United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
jury issued an indictment charging defendants with ten counts
of aggravated identity theft in violation of 18 U.S.C.
§§ 1028A(a)(1) and 2, and one count of possession
of an unauthorized access device in violation of 18 U.S.C.
§§ 1029(a)(3) and 2. (Docket 1). Defendants filed
separate motions to suppress physical evidence seized during
the course of a traffic stop and any custodial statements
made by the defendants during the stop. (Dockets 97, 103
& 105). The motions to suppress were 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 March 7 and March 9, 2016.
(Docket 109). Magistrate Judge Wollmann issued a report and
recommendation (“R&R”) on defendants'
motions to suppress. (Docket 125). The magistrate judge
recommended defendants' motions to suppress be granted in
part and denied in part. Id. at p. 26. The
government timely filed objections to the report and
recommendation. (Docket 156). The defendants filed responses
to the government's objections. (Dockets 162, 164 &
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. See also Fed. R.
Crim. P. 59(b)(3).
court completed a de novo review of those portions
of the R&R to which objections were filed. For the
reasons stated below, the court finds the magistrate
judge's report and recommendation is an appropriate
application of the law to the facts presented by the parties
at the suppression hearing. For the reasons stated below, the
government's objections are overruled and the report and
recommendation of the magistrate judge is adopted in its
government objects to the R&R asserting the magistrate
judge erred in making the following factual determinations:
1. [Q]uestioning regarding the trip itinerary of Mr. Sesay,
Dainkeh and Mr. Conteh occurred between 12:28 p.m., when the
warning ticket was opened, until approximately 12:49 p.m. . .
. when Trooper Bader requested backup. (Docket 156 ¶ 2)
(quotation marks omitted).
2. [T]hat [Trooper Bader] thought criminal activity was
afoot, but he could not seem to articulate what he suspected
the defendants were doing wrong until he searched their
belongings. Id. ¶ 6 (quotation marks omitted).
3. Trooper Bader testified that it was only after he began
searching that he took pictures of the property in the
vehicle because it was at that point he became suspicious of
criminal activity and the potential need to seize property as
evidence. Id. ¶ 7 (quotation marks omitted).
4. [D]espite the claim of excessive nervousness, there were
no other factors at the time Trooper Bader extended the stop
to find objective reasonable suspicion. Id. ¶ 8
(quotation marks omitted).
5. [T]he Court . . . did not find Trooper Bader's
testimony-that debit or credit cards were in the center
console-completely credible. Id. ¶ 9 (quotation
government also objects to the R&R claiming the
magistrate judge erred in reaching the following conclusions
1. Trooper Bader, at most, had an objectively reasonable
mistaken factual belief that the defendants were traveling
above the speed limit. (Docket 156 ¶ 1) (quotation marks
2. Trooper Bader impermissibly expanded the stop and
detention. Id. ¶ 3 (quotation marks and
3. [A]fter Trooper Bader advised Sesay that he was going to
issue a warning ticket that the purpose of the stop was then
complete. Id. ¶ 4 (quotation marks and brackets
4. [T[hat the following does not amount to reasonable
suspicion: high end clothing the defendants wore, the cards
in the center console, the inconsistent answers from the
defendants about their itinerary, the direction of travel and
the nervousness of the defendants. Id. ¶ 5
(quotation marks omitted).
5. Trooper Bader did not have probable cause to search the
vehicle and . . . the Defendants did not consent to a search
of the vehicle. Id. ¶ 10 (quotation marks,
brackets and capitalization omitted).
6. [W]here the stop and investigation should have ended, the
prolonged stop began. Thus, the first factor favors the
Defendants. Id. ¶ 11 (quotation marks omitted).
7. [T]here was no break between the illegal extension and
request for consent. Id. ¶ 12 (quotation marks
8. [T]he extension of the stop was purposeful. Trooper Bader
prolonged the stop in violation of
Rodriguez. Id. ¶ 13 (quotation marks
government objection will be separately addressed in
categories which make sense chronologically with the evidence
presented at the suppression hearing.
CAUSE FOR STOP
10, 2015, shortly after noon, South Dakota Highway Patrol
Trooper Zac Bader was parked facing west-bound in the median
of Interstate 90 near mile marker 66. (Docket 125 at p. 2). At
mile marker 66 the posted speed limit was 65
Bader observed an east-bound vehicle which appeared to be
traveling above the posted 65 mph speed limit. Id.
The vehicle was determined to be traveling 69 mph by the
trooper's radar system. Id. Defendant Victor
Sesay,  the driver of the subject vehicle,
testified he was using a GPS device which indicated he was
not exceeding the posted speed limit. Id. at pp.
2-3. He testified there were other vehicles in the vicinity
traveling faster than his vehicle. Id. at p. 3.
Trooper Bader stated that while there were other ...