United States District Court, D. South Dakota, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
MOTION TO SUPPRESS
JEFFREY L. VIKEN, CHIEF JUDGE.
August 13, 2014, a grand jury indicted Alexandros Thymaras
for attempted commercial sex trafficking in violation of 18
U.S.C. §§ 1591(a)(1), 1591(b)(2), 1594(a) and
1594(d)(1). (Docket 1). On March 11, 2015, Mr.
Thymaras filed a motion to suppress. (Docket 51). The motion
seeks to suppress “[a]ll physical evidence and
statements obtained incident to Defendant’s August 5,
2014 arrest . . . [and] . . . “[d]efendant’s
post-arrest recorded interrogation conducted by law
enforcement officers . . . .” Id. at p. 1. The
motion to suppress was referred to United States Magistrate
Judge Daneta Wollmann pursuant to 28 U.S.C. §
636(b)(1)(B) and the standing order of March 9, 2015. An
evidentiary hearing was held on April 23, 2015, through April
24, 2015. (Docket 64). On August 25, 2015, Magistrate Judge
Wollmann issued a report and recommendation
(“R&R”). (Docket 82). The defendant timely
filed objections to the report and recommendation. (Docket
87). The government filed no objections to the report and
recommendation, but filed a response to the defendant’s
objections. (Docket 94). The defendant filed an objection to
the government’s response. (Docket 98). Mr.
Thymaras’ objection seeks leave to file a reply if the
court considers the government’s response. Id.
at p. 2. Mr. Thymaras’ procedural objection will be
resolved by this order.
the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a
party files written objections to the magistrate
judge’s proposed findings and recommendations, the
district court is required to “make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id. The court may “accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
defendant objects to the following facts as found by the
1. It was a “mischaracterization of the record”
for Thymaras to assert that DCI Assistant Director Dan
Satterlee “confirmed that there were no other factors
that led him to make the arrest call” other than: 1)
the remote location of the take-down site; 2) the
Saskatchewan license plates on Thymaras’ vehicle; and
3) visual confirmation of Thymaras looking at Agent
Satterlee. (Docket 87 at p. 6).
2. [T]hat Thymaras parked, and was arrested, in a
“remote area.” Id. at p. 7.
3. “Agent Troy Boone, a member of the surveillance
team, alerted other team members that he identified a blue
van with Canadian plates” pulling into the
parking lot at the take-down site. Id. (emphasis
added in objection).
4. [T]hat it is a mischaracterization of the record to
conclude that Agent Satterlee did not make visual contact of
Thymaras before calling for his arrest. Id.
5. [T]hat, during his post-arrest interrogation, Thymaras
“indicat[ed] familiarity with watching
[Miranda rights being read of [sic]
6. [T]hat “Thymaras was transported a short distance to
the State Department of Transportation to be interviewed,
” implying that the interrogation occurred within the
confines of the building. Id.
7. [T]hat Thymaras “walked around the back of his
vehicle and toward the undercover vehicle.”
Id. at p. 8.
8. [That] [t]he R&R omits when in the sequence of events
Agent Satterlee called for the arrest[.] Id.
9. [T]hat Agent Satterlee had “team” information
regarding the Thymaras’ identity prior to calling for
his arrest. Id.
defendant’s objections will be separately addressed in
categories which make sense chronologically with the evidence
presented at the suppression hearing.
CAUSE FOR ARREST
the Sturgis Motorcycle Rally in 2014, the South Dakota
Internet Crimes Against Children Taskforce was working a sex
trafficking operation. (Docket 82 at p. 2). Posing as pimps,
members of the taskforce advertised on the internet they had
minors who were available for sexual services for money.
undercover on August 3, 2014, Special Agent Jonathan Kirk
placed an advertisement on Craigslist, to which “alex
c” responded, “I am in town and would love to see
u . . . I also have epics.” Id. (referencing
suppression hearing Exhibit 9). Agent Kirk replied: “I
got some girls who r good to go if you got some $. We got a
12, 13, and 15 year old who r all down and ready for
anything.” Id. (referencing Exhibit 9).
“Alex c” asked to see a picture of the
15-year-old. Id. An age-regressed photograph of a
female referred to as “Steph” and identified as
the 15-year-old was e-mailed to “Alex c” on the
late afternoon of August 4, 2014. (Exhibit 9 at p. 2). The
e-mail asked if he had money to pay. Id.
to meeting with “Alex c” law enforcement held an
operational meeting. (Docket 82 at p. 3). Assistant Director
of the South Dakota Division of Criminal Investigation
(“DCI”) Dan Satterlee was to pose as a pimp and a
number of other officers were working as a surveillance team
and an arrest team, referred to as the “take-down
team.” Id. Another law enforcement officer was
assigned the task of conducting on-line communications with
“Alex c.” (Docket 64 at pp. 17:22-18:4). As
information was gathered during the operation each member of
the law enforcement team communicated by radio with the other
members of the team. (Docket 64 at p. 18:5-9).
10:19 a.m. on August 5, 2014, after receiving the photograph
of Steph, “Alex c” replied “yes that works
this is for my cousin and how much money do u need for a
quick blowjob from stef.” (Exhibit 9 at p. 2).
“Alex c” then provided his phone number and asked
the pimp to contact him via text message. Id. at p.
the 2014 Sturgis Rally, Junction Avenue was a “very
high traffic area” and the Common Cents store had a
“considerable amount of traffic.” (Docket 64 at
p. 20:2-15). Once the decision to meet with “Alex
c” at the Common Cents was set, Agent Satterlee parked
his black Nissan Maxima with Ohio license plates in the back
parking lot on the west side of the convenience store.
Id. at p. 21:1-11. This was a dirt parking lot with
an “open parking area” and no designated parking
slots. Id. at p. 23:14-17. Agent Satterlee was
parked away from the building facing east and was the only
vehicle in that particular parking lot. Id. at p.
23:18-23. He described the area of the west parking lot as
“relatively remote.” Id. at p. 38:22-23.
after 4:21 p.m. on August 5, 2014, Agent Toby Russell, posing
as the pimp, and “Alex c” agreed via text
messaging on a price of $70 for oral sex.(Docket 64 at p.
122:1-12 & Exhibit 9A at pp. 1-3). “Alex c”
indicated the sex act was for his 17-year-old cousin.
(Exhibit 9 at p. 1 & Exhibit 9A at p. 1). Agent Russell
and “Alex c” agreed to meet in 45 minutes at the
Common Cents store on Junction Avenue in Sturgis, South
Dakota. (Exhibit 9A at p. 3). “Alex c” was
informed the pimp would be driving a black Nissan with Ohio
plates. Id. “Alex c” indicated he would
be driving a 2014 Chrysler minivan with Saskatchewan license
plates. Id. “Alex c” asked “where
we going[?]” Id. at p. 7. In response,
“Alex c” was advised he would be given the
location of Steph once he and the pimp met. Id.
“Alex c” texted back “So there is no way
this girl can ran into our car and do this for 10 min and
go[?]” Id. The response back was “Ok
dude I gotta make sure u not a cop. She is not far away from
Common Cents so once we meet and I know u legit I will go get
her and bring her to u. The rules are u can’t hurt her
or scare her. I cant have her brused up or nothing.”
Id. “Alex c” replied “No way that
won’t happen and its not me its me cousin who is still
a virgin..just a bare back blowjob for 70.”
Russell sent out a few more general text messages regarding
Steph’s location and at 5:28 p.m. asked for “Alex
c’s” estimated time of arrival. Id. at
p. 5. Twenty-four minutes later, “Alex c”
responded “12 min.” Id. at p. 8. The two
exchanged brief text messages until Agent Russell texted
“I am nervous bout u.” Id. “Alex
c” replied “Don’t be I just got to my car
and trying to get offmain drive to come o u.”
Id. The remainder of their text message exchanges
Agent: What color u van so I know its u
Alex c: Red Are u there
Alex c: On the way please wait Agent: is traffic bad?
Alex c: Very please don’t go
Agent: No worries I will wait
Alex c: Almost there
Alex c: What are u driving
Agent: Black Nissan Ohio plates
Alex c: See u in 2 min
Alex c: Here
Agent: Where? I don’t see u
Alex c: Is it junction and what?
Agent: Junction and Glover across from the Ford car lot Where
u at. Maybe I come to u
Alex c: I am at taco Johns right now on juncation
Agent: I am just down the street from there so u come to me
Id. at pp. 9-10.
Satterlee, while working in the undercover role as the pimp,
received updated information on his radio from the other
agents. (Docket 64 at pp. 18:10-13; 22:21-23 & 43:4-11).
Agent Satterlee was notified by a member of the surveillance
team, Agent Boone, who was stationed on the east side of the
Common Cents, that a blue, not red, Chrysler minivan had
pulled into the front parking lot, stopped briefly and was
coming around to the back of the building. Id. at p.
23:2-5; see also Exhibits 1 & 1A at p.1. Agent
Boone read the license plate and provided all team members
with a partial number from the plates. (Exhibits 1 & 1A
at p. 1). The surveillance team indicated there was only one
visible occupant in the minivan. (Docket 64 at p. 24:20-21;
see also Exhibits 1 & 1A at p.1). Agent
Satterlee understood from the information conveyed by the
surveillance team that this was the individual they had been
communicating with and he was now pulling around to the back
of the store. Id. at p. 77:10-15.
subject vehicle pulled up next to Agent Satterlee’s
automobile and faced west so that their passenger doors were
next to each other. Id. at pp. 23:23-24 &
24:15-17. It was at this point in time that Agent Satterlee
announced to the law enforcement team “That’s our
guy. . . . Disneyland, Disneyland.” Id. at
34:5-22; see also Exhibit 1 & 1A at p. 1.
“Disneyland” was chosen as the code word for the
team’s signal to make an arrest. (Docket 64 at p.
34:16-20). The driver was still in the minivan at the moment
Agent Satterlee made the determination to initiate an arrest.
Id. at p. 34:12-20 & 35:3-4.
Thymaras got out of the minivan, came around the
back corner of his vehicle, stopped very briefly and made eye
contact with Agent Satterlee. Id. at pp. 25:10-12
& 26:6-8. Agent Satterlee gestured to get into the
vehicle with him.Id. at p. 25:15-16. The agent
felt comfortable waving him into the vehicle because the
suspect was wearing shorts and a T-shirt and the agent was
confident the suspect was not carrying a firearm.
Id. at pp. 50:24-51:6. When Mr. Thymaras looked at
the agent again, Agent Satterlee made a second gesture
indicating the suspect should get into the passenger seat of