United States v. Spaid

          OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

         Defendant Robert Duwayne Spaid moved to suppress evidence seized from his person, vehicle, and home as a result of a traffic stop. Doc. 37. Magistrate Judge Mark A. Moreno conducted an evidentiary hearing and then recommended denying Spaid's motion. Doc. 54. Spaid has now objected to that recommendation. Doc. 58.

         This Court reviews a report and recommendation under the statutory standards found in 28 U.S.C. § 636(b)(1), which provides in relevant part that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Having conducted a de novo review, this Court adopts the report and recommendation in full.

         I. Facts

         On the afternoon of October 27, 2016, Deputies Christopher Gross and Dalton Sack of the Hughes County Sheriffs Office were riding together on patrol in Pierre, South Dakota. T. 10. Shortly before 4:30 p.m., Deputy Gross observed Spaid's pickup truck parked outside 1720 East Capitol Avenue, a suspected drag house. T. 10, 29, 34, 73. Deputy Gross knew Spaid, having arrested him for using drags twice before. T. 34-35. The deputies parked their car and waited between five and ten minutes before Spaid left the house and got in his track. T. 10. He drove east on Capitol Avenue and the deputies followed. T. 10.

         Spaid stopped at the intersection of Capitol Avenue and Garfield Street. T. 11; Ex. 3 at 16:32:15. When Spaid did so, the deputies observed that the driver's-side wheels of Spaid's truck were to the left of the center line on Capitol Avenue. T. 59-60, 73.^[1]Without using a signal, Spaid made a left-hand turn onto Garfield Street so that he was headed north. T. 11-12; Ex. 3 at 16:32:20-26. Garfield Street is a four-lane highway with two north and two south bound lanes divided by a continuous turning lane. T. 11-12. Spaid was driving in the left northbound lane. Ex. 3. As the officers followed, they observed two occasions when the driver's side wheels of Spaid's track crossed the center line that marked the turning lane. T. 13, 24, 61, 74.

         Deputy Sack activated the patrol car's overhead lights, signaling Spaid to pull over, but Spaid continued driving. T. 74. As he did, the deputies could see Spaid looking at them in his driver's side mirror. T. 13, 62, 74. Although South Dakota law requires that drivers pull over to the right-hand side of the road and stop when a police car approaches with its lights flashing, S.D. Codified Laws (SDCL) § 32-31-6, Spaid continued traveling in the left lane for approximately thirty-two seconds before he made a left-hand turn and stopped in a space at the Runnings Farm and Fleet parking lot. T. 61; Ex. 3 at 16:33:20-52.

         Deputy Sack approached Spaid's track and asked him for his driver's license, proof of insurance, and vehicle registration. T. 74-75. Spaid provided his license and registration, but was unable to provide proof of insurance. T. 74-75. At Deputy Sack's request, Spaid accompanied Sack to his patrol car. T. 76; Ex. 3 at 16:35:47. Deputy Sack asked Spaid where he was coming from, and Spaid replied that he was coming from the courthouse. T. 75; Ex. 3 at 16:36:24-16:37:24. Spaid denied having any contraband in his truck and declined Deputy Sack's request to search it. Ex. 3 at 16:37:29-34.

         Concerned that Spaid was impaired, Deputy Sack, who was new to the job and not yet fully trained, exited the patrol car and asked Deputy Gross to take over. T. 76, 85-86; Ex. 3 at 16:37:56. Deputy Gross joined Spaid in the car for approximately six minutes, during which he performed two eye-related field sobriety tests on Spaid and asked Spaid some questions about his insurance, what he was doing that day, and whether he had used any drugs or alcohol. Ex. 3 at 16:38:30-16:44:30. During the conversation, Spaid said that he had "just came from the courthouse;" when Deputy Gross asked "Just now?" Spaid replied "Yes." Ex. 3 at 16:39:49-59. Although Spaid denied using any drugs or alcohol, one of the sobriety tests showed a lack of right-eye convergence, which Deputy Gross testified is an indicator of marijuana use. T. 17, 50; Ex. 3 at 16:40:50-16:41:05.

         While Deputy Gross was speaking with Spaid in the patrol car, Deputy Sack walked up to the driver's side window of Spaid's truck. T. 76; Ex. 3 at 16:38:39-43. The window was down and there was a small dog in the truck that had been barking throughout the stop. T. 76-77. Without leaning his head inside the truck, Deputy Sack reached his hand through the truck's .open window to pet the dog. Ex. 3 at 16:38:42-16:39:22. From this position, while reaching in to pet the dog, Deputy Sack saw what he suspected was the mouth piece of a marijuana pipe sticking out from underneath the truck's center console. T. 76-77, 81, 92; Ex. 3 at 16:38:39-16:39:24; Ex. 11 at 11, 19. As Deputy Sack pet the dog, Deputy Darin Johnson arrived at the scene to assist. T. 77, 84; Ex. 3 at 16:39:07. Deputy Sack asked Deputy Johnson to confirm what he had seen in the truck. T. 77, 84. As both deputies looked in the driver's side window, they observed a "dugout"^[2] laying on the driver's seat. T. 18, 77; Ex. 3 at 16:39:22-16:40:10. Although Deputy Sack had seen the dugout when he first saw the pipe, he did not know what it was. T. 78.

         Deputies Sack and Johnson walked back to the patrol car and told Deputy Gross that they had seen a marijuana pipe in Spaid's truck. T. 17; Ex. 3 at 16:44:04-30. Deputy Gross looked in the driver's side window himself and was able to see the marijuana pipe and the dugout. T. 17-18, 68. The deputies then searched Spaid's truck and placed him under arrest. T. 19; Ex. 3. They found a .22 caliber rifle in Spaid's truck as well as some marijuana and cash. T. 69; Ex. 11 at 37; Exs. 2, 4. An inspection of the dugout revealed that it contained marijuana, and the deputies found a "one-hitter" pipe on Spaid's person. T. 19, 69; Ex. 11 at 37; Exs. 2, 4.

         Based on the information obtained from the traffic stop, law enforcement officers obtained and executed a search warrant on Spaid's residence. They seized drug paraphernalia, 12-gauge shotgun shells, and some .22 caliber rounds. Shortly thereafter, a federal grand jury indicted Spaid for being a felon in possession of a firearm and ammunition. Spaid also was indicted in state court on drug charges. Doc. 39-2. A state court judge suppressed the evidence seized from Spaid's truck, concluding that the deputies lacked reasonable suspicion for a traffic stop. Doc. 39-2.

         II. Spaid's factual "clarifications"

         Spaid asserts that although Judge Moreno's factual findings are "generally accurate, a few facts were omitted and/or not fully described." Doc. 58 at 2. Only two of Spaid's "factual clarifications" need be mentioned here. First, Spaid asserts that Deputy Gross had arrested him only once for drug use. Spaid does not provide any citation or evidence to support this assertion, and Deputy Gross testified that he had arrested Spaid twice before for drug use. T. 34-35. This factual clarification is overruled. Second, Spaid asserts without any citation to the record that Deputy Gross testified that 1720 East Capitol was "not considered a drug house." Doc. 58 at 2. This assertion is wrong and is overruled. Deputy Spaid testified that 1720 East Capitol Avenue is a duplex and that both 1720 and the ...