United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER ON DEFENDANT'S
MOTION TO SUPPRESS, DOC. 31
Lawrence L. Piersol United States District Judge.
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.
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.
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.
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
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.
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
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.
[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.
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 ...