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United States v. Faulkner

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

December 3, 2018

DANA FAULKNER, a/k/a “Diablo, ” Defendant.




         A grand jury indicted defendant Dana Faulkner on September 12, 2017, charging him with conspiracy to distribute a controlled substance, use of a firearm in furtherance of a drug trafficking crime, and possessing a firearm as a prohibited person. (Docket 20). Defendant moved to suppress all statements made and evidence collected during his arrest on August 28, 2017. (Docket 38). The suppression motion was referred to Magistrate Judge Daneta Wollmann for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the court's April 1, 2018, standing order. The magistrate judge conducted a hearing on the motion and issued a report and recommendation (“R&R”) concluding defendant's motion should be denied. (Dockets 64 & 77). Defendant timely filed objections to the R&R. (Docket 78). The government did not object to the R&R but did respond to defendant's objections. (Docket 81).

         Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

         For the reasons stated below, the court overrules defendant's objections in part and sustains them in part. The court accordingly modifies and adopts the magistrate judge's recommendations.


         Defendant objects to nine of the magistrate judge's conclusions. (Docket 78 at pp. 1-2). In his briefing, however, defendant condensed these nine objections into five argument sections, which the court will separately address. These contentions are:

1. Law enforcement's sources of information were insufficiently corroborated to justify the Terry[1] stop. Id. at pp. 19-23.
2. The degree of communication between Investigator Casey Kenrick and Officers Raetz and Senesac was insufficient to justify the Terry stop and subsequent arrest of defendant. Id. at pp. 2-16.
3. Defendant's statements were obtained in violation of Miranda[2]and Shatzer.[3] Id. at pp. 16-17.
4. Defendant's arrest violated the Fourth Amendment. Id. at pp. 17-18.
5. The inventory search of defendant's vehicle was invalid. Id. at pp. 18-19.

         As an initial matter, the court notes defendant objects to the magistrate judge's conclusion the firearm seizure and serial No. inspection did not violate the Fourth Amendment but does not argue this objection in his briefing. (Docket 78 at pp. 1, 16-17). “[O]bjections must be timely and specific to trigger de novo review[.]” Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990). This objection, although timely, is general and conclusory, without any development. After undertaking a de novo review, the court finds the magistrate judge's analysis on this issue is accurate and well-reasoned. (Docket 77 at pp. 19-21). Defendant's objection is overruled and the court adopts the R&R on this point.

         Defendant does not object to the magistrate judge's findings of fact. The court adopts the comprehensive factual background section of the R&R. Id. at pp. 2-12. As necessary to inform its analysis, the court will refer to the R&R's factual findings, as well as to testimony and exhibits from the May 1, 2018, evidentiary hearing.


         I. Whether the Terry Stop was Proper

Pennington County Sheriff's Investigator Casey Kenrick (“Inv. Kenrick”) is a member of the Unified Narcotics Enforcement Team (“UNET”), which investigates drug offenses. Id. at p. 2. Throughout the summer of 2017, Inv. Kenrick received information from seven confidential sources of information (“SOIs”) regarding defendant's alleged drug distribution activities in the Rapid City area. Id. at pp. 2-3. On August 28, 2017, two SOIs informed Inv. Kenrick Defendant was in Rapid City. Id. at p. 8. Inv. Kenrick contacted a supervisor at the Rapid City Police Department (“RCPD”) for assistance in stopping defendant's vehicle. (Docket 67 at pp. 39-40). Officers Raetz and Senesac were assigned to assist Inv. Kenrick. Id. at pp. 40, 106. They subsequently stopped defendant's vehicle and arrested him. (Docket 77 at p. 10). The officers did not observe Defendant make any traffic violations before they pulled his vehicle over.

(Docket 67 at p. 148).

         The magistrate judge concluded the information Inv. Kenrick received from his SOIs was sufficiently corroborated to provide the necessary reasonable suspicion for a Terry stop. Id. at p. 15. The magistrate judge further found Inv. Kenrick communicated with Officers Raetz and Senesac to a degree sufficient to imbue them with the necessary collective knowledge to conduct a proper Terry stop. Id. at p. 16. Defendant objects to both conclusions. (Docket 78 at pp. 19-23; 2-16).

         A. Whether the SOI information was sufficiently corroborated to provide the necessary reasonable suspicion for a Terry stop

         “The Fourth Amendment permits an investigative stop of a vehicle if officers have a reasonable suspicion the vehicle or its occupants are involved in criminal activity.” United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007). “An officer's suspicion is reasonable if he ‘knows particularized, objective facts that lead to a rational inference that a crime is being or has been committed.' ” United States v. Gannon, 531 F.3d 657, 661 (8th Cir. 2008) (quoting United States v. Hernandez-Hernandez, 327 F.3d 703, 706 (8th Cir. 2003)). “Reasonable suspicion may be based on an informant's tip where the tip is both reliable and corroborated.” Bell, 480 F.3d at 863. “Reasonable suspicion can arise from an informant's tip ‘that is less reliable than that required to show probable cause.' ” United States v. Bell, 183 F.3d 746, 749 (8th Cir. 1999) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).

         1. Whether information obtained from incarcerated SOIs is per se less reliable

         Inv. Kenrick relied upon seven SOIs in his investigation of defendant prior to the arrest. Defendant notes six of these SOIs were in custody at the time of their interviews with Inv. Kenrick. (Docket 78 at p. 19). He argues information obtained from SOIs in custody should be considered “per se less reliable” because “people who are in custody inherently talk to one another about their cases and the intimate aspects of those cases.” Id. Defendant does not allege any of the SOIs lied to Inv. Kenrick or otherwise colluded with other SOIs while in custody to provide false information. In fact, Inv. Kenrick-a witness the magistrate judge found credible-testified none of the SOIs were aware he was speaking with the others. Docket 77 at p. 2; docket 67 at p. 23. Defendant also does not cite any authority for the proposition that information provided by incarcerated SOIs is per se less reliable. The court declines to find the Terry stop invalid because it was based on information provided by incarcerated SOIs.

         2. Whether the SOIs' information was “reliable and corroborated”

         The magistrate judge found “the SOIs corroborated each other on many key points[.]” (Docket 77 at p. 15). Defendant objects to this finding and argues the SOIs were not reliable. The court, like the magistrate judge, rejects defendant's “argument that the various SOIs' statements were insufficiently corroborated [or] that SOI #2's tip was unreliable and insufficiently predictive.” Id.

         The SOIs corroborated one another on several issues, including a physical description of defendant. SOIs 1, 2, 3 and 6 all told Inv. Kenrick they obtained drugs, primarily methamphetamine, from a man they knew as “Diablo.” Id. at pp. 3-7; docket 67 at p. 22. Each of these SOIs, as well as SOI #5, gave a physical description of Diablo as a white man with a large beard and brown hair, similar in appearance to Inv. Kenrick. (Docket 77 at pp. 3-8).

         Additionally, many of the SOIs corroborated information given by other SOIs. For example, SOI #4 informed Inv. Kenrick SOIs 1, 2, 3 and 6 sold drugs for Diablo. Id. at p. 7. In another example, SOIs 4 and 6 independently informed Inv. Kenrick defendant stayed with Jade Dugan and Braden Storms[4] at a residence in Rapid City. Id. at p. 7. Each provided the same address for this residence, which corroborated information Inv. Kenrick received from other sources. Id. SOIs 1 and 2 each independently informed Inv. Kenrick about an incident in rural Meade County where SOI #2 took SOI #1 to meet Diablo regarding a drug debt. Id. at pp. 3-4. Multiple SOIs informed Inv. Kenrick Diablo was armed and dangerous. SOIs 2 and 6 both observed Diablo with firearms, while SOI #1 considered Diablo a threat to his life. Id. at pp. 3-4, 7. SOI #2 also believed Diablo wanted to kill him. Id. at p. 8.

         On August 28, 2017, SOIs 2 and 5 notified Inv. Kenrick that Diablo was in Rapid City to collect a drug debt SOI #2 owed. Id. at p. 8. SOI #2 informed Inv. Kenrick he observed defendant driving a white BMW with Colorado plates. Id. at p. 9. Inv. Kenrick then observed a man matching the SOIs' description driving a white BMW with Colorado plates, corroborating the SOIs' information. Id. It was at that point Inv. Kenrick directed Officers Raetz and Senesac to stop defendant's vehicle. Id. at pp. 9-10. Following ...

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