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United States v. Thymaras

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

June 10, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ALEXANDROS THYMARAS, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION TO SUPPRESS

          JEFFREY L. VIKEN, CHIEF JUDGE.

         On 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).[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.

         Under 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.” Id.

         FACTUAL OBJECTIONS

         The defendant objects to the following facts as found by the magistrate judge:

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[2] rights being read of [sic] television.” Id.
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.

         Each of defendant’s objections will be separately addressed in categories which make sense chronologically with the evidence presented at the suppression hearing.

         PROBABLE CAUSE FOR ARREST

         During 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. Id.

         Working 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.”[3] 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.

         Prior 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).

         At 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. 3.

         During 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.

         Shortly 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.[4](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.” Id.

         Agent 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 were:

Agent: What color u van so I know its u
Alex c: Red Are u there
Agent: yes
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
Agent: Ok
Alex c: What are u driving
Agent: Black Nissan Ohio plates
Alex c: See u in 2 min
Agent: Ok
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.

         Agent 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.

         The 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.

         Mr. Thymaras[5] 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.[6]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 ...


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