United States District Court, D. South Dakota, Western Division
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 ...