United States v. McClelland

          MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS, DOC. 31

          Lawrence L. Piersol United States District Judge.

         Pending before the Court is Defendant's Motion to Suppress, Doc. 31, seeking to suppress all tangible evidence seized from Defendant's vehicle following a traffic stop for speeding and for suppression of other evidence derivative of the search, including his post-arrest statements. Defendant argues the traffic stop was unconstitutionally prolonged for lack of reasonable suspicion when a drug-detection dog was deployed after the issuance of a speeding ticket. In the alternative, Defendant further argues that, even if reasonable suspicion did exist, the drug dog's positive indication did not provide probable cause to conduct the search of the Defendant's vehicle. Argument was heard with all counsel present on October 13, 2017 and for the reasons set forth herein, Defendant's Motion is denied.

         FACTUAL BACKGROUND

         On September 12, 2016, Officer John Badker, a Mitchell, South Dakota K-9 officer, had received information from fellow law enforcement that a white 2015 Chrysler 200 with a Georgia license plate was possibly transporting illegal contraband. That information was relayed from a K-9 officer in Utah to South Dakota Highway Patrol Trooper John Lord, who subsequently informed Ofc. Badker. Later in the evening, Ofc. Badker observed a vehicle matching the description traveling at a speed of 84 mph in an 80 mph zone and initiated a traffic stop. The license plate on the vehicle was a California plate, not a Georgia plate, and upon further inquiry during the stop, the other members of law enforcement who had relayed the previous information made a correction stating the suspected vehicle indeed had a California license plate. The driver of the car was identified as Defendant, Thomas Raymond McClelland, a retired K-9 officer.

         Upon approaching the vehicle, Ofc. Badker informed Defendant of the reason for the stop. Defendant explained that he had been looking down at his phone at a text message and not paying attention. Ofc. Badker asked Defendant to come back to his vehicle and Defendant indicated he would. He put his shoes on and started walking back to the vehicle when Ofc. Badker asked if he "had anything on him." Defendant responded by lifting his arms above his head, revealing a concealed pistol on his hip. Ofc. Badker removed the pistol and Defendant informed the officer that he had a concealed carry permit. While in Ofc. Badker's vehicle, Defendant provided Ofc. Badker with the rental agreement for the vehicle and explained that he had flown out to California to see a couple old friends. Upon finding out that his dog was sick, he wanted to get home right away. He explained that he did not fly home because last minute flights are prohibitively expensive, but conceded that the one-way rental ended up costing him about as much. When asked when he started driving back, Defendant initially stated he left the previous morning. After second thought, he stated he had left the day before that. The rental agreement, however, provided that the car was rented on September 9th-three days prior.

         Ofc. Badker asked Defendant if he had any weapons in the vehicle. Defendant paused and said, "umm...I don't think so." Ofc. Badker asked if he didn't think so or if he knew there weren't any other weapons in the vehicle, to which Defendant replied, "no, I got my suitcase which is a carry on." As Ofc. Badker continued to fill out the citation, he asked Defendant if there was anything illegal in the car. Defendant stated there was not. Ofc. Badker asked if he "wouldn't mind if we checked just to make sure?" Defendant stated he would mind, and didn't think he needed a ticket either. When Ofc. Badker pointed out that an officer would normally find the circumstances of the one-way rental from California to South Dakota suspicious, Defendant concurred, saying "the only thing that would be better was if a third party rented it." Then Defendant emphatically stated that there was "no dope in the fricken car though, I can tell you that much." Ofc. Badker then indicated that he was "going to run my dog to be sure, okay?" Defendant responded, saying, "Go ahead, yeah, that's cool. I want to see your dog anyway." Ofc. Badker asked a final time if there was anything else in the vehicle "besides the bag up front." Defendant indicated there was "nothing bad."

         Upon completing the ticket, Ofc. Badker exited the patrol vehicle and deployed his drug dog, Shadow, who had been caged in Ofc. Badker's vehicle. The body camera video entered into evidence shows Shadow is on a leash, but is clearly a lot to handle, as he pulls Ofc. Badker toward Defendant's vehicle. Shadow sniffs along the passenger side, circles around the front, where he stops briefly to sniff intensely at the front license plate, then ducks under the front driver side panel before sniffing along the driver's side. Shadow turns left along the back of the driver's side and eventually sits down at the trunk "indicating" that he has found the source of the odor. Shadow appears disinterested at this point, looking out to his left toward the cars passing on the interstate. Ofc. Badker testified that at this point he tried to get Shadow to focus by pointing toward the vehicle, showing him where he wants him to sniff. Shadow stands again and moves toward the vehicle, then sits. Again Shadow stands and moves toward the vehicle, this time moving toward the right and away from the vehicle, still on the leash, and heads back toward Ofc. Badker's police cruiser. Ofc. Badker testified that he had then "cheated Shadow off the scent, " by showing Shadow a closed fist where the dog believes the origin of the scent now is, then opening his hand to "release the scent." Defendant, however, asserts that Ofc. Badker cued Shadow to indicate by moving around to stand in front of the dog, pointing at the car, and using a toy to either point at the car or at least reward the dog afterward. Ofc. Badker testified that he did not use the toy, though he did have it on his person. At the end of the video however, Shadow runs up to the Trooper who had shown up on scene. Then, after putting Shadow back in his cage, the Trooper can be seen handing the toy to Ofc. Badker and Ofc. Badker subsequently places the toy in the back of his police vehicle.

         When Ofc. Badker informed Defendant that Shadow had indicated so he was now going to search the vehicle, Defendant stated, "we both know you can't make your dog indicate." Defendant asserts, "you sat there and went like this" while tapping on the dash board of the vehicle. Ofc. Badker responded saying he was not going to argue with him and conducted a search of the vehicle. No illegal drugs or drug-related paraphernalia were found during the search. However, several firearms were located, including two that are alleged to be machine guns, resulting in Defendant's arrest.

         Defendant has moved to suppress evidence obtained from the search, stating there was no reasonable suspicion to conduct the dog sniff. In the alternative, Defendant argues that even if there was reasonable suspicion, the indication by the dog was cued or otherwise unreliable and therefore did not give Ofc. Badker probable cause to conduct the search. In response, the Government asserts that reasonable suspicion was not even necessary, as Defendant consented to the dog sniff. Alternatively, the Government argues that the totality of the circumstances presented Ofc. Badker with reasonable suspicion and the dog sniff was reliable and provided probable cause for the search.

         ANALYSIS

         REASONABLE SUSPICION

[A] police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, "become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission" of issuing a ticket for the violation.

Rodriguez v. United States, 135 S.Ct. 1609, 1612 (2015) (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005). Therefore, absent reasonable suspicion, police may not extend an otherwise-completed traffic stop to conduct a dog sniff. See Id. at 1614.

         The Government first maintains that Defendant consented to the dog sniff when he said "Go ahead, yeah, that's cool. I want to see your dog anyway" after Ofc. Badker stated he was "going to run my dog to be sure, okay?" However, "simply telling a police officer to 'go ahead' with a search is not, in and of itself, proof of voluntary consent." United States v. Escobar,389 F.3d 781, 786 (8th Cir. 2004) (citing United States v. Morgan,270 F.3d 625, 631-32 (8th Cir. 2001)). Instead, the Government must illustrate more than mere acquiescence to a claim of lawful authority in order to discharge its burden of showing consent was freely and voluntarily given. See Id. at 785. The Government has not met that burden in this case. It is clear from the video presented at the hearing that Defendant did not have a choice but to acquiesce to Ofc. Badker's statement that he would be conducting a dog sniff. Ofc. Badker even testified on cross-examination that his mind was made ...