United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
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).
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.
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
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
1. Law enforcement's sources of information were
insufficiently corroborated to justify the
Terry 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
Mirandaand Shatzer. Id. at
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.
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.
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.
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).
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).
Whether the SOI information was sufficiently corroborated to
provide the necessary reasonable suspicion for a
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)).
Whether information obtained from incarcerated SOIs is per se
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.
Whether the SOIs' information was “reliable and
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
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).
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 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.
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 ...