USA v. Brown

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
VANCE WARKATA BROWN,
Defendant.
4:21-CR-40066-KES
REPORT AND RECOMMENDATION
INTRODUCTION
Defendant Vance Warkata Brown is before the court on an indictment
charging him with possession of a firearm by a prohibited person, in violation
of 18 U.S.C. §§ 922(g)(1), 922(g)(2), and 922(g)(9). 	See Docket No. 1.
Mr. Brown has filed a motion to suppress certain evidence. 	See Docket No. 35.
The United States (“government”) resists the motion. 	See Docket No. 39. 	This
matter has been referred to this magistrate judge for holding an evidentiary
hearing and recommending a disposition pursuant to 28 U.S.C. § 636(b)(1)(B)
and the October 16, 2014, standing order of the Honorable Karen E. Schreier,
United States District Judge.
FACTS
An evidentiary hearing was held on November 8, 2021, in Sioux Falls,
South Dakota. 	Mr. Brown was there in person along with his lawyer,
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Amanda D. Kippley, Assistant Federal Public Defender. 	The government was
represented by its Assistant United States Attorney, Tamara P. Nash. 	Two
witnesses testified and two exhibits were received into evidence. 	From this
testimony and these exhibits, the court makes the following findings of fact.
On November 24, 2020, at approximately 1:54 a.m., Officer Kyler
Pekarek 1 of the Yankton Police Department was patrolling East Highway 50
near Ferdig Street in Yankton, South Dakota. 	While following a maroon 2004
Chevrolet K1500, Officer Pekarek observed the driver turn east onto Highway
50, avoiding the inside lane, and enter the outside lane. 	(01:01, Exhibit 1A)2 .
Officer Pekarek initiated a traffic stop based on a violation of SDCL
§ 32-26-183 .
Upon making the stop, Officer Pekarek approached the vehicle’s
passenger-side window. 	(00:46, Exhibit 1B). 	Officer Pekarek told the driver
1 Officer Pekarek was a police officer with the Yankton Police Department for
five years and was also a certified canine handler. 	Since then, Officer Pekarek
has resigned from the police force for personal reasons.
2 The time stamps of this interaction vary between the different cameras. 	The
times cited will be based on the minutes and seconds in the video, not based
on the time of day. 	Exhibit 1A is Officer Pekarek’s vehicle cameras and
Exhibit 1B is Officer Pekarek’s body camera.
3 South Dakota Codified Law § 32-26-18 provides:
The driver of a vehicle intending to turn left shall approach the
turn in the extreme left-hand lane lawfully available to traffic
moving in the direction of travel of the vehicle. 	If practicable, the
left turn shall be made to the left of the center of the intersection
and so as to leave the intersection or other location in the extreme
left-hand lane lawfully available to traffic moving in the same
direction as the vehicle on the roadway being entered. 	A violation
of this section is a Class 2 misdemeanor.
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and passenger of the vehicle the reason for the stop was a “turn violation.”
(00:54, Exhibit 1B). 	Officer Pekarek informed the occupants that he was not
going to write them a ticket for the lane violation. 	(01:23, Exhibit 1B).
Officer Pekarek confirmed that the driver had an ID and identified the driver as
the defendant, Mr. Vance Brown. 	(01:44, Exhibit 1B). 	Officer Pekarek
requested that Mr. Brown follow him to his patrol vehicle. 	Id. 	The passenger
identified herself as Sara Stokes and indicated that she did not have
identification on her person. 	(01:52, Exhibit 1B).
While approaching the patrol vehicle, Mr. Brown expressed fear of getting
into Officer Pekarek’s car with the dog in the back seat, stating “I will sit on the
ground, I don’t want to be by a dog.” 	(02:15, Exhibit 1B). 	Nonetheless,
Mr. Brown got into the front passenger seat of the patrol vehicle. 	(02:21,
Exhibit 1B). 	During this time, another law enforcement vehicle belonging to
Officer Jericho Osborne 4 was parked behind Officer Pekarek’s car. 	Both
Officer Pekarek and Officer Osborne testified that it was routine practice of the
Yankton Police Department for there to be two police cars during a traffic stop
at this time of night due to officer safety concerns. 	Officer Osborne testified
that his primary role was to keep an eye on the suspect’s vehicle and to provide
back-up for Officer Pekarek if needed. 	Officer Pekarek testified that he never
requested assistance and there was no previous coordination with any officer
regarding Mr. Brown’s traffic stop.
4 Officer Osborne has been a patrolman with the Yankton Police Department
for three years.
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While inside the patrol vehicle, Officer Pekarek described his reason for
the stop to Mr. Brown. 	(02:44, Exhibit 1B). 	As Officer Pekarek conducted a
NCIC5 query search into Mr. Brown’s identification, he simultaneously asked
where Mr. Brown was coming from that evening, what brought Mr. Brown into
town, and where Mr. Brown was from originally. 	(03:15, Exhibit 1B).
Mr. Brown stated they were coming from the Cockatoo Gentlemen’s Club,
which is also where Ms. Stokes worked. 	(03:20, Exhibit 1B). 	Officer Pekarek
testified that the Cockatoo Gentlemen’s Club is known for the sale and use of
illegal drugs in Yankton, South Dakota. 	Furthermore, Officer Pekarek testified
that during this initial conversation, he observed Mr. Brown’s carotid artery
beating out of his neck, he was breathing heavily, his chest was raised, his
body was rigid, he was staring straight ahead, and he was showing other signs
of nervous behavior.
Mr. Brown then asked Officer Pekarek for directions to the “Lodge Motel.”
(03:23, Exhibit 1B). 	Officer Pekarek questioned if he meant the “Econo Lodge,”
Mr. Brown said yes, and Officer Pekarek indicated that it was “all the way back
on Broadway.” (03:30, Exhibit 1B).
While the conversation continued, Officer Pekarek began to write a
warning for the lane violation. 	(03:33, Exhibit 1B). 	As Officer Pekarek worked
on the warning, he learned that Mr. Brown’s driver’s license was revoked.
(07:05, Exhibit 1B). 	Mr. Brown asked what a revoked license meant, and
5 National Crime Information Center. 	This is a national database for tracking
crime-related information.
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Officer Pekarek said, “I am just going to write you a ticket, that’s it . . .
Normally, you go to jail.”6 	(07:23, Exhibit 1B). 	Officer Pekarek asked Mr.
Brown what he was revoked for, and Mr. Brown indicated he was unsure.
(07:40, Exhibit 1B). 	Officer Pekarek then handed Mr. Brown the lane violation
warning, told him he could just throw it away, and began writing the citation
for driving with a revoked license. 	(07:54, Exhibit 1B).
As Officer Pekarek continued working on the citation, he advised
Mr. Brown that he was a K9 unit and asked, “Is there anything up in the
vehicle I need to know about?” 	(09:30, Exhibit 1B). 	Mr. Brown responded in
the negative. 	Officer Pekarek then asked Mr. Brown if there were pills, heroin,
cocaine, or methamphetamine in the vehicle. 	(10:00, Exhibit 1B). 	Again,
Mr. Brown responded in the negative. 	When asked about heroin, Mr. Brown
began to laugh and can be seen scratching or rubbing his head. 	(10:12,
Exhibit 1B). 	Officer Pekarek testified that, in his training and experience, this
was a grooming gesture. 	Officer Pekarek explained that a grooming gesture,
such as forced laughter and scratching of the head that he observed Mr. Brown
doing, is a way for people to calm their nerves in stressful situations.
Additionally, Officer Pekarek testified that he continued to observe the nervous
behavior—carotid beating quickly, raised chest, heavy breathing—that he had
previously seen. 	When being questioned on whether these physical indications
6 Officer Pekarek testified that driving with a revoked license is a class 1
misdemeanor in South Dakota. 	However, because the Yankton County Jail
was not accepting misdemeanor arrests due to the COVID-19 pandemic, Officer
Pekarek used his discretion to just issue a citation with a mandatory court
date for this violation.
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were normal signs of nervousness when being stopped by the police,
Officer Pekarek stated that, in his experience, a suspect’s nerves tend to calm
down once they find out they are only getting a ticket and are not going to jail;
here, Officer Pekarek testified Mr. Brown’s nerves continued to get increasingly
worse as the traffic stop progressed.
While continuing to work on the citation, Officer Pekarek requested
consent to search the vehicle. 	(10:33, Exhibit 1B). 	Mr. Brown denied consent.
Officer Pekarek then asked for consent to deploy his K9, Reno, around the
vehicle. 	(11:01, Exhibit 1B). 	Again, Mr. Brown denied consent.
Officer Pekarek then exited the patrol vehicle, walked to the passenger side of
Mr. Brown’s car, and asked Ms. Stokes if there was any marijuana in the car.
(11:28, Exhibit 1B). 	Ms. Stokes admitted that they do smoke, but stated there
were just cigarettes in the car. 	(12:00, Exhibit 1B). 	Officer Pekarek instructed
Ms. Stokes to roll up her window while he deployed his K9 around the vehicle.
(12:20, Exhibit 1B).
When questioned as to why he chose to deploy his K9 after being denied
consent by Mr. Brown, Officer Pekarek testified that Mr. Brown’s nervous
behavior; off-topic conversations; the fact they were coming from the Cockatoo
Gentlemen’s Club, which was a place known for criminal activity; the fact the
car was registered to Mr. Brown’s brother in Sioux Falls when Mr. Brown lived
four hours away in Rogers, Minnesota; and Mr. Brown’s stated destination for
the evening was completely off route, gave Officer Pekarek suspicion of
criminal activity.
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Shortly afterward, Officer Pekarek deployed his K9, Reno. 	(12:35,
Exhibit 1B). 	Reno provided a positive indication for the odor of narcotics in
Mr. Brown’s vehicle. 	(12:50, Exhibit 1B). 	Once he returned to his patrol
vehicle, Officer Pekarek informed Mr. Brown that the dog indicated to the odor
of drugs and asked, again, “Is there anything I need to know about?” 	(13:20,
Exhibit 1B). 	Officer Pekarek advised that he would be conducting a search of
the vehicle. 	(13:22, Exhibit 1B). 	Mr. Brown admitted to smoking “pot roaches”
in the vehicle earlier that day but denied anything else would be inside.
(13:27, Exhibit 1B). 	Officer Pekarek then asked Mr. Brown if he had been on
“paper” before (14:45, Exhibit 1B), to which Mr. Brown responded that he had
been on probation for a 3rd offense driving under the influence. 	(15:28,
Exhibit 1B).
Officer Pekarek informed Mr. Brown that the reason he asked him about
drugs in the first place was because “your carotid was going, breathing heavy,
your body is rigid, bringing up other conversations and topics, stuff like that.”
(15:34, Exhibit 1B). 	Mr. Brown began to laugh at this. 	(15:58, Exhibit 1B). 	As
Officer Pekarek exited to begin his search, Reno began to bark in the back seat,
which frightened Mr. Brown to the point he exited the vehicle. 	(16:42, Exhibit
1B). 	Mr. Brown commented that the dog was probably why he had the
physical indicators Officer Pekarek cited. 	(16:54, Exhibit 1B). 	Officer Pekarek
then walked over to Mr. Brown’s vehicle and asked Ms. Stokes to step out while
he conducted the search. 	(17:46, Exhibit 1B). 	Once Ms. Stokes stepped out,
Officer Pekarek began his search of the vehicle. 	(18:35, Exhibit 1B). 	While
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Officer Pekarek conducted the search, Mr. Brown and Ms. Stokes stood near
Officer Osborne.
During the search, Officer Pekarek found a firearm located inside a blue
backpack, serial number 4339963. 	(27:35, Exhibit 1B). 	Officer Pekarek
testified that the gun was a black .45 caliber Hi-Point handgun. 	While
Officer Pekarek was wrapping up his search, Mr. Brown shouted to
Officer Pekarek, “you all up in that motherf*cker, ain’t you,” describing how
thoroughly Officer Pekarek was searching the vehicle. 	(38:15, Exhibit 1B).
In response, Officer Pekarek stated to Mr. Brown, “I am trying to figure
out whose gun this is.” 	(38:17, Exhibit 1B). 	After this statement, Mr. Brown,
replied, “mine . . . I am not a violent offender. 	In the State of South Dakota, I
can have it.” 	(38:25, Exhibit 1B). 	Officer Pekarek asked Mr. Brown if he had
any drug convictions, to which Mr. Brown responded in the negative. 	(38:33,
Exhibit 1B). 	Mr. Brown stated that the reason he had the gun was because his
sister, 7 Ms. Stokes, had been previously robbed at another strip club and he
kept it for protection. 	(38:50, Exhibit 1B). 	Officer Osborne also testified that
Mr. Brown admitted possession of the firearm to him, and that Mr. Brown got
the gun “off the streets” in Sioux Falls, South Dakota, for protection.
Officer Pekarek then returned to his patrol vehicle to conduct additional
checks into Mr. Brown’s criminal history. 	(41:00, Exhibit 1B). 	Officer Pekarek
7 Throughout the traffic stop, Mr. Brown and Ms. Stokes refer to each other as
brother and sister. 	As the encounter progresses, Mr. Brown admits that they
are not related by blood and ultimately admits to having an affair with
Ms. Stokes.
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asked Ms. Stokes to accompany him to his vehicle to discuss issues confirming
her identity. 	(52:00, Exhibit 1B). 	While in the vehicle, Officer Pekarek asked
Ms. Stokes if Mr. Brown had been to prison to determine if he could lawfully
possess the weapon. 	(54:49, Exhibit 1B). 	Ms. Stokes replied, “not that I know
of,” and indicated that she was unaware of the firearm in the vehicle. 	(55:11,
Exhibit 1B). 	Officer Pekarek informed Ms. Stokes that he was not going to cite
her for having a “weed pipe.” 	(59:14. Exhibit 1B).
After this conversation, Officer Pekarek resumed filling out Mr. Brown’s
citation for driving with a revoked license and requested a court date.
(01:00:22, Exhibit 1B). 	Officer Pekarek informed Mr. Brown that he would be
taking the firearm with him to continue his investigation. 	(01:02:20,
Exhibit 1B). 	Officer Pekarek issued Mr. Brown the citation, explained the
citation, and released him from the scene. 	(01:04:10, Exhibit 1B).
Both Officer Pekarek and Officer Osborne testified that they did not
provide Miranda8 warnings to Mr. Brown or Ms. Stokes. 	Neither officer placed
Mr. Brown or Ms. Stokes in handcuffs, never made a formal arrest, and never
intended to arrest them. 	Furthermore, the only physical contact
Officer Pekarek testified he had with Mr. Brown was a search of Mr. Brown’s
person after the dog alerted to the odor of drugs in the vehicle.
8 Miranda v. Arizona, 384 U.S. 436 (1966).
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DISCUSSION
A. 	Whether Officer Pekarek Unreasonably Prolonged the Traffic Stop in
Violation of the Fourth Amendment
Mr. Brown alleges the duration of the traffic stop violated his Fourth
Amendment rights. 	The Fourth Amendment to the United States Constitution
guarantees “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” 	U.S. Const.
amend. IV. 	A traffic stop constitutes a seizure within the meaning of the
Fourth Amendment. 	United States v. Fuse, 391 F.3d 924, 927 (8th Cir. 2004)
(quoting United States v. Martinez, 358 F.3d 1005, 1009 (8th Cir. 2004) (citing
Delaware v. Prouse, 440 U.S. 648, 653 (1979))).
A traffic stop may be lawfully made under two circumstances. 	If there is
probable cause to stop the vehicle, such a stop is lawful. 	United States v.
Sallis, 507 F.3d 646, 649 (8th Cir. 2007) (quoting United States v. Coney, 456
F.3d 850, 855-856 (8th Cir. 2006) (quoting United States v. Linkous, 285 F.3d
716, 719 (8th Cir. 2002))). 	Also, if there is reasonable suspicion to stop the
vehicle, the stop complies with the Fourth Amendment. 	Navarette v. California,
572 U.S. 393, 397 (2014); United States v. Spotts, 275 F.3d 714, 718 (8th Cir.
2002); United States v. Bell, 183 F.3d 746, 749 (8th Cir. 1999).
Probable cause exists where the totality of the facts and circumstances
are sufficient to lead a reasonable person to believe that the defendant has
committed a crime. 	Beck v. Ohio, 379 U.S. 89, 91 (1964). 	There need only be
“a probability or substantial chance of criminal activity, rather than an actual
showing of criminal activity.” 	United States v. Torres-Lona, 491 F.3d 750,
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755-56 (8th Cir. 2007) (quotation omitted). 	There must be evidence which
would “warrant a man of reasonable caution in the belief” that a crime has
been committed. 	Wong Sun v. United States, 371 U.S. 471, 479 (1963)
(quotation omitted).
“For purposes of constitutional analysis, a traffic stop is characterized as
an investigative detention, rather than a custodial arrest. 	Berkemer v.
McCarty, 468 U.S. 420, 439 . . . (1984). 	As such, a traffic stop is governed by
the principles of Terry v. Ohio, 392 U.S. 1 . . . (1968).” 	United States v. Jones,
269 F.3d 919, 924 (8th Cir. 2001).
The constitutional analysis under Terry is two-part: (1) “whether the
officer’s action was justified at its inception,” and (2) “whether it was
reasonably related in scope to the circumstances which justified the
interference in the first place.” 	Terry v. Ohio, 392 U.S. 1, 20 (1968). 	Thus, a
traffic stop that is “lawful at its inception can nevertheless violate the Fourth
Amendment because its manner of execution unreasonably infringes . . .
interests protected by the Fourth Amendment[.]” 	United States v. Jacobsen,
466 U.S. 109, 124 (1984). 	Mr. Brown does not dispute that the initial traffic
stop was justified. 	Therefore, the only question before the court is whether the
stop was unjustifiably prolonged beyond the limitations of the
Fourth Amendment.
“Like a Terry stop, the tolerable duration of police inquiries in the traffic-
stop context is determined by the seizure’s ‘mission’—to address the traffic
violation that warranted the stop, [Illinois v. Caballes, 543 U.S. 405, 407
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(2005)], and attend to related safety concerns[.]” 	Rodriguez v. United States,
575 U.S. 348, 354 (2015). 	See also Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion) (“The scope of the detention must be carefully tailored to its
underlying justification.”). 	“[A]n investigative detention must be temporary and
last no longer than is necessary to effectuate the purpose of the stop.
Similarly, the investigative methods employed should be the least intrusive
means reasonably available to verify or dispel the officer’s suspicion in a short
period of time.” 	Royer, 460 U.S. at 500. 	“A seizure that is justified solely by
the interest in issuing a warning ticket to the driver can become unlawful if it
is prolonged beyond the time reasonably required to complete that mission.”
Caballes, 543 U.S. at 407. 	“Authority for the seizure thus ends when tasks
tied to the traffic infraction are—or reasonably should have been—completed.”
Rodriguez, 575 U.S. at 354.
“After a law enforcement officer initiates a traffic stop, the officer may
detain the offending motorist while the officer completes a number of routine,
but somewhat time-consuming tasks related to the traffic violation.” 	United
States v. Englehart, 811 F.3d 1034, 1040 (8th Cir. 2016) (quotation omitted).
“Beyond determining whether to issue a traffic ticket, an officer’s mission
[during a traffic stop typically] includes . . . checking the driver’s license,
determining whether there are outstanding warrants against the driver, and
inspecting the automobile’s registration and proof of insurance.” 	Rodriguez,
575 U.S. at 355 (quotation and citation omitted). 	See also United States v.
Sanchez, 417 F.3d 971, 975 (8th Cir. 2005) (finding other inquiries incident to
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a traffic stop may include “inquiring about the occupants’ destination, route,
and purpose” (quotation omitted)). 	“When complications arise ‘in carrying out
the traffic-related purposes of the stop, . . . police may reasonably detain a
driver for a longer duration than when a stop is strictly routine.’ ” United States
v. Soderman, 983 F.3d 369, 374 (8th Cir. 2020) (quoting United States v.
Olivera-Mendez, 484 F.3d 505, 510 (8th Cir. 2007)).
To extend a routine traffic stop, an officer needs reasonable suspicion of
additional criminal activity. 	Rodriguez, 575 U.S. at 355. 	Reasonable suspicion
requires “specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant” a brief investigative stop.
Terry, 392 U.S. at 21. 	This standard is “less demanding” than probable cause
and much lower than preponderance of the evidence. 	Illinois v. Wardlow, 528
U.S. 119, 123 (2000).
To determine whether the requisite degree of suspicion exists, courts
must decide whether the facts collectively establish reasonable suspicion and
not whether each particular fact establishes reasonable suspicion, meaning the
totality of the circumstances must be considered. 	Jones, 269 F.3d at 927. 	The
court may consider any added meaning that certain conduct might suggest to
experienced officers in the field, but the officer’s reasonable suspicion cannot
be “just a mere hunch or based on circumstances which ‘describe a very large
category of presumably innocent travelers.’ ” 	Id. (quoting Reid v. Georgia, 448
U.S. 428, 441 (1980)).
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Absent further reasonable suspicion, an officer may not conduct
unrelated checks that extend the stop beyond the time reasonably required to
complete its original mission. 	Rodriguez, 575 U.S. at 354-55. 	Yet, an officer
may lawfully engage in unrelated inquiries so long as they do not measurably
extend the duration of the stop. 	Id. at 355. 	The Supreme Court in Rodriguez
found that a dog sniff is not an ordinary inquiry incident to a traffic stop and,
“by contrast, is a measure aimed at ‘detect[ing] evidence of ordinary criminal
wrongdoing.’ ” 	Id. (quoting Indianapolis v. Edmond, 531 U.S. 32, 40-41
(2000)). 	“[A] dog sniff is not fairly characterized as part of the officer’s traffic
mission.” 	Rodriguez, 575 U.S. at 356.
The Eighth Circuit has held in the past that each of the following factors,
in combination with others, can help support reasonable suspicion:
(1) unusual driving behavior, see United States v. Walker, 555 F.3d 716, 720
(8th Cir. 2009); (2) attempts to evade officers, see United States v. Noonan, 745
F.3d 934, 936 (8th Cir. 2014); (3) indirect or incomplete answers to officer
questions, see United States v. Murillo-Salgado, 854 F.3d 407, 416 (8th Cir.
2017); (4) nervousness and lack of eye contact, see United States v. Foley, 206
F.3d 802, 804, 806 (8th Cir. 2000); and (5) “seeming implausibilities and
inconsistencies in the responses to [an officer’s] routine questions” about travel
plans. 	See Murillo-Salgado, 854 F.3d at 416.
1. 	The “Mission” of Officer Pekarek’s Traffic Stop
Again, because a traffic stop is subject to Fourth Amendment protections
against unreasonable searches and seizures, a traffic stop must be supported
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by either reasonable suspicion or probable cause to believe the driver has
violated a traffic law or committed a traffic violation. 	Soderman, 983
F.3d at 374.
Here, Officer Pekarek’s original mission was to stop Mr. Brown for a lane
change infraction, in violation of SDCL § 32-26-18. 	Upon discovering that
Mr. Brown was driving with a revoked license, Officer Pekarek’s mission
expanded to include dealing with this new infraction. 	Therefore, following
Rodriguez, the court must determine whether the tasks tied to writing citations
for the traffic violation and driving with a revoked license reasonably could
have been completed expeditiously and, if so, whether the traffic stop exceeded
the amount of time reasonably required to complete them. 	If the drug
interdiction questions and dog sniff added time to the stop, the stop violated
the Fourth Amendment unless the extension was supported by reasonable
suspicion of further criminal activity. 	Rodriguez, 575 U.S. at 354.
2. 	Whether the “Mission” of the Traffic Stop Had—or Should
Have—Been Completed
The government argues that the tasks related to the traffic stop had not
been completed; that the canine sniff occurred before the time the tasks
associated to the mission of the stop were—or reasonably should have been—
completed. 	Docket No. 39, p. 7. 	The government cites Soderman in support.
Docket No. 39, pp. 7-8.
In Soderman, an Iowa State Trooper pulled Mr. Soderman over for
driving seventeen miles per hour above the speed limit. 	Soderman, 983 F.3d at
372. 	Mr. Soderman appeared unkempt, had an unpleasant body odor, and
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was nervously tapping his steering wheel. 	Id. 	The trooper observed two large
duffel bags, aftermarket wires, snacks, and energy drinks within the vehicle's
passenger compartment. 	Id. 	The trooper then asked Mr. Soderman to exit his
vehicle and sit in the front seat of the patrol car, which Mr. Soderman did. 	Id.
Mr. Soderman told the trooper that he was traveling from Colorado to
Minnesota to visit his father and dying stepmother. 	Id.
While completing a records check, the trooper discovered that
Mr. Soderman’s driver’s license had been suspended for unpaid child support.
Id. at 373. 	Mr. Soderman disputed the suspension and became more agitated,
repeatedly stating that he had made the required support payments. 	Id.
Believing that he had observed indicia of drug trafficking, the trooper called
another police officer, Officer Merchant, who was more experienced in
drug interdiction. 	Id.
Because he could not lawfully continue to drive with a suspended
license, Mr. Soderman called a tow truck company. 	Id. 	Officer Merchant
arrived before the arrival of the Soderman-summoned tow truck. 	Id. 	Like the
trooper, Officer Merchant also observed Mr. Soderman's behavior and viewed
the contents of his vehicle's passenger compartment. 	Id. 	Because
Mr. Soderman was confused about his exact location, he handed his phone to
Officer Merchant so she could provide his father with directions. 	Id. 	During
her conversation with him, Officer Merchant asked Mr. Soderman’s father if
Mr. Soderman had been involved in drug trafficking, to which the father
responded either, “not for a long time,” or, “well not recently.” 	Id. 	Further,
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Mr. Soderman’s father said that he did not know that Mr. Soderman was on his
way to Minnesota. 	Id.
Based on her observations and law enforcement experience, Officer
Merchant concluded that she had probable cause to believe that there would be
evidence of drug paraphernalia within the car. 	Id. 	She decided to seize the
vehicle and requested a second tow truck. 	Id. 	Officer Merchant submitted to a
state judge the application and the affidavit needed to obtain a search warrant,
but mistakenly failed to submit the required warrant itself. 	Id. 	Believing that
she had obtained a valid warrant, Merchant searched Soderman's vehicle,
discovering methamphetamine, marijuana, a loaded firearm, magazines and
ammunition, and a digital scale in the trunk. 	Id.
Arguing that the warrant was invalid, Mr. Soderman moved to suppress
the evidence obtained from his vehicle, as well as the statements he made
during the traffic stop. 	Id. 	The district court denied the motion. 	Id. 	On
appeal to the Eighth Circuit, Mr. Soderman argued that the trooper unlawfully
extended the traffic stop in violation of Rodriguez. 	Id. at 374. 	Affirming the
district court, the Eighth Circuit held that the trooper’s discovery that
Mr. Soderman’s driver’s license had been suspended justifiably extended the
lawful scope of the traffic stop due to Mr. Soderman’s legal inability to remove
the vehicle from the scene. 	Id. (citing United States v. Ovando-Garzo, 752 F.3d
1161, 1164 (8th Cir. 2014) (concluding that when none of the occupants of a
vehicle were licensed to drive, the officer was permitted “to engage in a
community caretaking function of safely moving the vehicle and its occupants
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from the side of the road”)). 	Furthermore, the court held that “[t]he confluence
of Soderman’s decision to call a tow truck, Merchant’s arrival, and . . . her
development of probable cause to seize the vehicle vitiates any claim that the
stop was unlawfully prolonged.” 	Id.
Here, the government argues that Soderman is instructive because
Officer Pekarek’s actions, up to the deployment of the K9, were tied to the
mission of the traffic stop—the lane violation. 	Docket No. 39, p. 8. 	Prior to the
warning being completed, Officer Pekarek learned of a new violation, driving
with a revoked license, which he then began to act on. 	Id. 	Thus, because
“complications [arose] in carrying out the traffic-related purposes of the stop,”
Officer Pekarek was justified in expanding the scope and time required for the
traffic stop. 	Soderman, 983 F.3d at 374 (quotation omitted).
Mr. Brown argues that Soderman is similar to his case in just one
aspect—after investigation into the initial purpose of the stop the law
enforcement officer discovered that the driver’s license was revoked. 	Docket
No. 36, p. 10-11. 	Beyond that, Mr. Brown argues that his case is
distinguishable from Soderman because, in that case, the dog sniffs occurred
while the defendant was awaiting a tow truck, and, in Mr. Brown’s case, no one
considered calling a tow truck or arranging for another driver at the conclusion
of the stop. 	Id. 	Here, at the conclusion of the traffic stop, the law enforcement
officers allowed Mr. Brown and his passenger to drive away even though
Mr. Brown’s license was revoked and the passenger did not have a license. 	Id.
The court agrees.
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While it is true that both Mr. Brown and Mr. Soderman were discovered
to have revoked or suspended licenses, Soderman is distinguishable from
Mr. Brown’s case because there was no community caretaker issue in
Mr. Brown’s case. 	There was no discussion between either Officer Pekarek or
Officer Osborne of arresting Mr. Brown or calling a tow truck or arranging for
another driver to come to the scene. 	As stated above, the Eighth Circuit in
Soderman held the fact that Mr. Soderman’s driver’s license had been
suspended justifiably extended the lawful scope of the traffic stop because
Mr. Soderman’s legal inability to remove the vehicle from the scene created a
safety issue the police needed to resolve by removing the vehicle. 	Soderman,
983 F.3d at 374. 	Here, Officer Pekarek allowed Mr. Brown to freely drive away
from the scene despite his revoked license, and there was no community
caretaker issue to justify prolonging the stop.
Accordingly, the court returns to the question of whether Officer
Pekarek’s mission of addressing the traffic violation, investigating Mr. Brown’s
revoked license, and writing him citations had been completed, or reasonably
should have been. 	Rodriguez, 575 U.S. at 354. 	Officer Pekarek testified that,
depending on how readily available a suspect’s information was, it typically
took him five to ten minutes to write a citation. 	Looking to the body camera
footage in Exhibit 1B, Officer Pekarek started writing the citation for driving
with the revoked license at 07:54. 	Officer Pekarek did not complete that
citation until 1:04:10, nearly an hour after discovering Mr. Brown had been
driving with a revoked license. 	Therefore, 	based on Officer Pekarek’s own
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testimony, it is clear that a reasonable police officer would, and should, have
completed the tasks tied to investigating and writing a citation to Mr. Brown for
driving with a revoked license much sooner than he did.
Due to this finding, the court must now determine whether
Officer Pekarek developed sufficient reasonable suspicion to prolong the
detention. 	Absent reasonable suspicion of further criminal activity, Officer
Pekarek’s search would be in violation Mr. Brown’s Fourth Amendment rights
under Rodriguez.
3. 	Whether Officer Pekarek Developed Sufficient Reasonable
Suspicion to Prolong the Detention
The government argues Officer Pekarek had sufficient reasonable
suspicion to lawfully prolong the traffic stop under the Fourth Amendment.
See Docket No. 39. 	Again, if an officer develops reasonable suspicion of the
existence of other criminal activity during a traffic stop, then the officer may
expand the scope of the encounter to address that suspicion. 	United States v.
Peralez, 526 F.3d 1115, 1120 (8th Cir. 2008). 	An officer’s suspicion of criminal
activity may reasonably grow over the course of a traffic stop as the
circumstances unfold and more suspicious facts are uncovered. 	Linkous, 285
F.3d at 720.
Here, the government generally argues that “in this case Pekarek had
reasonable suspicion for the detention beyond the initial traffic stop” without
citing any additional facts or law to support their contention. 	Docket No. 39,
p. 9. 	Mr. Brown disputes this, arguing that Officer Pekarek did not have
reasonable suspicion to extend the traffic stop. 	Docket No. 36, p. 7.
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a. 	The Applicability of United States v. Peralez and United
States v. Barrera
Mr. Brown cites to United States v. Peralez and United States v. Barrera
in support of the argument that Officer Pekarek had no lawful basis to prolong
the traffic stop. 	See Docket No. 36, p. 7, 9, 10, 11.
In Barrera, a sheriff stopped a vehicle with Washington license plates for
crossing fog lines on the road. 	United States v. Barrera, No. 20-CR-10010,
2020 WL 6268395 (D.S.D. Oct. 10, 2020). 	As he approached the vehicle, the
sheriff observed that the driver’s movements appeared to be jumpy and hurried
and that the driver appeared to be attempting to hide something between the
seats or in the center console. 	Id. at *2. 	The sheriff also noticed an
overwhelming smell of air freshener; that the rear window was partially rolled
down, even though it was 36 degrees outside with winds gusting up to 19 mph;
and that the driver was not wearing any type of winter clothing. 	Id.
The sheriff informed the driver about the reason for the stop, that he
would issue the driver a warning ticket, and requested the driver accompany
him to the patrol car to complete the stop. 	Id. 	Thereafter, two minutes after
initiating the traffic stop, the sheriff requested a K9 unit come to their location.
Id. 	The sheriff then informed the driver that, in addition to conducting traffic
stops, he “was also running saturation patrol looking for any other criminal
activity.” 	Id. 	The court stated that it was at this point that it was “clear [the
sheriff] had already determined that he was going to detain [the driver] long
enough to run a dog sniff, even if [the driver] had to be detained beyond the
time it took to write the warning ticket.” 	Id.
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While writing the warning ticket, the sheriff engaged the driver in
conversation and learned about the driver’s travel plans. 	Id. 	He also asked the
driver about whether there were any drugs in the vehicle, which the driver
denied, and about the ownership of the vehicle, to which the driver responded
the vehicle belonged to his brother. 	Id. at *2-3. 	The sheriff then asked the
driver what the driver would say if the sheriff asked for consent to search the
vehicle, to which the driver responded, “yeah that’s fine.” 	Id. at *3. 	The sheriff
contacted the canine deputy and informed him that the driver had consented
to the search. 	Id. 	Approximately one minute later, the driver revoked his
consent. 	Id. 	About 90 seconds after that, the sheriff completed the warning
ticket, and proceeded to ask the driver questions on subjects unrelated to the
stop. 	Id. 	After the driver said he was in a bit of a hurry, the officer said they
were going to wait for the drug dog. 	Id. 	The driver then said he did not want
the trunk of his car searched. 	Id. 	The K9 unit arrived approximately eight
minutes later, and a canine sniff was conducted around the entire vehicle. 	Id.
The dog alerted to the vehicle, a search was conducted, and the driver was
arrested. 	Id.
The driver thereafter filed a motion to suppress the evidence seized
during the search, asserting that the sheriff unlawfully prolonged the stop
beyond the time necessary to complete the warning ticket. 	This court agreed.
In so agreeing, this court stated “[t]he stop was not expanded for any purpose
related to the fog line violation. 	Rather, the stop was expanded because the
officers were out looking for any other criminal activity. 	Such delay is not
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allowed.” 	Id. at *4. 	Accordingly, this court concluded that, because the
mission to write a warning ticket could have been completed in minutes and
the driver was delayed to allow for the dog sniff, the motion to suppress should
be granted. 	Id. at 4-5.
Likewise, in Peralez, the Eighth Circuit held that when an officer
intermixes drug interdiction actions with routine traffic questions, it
unconstitutionally prolongs a traffic stop. 	Peralez, 526 F.3d at 1120. 	In
Peralez, a K9 trooper with the South Dakota Highway Patrol initiated a traffic
stop on a vehicle for having obstructed license plates. 	Id. at 1117. 	The driver
of the vehicle accompanied the trooper back to his patrol car where the two
discussed licensing requirements. 	The trooper informed the driver that he
would receive a warning ticket for the license offense and then conducted
“routine tasks” associated with a traffic stop. 	Id. at 1120. 	As the trooper was
completing the warning ticket, he began asking the driver general questions
about where he was traveling, his family, and his vehicle. 	Id. at 1117.
The trooper then shifted to drug interdiction topics and proceeded to ask
the driver if there were any drugs or large amounts of cash in the vehicle, if the
driver had used drugs recently, and if there would be any reason why his dog
would indicate to the odor of drugs in the vehicle. 	Id. at 1117-18. 	The driver
said there were no drugs in the vehicle, denied personally using drugs, said he
knew of no reason that would cause the dog to indicate if sniffing the vehicle,
but stated there was approximately $2,800 in cash in the vehicle belonging to
the vehicle’s passenger. 	Id. at 1118. 	The trooper then made contact with the
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passenger, gathered information from the passenger, and called in both men’s
identifications. 	Id. 	Dispatch responded regarding the driver’s information after
one minute, but before responding regarding the passenger’s information, the
trooper conducted a canine sniff around the vehicle. 	Id. 	The dog indicated
near the driver’s side door. 	Id. 	A search of the vehicle ensued, and illegal
contraband was discovered. 	Id.
The driver filed a motion to suppress. 	The magistrate judge
recommended the motion be granted, the district court adopted the magistrate
judge’s recommendation, and the Eighth Circuit agreed that the detention was
unconstitutionally prolonged. 	Id. at 1119. 	On appeal, the Eighth Circuit
rejected the government’s argument that the trooper did not unreasonably
prolong the stop because he had engaged in “a ‘blended process,’ interspersing
drug interdiction questions with the routine processing of a traffic stop.” 	Id. at
1120. 	The court concluded that, even though the officer needed to complete
the warning citation, “[o]nce an officer has decided to permit a routine traffic
offender to depart with a ticket, a warning, or an all clear, the Fourth
Amendment applies to any subsequent search or detention.” 	Id. (quoting
United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006)). 	Because the
trooper’s “non-routine questions prolonged the stop ‘beyond the time
reasonably required’ to complete its purpose,” the court held the trooper
violated the driver’s Fourth Amendment rights. 	Id. at 1121.
Mr. Brown argues these cases are instructive because “once an officer
has decided to permit a routine traffic offender to depart with a ticket, a
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warning, or an all clear, the Fourth Amendment applies to any subsequent
search or detention.” 	Peralez, 536 F.3d at 1120. 	Mr. Brown argues that
because Officer Pekarek abandoned his mission to pursue non-routine
questions that prolonged the stop beyond the time reasonably required to
complete its purpose, Officer Pekarek violated Mr. Brown’s Fourth Amendment
rights. 	The court disagrees.
Contrary to Mr. Brown’s arguments, United States v. Peralez, is
inapposite. 	In Peralez, an officer found nothing unusual or out of place with
the defendant’s driver’s license or vehicle registration; the stop was delayed
entirely because of the officer’s drug-interdiction questioning. 	Id. at 1120.
Here, unlike in Peralez, the length of the stop was directly related to Officer
Pekarek investigating Mr. Brown’s revoked license, the nervous behavior
Mr. Brown was exhibiting, and the fact they were coming from the Cockatoo
Gentlemen’s Club, which is an establishment known for drugs and criminal
activity.
Furthermore, United States v. Barrera, is also misplaced. 	In Barrera, the
officer did not find anything suspicious about the defendant’s driver’s license.
Rather, the court found that the stop was expanded because the officers were
looking for further criminal activity, and it was clear the sheriff had determined
he was going to detain the driver at the outset of the stop even if the driver had
to be detained beyond the time it took to write the warning ticket. 	Barrera,
2020 WL 6268395, at *2, 4. 	Here, Officer Pekarek’s original mission was to
deal with Mr. Brown’s lane change violation, but that mission changed upon
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discovery of Mr. Brown’s revoked license. 	While completing the tasks
associated with writing the citation for driving with a revoked license,
Officer Pekarek observed numerous behaviors and statements that gave rise to
reasonable suspicion. 	Unlike the officer in Barrera, there is no indication that
Officer Pekarek made a decision at the inception of the traffic stop that he
would search Mr. Brown’s vehicle.
b. 	Officer Pekarek’s Testimony
Given Officer Pekarek’s testimony, the court concludes there was
sufficient reasonable suspicion for Officer Pekarek to prolong the traffic stop.
In United States v. Riley, a Missouri State Highway Patrol trooper pulled
over a vehicle driven by Mr. Riley after observing him twice cross the center
line. 	United States v. Riley, 684 F.3d 758, 761 (8th Cir. 2012). 	The trooper
contacted Mr. Riley and asked for his driver’s license and for him to accompany
him to his patrol vehicle. 	Id. 	Once in the patrol car, the trooper began to ask
Mr. Riley questions about his travel itinerary. 	Id.
During their exchange, the trooper observed that Mr. Riley seemed very
nervous. 	Id. 	Mr. Riley's heart rate appeared to be elevated, as the trooper
could see Mr. Riley's pulse in Mr. Riley's neck and stomach. 	Id. 	Mr. Riley was
also fidgeting, and his breathing appeared to be shallow and rapid. 	Id. 	When
the trooper asked Mr. Riley why he appeared so nervous, Mr. Riley indicated he
had never been put in the backseat of a police vehicle during a routine traffic
stop. 	Id. 	The trooper asked Mr. Riley whether he had ever been in trouble
before and Mr. Riley represented that he had been arrested once for domestic
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battery. 	Id. 	However, the trooper received information from dispatch
that Mr. Riley had a criminal history of several drug violations and several
felony arrests, including arrests for assaulting law enforcement. 	Id.
After receiving Mr. Riley's criminal history from dispatch, the trooper
advised Mr. Riley that he believed Mr. Riley was lying and asked for consent to
search his car; Mr. Riley denied consent. 	Id. 	At this point, the trooper called
an off-duty dog handler to come to the location of the stop. 	Id. 	The drug dog
twice alerted to the presence of drugs in the trunk. 	Id. at 762. 	The officers
then searched the trunk and found approximately one kilogram of cocaine. 	Id.
Mr. Riley was arrested and charged with possession with intent to distribute
500 grams or more of a mixture or substance containing a detectable amount
of cocaine. 	Id. 	Riley filed a motion to suppress the drug evidence seized from
his automobile. The district court denied the motion. 	Id.
On appeal to the Eighth Circuit, Mr. Riley contended, among other
things, that the trooper lacked reasonable suspicion to detain him and search
his vehicle. 	Id. at 763. 	Relying on the district court’s findings, the court found
that the trooper made several observations during the initial investigation that
supported the trooper’s suspicion that criminal activity was afoot: (1) Mr. Riley
exhibited undue nervousness in the form of a visibly elevated heart rate,
shallow breathing, and repetitive gesticulations, such as wiping his face and
scratching his head; (2) Mr. Riley gave vague or conflicting answers to simple
questions about his itinerary; and (3) Mr. Riley misrepresented his criminal
history by omitting his drug violations and felony arrests. 	Id. 	The court held
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that, given the totality of these circumstances, the trooper had reasonable,
articulable, suspicion that Mr. Riley was engaged in unlawful activity. 	Id.
Similarly, in United States v. Foley, a Nebraska State Highway Patrol
Trooper observed a vehicle going 9 miles over the posted speed limit and
initiated a traffic stop. 	Foley, 206 F.3d at 804. 	In response to the trooper’s
request, the driver, Stephanie Wilson, produced her driver’s license and the
passenger, Lee Foley, provided the car rental agreement and additional driver
application. 	Id. 	During this exchange, the trooper observed an air freshener
hanging from the rear-view mirror, which, in his experience, was suspicious to
have in a rented vehicle. 	Id.
While checking Ms. Wilson’s license, the trooper engaged Ms. Wilson in
general conversation regarding her departure location and ultimate destination.
Id. 	Ms. Wilson stated that they had been visiting Mr. Foley’s son in California
and were returning home to Indianapolis. 	Id. 	Ms. Wilson also stated that
Mr. Foley had rented the vehicle. 	Id. 	After examining the car rental
agreement, the trooper determined, however, that the vehicle was rented in
someone else’s name and Mr. Foley was only listed as the additional driver. 	Id.
After additional questioning, Mr. Foley stated that he and Ms. Wilson had
flown to California and that his daughter-in-law had rented the vehicle. 	Id.
Mr. Foley was, however, unable to provide the name of his daughter-in-law. 	Id.
The trooper noted that Mr. Foley seemed nervous and avoided eye contact. 	Id.
When the trooper asked Ms. Wilson how she and Mr. Foley had traveled to
California, Ms. Wilson responded that they had driven. 	Id.
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His suspicions now aroused thoroughly, the trooper radioed for
assistance, which arrived approximately eight minutes later. 	Id. 	The trooper
informed Mr. Foley that, due to the discrepancies between his and Ms. Wilson’s
stories, he intended to conduct an exterior canine sniff of the vehicle. 	Id. at
804-05. 	The trooper then conducted the exterior sniff, to which his canine
alerted. 	Id. at 805. 	Upon the alert, the trooper searched the vehicle and
discovered a small quantity of marijuana and a large quantity of cocaine. 	Id.
Thereafter, Mr. Foley was placed under arrest. 	Id. 	Approximately thirty
minutes elapsed during the total pendency of the stop. 	Id.
On appeal to the Eighth Circuit, Mr. Foley argued that the detention was
not reasonably related, in scope or duration, to the purpose of the initial traffic
stop, thereby constituting an illegal detention. 	Id. 	However, the Eighth Circuit
held that the totality of the circumstances justified the trooper’s suspicion. 	Id.
at 806. 	The court stated that the record revealed sufficient articulable facts,
including the presence of a masking odor, Mr. Foley’s nervous behavior,
Mr. Foley’s inability to recall the name of his purported daughter-in-law, and
the vast divergence between his and Ms. Wilson's allegations regarding travel
accommodations to California, to sustain reasonable suspicion. 	Id. 	Therefore,
the court concluded, “any ostensible illegality was attenuated sufficiently so as
to dissipate the resultant harm.” Id. (citing Wong Sun, 371 U.S. at 488) (noting
the distinction between evidence obtained through the “exploitation of . . . [an]
illegality” and evidence obtained “by means sufficiently distinguishable to be
purged of the primary taint”).
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While a suspect’s nervous demeanor alone is not enough to establish
reasonable suspicion, it is not the only factor that Officer Pekarek relied on
when prolonging the traffic stop and conducting a canine search. 	See Jones,
269 F.3d at 928-29 (“[W]hile a person’s nervous behavior may be relevant, we
are wary of the objective suspicion supplied by generic claims that a Defendant
was nervous or exhibited nervous behavior after being confronted by law
enforcement officials”) (quoting United States v. Barron-Cabrera, 119 F.3d
1454, 1461 (10th Cir. 1997); see also United States v. Beck, 140 F.3d 1129,
1139 (8th Cir. 1998) (“It certainly cannot be deemed unusual for a motorist to
exhibit signs of nervousness when confronted by a law enforcement officer.”).
Officer Pekarek testified that he had reasonable suspicion of further
criminal activity because: (1) he observed Mr. Brown’s nervous behavior—
carotid artery beating out of his neck, heavy breathing, raised chest, starting
random conversations, and changing the topic; (2) when asked about heroin,
Mr. Brown began to laugh and can be seen scratching or rubbing his head,
which Officer Pekarek testified that, in his training and experience, was a
grooming gesture to calm nerves in a stressful situation; (3) Mr. Brown stated
he was leaving the Cockatoo Gentlemen’s Club, which is an establishment
known for the sale and use of illegal drugs; (4) the fact that the vehicle was
registered to Mr. Brown’s brother in Sioux Falls when Mr. Brown lived four
hours away in Rogers, Minnesota; and (5) Mr. Brown stated his destination for
the evening was the “Lodge Motel,” which was in the opposite direction of
where Mr. Brown and Ms. Stokes were traveling. 	Additionally, when being
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questioned on whether these physical indications were normal signs of
nervousness when being stopped by the police, Officer Pekarek stated that, in
his experience, suspect’s nerves tend to calm down once they find out they are
only getting a ticket and are not going to jail; here, Officer Pekarek testified,
Mr. Brown’s nervousness continued to get increasingly worse as the traffic stop
progressed.
Like Riley, in which the Eighth Circuit found that undue nervousness in
the form of visibly elevated heart rate, shallow breathing, and repetitive
gesticulations, in conjunction with other factors, supported reasonable
suspicion of criminal activity, this court finds that Officer Pekarek had
sufficient reasonable suspicion to prolong the traffic stop. 	See Riley, 684 F.3d
at 763.
Again, the reasonable articulable suspicion standard is a “fact-specific
inquiry examining the totality of the circumstances” in a particular case.
United States v. Logan, 362 F.3d 530, 533 (8th Cir. 2004) (citation omitted).
Here, the totality of the circumstances provided a sufficient basis for Officer
Pekarek to form a reasonable, articulable suspicion that Mr. Brown was
engaged in further unlawful activity. 	Therefore, Mr. Brown’s traffic stop was
not unreasonably prolonged and Mr. Brown’s Fourth Amendment rights were
not violated.
B. 	Whether Mr. Brown’s Statements to Officer Pekarek Violated
Miranda and Should be Suppressed
Mr. Brown asserts statements he made to law enforcement after the dog
sniff and after the unlawful seizure of evidence from the traffic stop are fruits of
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the poisonous tree under the exclusionary rule and should be suppressed.
Docket No. 36, p. 12-13. 	The court has concluded there was no Fourth
Amendment violation, so there is no “fruit of the poisonous tree” of a Fourth
Amendment violation. 	Therefore, the court addresses only whether
Mr. Brown’s statements were obtained in violation of the rule announced in
Miranda.
“[A]n individual must be advised of the right to be free from compulsory
self-incrimination, and the right to the assistance of an attorney, any time a
person is taken into custody for questioning.” 	United States v. Griffin, 922
F.2d 1343, 1347 (8th Cir. 1990) (citing Miranda v. Arizona, 384 U.S. 436, 444
(1966)). 	Accordingly, a Miranda warning is required prior to law enforcement
questioning an individual whenever the individual is in custody and is being
interrogated. 	United States v. Flores-Sandoval, 474 F.3d 1142, 1146 (8th Cir.
2007).
Some courts have placed the burden of proving that the defendant was
not in custody at the time of the interrogation on the government. 	See United
States v. Charbonneau, 979 F. Supp. 1177, 1181 (S.D. Ohio 1997). 	Other
courts have placed the initial burden on the defendant to prove that he was “in
custody,” with the burden of proof shifting to the government to prove a
voluntary waiver only after the defendant has sustained his initial burden.
See United States v. Moore, 104 F.3d 377, 392 (D.C. Cir. 1997) (Silberman, J.,
concurring) (“[I]t is the appellant’s burden to establish factually that he was in
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custody as a pre-condition to an argument that the Constitution protects
his silence[.]”).
The Eighth Circuit appears not to have addressed this issue yet,
although some district courts within the circuit have. 	See, e.g., United States
v. Morriss, No. 06-6010-01-CR-SJ-SOW, 2006 WL 3519344, at *12 (W.D. Mo.
Dec. 6, 2006) (placing initial burden on defendant and citing to extra-circuit
cases for authority). 	For purposes of this report and recommendation, the
court has placed the burden of proving that Mr. Brown’s statements were not
the subject of custodial interrogation on the government. 	See United States v.
McCarty, No. CR. 08-50035, 2008 WL 11404530, at *5 (D.S.D. Aug. 25, 2008)
(placing burden on government to show defendant’s statements were not the
subject of custodial interrogation), report and recommendation adopted as
modified, 2008 WL 11404531 (D.S.D. Oct. 7, 2008), aff’d, 612 F.3d 1020 (8th
Cir. 2010).
A suspect is considered to be “in custody” either upon his or her formal
arrest or “under any other circumstances where the suspect is deprived of his”
or her “freedom of action in any significant way.” 	Griffin, 922 F.2d at 1347
(citing Berkemer, 468 U.S. at 429). 	The Eighth Circuit has set forth a list of
non-exclusive indicia of custody that courts apply to determine whether a
reasonable person would believe they were in custody:
(1)whether the suspect was informed at the time of questioning that the
questioning was voluntary, that the suspect was free to leave or request
the officers to do so, or that the suspect was not considered under arrest;
(2) whether the suspect possessed unrestrained freedom of movement
during questioning; (3) whether the suspect initiated contact with
authorities or voluntarily acquiesced to official requests to respond to
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questions; (4) whether strong arm tactics or deceptive stratagems were
employed during questioning; (5) whether the atmosphere of the
questioning was police dominated; [and], (6) whether the suspect was
placed under arrest at the termination of the questioning.
United States v. Laurita, 821 F.3d 1020, 1024 (8th Cir. 2016) (quoting Griffin,
922 F.2d at 1349). 	Furthermore, when employing the Miranda custody
analysis, “[t]he ultimate inquiry must always be whether the defendant was
restrained as though he were under formal arrest.” 	United States v. Czichray,
378 F.3d 822, 827 (8th Cir. 2004).
Interrogation includes direct questioning or any practice reasonably
likely to evoke an incriminating response from a suspect. 	See Rhode Island v.
Innis, 446 U.S. 291, 301 (1980); see also United States v. Head, 407 F.3d 925,
928 (8th Cir. 2005) (“Interrogation includes not only express questioning by law
enforcement officers, but also words or actions that officers should know are
reasonably likely to elicit an incriminating response from a suspect.”). 	The
“words or actions” of the police must be outside the scope of words and actions
that normally accompany the arrest and taking into custody of a defendant.
United States v. Wipf, 397 F.3d 677, 685 (8th Cir. 2005) (citing Innis, 446 U.S.
at 301).
The government argues that, while law enforcement did not provide
Mr. Brown with a Miranda warning, there was no violation because Mr. Brown
was never placed under arrest and no interrogation occurred. 	Docket No 39,
p. 11. 	The government cites to United States v. Howard in support, stating law
enforcement officers need not provide Miranda warnings when conducting
roadside questioning resulting from a routine traffic stop because such
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questioning does not constitute a “custodial interrogation.” 	United States v.
Howard, 532 F.3d 755, 761 (8th Cir. 2008). 	Furthermore, routine on-the-scene
questioning does not present the compelling atmosphere inherent in the
process of in-custody interrogation. 	Id. 	The court agrees.
The Supreme Court in Berkemer v. McCarty, 468 U.S. 420 (1984)
addressed the issue of whether a motorist who is the subject of a traffic stop is
Ain custody@ for purposes of Miranda. 	After the motorist is formally arrested on
a traffic violation, no matter how minor, the Court held that Miranda warnings
are required. 	Berkemer, 468 U.S. at 434-35. 	However, during the traffic stop
itself and prior to arrest, the Court held that Miranda applies only when and if
the “suspect’s freedom of action is curtailed to a ‘degree associated with formal
arrest.’ ” 	Id. at 440-41 (quoting California v. Beheler, 463 U.S. 1121, 1125
(1983) (per curiam).
The Court acknowledged that a traffic stop “significantly curtails the
‘freedom of action’ of the driver and the passengers” in the detained vehicle,
noting that drivers who see a policeman’s signal neither feel free to ignore that
signal nor to drive away once stopped. 	Id. at 436. 	However, a traffic stop is
generally devoid of those elements of coercion that prompted the
announcement of the rule in Miranda. 	Id. at 436-38. 	For example, the
detention is presumptively temporary and brief, with the driver being allowed to
continue on his way after a check of his license and registration and, perhaps,
the issuance of a citation. 	Id. at 437. 	Also, the interrogation takes place in
public, subject to observation by pedestrians and other motorists, thus
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reducing the ability of an unscrupulous policeman to “use illegitimate means to
elicit self-incriminating statements and diminish[ing] the motorist’s fear that, if
he does not cooperate, he will be subjected to abuse.” 	Id. at 438. 	Thus, the
Court concluded that the “noncoercive aspect of ordinary traffic stops prompts
us to hold that persons temporarily detained pursuant to such stops are not ‘in
custody’ for purposes of Miranda.” 	Id. at 440.
The Berkemer Court directed courts to consider factors such as the
following in determining whether a suspect at a traffic stop was “in custody”
such that Miranda warnings were required: 	period of time elapsed between the
traffic stop and the arrest, whether the suspect was informed his detention was
only temporary or that he was not under arrest, and the character and nature
of the interaction between the police and the suspect at the stop. 	Id.
at 441-42.
While both Officer Pekarek and Officer Osborne testified that they did not
provide Miranda warnings to Mr. Brown or Ms. Stokes, neither officer placed
either of them in handcuffs or made a formal arrest. 	Additionally, the only
physical contact between law enforcement and Mr. Brown was a search of
Mr. Brown’s person after Officer Pekarek’s dog alerted. 	Therefore, because
Mr. Brown was never handcuffed, restrained from movement, placed under
arrest at any point during the encounter, nor were any strong-arm tactics or
deceptive stratagems employed during law enforcements questioning, the court
finds that Mr. Brown was not in custody for purposes of a Miranda analysis.
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Additionally, the questions posed by Officer Pekarek did not constitute
interrogation. 	As Officer Pekarek was completing his search, Mr. Brown
shouted to Officer Pekarek, “you all up in that motherf*cker, ain’t you,”
describing how thoroughly Officer Pekarek was searching the vehicle. 	(38:15,
Exhibit 1B). 	In response, Officer Pekarek stated to Mr. Brown, “I am trying to
figure out whose gun this is.” 	(38:17, Exhibit 1B). 	After this statement,
Mr. Brown replied, “mine . . . I am not a violent offender. 	In the State of South
Dakota, I can have it.” 	(38:25, Exhibit 1B). 	Officer Pekarek’s statement—not a
question—was not interrogation when viewed in the context of the exchange
initiated by Mr. Brown.
In Innis, 446 U.S. at 302, the United States Supreme Court held that a
conversation between two police officers in the presence of a Mirandized
suspect did not amount to interrogation. 	Id. 	The suspect, Mr. Innis, had been
arrested in connection with the robbery of a taxicab driver. 	Id. at 293. 	The
weapon used in the robbery was a sawed-off shotgun. 	Id. 	A few days earlier,
another taxicab driver had disappeared after being dispatched to pick up a
customer. 	His body was later found, having been killed by a shotgun blast to
the head. 	Id. 	The second cab driver reported to the police station to give a
description of the man who had robbed him and identified a photo of Mr. Innis.
Id. 	Mr. Innis was arrested after he was spotted on the street by a patrolman.
Id. at 294.
Mr. Innis was advised of his Miranda rights at least twice before he was
transported to the police station. 	Id. 	Mr. Innis indicated he wanted to speak
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with a lawyer. 	Id. 	En route to the station, the two officers in the patrol car did
not directly address Mr. Innis, but they had a conversation in the patrol car
between themselves regarding the shotgun that had been used during the
robbery, which had not been found.
One patrolman remarked to the other that the area where the second
taxicab robbery had occurred was near a school for handicapped children, and
“God forbid one of them might find a [loaded] weapon . . . and they might hurt
themselves.” 	Id. at 294-95. 	The other officer concurred, remarking they
should continue to search for the weapon. 	Id. at p. 295. 	The second officer
went even further, expressing concern that “it would be too bad if [a little girl]
would pick up the gun, maybe kill herself.” 	Id. 	At that point, Mr. Innis
interrupted the conversation and told the officers to turn the patrol car around
so he could show the officers where the gun was located. 	Id. 	They returned to
the scene of the crime, and Mr. Innis was again advised of his Miranda rights,
but Mr. Innis indicated he wanted to get the gun out of the way because of the
children in the area. 	Id.
Mr. Innis was convicted of several counts, including kidnapping, robbery,
and the murder of the first taxicab driver. 	He unsuccessfully moved to
suppress the shotgun and statements he made to the patrol officers. 	Id. at
296. 	On appeal to the Rhode Island Supreme Court, however, that court found
that the conversation between the patrol officers amounted to an interrogation
of Mr. Innis and set aside Mr. Innis’s conviction. 	Id. 	The United States
Supreme Court disagreed.
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The Court explained that the Miranda safeguards come into play
whenever a person in custody is subjected to “express questioning or its
functional equivalent.” 	Id. at 300-01. 	This includes “any words or actions on
the part of the police . . . that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” 	Id. at 301.
But, since the police surely cannot be held accountable for the
unforeseeable results of their words or actions, the definition of
interrogation can extend only to words or actions on the part of
police officers that they should have known were reasonably likely
to elicit an incriminating response.
Id. at 301-02.
Concluding that what occurred did not fit the definition, the Court noted
that (1) the conversation was nothing more than a dialogue between the two
officers to which no response from Mr. Innis was invited; and (2) it could not be
fairly concluded that Mr. Innis was subjected to the functional equivalent of
questioning because the patrolmen could not have known their conversation
was reasonably likely to elicit an incriminating response from Mr. Innis. 	Id.
This was so because there was nothing in the record to show Mr. Innis was
particularly susceptible to an appeal to his conscience regarding the safety of
handicapped children, or that the patrolmen knew Mr. Innis was unusually
disoriented or upset at the time of his arrest. 	Id. at 302-03.
The case thus boils down to whether, in the context of their brief
conversation, the officers should have known that the respondent
would suddenly be moved to make a self-incriminating response.
Given the fact that the entire conversation appears to have
consisted of a few off-hand remarks, we cannot say that the
officers should have known that it was reasonably likely that Innis
would so respond.
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Id. at 303.
Here, like the remark made by the officer in Innis that “it would be too
bad if [a little girl] would pick up the gun, maybe kill herself,” Id. at 295, Officer
Pekarek’s statement, “I am trying to figure out whose gun this is,” was merely a
response to Mr. Brown and nothing more than conversation or off-hand
dialogue. 	Like Innis, this court cannot say that Officer Pekarek should have
known that this statement, in response to Mr. Brown’s remark about the
search, was reasonably likely to elicit an incriminating response.
Also instructive is the Eighth Circuit’s holding in United States v.
Cordova, 990 F.2d 1035, 1036-38 (8th Cir. 1993). 	In that case, police obtained
a search warrant for, inter alia, Mr. and Mrs. Cordova=s residence. 	Id. 	When
they arrived to execute the search warrant, the officers arrested Mr. Cordova
and asked him whether there were drugs in the house. 	Id. 	He told the officers
he had a “personal stash” of heroin in the bedroom. 	Id. 	The officers retrieved
the heroin from the bedroom and then approached Mrs. Cordova, who was
sitting in the living room. 	Id. 	They asked her if her husband had any
additional heroin anywhere in the house. 	Id. 	Mrs. Cordova subsequently
informed officers that she had drugs hidden inside her vagina. 	Id. 	Later, she
moved to suppress her statements pursuant to Miranda. 	Id.
The Eighth Circuit refused to suppress, noting that the officer had asked
her about additional drugs related to her husband, not Mrs. Cordova. 	Id. 	The
fact that Mrs. Cordova then identified drugs which she herself possessed was
characterized by the court as a voluntary statement, not a response to
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interrogation likely to produce an incriminating response as to her. 	Id.
Further, the court noted that the officer did not ask Mrs. Cordova whether she
owned either the drugs already found or the additional drugs for which they
were looking; nor did the officer ask about her association with the drugs. 	Id.
In such a case, where the statement itself was uncoerced, the court held
Miranda has no application. 	Id.
Just as the officers in Cordova did not ask whether Mrs. Cordova owned
the drugs found, possessed any additional drugs, or what her association with
the drugs was, Officer Pekarek never asked Mr. Brown if the firearm was his, if
there were any other firearms in the vehicle, or what his association with the
firearm was. 	In fact, Officer Pekarek did not ask any question. 	Here, Officer
Pekarek simply responded to Mr. Brown by expressing his goal of discovering
who owned the firearm. 	It was at that point Mr. Brown, uncoerced, chose to
admit ownership of the firearm.
“Miranda does not bar the government from introducing into evidence
spontaneous statements made during a conversation not initiated by the
officer.” 	United States v. Chipps, 410 F.3d 438, 445 (8th Cir. 2005) (citation
omitted); see also Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir. 1989). 	Here,
this entire conversation was initiated by Mr. Brown; as Officer Pekarek was
completing his search, Mr. Brown shouted to Officer Pekarek, “you all up in
that motherf*cker, ain’t you,” describing how thoroughly Officer Pekarek was
searching the vehicle. 	Only after Mr. Brown’s remark did Officer Pekarek state
his goal of trying to discover the owner of the firearm. 	Thus, Mr. Brown’s
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admission came only after a conversation he initiated with Officer Pekarek. 	At
no point was Mr. Brown forced, coerced, or tricked into making this statement;
rather, this admission by Mr. Brown was made of his own volition. 	Therefore,
the court finds that the statement Officer Pekarek made to Mr. Brown was not
interrogatory.
Because Mr. Brown was not in custody nor were the questions posed to
him interrogatory in nature, Officer Pekarek and Officer Osborne were not
required to give Miranda warnings. 	Accordingly, the court finds that
Mr. Brown’s statements to law enforcement were made of his own volition, were
not obtained in violation of the Fifth Amendment, and should not be
suppressed.
C. 	Evidence Obtained in the Search of Mr. Brown’s Vehicle Should Not
Be Suppressed
Under the Fourth Amendment’s exclusionary rule, evidence obtained in
violation of the Fourth Amendment cannot be used in a criminal proceeding
against the victim of an illegal seizure. 	Mapp v. Ohio, 367 U.S. 643, 654
(1961). 	This includes evidence which is the “fruit” of such illegal conduct.
Wong Sun, 371 U.S. at 487-88.
Searches conducted without prior judicial approval “are per se
unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.” 	Arizona v. Gant, 556 U.S. 332,
338 (2009) (citation omitted). 	It is well settled that searches should be
conducted within the judicial process unless a recognized exception applies.
Katz v. United States, 389 U.S. 347, 357 (1967). 	If the government cannot
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prove a valid exception, then the search remains presumptively invalid, and the
evidence must be suppressed. 	Id.
Here, Mr. Brown argues that no valid exception applies to the search of
his vehicle; a warrant was not obtained, he did not consent to the search, and
the basis for the search—an alert by a drug dog—occurred after Mr. Brown’s
traffic stop had been unreasonably prolonged. 	Docket No. 36, p. 12. 	The court
disagrees.
Because Officer Pekarek had sufficient reasonable suspicion to prolong
the traffic stop and conduct a canine search, once the canine alerted to the
odor of narcotics in the vehicle Officer Pekarek had probable cause to search
the entire vehicle. 	United States v. Winters, 600 F.3d 963, 967 (8th Cir. 2010)
(an alert or indication by a properly trained and reliable drug dog provides
probable cause for the arrest and search of a person or for the search of a
vehicle). 	Mr. Brown has not challenged Reno’s reliability and training or
whether Reno alerted or indicated to the odor of drugs in the car. 	Thus, the
Fourth Amendment’s exclusionary rule does not apply, and the evidence
obtained by Officer Pekarek, namely the firearm and Mr. Brown’s statements,
were not obtained in violation of Mr. Brown’s Fourth Amendment rights.
CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends that defendant Vance Warkata Brown’s motion to
suppress [Docket No. 35] be DENIED.
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NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
district court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 19th day of November, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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