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United States v. Conteh

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

June 26, 2017





         A grand 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 & 169).

         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. See also Fed. R. Crim. P. 59(b)(3).

         The 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 entirety.


         The 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, [1] Mr. 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 marks omitted).

         The government also objects to the R&R claiming the magistrate judge erred in reaching the following conclusions of law:

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 omitted).
2. Trooper Bader impermissibly expanded the stop and detention. Id. ¶ 3 (quotation marks and capitalization omitted).
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 omitted).
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 omitted).
8. [T]he extension of the stop was purposeful. Trooper Bader prolonged the stop in violation of Rodriguez.[2] Id. ¶ 13 (quotation marks omitted).

         Each government objection will be separately addressed in categories which make sense chronologically with the evidence presented at the suppression hearing.



         On July 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.[3] (Docket 125 at p. 2). At mile marker 66[4] the posted speed limit was 65 mph.[5]

         Trooper 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, [6] 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 ...

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