United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ADOPTING REPORT AND
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.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.
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.
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.
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.
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" 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.
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.
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.
Spaid's factual "clarifications"
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