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United States v. Theus

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

February 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BUD THEUS III, Defendant.

          ORDER ADOPTING AND MODIFYING REPORT AND RECOMMENDATION

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         NATURE AND PROCEDURE OF CASE

         Defendant, Bud Theus III, is charged with possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). Theus has moved to suppress all physical evidence seized during the search of his vehicle. Docket 27. Theus later supplemented his motion to suppress to include a request to suppress all statements that Theus made to law enforcement following the stop of his vehicle. Docket 30. The motion was referred to United States Magistrate Judge Veronica L. Duffy for a report and recommendation under 28 U.S.C. § 636(b)(1)(B).

         An evidentiary hearing was held on December 14, 2016. On December 21, 2016, Magistrate Judge Duffy issued a report and recommendation granting Theus's motion in part and denying it in part. Docket 34. Both Theus and the government filed objections to portions of Magistrate Judge Duffy's report and recommendation. Docket 44; Docket 45. For the following reasons, the report and recommendation is adopted as modified by this opinion.

         LEGAL STANDARD

         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).

         FACTS

         According to the testimony given and the exhibits introduced at the evidentiary hearing, the pertinent facts are as follows:

         On February 19, 2016, just before 11:30 p.m., Officer Chad Winkel of the Sioux Falls Police Department was on patrol, sitting east of the intersection of West 10th Street and South Western Avenue in Sioux Falls, South Dakota. Officer Winkel's car was parked parallel to the north side curb on 10th Street with his vehicle facing west, immediately adjacent to the west-bound lane of travel on 10th street. Officer Winkel was watching the intersection to see if anyone violated the flashing traffic signal there. Because the climate controls for Officer Winkel's vehicle were located behind his dash-mounted computer, Officer Winkel testified that it is easier for him to roll the windows in his patrol vehicle up and down to control the temperature rather than reaching to operate the heat and air conditioning controls.

         At 11:30:42 p.m., a dark Cadillac, heading west on West 10th Street, drove past Officer Winkel's patrol vehicle. Officer Winkel testified that as the Cadillac passed by him he immediately smelled the odor of burnt marijuana. Officer Winkle further testified that when the Cadillac drove past, he had both of his front windows cracked open.[1] The Cadillac was within a few feet of the patrol car as it drove past.

         After the Cadillac drove past Officer Winkel's patrol car, he immediately took steps to follow the Cadillac, but a light-colored sport-utility vehicle (SUV) was following the Cadillac. Officer Winkel had to let the SUV pass before pulling into the westbound lane of travel on West 10th Street. Once Officer Winkel began to follow the two vehicles, he positioned his patrol vehicle so as to keep the Cadillac in his sight despite the intervening presence of the SUV. Officer Winkel followed the Cadillac from behind the SUV for about six blocks and could not smell marijuana while behind the SUV.

         At 11:31:53 p.m., the Cadillac turned left off of West 10th Street and onto South Garfield Avenue. The SUV continued on West 10th Street, and Officer Winkel turned south to follow the Cadillac down South Garfield Avenue. After Officer Winkel had turned to follow the Cadillac, he again smelled the odor of burnt marijuana. The Cadillac then pulled into the parking lot of a Chinese restaurant at the corner of West 12th Street and South Garfield Avenue.[2] Officer Winkel pulled into the parking lot behind the Cadillac and was still able to smell the odor of burnt marijuana. At this point, 11:32:27 p.m., Officer Winkel activated his lights and initiated a stop of the Cadillac based upon the smell of burnt marijuana. Approximately two minutes had elapsed between Officer Winkel's first sighting of the Cadillac and the time he effectuated the traffic stop of the Cadillac.

         Upon seeing the patrol lights, the driver of the Cadillac, later identified as Theus, immediately exited the driver's side of the Cadillac. Officer Winkel testified that as Theus exited the Cadillac, he observed smoke rolling out of the Cadillac from the passenger side of the car.[3] Officer Winkel, who was still in the process of calling in the license plates of the Cadillac to dispatch, ordered Theus to retake his seat in the Cadillac. Theus complied with this order.[4]

         At 11:32:59 p.m., Officer Winkel exited his patrol car and approached Theus's Cadillac on the passenger side. Officer Winkel testified he still smelled the odor of burnt marijuana and told Theus that both he and his Cadillac reeked of “weed.” At 11:34:05 p.m., Officer Winkel ordered Theus to exit the Cadillac and come to the rear of the Cadillac with him. Theus complied and was then directed by Officer Winkel to place his hands on the trunk of the Cadillac, which Theus did.

         As Officer Winkel prepared to do a pat-down search of Theus, Theus asked Officer Winkel why he was pulled over. Officer Winkel informed Theus that he stopped him because as Theus drove past his patrol car, he smelled burnt marijuana. At 11:34:15 p.m., Lieutenant Jon Lohr of the Sioux Falls Police Department arrived on the scene and took a position near Theus and Officer Winkel. At 11:34:37 p.m., Officer Winkel began a pat-down search of Theus's body and clothing, which resulted in Officer Winkle finding a baggie in Theus's pocket that contained marijuana. Officer Winkel held the baggie up for Theus and Lt. Lohr to see and commented that the baggie contained marijuana. Both Officer Winkel and Lt. Lohr testified that while Theus was not yet under formal arrest after the baggie of marijuana was discovered in his pocket, Theus would not have been allowed to leave the scene.[5]

         At 11:36:03 p.m., Officer Vandervelde of the Sioux Falls Police Department arrived on the scene. Following Officer Vandervelde's arrival, either he, Lt. Lohr, or both stood watch over Theus and remained within an arm's length of Theus.[6] For a brief time, both Officer Vandervelde and Lt. Lohr stood watch over Theus, before Lt. Lohr went to assist Officer Winkel in searching Theus's Cadillac at 11:36:40 p.m. Theus stood in a stationary position with his hands on the trunk of the Cadillac while Officer Winkel and Lt. Lohr searched the Cadillac's interior.

         During the search of the interior of the Cadillac, Lt. Lohr remarked to Officer Winkel that the odor of marijuana must have been coming through the air vents of his patrol car because he was able to smell the odor of marijuana before he got out of his patrol car. Officer Winkel then detailed to Lt. Lohr that he originally smelled marijuana as the Cadillac passed by him and smelled it again once he turned the corner to follow the Cadillac, which is why he knew the Cadillac was the correct vehicle to stop. The search of the Cadillac's interior resulted in the officers finding a burning marijuana cigarette in the center console in a cup ashtray, some rolling papers, and a grinder with fresh marijuana.

         At 11:39:23 p.m., Lt. Lohr ordered Theus to move away from his trunk and stand in front of Officer Winkel's patrol car, and Theus complied. While Theus was not handcuffed at this point, Officer Vandervelde, who moved in tandem with Theus, remained no more than an arm's length away from Theus as he stood in front of Officer Winkel's patrol car. At 11:39:53 p.m., Lt. Lohr opened the Cadillac's trunk and began searching there. As Lt. Lohr searched the trunk of the Cadillac, Theus stood freely in front of Officer Winkel's patrol car, flanked by Officer Vandervelde.[7]

         While searching the trunk of the Cadillac, Lt. Lohr discovered a handgun wrapped in a towel. After finding the gun, Lt. Lohr said something to Theus while still at the trunk of the Cadillac. Then, with the gun in his hand, Lt. Lohr walked to within a foot of Theus to show Theus the gun and either make a comment or ask Theus a question.[8] Officer Vandervelde also stepped closer to Theus as Lt. Lohr questioned Theus about the gun.

         As Lt. Lohr testified, the reason for saying anything to Theus was to ascertain whether Theus legally possessed the gun. In response to Lt. Lohr's follow-up question, Theus stated he owned a business in a bad neighborhood. Because Lt. Lohr did not hear Theus's statement clearly, Lt. Lohr asked Theus to repeat his statement, which Theus did by again repeating that he owned a business in a bad neighborhood. Lt. Lohr then ...


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