USA v. Rederick

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
LARRY DEAN REDERICK,
Defendant.
4:20-CR-40066-01-KES
ORDER ADOPTING REPORT AND
RECOMMENDATION AND GRANTING
IN PART AND DENYING IN PART
MOTION TO SUPPRESS
Defendant, Larry Dean Rederick, is charged with possession of a
controlled substance with intent to distribute and conspiracy to distribute a
controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846. Docket 58.
Rederick moves to suppress all evidence obtained during a stop and search of
his vehicles and evidence obtained pursuant to search warrants for his home
and cell phone. Docket 42. Rederick contends that this evidence was obtained
in violation of the Fourth Amendment to the United States Constitution.1 Id.
The motion was referred to a United States magistrate judge for a report and
recommendation under 28 U.S.C. § 636(b)(1)(B). After holding an evidentiary
1 Rederick’s motion to suppress also claimed that all statements made after he
first asserted his right to remain silent should be suppressed as a violation of
Miranda. Docket 43 at 11. The magistrate judge granted this motion as to
statements made after 16:36 on Trooper Peterson’s dashcam video and denied
this motion as to statements made before this time. Docket 55 at 48. Rederick
does not object to either of these conclusions. See Docket 62. The government
also does not object.
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hearing, Magistrate Judge Veronica Duffy recommended that Rederick’s motion
to suppress be denied in part and granted in part. Docket 55. Rederick objects
to several of the magistrate judge’s factual findings and to most parts of the
Report and Recommendation denying his motion to suppress. Docket 62.
LEGAL STANDARD
This court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Because motions to
suppress evidence are considered dispositive matters, a magistrate judge’s
recommendation regarding such a motion is subject to de novo review.
28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673
(1980) (holding dispositive motions under 28 U.S.C. § 636(b)(1) are subject to
de novo review by the district court). In conducting a de novo review, this court
may then “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see
also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
FACTUAL BACKGROUND
According to the testimony given and the exhibits offered at the
evidentiary hearing, the pertinent facts are as follows:
In May 2019, Ryan Pennock, an agent with the South Dakota Division of
Criminal Investigation began a narcotics investigation into Larry Rederick.
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Docket 56 at 7. On May 28, 2019, Agent Pennock interviewed Person #1, who
was then in jail for possession of suspected methamphetamine. Id. at 8. Person
#1 told Agent Pennock that Rederick, whom she had met two weeks prior, had
supplied her with methamphetamine. Id. She also conveyed to Agent Pennock
that Rederick referred to himself as “Cartel,” she believed he always had at
least two ounces of methamphetamine on him, and she had recently
accompanied him to Irene, South Dakota, where she believed he had acquired
a kilogram of methamphetamine. Id. at 9. Person #1 also identified Rederick’s
residence and described multiple locations around that property where she
believed Rederick stored drugs. Id. at 10.
That same day, Agent Pennock interviewed Person #2, who was also in
jail for possession of suspected methamphetamine and who had been
introduced to Rederick by the same person that introduced Person #1 to
Rederick. Id. at 8, 10-11. Person #2 told Agent Pennock that she had received
user amounts of methamphetamine from Rederick on multiple occasions, as
well as two grams of psilocybin mushrooms. Id. at 11. Person #2 also described
“frequent come-and-go traffic” at Rederick’s residence and that Rederick had
discussed needing to “re-up” from a location that was approximately five hours
away. Id. at 11-12. Agent Pennock understood the come-and-go traffic and the
reference to a “re-up” to be consistent with drug distribution. Id. at 12.
In October 2019, Agent Pennock interviewed Person #3, who had been
arrested while in possession of seven ounces of methamphetamine and who
identified himself as a methamphetamine distributor. Id. at 12-13. Person #3
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told Agent Pennock that he had arranged to sell Rederick one pound of
methamphetamine, but that this sale had not been completed. Id. at 13. Person
#3’s phone was seized by law enforcement, and after a forensic examination of
the phone, Agent Pennock viewed text messages between Person #3 and
another individual that appeared to discuss taking over Rederick’s drug
distribution. Id. at 14-15. He also viewed text messages between Person #3 and
a phone number Agent Pennock knew to be associated with Rederick that
discussed drug transactions between them. Id. at 15-17.
Also in October 2019, Agent Pennock was contacted by Person #4, who
was then in jail. Id. at 18-19, 21. Person #4 told Agent Pennock that in July
2019, when he was working for Rederick as a mechanic, he had observed
Rederick smoke methamphetamine and Rederick had provided him with
methamphetamine. Id. Person #4 also described seeing Rederick remove a
duffel bag from the toolbox of his truck, inside of which Person #4 believed
there was about 10 pounds of methamphetamine, divided into six or seven
packages. Id. at 19-20. Rederick cut open one of these packages in front of
Person #4 and gave him two grams of methamphetamine from it. Id. at 20.
Person #4 also reported that Rederick said the source of the methamphetamine
was Kansas City and that he had traveled to Omaha to get it. Id.
In December 2019, Agent Pennock also spoke with a Yankton Police
Department confidential informant (CI) who reported receiving
methamphetamine several times from Rederick and being told by Rederick that
he sourced his methamphetamine from the Omaha area. Id. at 21-23. The CI
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also stated that he had been to Rederick’s residence and had seen
methamphetamine there as well. Id. at 23.
Following the conversation with the CI, Agent Pennock applied for and
received a pen register, which allowed him to see the phone numbers Rederick
was communicating with, and a warrant for cell site location information,
which allowed him to track the general location of Rederick’s phone. Id. at 23-
24. From the pen register information, Agent Pennock learned that Rederick
was communicating with Lance Willits, and Pennock learned from a Nebraska
narcotics investigator that Willits was involved in narcotics. Id. at 24-25.
On January 3, 2020, Agent Pennock learned from the electronic
surveillance that Rederick was returning from Texas, and he instructed officers
to stop Rederick if they had probable cause. Id. at 36-37. Officers pulled
Rederick over, and Trooper Jansen, of South Dakota Highway Patrol, and his
dog, Rex, conducted a search of Rederick’s vehicle. Id. at 37-38. Rex indicated
to the presence of drugs, but the officers did not find any drugs. Id. at 38-39.
On January 9, 2020, Agent Pennock learned from the electronic
surveillance that Rederick had left his residence and was travelling south on
Highway 81, while in frequent communication via text messages with Willits.
Id. at 25-26. Around four o’clock in the afternoon, this data showed Rederick
arriving at Willits’s residence, which was not far from Norfolk, Nebraska. Id. at
25-27. Around the time of Rederick’s arrival, Rederick and Willits stopped
communicating via text message. Id. at 27. This was Rederick’s third visit to
Willits’s residence of which Agent Pennock was aware. Id. at 42.
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Agent Pennock had followed Rederick to this general area and parked at
a nearby restaurant to avoid electronic surveillance he had previously observed
at Willits’s residence. Id. at 27-28. He continued to monitor the pen register
and cell site information, and he contacted members of the South Dakota
Highway Patrol, including Troopers Eric Peterson and Cody Jansen, to inform
them that he would like to have Rederick stopped upon his return to South
Dakota because he believed this trip to be narcotics related. Id. at 26-28, 61.
Around five o’clock, the electronic surveillance data indicated that
Rederick had left Willits’s residence and gone to Norfolk, Nebraska. Id. at 29.
Then, shortly before 7 o’clock, it showed Rederick and Willits communicating
again via text message, and shortly thereafter, it indicated Rederick had
returned to Willits’s residence. Id. At 8 o’clock, Agent Pennock observed a
vehicle he believed to be Rederick’s driving past where Agent Pennock was
parked. Id. Agent Pennock began following Rederick back toward South
Dakota, and he informed the Highway Patrol officers with whom he had been in
contact of his observations from the electronic surveillance, and he asked them
to stop Rederick, preferably by developing their own probable cause so as to
not jeopardize the narcotics investigation into Rederick. Id. at 29-32.
Based on Agent Pennock’s description of the vehicle and electronic
surveillance updates, Trooper Peterson saw Rederick’s vehicle cross into South
Dakota and began following it. Id. at 63. Rederick was driving a pick-up truck
that was towing a trailer with a sedan on the trailer. Id. at 29. Trooper Peterson
testified that the license plate on the trailer was not properly illuminated in
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accordance with South Dakota law. Id. at 64. Based on this, Trooper Peterson
initiated a traffic stop and Rederick pulled over. Id.
Trooper Peterson made contact with Rederick through the driver’s seat
window, and he asked Rederick to come back to his squad car with him to
complete a warning, which Rederick did. Id. at 65-66. While completing a
warning, Trooper Peterson requested that Trooper Jansen and Rex come to his
location. Id. at 72-73. When Trooper Jansen arrived, Trooper Petersen asked
him to run Rex around Rederick’s truck and trailer. Id. at 135.
Trooper Jansen walked around the truck and trailer once to look for any
hazards, and then he circled the truck and trailer twice with Rex. Id. The first
time around was a “free pass,” and the second time around Trooper Jansen
pointed to specific areas he wanted Rex to sniff. Id. Trooper Jansen testified
that he observed Rex’s alert behaviors on the driver’s side of the truck, on the
trunk of the sedan that was on the trailer, and on the passenger side door of
the truck. Id. at 139. Alert behaviors are innate behaviors that a dog displays
when detecting a drug odor, and according to Trooper Jansen, Rex’s alert
behaviors include wagging his tail faster than normal, doing head checks, and
breathing fast “like an air compressor.” Id. at 136-38. Rex then indicated by
sitting down at the truck’s passenger side door, which means that the dog
thinks that is the source of the drug odor. Id. at 140. Although parts of Rex’s
deployment can be seen on Trooper Peterson’s and Trooper Jansen’s dashcam
videos, some portions are obstructed by the vehicles. See Exhibits 3-4.
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Trooper Jansen informed Trooper Peterson that Rex had alerted and
indicated, and that this provided probable cause to search the vehicles. Id. at
142. In the trunk of the sedan, officers found several baggies of a substance
that appeared to be methamphetamine and that field tested positive for
methamphetamine. Id. at 76. After Agent Pennock learned that Trooper Jansen
discovered methamphetamine in the sedan, he applied for and received search
warrants for Rederick’s residence and phone. Id. at 33. A search of Rederick’s
residence turned up drug paraphernalia. Id. at 35.
DISCUSSION
Rederick objects to many of the magistrate judge’s factual findings and to
the conclusions of law that followed from those findings. As an initial matter,
Rederick objects to the inclusion of any facts gleaned from Agent Pennock’s
interview with Ricky Geidd on May 28, 2020, because Agent Pennock did not
have this information until after the stop. Docket 62 at 4-5. Although it
appears the magistrate judge included this information in her analysis of
whether Rex was reliable, Docket 55 at 37, none of the court’s following
findings relied on information from Geidd.
A. Probable Cause That Rederick Violated SDCL § 32-17-11
The magistrate judge found that Trooper Peterson had probable cause for
the traffic stop because the license plate on his trailer was not properly
illuminated. Docket 55 at 24. Police can make a traffic stop of a vehicle without
violating the Fourth Amendment when there is “probable cause to believe that
a traffic violation has occurred,” Whren v. United States, 517 U.S. 806, 810
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(1996), no matter how minor the violation, United States v. Wright, 512 F.3d
466, 471 (8th Cir. 2008). Rederick objects to the magistrate judge’s conclusion
that, under SDCL § 32-17-11, a white light is required to illuminate a license
plate. Docket 62 at 5. He also objects to the magistrate judge’s finding that,
even if illuminating a license plate with red taillights complied with SDCL § 32-
17-11, the trailer’s license plate was not illuminated by the red taillights on his
trailer. Id. at 10.
The only rear lights on Rederick’s trailer are red taillights. See Docket 56
at 93. Rederick argues that “SDCL § 32-17-11 is an either-or-statute,” and that
a white light is only required if a motorist opts to illuminate the license plate
with a light other than the taillights that are required by SDCL § 32-17-8.
Docket 62 at 10. This interpretation, however, is contrary to the text and
structure of SDCL § 32-17-11. See Farm Bureau Life Ins. Co. v. Dolly, 910
N.W.2d 196, 199-200 (S.D. 2018) (“When interpreting a statute, we begin with
the plain language and structure of the statute.” (quoting Magellan Pipeline Co.
v. S.D. Dep’t of Revenue & Reg., 837 N.W.2d 402, 404 (S.D. 2013))).
South Dakota Codified Law § 32-17-11 reads, in pertinent part: “Either
the rear lamps required by § 32-17-8 or a separate lamp shall be so
constructed and placed as to illuminate with a white light the rear registration
plate and render it clearly legible from a distance of fifty feet to the rear.” In
this section, “white light” does not appear immediately before or after “a
separate lamp,” but rather in the middle of a clause describing how a license
plate is to be illuminated and from what distance it must be legible. This clause
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and its requirements, including a white light, must also apply to “the rear
lamps required by § 32-17-8,” otherwise there is no purpose in including those
lamps in this sentence. See Jensen v. Turner Cnty. Bd. of Adjustment, 730
N.W.2d 411, 415 (S.D. 2007) (“When we interpret a statute . . . effect should be
given to every part and every word.”). Thus, Rederick’s failure to illuminate his
license plate with a white light provided Trooper Peterson with probable cause
to make a traffic stop.
Alternatively, even if Rederick’s interpretation of SDCL § 32-17-11 is
correct, the court has reviewed Trooper Peterson’s dashcam footage and agrees
with the magistrate judge’s finding that the license plate is not illuminated by
the trailer’s red taillights. Though the license plate is illuminated in the
dashcam video, that illumination comes from Trooper Peterson’s headlights.
See Exhibit 3. Trooper Peterson testified that, absent his headlights, the license
plate was not legible from 50 feet. Docket 56 at 101. This is consistent with the
location of the trailer’s license plate, which was not on the rear of the trailer
near the taillights, but instead was underneath the trailer and on the side of
the trailer, between the taillights and Rederick’s truck. See Docket 56 at 101;
Exhibit 3. This too provided Trooper Peterson with probable cause to make the
traffic stop.
B. Reasonable Suspicion That Rederick Was Involved in Drug
Trafficking
As an alternative justification for the traffic stop, the magistrate judge
also found that Peterson had reasonable suspicion Rederick was involved in
drug trafficking. Docket 55 at 24. Rederick objects to this conclusion. Docket
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62 at 11-12. A traffic stop does not violate the Fourth Amendment when an
officer has reasonable suspicion that the person is engaged in criminal activity.
Navarette v. California, 572 U.S. 393, 396-97 (2014). Such reasonable
suspicion is assessed on the totality of the circumstances, and it requires
“ ‘considerably less than proof of wrongdoing by a preponderance of the
evidence,’ and ‘obviously less’ than is necessary for probable cause.” Id. at 397
(quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). An officer’s “hunch,”
however, is not enough. Id. (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)).
Instead, an officer must have a “particularized and objective basis” for
suspecting that a person is engaged in criminal activity. Id. at 396-97 (quoting
United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Reasonable suspicion
need not be based solely on an officer’s own personal observations; an officer
can rely on information provided by other members of the investigative team.
United States v. Collins, 883 F.3d 1029, 1032 (8th Cir. 2018).
1. Rederick’s Objections to Factual Findings that Support
Reasonable Suspicion
Rederick objects to the magistrate judge’s finding that Willits was a drug
dealer. Docket 62 at 2. He claims that, although Willits had prior drug arrests,
the only evidence in the record that Willits was still involved in drug trafficking
during the relevant period was “a bare bones . . . double hearsay statement.”
Id. As an initial matter, the magistrate judge appears to not have made a
specific factual finding that Willits was involved with drug trafficking during
the relevant period. Instead, the magistrate judge summarized Agent Pennock’s
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testimony regarding what he knew or had been told about Willits. Docket 55 at
5 (“A detective in Nebraska . . . told Agent Pennock that Willits was a drug
dealer with prior convictions.”); id. at 27. (“Rederick began having contact with
Lance Willits . . . [who] was believed to be currently involved in drug trafficking,
and who had prior drug convictions.”). Though the magistrate judge did
partially rely on this information in concluding that Trooper Peterson had
reasonable suspicion to make a traffic stop, reasonable suspicion can be
formed with information supplied by other members of the investigative team.
Collins, 883 F.3d at 1032.
Rederick next contends that findings of fact are “missing” from the
Report and Recommendation. Docket 62 at 3-4. Rederick claims that “between
October 5th and January 9th, law enforcement had no information that
[Rederick] ever went to Norfolk to get drugs,” and that this “should have been
included” in the magistrate judge’s findings of fact. Id. at 4. For this assertion,
Rederick points to statements from one of the named informants and from the
CI that Rederick’s supplier was in the Omaha area, which is “approximately
118 miles or two hours from” Norfolk. Id. But this is not the only information
law enforcement had about the location of Rederick’s suspected supplier. As
described above, Agent Pennock knew that Rederick had been in contact with
and had visited Willits, who had previous drug arrests and who Pennock had
been told was involved with drugs. Docket 56 at 24. Agent Pennock also knew
that Person #3, who had lived in Norfolk, was Rederick’s previous supplier. Id.
at 31. And although Person #3 had been arrested prior to the traffic stop on
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January 9, 2020, as Agent Pennock explained, “it is not uncommon in the
trafficking of narcotics that when a source of supply” is arrested, that the
individuals above the arrested person in the supply chain “still need to and
want to distribute the narcotics they had been distributing.” Id. at 58-59. Thus,
Agent Pennock could reason that Rederick was now receiving drugs from
someone else in Norfolk.
Rederick also argues that the magistrate judge should have made a
finding that, Rederick “was not [at Willits’s residence] for a short duration on
either occasion as he was there for approximately an hour both times.” Docket
62 at 3. According to Rederick, this is significant because it is “contradictory to
Pennock’s prior testimony” that the “frequent come-and-go traffic” at Rederick’s
residence was consistent with people coming to purchase drugs because those
individuals will “typically stay for a short duration.” Id.; see Docket 56 at 11-
12. But it is immaterial whether Rederick was at Willits’s residence for a short
or long period. Agent Pennock’s statement that people “typically” stay for a
short period of time when buying drugs does not mean that they always stay
for a short period of time. For example, individuals buying user amounts, as
three of the named informants bought from Rederick, may take less time than
buying a larger re-supply of drugs, as Agent Pennock suspected Rederick was
doing at Willits’s residence.
2. Reliability of the Named Informants and the CI
In finding that Trooper Peterson had reasonable suspicion Rederick was
involved in drug trafficking, the magistrate judge partially relied on information
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provided by the named informants and the CI. Docket 55 at 26-27. Rederick
objects to the magistrate judge’s finding that the information supplied by the CI
was against his penal interest and argues that none of the informants were
established as reliable. See Docket 62 at 1-2; 12.
Reasonable suspicion can be based on information supplied by
informants if there are sufficient markers of reliability. Navarette, 572 U.S. at
397-98. For example, “[a]n informant’s statement against his or her own penal
interests (even if others are also implicated) is presumptively credible.” United
States v. Leppert, 408 F.3d 1039, 1042 (8th Cir. 2005). Information is also
more reliable if it is about events the informant witnessed firsthand. Illinois v.
Gates, 464 U.S. 213, 234 (1983) (“[E]ven if we entertain some doubt as to the
informant’s motives, his explicit and detailed description of alleged wrongdoing,
along with a statement that the event was observed first-hand, entitles his tip
to greater weight than might otherwise be the case.”). Partially or wholly
corroborated evidence is also reliable. United States v. Nieman, 520 F.3d 834,
839-40 (8th Cir. 2008); see also United States v. Stevens, 530 F.3d 714, 718-19
(8th Cir. 2008) (“The corroboration of even innocent, minor details can support
a finding of probable cause.”). Although known informants are more reliable
than anonymous or confidential informants, see United Sates v. McAtee, 481
F.3d 1099, 1103 (8th Cir. 2007), even a single anonymous tipster can establish
reasonable suspicion if there are sufficient other indicia of reliability, see
Navarette, 572 U.S. at 398-399.
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Here, there were five individuals who stated that they had either bought
methamphetamine from Rederick or sold methamphetamine to him. Docket 56
at 8, 11, 13, 19, 22. Rederick argues that because “there is no evidence in the
record regarding the reliability or accuracy of the CI’s prior
information . . . there is no evidence that the CI provided information against
his own penal interests.” Docket 62 at 1. Rederick also suggests that the
information provided by the four named informants is not reliable because
each of them was interviewed in jail and thus “had motives to lie to help them
with their own charges.” Id. at 2. But it is precisely because each provided
information adverse to their own penal interests that they are “presumptively
credible.” Leppert, 408 F.3d at 1042. Requiring that the government first
demonstrate that an informant is reliable before determining whether they
provided information adverse to their penal interest would get the presumption
from Leppert exactly backwards. See id.
There is also ample evidence of the informants’ reliability beyond each of
them giving statements adverse to their own penal interests. Each of them
provided detailed information based on their first-hand observations of
Rederick and his activities, which included Rederick referring to himself as
“Cartel,” storing methamphetamine in his camper and at his mechanic shop,
describing his need to “re-up” his drug supply, and storing ten pounds of
methamphetamine in his truck. Docket 56 at 9-12, 20; see Gates, 462 U.S. at
234 (first-hand knowledge entitled to greater weight). Even their descriptions of
Rederick’s living arrangements—in a camper on his parents’ farm outside of
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Wakonda, South Dakota—were consistent. Docket 56 at 11, 19. 23; see
Stevens, 530 F.3d at 718-19 (“The corroboration of even innocent, minor
details can support a finding of probable cause.”). The informants’ statements
were further corroborated by the text messages recovered from Person #3’s
phone describing drug transactions between Person #3 and Rederick. Docket
56 at 14-18. Finally, though it is unclear from the record whether Agent
Pennock knew the name of the CI, he did know the names of the other four
informants, and he personally interviewed all of them, including the CI. See
McAtee, 481 F.3d at 1103 (known informants more reliable than anonymous or
confidential informants). Given all this evidence, the court finds that there were
sufficient markers of reliability for the named informants and for the CI.
3. Staleness of Information
Rederick next argues that, by the time Trooper Peterson made the traffic
stop, the evidence from the named informants had become stale. Docket 62 at
2, 11. Reasonable suspicion must exist at the time the traffic stop is made, and
the passage of time “between the occurrence of the facts supplied” and the
traffic stop can render those facts too stale to support the existence of
reasonable suspicion. See United States v. Stachowiak, 521 F.3d 852, 856 (8th
Cir. 2008). “There is no bright-line test for determining when information is
stale.” Id. (citing United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993)).
Instead, courts must consider “the context of a specific case and the nature of
the crime under investigation.” Id. A “lapse of time is least important when the
suspected criminal activity is continuing in nature.” United States v. Lemon,
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590 F.3d 612, 614 (8th Cir. 2010) (citing United States v. Horn, 187 F.3d 781,
786 (8th Cir. 1999)); see United States v. Maxim, 55 F.3d 394, 397 (8th Cir.
1995) (upholding search warrant based on three-year and fourth month-old
information because possession of the firearm was a continuing offense). Drug
trafficking is a type of criminal activity that is continuing in nature. See
Stachowiak, 521 F.3d at 856. Additionally, “where recent information
corroborates otherwise stale information,” reasonable suspicion can still be
found. See United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir. 1995).
Here, except for the CI, Agent Pennock last spoke with an informant
about Rederick on October 5, 2019, more than three months before the traffic
stop on January 9, 2021. Docket 62 at 2, 11. But the named informants
described Rederick distributing methamphetamine from mid-May 2019 until at
least October 4, 2019. Docket 56 at 8, 11, 13, 19, 22. Given the continuing
nature of his suspected criminal activity, this three-month gap is of diminished
significance, and the information provided by the named informants was not
stale. See Lemon, 590 F.3d at 614; Stachowiak, 521 F.3d at 856.
Alternatively, even if the information from the named informants was
stale, it was corroborated by more recent information. See Ozar, 50 F.3d at
1446. Agent Pennock interviewed the CI on December 3, 2019, after which he
applied for and received a pen register and a warrant for cell site location data.
Docket 56 at 22-24. From this electronic surveillance, Agent Pennock could see
that Rederick was communicating with Lance Willits, who he knew from
another law enforcement officer to be involved with drugs and who lived
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outside of a town not far from Norfolk, Nebraska. Id. at 24-25. Person #3,
Rederick’s previous drug supplier, resided in Norfolk prior to being arrested. Id.
at 31. Agent Pennock observed Rederick communicating with Willits on the day
of the traffic stop, and he observed Rederick leaving South Dakota, traveling to
Willits’s residence, and then returning to South Dakota soon after. Id. at 25-29.
Agent Pennock communicated this information to Trooper Peterson. Id. at 29-
30, 61. Under a totality of the circumstances analysis, this more recent
corroboration of the information from the informants—indeed, same-day
corroboration—provides sufficient specific, articulable facts for Trooper
Peterson to have reasonable suspicion to support the traffic stop.
4. Reasonable Suspicion After the January 3rd Traffic Stop
Rederick’s final argument against reasonable suspicion is that, even if
there was reasonable suspicion to conduct a traffic stop, it “dissipated in the
traffic stop and search of [Rederick] on January 3, 2020, when nothing was
discovered” following an alert and indication from Trooper Jansen’s dog. Docket
62 at 12. To hold otherwise, Rederick argues would be the same as “allow[ing]
[the government] to stop [Rederick] 24 hours per day and 7 days per week
anytime he leaves his home after October 5, 2019.” Id. This argument fails for
two reasons. First, as Agent Pennock testified, because Rex is trained to detect
the odor of drugs, the fact that Rex indicated on Rederick’s vehicle on January
3rd provides support for Agent Pennock’s belief that there had been drugs in
his vehicle at some point. Docket 56 at 39. Second, as described above, Agent
Pennock gained additional information to support reasonable suspicion after
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January 3rd based on the electronic surveillance that showed Rederick in
contact with Willits and returning from Willits’s residence. Id. at 25-29. As a
result, the court finds that reasonable suspicion did not dissipate after the
January 3, 2020, traffic stop.
C. Extension of the Traffic Stop
The magistrate judge concluded that, because the purpose of the traffic
stop was to investigate Rederick for drug trafficking and because reasonable
suspicion of his involvement in drug trafficking “did not dissipate” during the
stop, the traffic stop was not illegally prolonged in violation of Rederick’s
Fourth Amendment rights. Docket 55 at 28-32. Rederick objects to this
conclusion “for the same reasons” that he objected to the magistrate judge’s
conclusion that Trooper Peterson had reasonable suspicion of drug trafficking
to initiate the traffic stop. Docket 62 at 13. Because the court has already
addressed these objections in concluding that Trooper Peterson did have
reasonable suspicion to initiate a traffic stop, it also finds that the traffic stop
was not prolonged in violation of Rederick’s Fourth Amendment rights.
D. Probable Cause to Search Vehicles
The magistrate judge found that Trooper Jansen’s dog, Rex, alerted to
the trunk of the sedan and that Rex was reliable, providing probable cause to
search the sedan, where the officers found methamphetamine. Docket 55 at
39-40. Rederick makes several objections related to these findings and to the
conclusion that there was probable cause. Docket 62 at 13-14.
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1. Rederick’s Request for an Adverse Inference
As an initial matter, Rederick claims that “a separate dog handler
training policy” was disclosed for the first time during the evidentiary hearing
before the magistrate judge, despite his previous subpoena for all dog training
documents. Docket 62 at 8. He requests that this court draw an “adverse
inference that the training policy would have shown that [Highway Patrol]’s dog
training program did not produce a well-trained and reliable dog in Rex.” Id.
In the civil context, Eighth Circuit precedent instructs that “the adverse
inference instruction is appropriate only where the spoliation or destruction of
evidence is intentional and indicates a fraud or desire to suppress the truth.”
Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 2004) (citing
Lewy v. Remington Arms Co., 836 F.2d 1104, 1111-12 (8th Cir. 1988)). Before
issuing an adverse inference instruction, a court must also find that the
destruction of evidence was prejudicial to the party seeking the instruction. Id.
at 748. Although the Eighth Circuit “has not applied the spoliation doctrine in
a criminal case,” it has implied that if it “were to do so, a showing of the
government’s bad faith would be required.” United States v. Tyerman, 701 F.3d
552, 561 (8th Cir. 2012) (citation omitted).
There is little precedent concerning adverse inferences at the motion to
suppress stage of litigation. See United States v. Fletcher, 2013 WL 2368831, at
*7 n.8 (D. Minn. May 29, 2013) (“This Court is also unaware of any Eighth
Circuit precedent . . . where the evidence that was destroyed relates only to an
issue bearing on the constitutionality of a search and not to a substantive
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element of the charged criminal offense.”). But the courts that have considered
this issue in this procedural posture have required a showing of both bad faith
and prejudice before drawing an adverse inference on a motion to suppress.
See United States v. Cottom, 2015 WL 9308226, at *7 (D. Neb. Dec. 22, 2015);
Fletcher, 2013 WL 2368831, at *7.
Rederick cannot meet either the bad faith or prejudice requirement for
drawing an adverse inference. Although Highway Patrol was initially non-
responsive to Rederick’s subpoena for dog training documents, the parties then
stipulated to a production method and schedule, and Rederick’s attorney
notified the court that the requested documents had been produced. Dockets
33, 40, 41. To the extent documents were not included in this production that
should have been, the testimony at the evidentiary hearing does not
demonstrate that this was the result of “a desire to suppress the truth.”
Stevenson, 354 F.3d at 746. Instead, it appears there may have been
disagreement or confusion about whether the subpoena’s reference to “training
materials” included the missing document. Though Rederick describes this
missing document as “a separate dog handler training policy,” it appears from
Trooper Jansen’s testimony that the pertinent document is the Highway
Patrol’s general Policy Manual, which includes a section on dogs. Docket 56 at
171. This is also consistent with Lt. Koltz’s testimony. Id. at 290-91. The court
also finds it relevant that, not only is there no allegation that the Policy Manual
was destroyed, as is generally the case with spoliation, the Policy Manual is in
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fact publicly available.2 Thus, the court finds that Rederick has not
demonstrated that the Policy Manual was withheld out of “a desire to suppress
the truth.” See Stevenson, 354 F.3d at 739.
Rederick also cannot show that he was prejudiced by the Highway Patrol
not producing the relevant section of the Policy Manual. Rederick, through his
attorney, had the opportunity to question both Trooper Jansen and Lt. Koltz
about the content of the police dog section of the Policy Manual. His attorney
asked Trooper Jansen no questions about its content, and Lt. Koltz testified
that “it outlines the hours of training, but it does not say what the regimen[] of
training is.” Docket 56 at 171, 290-92. Importantly, the Highway Patrol did
produce the Police Dog Service Manual, a “large . . . inclusive” manual that
provides far more detail about the Highway Patrol’s dog training regimen, and it
produced the grade sheets and training records for Trooper Jansen and Rex.
See Dockets 52, 54, 56 at 290. Rederick has not shown how he was prejudiced
by not being provided portions of the Policy Manual, which would provide less
detailed information than the documents he was provided.
2. Whether Rex Alerted to the Sedan
Rederick objects to the magistrate judge’s finding that Rex alerted to the
sedan that was on the trailer. Docket 62 at 5, 14. He claims that the dashcam
2 At the evidentiary hearing, Rederick introduced into evidence a portion of
Highway Patrol’s Policy Manual pertaining to “Audio and Visual Recorders.”
Docket 53-3 at 15-16. On the first page of this excerpt is a website address. Id.
at 15. Though this specific URL appears to be broken, the “Policy Manual” is
accessible to the public through a dropdown menu in the South Dakota
Highway Patrol section. See https://dps.sd.gov/safety-enforcement/highway-
patrol/policy-manual.
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videos do not show Rex wagging his tail faster than normal, one of Rex’s alert
behaviors, at the trunk of the sedan. Id. at 5-6. The court agrees with
Rederick’s statement that it is not “objectively viewable” that Rex is wagging his
tail faster than normal near the trunk of the sedan. But this may be because
only a portion of Rex’s deployment around the sedan is visible on the dashcam
videos, making it difficult to compare Rex’s tail speed at different points. See
Exhibits 3-4. Trooper Jansen, who could observe Rex throughout the entirety
of this deployment and who is most familiar with Rex’s alert behaviors, testified
that Rex did demonstrate this alert behavior at the trunk of the sedan. Docket
56 at 140. Even if this court were to find that Rex did not alert via this
behavior, Trooper Jansen also testified that Rex’s breathing was faster at the
sedan’s trunk, and this was an alert behavior. Id. Rederick has not put forward
any evidence to call this alert behavior into question. Thus, the court finds that
Rex did alert at the trunk of the sedan.
3. Reliability of Rex
A drug dog’s alert can be the basis of probable cause to search a vehicle
if the dog is reliable generally and if that specific alert is reliable. See Florida v.
Harris, 568 U.S. 237, 246-47 (2013). “[A] court can presume (subject to any
conflicting evidence offered)” that a dog is reliable “[i]f a bona fide organization
has certified a dog after testing his reliability in a controlled setting[.]” Id. “The
same is true, even in the absence of a formal certification, if the dog has
recently and successfully completed a training program . . . .” Id. at 247.
Defendants can challenge a dog’s reliability by “contest[ing] the adequacy of a
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certification or training program . . . [or] examin[ing] how the dog (or handler)
performed in the assessment made in those settings.” Id. A dog’s and handler’s
performance in the field may also be relevant. Id. Even if a dog is generally
reliable, “circumstances surrounding a particular alert may undermine the
case for probable cause.” Id. at 247. When a defendant challenges a dog’s
reliability, “the court should weigh the competing evidence,” and ask “whether
all the facts surrounding a dog’s alert, viewed through the lens of common
sense, would make a reasonably prudent person think that a search would
reveal contraband or evidence of a crime.” Id. at 248. Courts should not apply
“an inflexible set of evidentiary requirements.” Id.
Here, Trooper Jansen and Rex completed a 240-hour training program
between September and November of 2019, and Rex satisfactorily completed
the testing scenarios needed for certification in November 2019. Docket 56 at
126-29. After certification, Trooper Jansen and Rex had to complete 16 hours
of additional training each month. Id. at 130.
Rederick raises several objections to the magistrate judge’s finding that
Rex was generally reliable. First, he objects to the magistrate judge’s “failure to
find that [Highway Patrol] has a conflict of interest in training and certifying
their own drug detection dogs” because “no other outside entity is ever verifying
their work,” and the Highway Patrol has a “vested interest” in certifying dogs,
regardless of their reliability, so “that more of [Highway Patrol]’s searches
would pass constitutional muster.” Docket 62 at 9. But law enforcement
agencies are not precluded from certifying or training their own drug detection
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dogs. See Harris 568 U.S. at 247 (“[L]aw enforcement units have their own
strong incentive to use effective training and certification programs, because
only accurate drug-detection dogs enable officers to locate contraband without
incurring unnecessary risks or wasting limited time and resources.”). Lt. Koltz
also denied feeling pressure from his bosses to certify unreliable dogs, and he
noted that he has failed several dogs. Docket 56 at 277. Because Rederick can
point to no evidence that the Highway Patrol ever improperly certified dogs, the
court does not find that there was a conflict of interest in the Highway Patrol’s
training program that would preclude finding Rex reliable.
Rederick also takes issue with the magistrate judge’s finding that the
defense’s expert, Dr. Cablk, “could not opine [on] whether Rex was unreliable,”
claiming that she did just that. Docket 62 at 7. But a closer look at her
testimony reveals that Dr. Cablk stated that the Utah Post training program,
on which the Highway Patrol training manual is based, not Rex, was
unreliable. Docket 56 at 242, 250. Dr. Cablk was asked directly whether it was
her opinion that Rex was unreliable, and she answered, “I can’t tell you that he
is or he isn’t.” Id. at 256.
Dr. Cablk’s criticisms of the Utah Post Program include its lack of “blind”
testing, which is when the handler does not know whether there are drugs in a
particular location and which Dr. Cablk said is necessary for reliable training.
Id. at 209-210, 219. But Highway Patrol does use “blind” protocols in its
testing, and it did so during Rex’s certification. Id. at 204-05, 273-75. This use
of “blind” protocols also distinguishes it from the training that a court found
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deficient in United States v. Jordan, 455 F. Supp. 3d 1247, 1252-53 (D. Utah
2020), which Rederick relies on for his claim that a court has already
determined the Utah Post program to produce unreliable dogs. Docket 62 at
13-14.
Dr. Cablk also took issue with the outdatedness of the dog psychology in
the Utah Post program, which also made its way into the Highway Patrol’s
training manual, namely the harshness of the prescribed training methods as
evidenced by statements that “the dog should believe it shall obey or die.”
Docket 56 at 209-210, 213. But Lt. Koltz testified that, although such language
remains in the Highway Patrol’s manual, the training has since evolved, and
such harsh approaches are not taught or utilized in the Highway Patrol’s
training program. Id. at 270-71. Rederick claims that this deviation from the
manual is another reason that Rex cannot be reliable. Docket 62 8-9. But to
find that a lack of strict adherence to the manual, especially when the training
itself was updated in ways that brought it more in line with the
recommendations of the defendant’s own expert, would be to apply the kind of
“inflexible set of evidentiary requirements” that the Supreme Court rejected in
Harris. See 568 U.S. at 244-45, 248.
Rederick’s remaining objection to the magistrate judge’s finding that Rex
is reliable concerns Rex’s written training records, which Rederick describes as
“limited, incomplete,” and containing “multiple errors.” Docket 62 at 7.
Specifically, there was “no indication in [the] records who they were reviewed
by, several amounts of [hidden] drugs . . . had unknown quantities, [and] dollar
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amounts were listed under headings regarding time.” Id. Trooper Jansen
explained that the misplaced dollar signs were the result of inputting data into
an Excel form that was formatted to automatically add dollar signs in those
fields. Docket 56 at 168-69. Lt. Koltz testified that the blank “reviewed by”
fields also resulted from Highway Patrol’s process for converting the records
into an electronic format, and that he was present at Rex’s training and
reviewed all the records from that training. Id. at 274-75. Finally, Trooper
Jansen and Lt. Koltz both explained that references to an unknown quantity
refer to when a testing scenario involves an item that was exposed to a drug
and “soak[s] up the drug odor,” so there is no measurable quantity of drugs in
that scenario. Id. at 165, 299.
Despite these data entry errors, Trooper Jansen and Rex did complete
the 240-hour training program in November 2019, the grade sheet from this
program shows that they satisfactorily completed the testing scenarios, and
their performance in the training was reviewed by Lt. Koltz. Id. at 126-29, 274-
75; Docket 52 at 34. Although the defendant put forward an expert to
challenge Rex’s general reliability, much of her testimony critiqued the Utah
Post training model and elements from the Highway Patrol manual that are no
longer being used. See Docket 56 at 209-210, 213, 219. Weighing all this
evidence, the court finds that Rex was reliable, and that Rex’s alert, in addition
to the other evidence that Rederick was involved in drug trafficking, “would
make a reasonably prudent person think that a search would reveal
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contraband or evidence of a crime.” Harris, at 248. Thus, there was probable
cause to search the sedan.
E. Fruit of the Poisonous Tree
Rederick’s final objection is that the evidence collected pursuant to
search warrants for his house and cell phone should be suppressed as the fruit
of an illegal search and seizure of his vehicle. Because the court finds that
there was no violation of the Fourth Amendment in the search and seizure of
the sedan, the court also finds that the evidence collected pursuant to these
warrants should not be suppressed.
CONCLUSION
The court adopts Magistrate Judge Duffy’s Report and Recommendation,
granting in part and denying in part Rederick’s motion to suppress. Thus, it is
ORDERED that the Report and Recommendation (Docket 55) denying in
part and granting in part Rederick’s motion to suppress (Docket 42) is adopted
in full.
Dated October 13, 2021.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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