be heard in the background at this point whining and barking. See Exhibit B at 15:11:33-59.
Trooper Biehl and Zara come into view of the dashboard camera at 15:12:28. Zara was on a leash. Trooper Biehl commanded Zara “No bite! No bite!” and walked her to the rear, driver’s side of Johnson’s vehicle. They completed a counter-clockwise circle around the vehicle in approximately fifteen seconds. Zara can be heard barking continuously and is seen jumping up repeatedly on the side of the vehicle along the way. As they walked, Trooper Biehl said the word “geef” several times. He also held Zara’s leash with one hand and trailed the back of his other hand along the outside of the vehicle. See Exhibit B at 15:12:28-50.
Zara continued to bark and whine after the circle was completed. She then sat for less than a second near the rear, driver’s side seam of the trunk. Zara was taken to the rear, passenger’s side seam of the trunk and similarly sat momentarily. Trooper Biehl then returned Zara to the back of his patrol car. See Exhibit B at 15:12:50-15:13:00. A few moments later, Trooper Biehl reengaged Johnson inside his patrol car. He asked where she bought the vehicle. Johnson told Trooper Biehl that she bought it from a dealership in California.
Trooper Biehl reiterated that his dog indicates to the odor of drugs but not necessarily to their presence. Zara can again be heard whining. Johnson disputed both Zara’s abilities and that Zara indicated at all. Johnson accused Trooper Biehl of harassing her and asked if he would leave her alone. Trooper Biehl refused and told Johnson that he had to do his job. See Docket 15:13:24-47.
At 15:14:07 on the video, Trooper Biehl approached the passenger side door of Johnson’s vehicle. He opened it as well as the rear passenger door and began to look around the inside. At 15:14:58, Trooper Biehl repositioned himself at the trunk of the vehicle. He opened the trunk and looked around the inside. At some point, Trooper Biehl discovered a large amount of currency during his search of the trunk. It is taken out and held up to the dashboard camera at 15:17:47.
Trooper Biehl testified that he observed Zara alert when her sniffing became more intense and when she gave a glance or “head check” toward the back of Johnson’s vehicle. Docket 53 at 25. He testified that Zara indicated twice by sitting down near the rear driver and passenger side seams of the trunk. Id. at 15. Lieutenant Scott Sheldon, a special operations commander for the SDHP and a supervisor of the canine unit that includes Trooper Biehl and Zara, also testified at the first evidentiary hearing. Lieutenant Sheldon testified that he is involved initially in selecting and screening potential drug dogs. He has worked both with ...