United States v. Conteh

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         Defendant Roy Conteh filed a second motion in limine. (Docket 257). Defendants Victor Sasay and Tapsiru Dainkeh joined in the motion.^[1] (Dockets 258 & 259). Mr. Sasay also filed a motion in limine regarding Fusion Center attempts to identify the defendants (“Fusion Center motion”). (Docket 260). Mr. Conteh and Mr. Dainkeh joined in the motion.^[2] (Dockets 261 & 262).

         Pursuant to Wong Sun v. United States, 371 U.S. 471 (1963), and subsequent court decisions, the defendants seek exclusion of all the evidence and information obtained as the result of a traffic stop on July 10, 2015. (Docket 257 at p. 3). The government opposes both motions. (Docket 263). On February 14, 2018, the court held a hearing on defendants' Wong Sun challenges to permit the parties to present evidence and testimony on defendants' motions. For the reasons stated below, defendants' second motion in limine is granted in part and denied in part and the Fusion Center motion is denied.

         ANALYSIS

         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 a standing order of the court. An evidentiary hearing was conducted by the magistrate judge. Before a ruling by the court, a grand jury returned a superseding indictment charging the defendants with one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1344 and 1349; twelve counts of bank fraud in violation of 18 U.S.C. §§ 2 and 1344(2); ten counts of aggravated identity theft in violation of 18 U.S.C. §§ 2 and 1028A(a)(1); and nine counts of possession of an unauthorized access device in violation of 18 U.S.C. §§ 2 and 1029(a)(1). (Docket 111).

         The magistrate judge 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). Following a de novo review of those portions of the R&R to which objections were filed, the court entered an order overruling the government's objections and adopting the R&R. (Docket 196 at p. 20). The order granted in part and denied in part defendants' motions to suppress. Id. As the result of the order, “all physical evidence seized during the [July 10, 2015] traffic stop is suppressed. . . . [and] statements made by the defendants during the course of the traffic stop are admissible at trial in the government's case-in-chief.”^[3] Id.

         During the course of a pretrial conference “the court concluded it was necessary to conduct additional pretrial proceedings and to move the date for the jury trial in order to secure defendants a fair trial under the United States Constitution.” (Docket 256 at p. 1). The court directed the government to “disclose to the defendants the government's witness list and list of exhibits for use at trial” and required the defendants to “file motions in limine setting forth the legal basis under Wong Sun v. United States, 371 U.S. 471 (1963), and subsequent decisions of the United States Supreme Court and the United States Court of Appeals for the Eighth Circuit, for challenging the admissibility of the government's proposed exhibits and witnesses in light of the order of June 26, 2017.” Id. at pp. 1-2 (referencing Docket 196). Defendants filed their second motion in limine and the Fusion Center motion. (Dockets 257 & 260). The government opposed both motions. (Docket 263).

         At the hearing to consider defendants' Wong Sun challenges, the government offered testimony from Zac Bader, South Dakota Highway Patrol Trooper, and Nicholas Saroff, Special Agent from Homeland Security Investigations, Department of Homeland Security. The court admitted Hearing Exhibits 1-11.

         Trooper Bader testified that shortly after noon on July 10, 2015, he stopped a Jeep SUV for speeding and following another vehicle too closely. He approached the vehicle where the driver handed Trooper Bader a driver's license and the front seat passenger handed him a Hertz Rental Agreement. The driver's license identified the operator of the vehicle as Victor Sasay. The rental agreement indicated the vehicle was rented in the name of Tapsirruu Dainkeh [sic], the front passenger. Trooper Bader learned the name of the rear seat passenger, Roy Conteh, through a photo identification card. Trooper Bader testified that within approximately fifteen minutes of the stop he called SA Saroff to give him the names and dates of birth of the three men. Trooper Bader recalls he contacted SA Saroff for an updated immigration status of all three men.

         Trooper Bader testified that within 45 minutes SA Saroff arrived at the scene of the traffic stop. Later a warning ticket for speeding and following too closely was issued to Mr. Sasay and the three men were allowed to drive away.

         Trooper Bader stated the next day, Saturday, July 11, 2015, he received through his law enforcement e-mail account a Fusion Report, a be-on-the-lookout notice (“BOLO”), distributed by the South Dakota Office of Homeland Security Fusion Center dated July 10, 2015, (“July 10 Fusion Report”). Hearing Exhibit 2 at p. 2. The trooper testified that as a South Dakota Highway Patrol Officer he receives Fusion Reports or BOLOs nearly every day on topics ranging from be-on-the-lookout for a person-of-interest in murder or assault investigations, car or other property theft investigations, identity theft investigations and a wide range of other law enforcement concerns. Trooper Bader testified he did not solicit the July 10 Fusion Report and he had not spoken with Police Officer Samantha Rosenau of Spearfish, South Dakota, before reviewing the report. He stated it was “pure coincidence” he received the July 10 Fusion Report the day after his traffic stop.

         The July 10 Fusion Report asked members of the law enforcement community to assist the Spearfish Police Department in identifying “two African Americans” from the Casper, Wyoming, area who on July 9, 2015, were at the Sturgis, South Dakota, Shopko around 10 a.m. and the Spearfish Safeway and Walgreens at about 4:50 p.m. Exhibit 2 at p. 2. The two men were “purchasing Visa . . . gift cards with . . . stolen credit cards. . . . in very large amounts.” The report indicated the investigation included information the two men had been in Casper, then Ft. Collins, Colorado, before coming to Spearfish. Id. The July 10 Fusion Report asked any “[o]fficer[] with any information on these subjects . . . to contact Samantha Rosenau of the Spearfish Police Dept . . . .” and included a contact telephone number. Id.

         Upon examining the July 10 Fusion Report, Trooper Bader concluded the photographs of the men were two of the individuals he had encountered during the traffic stop the day before. Trooper Bader called Officer Rosenau on July 11 and ...