USA v. Nelson

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
DESMUEEK ALLEN NELSON,
Defendant.
4:21-CR-40137-KES
AMENDED
REPORT AND RECOMMENDATION
INTRODUCTION
Defendant Desmueek Allen Nelson is before the court on an indictment
charging him with possession of a firearm by a felon and possession of a stolen
firearm. 	See Docket No. 1. 	Mr. Nelson has filed a motion to suppress the 9 x
19 millimeter caliber semi-automatic Luger pistol and accompanying
ammunition seized from his vehicle on August 11, 2021. 	See Docket No. 40.
The United States (“government”) resists the motion. 	See Docket No. 43. 	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 Local Rule 57.11.
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FACTS
An evidentiary hearing was held on August 5, 2022. 	Mr. Nelson was
there in person along with his lawyer, Assistant Federal Public Defender
Matthew Powers. 	The government was represented by its Special Assistant
United States Attorney, Elizabeth Ebert. 	Four witnesses testified and seven
exhibits were received into evidence. 	From this testimony and these exhibits,
the court makes the following findings of fact.
Officers connected with the Sioux Falls Area Drug Task Force, including
Det. Nick Billings of the Sioux Falls Police Department, were looking for
Charles Davis in unmarked vehicles on August 11, 2021, so that they could
arrest him on a federal arrest warrant for drug charges. 	Davis was spied
exiting from a restaurant in Sioux Falls and getting in on the passenger side of
a black Saturn Outlook and driving away at about 4:35 p.m. (16:35).
The officers followed the vehicle in unmarked vehicles and called in a
request for a patrol car to effectuate a traffic stop of the vehicle. 	Det. Billings
testified that detectives’ vehicles are not equipped with lights or sirens and are
not rated for pursuit. 	They also do not have dashcam videos and the detectives
themselves do not wear body camera videos. 	It is department policy for a
marked patrol car to be used to effectuate traffic stops.
When Sioux Falls Police Department dispatch (“Sioux Metro”) receive a
call for service as dispatch received from the SFADTF on August 11, 2021,
regarding the arrest of Charles Davis, all information sent by dispatch and
radioed in by the officers at the call are recorded in a Command Log which
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officers call a “CAD.” 	The patrol officers who respond to the call can see the
entries on the CAD and all can be updated simultaneously on developments.
The government introduced print-outs of the CAD from this call as Exhibits 2
and 6. 	The activities of detectives at a scene are not recorded on the CAD nor
are the activities of other agencies who might be present at the scene of the call
such as Homeland Security.
Sioux Falls Police Officers Dat Do and Logan Gooch (who has
subsequently been promoted to the rank of Detective after August 2021)
responded to the call. 	Exh. 5 at p. 2. 	They located the Saturn and effectuated
a traffic stop at 16:38:50 in a residential area. 	Exh. 3. 	After their arrival, four
other law enforcement officers including Det. Billings arrived in unmarked
vehicles but wearing clothing with insignias that identified themselves
as police.
After pulling over, defendant Desmuekk Nelson, who was driving the
Saturn, immediately exited his vehicle. 	Id. 	Officer Do yelled “Hey! Stay in the
car! 	Stay in the car!” 	Id. at 16:38:55. 	Mr. Nelson ignored his commands and
walked toward Officer Do. 	Officer Do said “Go stay in the car! 	Get back in the
car!” 	Id. at 16:38:59. Mr. Nelson continued to disobey commands. 	Id.
Officer Do testified that he found Mr. Nelson’s behavior suspicious. 	He
testified in his experience when subjects get out of their car despite orders to
stay in it that they usually are getting ready to flee or there is something inside
their vehicle they do not want officers to see.
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Officer Do got out of his patrol car and approached Mr. Nelson, who was
standing near the driver’s side door of his Saturn. 	Id. at 16:39:10. 	Officer Do
walked to a location a short distance away from the Saturn and to the side and
asked Mr. Nelson to come over to his location and talk to him. 	Id. at 16:39:22.
He asked Mr. Nelson his name and Mr. Nelson identified himself as “Des” and
asked what happened. 	Id. at 16:39:25. 	Officer Do explained that Mr. Nelson’s
passenger had a federal warrant for his arrest. 	Id. 	“For what?” Mr. Nelson
asked. 	Id. 	Another officer responded, “for heroin.” 	Id. at 16:39:30.
Officer Do asked for Mr. Nelson’s identification card and Mr. Nelson
responded he did not have it with him. 	Id. at 16:39:36. 	Mr. Nelson asked if he
could talk to Mr. Davis “real quick.” 	Id. at 16:39:39. 	He was told he could not.
Id. 	Officer Do asked Mr. Nelson to follow him to a location on the sidewalk and
to stop reaching into his pockets. 	Id. at 16:39:45. 	Instead of following Officer
Do’s instructions, Mr. Nelson walked over to the passenger side of his car. 	Id.
at 16:39:56. 	Officer Do commanded him to stop and come onto the
sidewalk. 	Id.
Another officer yelled at Mr. Nelson “that’s how people get hurt!” 	Id.
Mr. Nelson replied “I understand that. 	But I just don’t understand what’s
going on here.” 	Id. at 16:40:01. 	An officer off-screen reiterates that Mr. Davis
is being arrested on a federal warrant for selling heroin and that is what is
going on. 	Id.
Mr. Nelson has his cell phone in his hand and can be seen dialing with
his thumb. 	Id. at 16:40:06. 	He states “I’m calling my girl right now, bro.” 	Id.
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at 16:40:08. 	The unknown officer near Mr. Nelson tells him to put his phone
away and tells him he cannot call anyone until they are done. 	Id. at 16:40:11.
Officer Do obtains Mr. Nelson’s first name. 	Mr. Nelson keeps
interjecting, asking questions about Mr. Davis like “how long you been lookin’
for him for?” “I’m worried about him.” 	Id. at 16:40:53, 16:40:15. 	Officer Do
asks for Mr. Nelson’s last name, whereupon Mr. Nelson volunteers he has some
traffic warrants outstanding. 	Id. at 16:40:19. 	Officer Do obtains Mr. Nelson’s
date of birth. 	Id. at 16:41:30. 	Officer Do asked Mr. Nelson for his address and
Mr. Nelson ignored him, looking at someone else and saying loudly “Bro!”
Officer Do asked again for his address and Mr. Nelson gave it. 	Id. at 16:41:40.
Mr. Nelson gave his phone number in response to Officer Do’s next question.
Id. at 16:41:47.
Officer Do told Mr. Nelson to hang tight while he called in the
information. 	Id. at 16:42:00. 	Mr. Nelson immediately began asking other
officers at the scene if he could talk to Mr. Davis. 	Id. 	He was told he could not
speak to Mr. Davis right now. 	Id. at 16:42:02.
Officer Do proceeded immediately to his patrol car and entered the
identifying information given to him by Mr. Nelson. 	Id. at 16:42:14. 	One
minute later Officer Do announced Mr. Nelson had a couple of local warrants
for his arrest and a BOLO, which another officer explained means “be on the
lookout for.” 	Id. at 16:43:13. 	The BOLO indicated a detective wanted to speak
to Mr. Nelson in connection with the theft of a firearm. 	In the background,
another officer admonished Mr. Nelson (again) to stay away from Mr. Davis. 	Id.
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at 16:44:17. 	Officer Do remarked to an officer near him that he was trying to
find out who the detective was who issued the BOLO for Mr. Nelson. 	Id.
Officer Do also learned when he ran his records check that Mr. Nelson’s
driver’s license was suspended.
Det. Billings testified that no one on scene knew the details of the gun
theft case which was the subject of the BOLO. 	Therefore, it was decided that
the detective who was in charge should be called.
Det. Billings testified that he had no intention of arresting Mr. Nelson for
the two local warrants as they were fairly recent and traffic- or vehicle-related.
Det. Billings’ supervisor was also on scene and never communicated an intent
to have Mr. Nelson arrested. 	Officer Gooch testified officers have discretion
when deciding whether to arrest a suspect they encounter on outstanding
warrants. 	Considerations such as the severity of the crime, the amount of the
warrant, how busy the police are, and how long the warrants have been
outstanding come into play in exercising that discretion.
Officer Do exited the patrol vehicle and Mr. Nelson asked if he could go.
Id. at 16:45:28. 	Officer Do responded not yet as there was someone he needed
to call. 	Id. at 16:45:29. 	He then asked Mr. Nelson if there was anything in the
car that police needed to know about. 	Id. 	Mr. Nelson responded that there
was not. 	Id. at 16:45:33. 	Officer Do asked Mr. Nelson if they could search his
car and he said “no.” 	Id. at 16:45:36.
Someone other than Officer Do explained to Mr. Nelson that detectives
wanted to talk to him. 	They said he could wait at the scene and the detectives
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would come talk to him at that location, or he could submit to being arrested
and could be taken down to the police station and talk to the detectives there.
Id. at 16:48:05. 	Mr. Nelson opted to wait at the scene and talk to the detectives
there. 	Id.
Detective Steven Redmond was at the police station that day and testified
Detective Jans received a phone call about 16:45 notifying him that officers
had Mr. Nelson at a traffic stop and asking if Det. Jans wanted to come speak
to him pursuant to the BOLO. 	Det. Jans asked Det. Redmond to come with
him to speak to Mr. Nelson and Det. Redmond agreed. 	The two left for the
scene of the traffic stop immediately.
Mr. Nelson called his girlfriend and asked her to come to the scene of the
traffic stop. 	Id. at 16:49:14 to 50:07. 	She agreed to come. 	Id. 	Throughout
this time at the traffic stop Mr. Nelson is walking all around the scene into the
street, up and down the sidewalk, walking near parked vehicles. 	Officers
repeatedly asked him to stay on the sidewalk, but he ignored their requests.
He was not handcuffed during this time. 	He had possession of his cell phone
which he repeatedly made access to and he was never searched during this
time. 	Officer Do testified Mr. Nelson was not free to leave, because he had to
wait for the detectives to come talk to him, but he was allowed to move about
at will as long as he did not approach Davis or his Saturn.
While Officer Do was dealing with Mr. Nelson, Officer Gooch approached
the passenger side of the Saturn and made contact with Mr. Davis. 	Officer
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Gooch asked Davis to step out of the car and arrested him. 	Exh. 4 at 16:41:25.
Officer Gooch placed Davis in the back of his and Officer Do’s patrol car. 	Id.
Officers Do and Gooch left in their patrol car to take Charles Davis to jail.
Id. at 16:51:31. 	Detectives Jans and Redmond arrived at about 17:00 or
17:05. 	A female was at the scene in a separate vehicle when the detectives
arrived. 	Det. Billings testified this was Mr. Nelson’s girlfriend and she arrived
after Davis was taken to jail. 	Upon her arrival, it was discovered she too had
no valid driver’s license.
Mr. Nelson was seated on the curb when Detectives Jans and Redmond
arrived. 	Mr. Nelson himself approached Det. Jans and Det. Redmond and said
he would like to talk to them. 	Mr. Nelson was not handcuffed. 	The three
discussed the gun theft for five or ten minutes on the sidewalk.
Someone at the scene called for a K-9 unit at 17:02:57. 	Exh. 2 at p. 3.
Officer Grant Vanvoorst and his K-9 Hugo were out on the far west end of
Sioux Falls and they responded they would take the call. 	They arrived at
17:14:02. 	Id.
Det. Redmond testified that the K-9 unit arrived when they were still
speaking to Mr. Nelson. 	Officer Vanvoorst first walked around the Saturn
himself in order to make sure there was nothing that would hurt Hugo. 	He
then got Hugo out of the car and took him around the Saturn, the windows of
which were down. 	Hugo showed some interest on the passenger side of the
vehicle, but then he alerted at the driver’s side door by breathing heavily—
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snorting—and by lifting a paw. 	He then indicated to the presence of drugs by
sitting at the driver’s side door.
Officer Vanvoorst testified an “alert” behavior is not trained, it is an
innate behavior a dog shows when they sense the odor of a drug. 	In Hugo’s
case, his alert behavior consists of heavy breathing—snorting—and sometimes
lifting a paw. 	An “indication” is a trained behavior that a K-9 will show that
affirmatively indicates the presence of the odor of a drug. 	Hugo is trained to sit
when he wants to indicate.
Officer Vanvoorst testified that he and Hugo have gone through a 240-
hour training school together for narcotics detection. 	In addition, they have
completed 240 to 254 hours of additional schooling for patrol duties. 	Hugo
and Officer Vanvoorst also went through a certification process where they had
to work in seven different scenarios to locate 14 different finds. 	During
training, sometimes Hugo sniffs for actual drugs, and sometimes for items that
only have the odor of drugs on them such as cotton balls that have been stored
with drugs.
Hugo passed this certification. 	Also, Officer Vanvoorst had to
successfully complete a written exam, which he did. 	Hugo was last certified
before the events at issue in this case on March 3, 2021. 	Exh. 1. 	Once
certified, the certification is good for one year. 	Even after being certified,
Officer Vanvoorst trains with Hugo 16 hours a month, every other Wednesday.
Hugo was recertified in 2022 and is currently certified. 	He is trained to detect
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the odors of ecstasy, cocaine, crack cocaine, methamphetamine, heroin and
black tar heroin.
After Hugo indicated, Officer Vanvoorst notified the other officers on
scene. 	A search of Mr. Nelson’s Saturn ensued and the firearm which forms
the basis of the charge in this case was discovered near the driver’s door of the
Saturn along with some ammunition.
When Det. Jans was done talking to Mr. Nelson and while the search of
the Saturn got underway, Det. Billings wrote Mr. Nelson a ticket for driving
with a suspended license. 	This necessarily had to have occurred after Officer
Vanvoorst arrived, because the search of Mr. Nelson’s vehicle did not take place
until after Hugo had indicated. 	Officer Vanvoorst arrived at 17:14:02.
Therefore, the ticket Det. Billings issued, if the events occurred in the sequence
described by the witnesses, had to have been issued sometime after 17:14.
When the gun was discovered, Det. Jans made phone calls to ensure that
the serial number on the found gun matched the serial number of one of the
guns that were stolen. 	When he found they matched, Mr. Nelson was arrested
for possessing a stolen gun. 	Officer Erin Bertram was called to come to the
scene and transport Mr. Nelson to jail at 17:26:26. 	Exh. 2 at p. 3. 	Officer
Bertram arrived on scene at 17:37:45. 	Id. 	Mr. Nelson was pat searched
incident to arrest and 3.7 grams of methamphetamine were found on his
person.
Officer Vanvoorst left the scene of the traffic stop at 17:37:29. 	Exh. 2 at
p. 3. 	After leaving, he completed a K-9 usage report on the use of Hugo that
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day. 	Exh. A. 	Officer Vanvoorst testified that the time recorded on Exh. A as
the “application time” was not an accurate time that Hugo actually searched.
Rather, Officer Vanvoorst enters an “n” and that code tells the computer to fill
in the time and date with whatever the current time and date is when Officer
Vanvoorst is filling out the report.
Mr. Nelson now seeks to suppress the firearm and ammunition seized
from his vehicle on the grounds that there was no probable cause for a search
and, therefore, the search violated his Fourth Amendment rights. 	Docket No.
40-1 at p. 4. 	He also argues the firearm was not under his immediate control,
that the inventory search exception to the warrant requirement is inapplicable,
and that Mr. Nelson was in custody at the time his vehicle was searched. 	Id. at
pp. 3-6. 	The government asserts the search of Mr. Nelson’s vehicle was
constitutional and the evidence should not be suppressed. 	Docket No. 43.
DISCUSSION
A. 	Whether the Was Search Valid Under the Automobile Exception
The usual rule under the Fourth Amendment is that a valid search
warrant supported by probable cause must first be obtained before a search is
conducted. 	California v. Carney, 471 U.S. 386, 390 (1985). 	There are,
however, a number of exceptions to the warrant requirement, including the
automobile exception. 	Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per
curiam); United States v. Caves, 890 F.2d 87, 89 (8th Cir. 1989).
The Supreme Court has held that the Aready mobility@ of automobiles
creates an exigency that allows a warrantless search of an automobile where
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probable cause exists to believe that the vehicle contains contraband or
evidence of criminal activity. 	Labron, 518 U.S. at 940; Caves, 890 F.2d at 89.
Aside from the mobility of cars, the automobile exception to the warrant
requirement is also supported by the fact that citizens have a reduced
expectation of privacy in an automobile because automobiles are subject to
pervasive regulation. 	Labron, 518 U.S. at 940 (citing Carney, 471 U.S. at 390-
391); Caves, 890 F.2d at 89.
If probable cause exists in support of the automobile exception, the
search may encompass the entire passenger compartment of the automobile,
its trunk, and all containers, packages, and compartments located in the
vehicle so long as there is probable cause to believe that the object of the
search may be found there. 	Caves, 890 F.2d at 90. 	Probable cause requires
Aonly a probability or substantial chance of criminal activity, not an actual
showing of such activity.@ 	United States v. Neumann, 183 F.3d 753, 756 (8th
Cir. 1999) (citing United States v. Payne, 119 F.3d 637, 642 (8th Cir. 1997),
quoting Illinois v. Gates, 462 U.S. 213, 243-244 n.13 (1983)). 	Where a
warrantless search occurs, the burden is on the government to show by a
preponderance of the evidence that an exception to the warrant requirement
applies. 	Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); United
States v. Kennedy, 427 F.3d 1136, 1140 (8th Cir. 2005).
An alert of a drug dog to a vehicle during a traffic stop provides probable
cause to search the vehicle if the drug dog is reliable and the alert is reliable
under the circumstances. 	Florida v. Harris, 568 U.S. 237, 	244-46 (2013). 	In
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determining whether the drug dog is reliable and whether its alert was reliable
under the circumstances, courts should not apply an “inflexible” set of rigid
requirements in every case, but instead should consider relevant facts under
the circumstances. 	Id. at 246. 	Such factors to consider may include “evidence
of a dog’s satisfactory performance in a certification or training program,”
whether the dog “has recently and successfully completed a training program
that evaluated his proficiency in locating drugs,” and “evidence of the dog’s (or
handler’s) history in the field . . . may sometimes be relevant.” 	Id. at 246-48.
Even if the dog is shown to be generally reliable, “circumstances
surrounding a particular alert may undermine the case for probable cause—if,
say, the officer cued the dog (consciously or not), or if the team was working
under unfamiliar conditions.” 	Id. at 247. 	“The question . . . is 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.
Here, Hugo indicated to the driver’s door area of Mr. Nelson’s vehicle.
The court finds from the totality of the circumstances that Hugo is reliable and
that his indication under the circumstances of this case was reliable.
Accordingly, that indication provided probable cause for the warrantless search
under the automobile exception to the warrant requirement. 	Id. at 244-46.
B. 	Whether the Duration of the Traffic Stop Was Unconstitutional
Relying on Rodriguez v. United States, 575 U.S. 348 (2015), Mr. Nelson
argues the police unconstitutionally prolonged the duration of the traffic stop
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as a subterfuge to allow for the arrival of a drug dog. 	Docket No. 40-1 at p. 4.
Under such circumstances, Mr. Nelson argues, the drug dog’s alert cannot
provide probable cause for the search of the vehicle. 	Id.
The government, relying on United States v. Soderman, 983 F.3d 369
(8th Cir. 2020), argues the search was valid under the automobile exception.
Docket No. 43 at pp. 13-15. 	The court finds that the authorities relied on by
both parties are inapposite.
In the Soderman case, police pulled Soderman over for speeding at 7:30
in the morning. 	Id. at 372. 	He appeared “unkempt, had an unpleasant body
odor, and was nervously tapping his steering wheel.” 	Id. 	He had two large
duffel bags, aftermarket wires, snacks, and energy drinks in his vehicle. 	Id.
While conducting a records check, police discovered Soderman’s driver’s
license had been suspended. 	Id. at 373. 	The officer believed he observed
indicia of drug trafficking and called in a more experienced officer. 	Id.
Meanwhile, Soderman called a tow truck company since he would not be
allowed to drive his vehicle. 	Id.
The officer spoke to Soderman’s father on the phone and the father
indicated Soderman had not “recently” been involved with drugs. 	Id. 	When the
officer asked Soderman, he told her he had had a drug problem in the past, but
had been “clean for years.” 	Id. 	He did admit to smoking marijuana recently in
the vehicle while in Colorado. 	Id. 	The officer determined she had probable
cause to search the vehicle and called for a second tow truck. 	Id. 	When the
tow truck Soderman had summoned arrived, the officer sent it away. 	Id.
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Before the second tow truck arrived, Soderman walked away, leaving his
vehicle with police. 	Id. 	Police then searched the vehicle and discovered drugs,
a loaded firearm and a digital scale. 	Id. 	Soderman challenged the search of his
vehicle in his subsequent federal criminal case. 	Id.
The court outlined the law applicable to the duration of traffic stops: 	a
constitutionally permissible traffic stop (one supported by probable cause or
reasonable suspicion), can violate the Fourth Amendment “when its length
exceeds the time needed to attend to the stop’s ‘mission’ and ‘related safety
concerns.’ ” 	Id. at 374 (quoting Rodriguez, 575 U.S. at 354). 	A traffic stop may
be continued until the “tasks tied to the traffic infraction are—or reasonably
should have been—completed.’ ” 	Id. (quoting Rodriguez, 575 U.S. at 354).
However, when “complications arise” in addressing the initial reasons for the
traffic stop, the Fourth Amendment permits police to detain the driver “for a
longer duration” than would be “strictly routine.” 	Id. (quoting United States v.
Olivera-Mendez, 484 F.3d 505, 510 (8th Cir. 2007)).
Here, the court held there was a complication: 	police discovered
Soderman was not legally able to drive, there was no passenger or person close
by who could drive the car, and leaving the car where it was parked posed a
traffic hazard. 	Id. 	Accordingly, the duration of the traffic stop was permissibly
extended until towing of the vehicle could occur. 	Id. 	The officer developed
probable cause for the search during this permissible duration of the stop. 	Id.
Hence, the court concluded that the duration of the traffic stop did not violate
Soderman’s Fourth Amendment rights.
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In this case, police stopped Mr. Nelson on a residential city street. 	His
passenger, Charles Davis, could not drive the car because the passenger was
himself arrested and taken into police custody. 	Mr. Nelson was unable to drive
the vehicle because he had a suspended driver’s license. 	Mr. Nelson called his
girlfriend, who came to the site of the stop, but she too lacked a valid driver’s
license. 	But—importantly--Mr. Nelson’s vehicle was never towed or impounded
by the police. 	The court assumes that the police determined the location of the
vehicle did not pose a safety hazard and left the vehicle where it was parked—
next to the curb. 	Therefore, the complication that resulted from the fact that
neither Mr. Nelson nor his girlfriend were able to legally drive the Saturn is a
bit of a red herring. 	Police did not extend the traffic stop because they had to
tow the Saturn—they never towed the vehicle at all insofar as the evidence from
the hearing in this matter demonstrates.
Similarly, Mr. Nelson’s reliance on Rodriguez is inapposite. 	In the
Rodriguez case, the vehicle was stopped because the officer observed a traffic
violation. 	Rodriguez, 575 U.S. at 350. 	The mission of the stop was, therefore,
to issue a traffic ticket. 	Id. at 354. 	Because the police delayed the mission of
issuing the traffic ticket until a drug dog could be brought to the scene without
any additional reasonable suspicion to support the delay, the Court held the
stop violated Rodriguez’s Fourth Amendment rights. 	Id. at 357-58.
Here, police did not effectuate a traffic stop because they observed a
traffic violation or equipment violation and they wanted to issue a traffic ticket
to Mr. Nelson. 	Instead, Mr. Nelson’s vehicle was stopped because Charles
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Davis was seen entering the vehicle and officers wanted to execute the federal
arrest warrant on Mr. Davis. 	This is a wholly different “mission” than the
reason for the stop in Rodriguez. 	After the stop in this case, officers discovered
the bulletin for Mr. Nelson advising that he may be armed and dangerous and
was wanted for questioning regarding the theft of a 9mm handgun in February
of 2021.
The government argues the existence of the BOLO as to Mr. Nelson
justified his continued detention. 	The court agrees and finds the real reason
Mr. Nelson was detained from the inception of the traffic stop until after the
search of his vehicle was the BOLO. 	Sioux Falls Police Officers had been
alerted by Det. Jans through the BOLO that Mr. Nelson was wanted for
questioning in connection with a firearms theft. 	No officer testified that
Mr. Nelson was or was going to be arrested on his outstanding warrants—Det.
Billings specifically stated he had not formed any intent to arrest Mr. Nelson on
those outstanding warrants. 	The real reason Mr. Nelson was detained was to
allow Det. Jans to come to the scene and question him. 	The issue presented,
therefore, is whether there was reasonable suspicion to delay Mr. Nelson to
allow this questioning based on the BOLO issued by Det. Jans.
The court notes that the delay involved here was about 22 or 27 minutes.
The traffic stop was initiated at 16:38:50 (4:38 p.m.). 	Det. Jans and Det.
Redmond arrived on scene at 17:00 or 17:05 (5 or 5:05 p.m.)—which was 22 or
27 minutes later. 	The length of the delay was not significant. 	The K-9 arrived
at 17:14:02 while the detectives were still talking to Mr. Nelson, so the K-9 sniff
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did not cause any additional delay. 	Did the BOLO provide sufficient reasonable
suspicion to keep Mr. Nelson at the scene of the traffic stop for 22 to 27
minutes? 	The Supreme Court has addressed this question in United States v.
Hensley, 469 U.S. 221 (1985).
In Hensley, a police officer investigating an armed robbery issued a
“wanted flyer” for Thomas Hensley after receiving a tip from an informant that
Hensley had driven the get-away car at the robbery in a suburb of Cincinnati.
Id. at 223. 	The flyer described Hensley, the date and location of the robbery,
and asked other departments to pick up and hold Hensley for questioning by
the police if Hensley was located. 	Id. 	The bulletin did not describe the
informant’s tip the officer had received upon which he based his reasonable
suspicion for issuing the bulletin. 	Id.
Twelve days later, a police officer in a different Cincinnati suburb
encountered Hensley driving in a vehicle with a passenger. 	Id. at 223-24. 	The
second officer attempted to find out more information about the wanted flyer,
but before he had received any additional information, he pulled Hensley’s
vehicle over and conducted a traffic stop. 	Id. at 224. 	Seeing the butt of a gun
under the passenger seat, officers arrested the passenger who was known to
them to be a felon. 	Id. at 224-25. 	The officers then searched Hensley’s vehicle
where two more guns were found, one in the middle of the front seat and
another in a bag in the back seat. 	Id. 	Hensley moved to suppress the evidence
obtained from the search of his vehicle arguing that police lacked reasonable
suspicion to stop him. 	Id. at 225.
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The Sixth Circuit had held that the wanted flyer did not provide
reasonable suspicion for the stop because the crime was no longer ongoing and
the wanted flyer was insufficient to create reasonable suspicion that Hensley
had engaged in criminal activity. 	Id. at 226. 	The Supreme Court held that a
Terry stop could indeed be premised on a fully completed crime. 	Id. at 228.
The Court held that “where police have been unable to locate a person
suspected of involvement in a past crime, the ability to briefly stop that person,
ask questions, or check identification in the absence of probable cause
promotes the strong governmental interest in solving crimes and bringing
offenders to justice.” 	Id. at 229. 	The Court emphasized that where the crime
being investigated involves a felony or a public safety threat, the governmental
interest dictates that the “suspect be detained as promptly as possible.” 	Id.
As to the Sixth Circuit’s second objection to the Terry stop, the Court
held that if one officer has reasonable suspicion and issues a wanted bulletin,
other officers are entitled to rely on that bulletin in making an investigatory
stop even if the officers conducting the stop do not know the details giving rise
to the issuing officer’s reasonable suspicion. 	Id. at 232-33. 	The Court
emphasized that the officers making the stop must have objectively relied on
the bulletin. 	Id. at 233. 	The Court’s conclusion rested on a finding that the
original wanted bulletin was based on reasonable suspicion. 	Id. at 233-34.
See also United States v. Jacobsen, 391 F.3d 904, 906 (8th Cir. 2004) (holding
an officer can rely on a wanted flyer to make a Terry stop if the flyer is shown
to be based on reasonable suspicion).
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Here, the court notes Det. Jans never testified. 	Det. Redmond did not
know anything about the stolen firearms case that Det. Jans was investigating.
Neither did any of the other officers have any knowledge of that theft
investigation. 	The only testimony adduced at the hearing was that Det. Jans
had issued a BOLO for Mr. Nelson. 	None of the officers who testified shed any
light on the underlying basis for that BOLO.
The Hensley Court discussed a prior case involving a wanted bulletin
that was ultimately not found to rest on probable cause, Whiteley v. Warden,
401 U.S. 560 (1971). 	The Court’s holding in that case was that the original
issuer of the wanted bulletin did not have probable cause for the defendant’s
arrest, so the arrest by another officer in reliance on that bulletin also lacked
probable cause. 	Id. at 564 and n.5. 	However, if the original issuer of the
bulletin had had probable cause, then other officers could rely on the bulletin
and make the arrest even without knowing the details underlying the issuance
of the bulletin. 	Id. at 568.
The takeaway from Whiteley and Hensley is that if the issuer of a wanted
bulletin has probable cause or reasonable suspicion in support of the bulletin,
then other officers can rely on that bulletin to effectuate an arrest (if there is
probable cause) or to effectuate a Terry stop (if there is reasonable suspicion),
even if those subsequent officers are unaware of the facts giving rise to
probable cause or reasonable suspicion. 	Likewise, if the officer issuing the
bulletin lacks probable cause or reasonable suspicion, the stop or arrest of the
defendant by subsequent officers who rely on that bulletin is likewise invalid.
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Here, the government provided the text of the BOLO regarding
Mr. Nelson:
10-50 on Desmueek Nelson for possible possession of stolen
handgun. 	Subj possibly stole a 9mm SCCY CPX-2 around
2/15/2021. 	If contact is made, use caution as [Nelson] may still
be in possession . . . 842 . . . Supp PD21-4706 as necessary if
Desmueek is located in possession of the firearm. –D918.
See Docket No. 43 at p. 3.
The Eighth Circuit has found that some wanted bulletins are facially
valid even in the absence of any testimony about the underlying evidence giving
rise to the bulletin, such as when a bulletin is issued on sheriff’s office
letterhead and stated the suspect was “traveling armed with a handgun that he
keeps in his waistband.” 	United States v. Halverson-Weese, 30 F.4th 760, 764-
65 (8th Cir. 2022). 	The evidence in Mr. Nelson’s case is similar to the wanted
bulletin discussed in Halverson-Weese. 	Both bulletins warned officers that the
suspect may be armed and dangerous. 	Id. 	Accordingly, the court finds the
BOLO issued for Mr. Nelson facially supported a finding of reasonable
suspicion. 	Id. 	Therefore, under Hensley, subsequent officers were allowed to
rely on that BOLO to detain Mr. Nelson pursuant to Terry. 	Id.
The court notes that even if Det. Jans had not been available to come to
the scene, or if Det. Jans 	had declined to interview Mr. Nelson, the Rodriguez
case allows a traffic stop to continue until the mission of the stop is attended to
and any related safety concerns have been addressed. 	Rodriguez, 575 U.S. at
354.
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Here, because there was reasonable suspicion to believe Mr. Nelson may
be dangerous and, upon his release, may have immediate access to a firearm,
police would have been allowed to conduct a Terry frisk of the Saturn before
returning Mr. Nelson to the driver’s seat of that vehicle. 	United States v.
Dabney, ___ F.4th ___, No. 21-2111, 2022 WL 3051644 at *2 (8th Cir. Aug. 3,
2022) (quoting Michigan v. Long, 463 U.S. 1032, 1049 (1983)). 	See also United
States v. Rowland, 341 F.3d 774, 783 (8th Cir. 2003) (stating “it is well settled
[that] a Terry search of a vehicle’s interior is permissible even after the un-
arrested occupants have been removed from the vehicle.”). 	Such an extension
of the traffic stop, given the totality of circumstances known to police including
the BOLO, is specifically contemplated by and condoned by the Court’s opinion
in Rodriguez.
The court concludes the continued detention of Mr. Nelson at the site of
the traffic stop until Det. Jans could come to the scene to speak to him was not
a violation of Mr. Nelson’s Fourth Amendment rights. 	The 22- or 27-minute
investigatory detention was not an undue delay. 	The delay was based upon
reasonable suspicion—the BOLO. 	The drug dog came during the time the
detectives were speaking to Mr. Nelson, so calling for a drug dog did not further
delay the detention as in the Rodriguez case. 	Instead, in Mr. Nelson’s case, the
mission of the Terry stop was still ongoing when the dog arrived.
C. 	Was the Search Valid Under the Inventory Exception
Mr. Nelson asserts that the inventory exception to the warrant
requirement does not apply in his case. 	Docket No. 40-1 at pp. 4-5. 	The
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government did not raise and discuss the inventory exception to the warrant
requirement in its brief. 	See Docket No. 43. 	It is the government’s burden to
demonstrate grounds for a lawful search when that search takes place without
a warrant. 	Coolidge, 403 U.S. at 454-55; Kennedy, 427 F.3d at 1140. 	Because
the government does not attempt to justify the search under the inventory
exception, the court does not discuss that exception and views the argument as
having been waived by the government.
D. 	What is the Significance of Whether the Gun was Under Mr. Nelson’s
Immediate Control?
Mr. Nelson argues in his brief that the firearm discovered in his vehicle
was not under his immediate control at the time of the search. 	Docket No. 40-
1 at p. 4. 	However, he never explains how this fact impacts the legality of the
search of his vehicle. 	Id.
Mr. Nelson cites to Chimel v. California, 395 U.S. 752, 763 (1969), for the
proposition that the firearm was not in an “area from which [he] might gain
possession of a weapon.” 	Id. 	However, the rule announced in Chimel and its
progeny, New York v. Belton, 453 U.S. 454 (1981), was significantly altered by
the Court’s decision in Arizona v. Gant, 556 U.S. 332 (2009). 	Under Gant, the
Court adopted “a new, two-part rule under which an automobile search
incident to a recent occupant’s arrest is constitutional: 	(1) if the arrestee is
within reaching distance of the vehicle during the search, or (2) if the police
have reason to believe that the vehicle contains ‘evidence relevant to the crime
of arrest.’ ” 	Davis v. United States, 564 U.S. 229, 235 (2011) (emphasis added).
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The government invokes the search-incident-to-arrest exception to validate the
search of Mr. Nelson’s vehicle. 	Docket No. 43 at pp. 9-10.
Clearly, Mr. Nelson’s argument is premised on the first prong of the Gant
test—the court infers he is arguing the search of his vehicle was not justified
because the firearm was not within his reach at the time of the search. 	But
this fact, which the court takes as true, does not obviate the second legal basis
for a vehicle search following the arrest of a recent occupant set forth in Gant:
was there reason to believe the vehicle contained evidence relevant to the arrest
of either Charles Davis or Mr. Nelson, both of whom were arrested and both of
whom were recent occupants of the vehicle? 	Unlike the inventory search
exception, the government does invoke the exception to the warrant
requirement for search incident to arrest in order to justify the search of
Mr. Nelson’s case. 	Docket No. 43 at pp. 9-11.
Mr. Davis was arrested for felony drug charges immediately upon being
stopped at 16:41. 	At the time of the search of the Saturn, Mr. Nelson had not
yet been arrested. 	Det. Billings stated that he had not made a decision to
arrest Mr. Nelson for his outstanding warrants nor had his supervisor, who
was also on scene. 	Det. Jans did arrest Mr. Nelson on the firearms larceny
offense, but not until after the search had occurred. 	Therefore, if the search
incident to arrest applies in this case at all, it must be premised on the arrest
of Charles Davis as he is the only occupant of the vehicle who had been
arrested at the time the search took place.
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The court notes that Mr. Davis was arrested for selling heroin, that
Mr. Davis and Mr. Nelson had just exited a restaurant together, and that they
were traveling in Mr. Nelson’s Saturn together. 	Furthermore, before the search
took place, a drug dog both alerted and indicated to the presence of the odor of
drugs in Mr. Nelson’s vehicle. 	Under these circumstances, it was not
unreasonable for police to believe the Saturn may contain evidence of
Mr. Davis’ crime of arrest—drug distribution. 	The court concludes that the
search of Mr. Nelson’s vehicle was valid under the second prong of Gant
because officers had reason to believe the vehicle might contain evidence of the
crime for which Mr. Davis was arrested.
Mr. Nelson argued at the suppression hearing in this matter that the
search incident to arrest could not be premised on Mr. Davis’ arrest because
too long a period of time elapsed between the arrest of Mr. Davis and the
search. 	This argument is not supported by Eighth Circuit precedent.
In United States v. Farrington, ___ F.4th ___, No. 21-2974, 2022 WL
3024690 at **1-2 (8th Cir. Aug. 1, 2022), police seized lockboxes from
Farrington’s vehicle when they searched the vehicle, but did not search the
lockboxes until three hours later. 	Farrington argued that the search of the
lockboxes could only be legal if it occurred contemporaneously with the seizure
of his vehicle. 	Id. 	The court relied on United States v. Johns, 469 U.S. 478
(1985), which had held that a three-day delay in between seizure by police and
search did not violate the Fourth Amendment. Farrington, 2022 WL 3024690
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at *2. 	Therefore, the court upheld the three-hour delay in Farrington’s case.
Id.
Here, the delay was even more de minimus than the three hours in the
Farrington case. 	Officers arrested Mr. Davis at approximately 4:41 p.m. and
drove him to the jail at 4:51. 	The vehicle was searched between 5:22 and
5:35.1 Therefore, the delay between arrest and search was less than one hour.
The court holds that this delay did not invalidate the search pursuant to the
second prong of the Gant test.
E. 	What is the Significance of Whether Mr. Nelson was in Custody at
the Time of the Search?
Mr. Nelson asserts in his brief that he was in custody at the time officers
decided to search his vehicle. 	Docket No. 40-1 at pp. 3-4. 	However, he never
connects this assertion with his argument on suppression—why does the fact
that Mr. Nelson was in custody (if he was) impact the legality of his search?
This question is never answered in Mr. Nelson’s brief.
At the evidentiary hearing, counsel for Mr. Nelson argued that the
significance of whether Mr. Nelson was in custody is relevant to the first prong
of the Gant search-incident-to-arrest exception. 	Because he argues Mr. Nelson
was already in custody, the weapon was not within his reach and the
government cannot justify the search under the first Gant prong. 	As discussed
1 Those times represent the arrival of Officer Vanvoorst (with his drug dog) and
his departure from the scene. 	See Exh. 2 at p. 3. 	Officer Vanvoorst’s dog
provided the impetus for the search and Officer Vanvoorst participated in the
subsequent search, so the search must have happened in between Officer
Vanvoorst’s arrival and his departure.
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in the immediately preceding section, however, there is a second prong under
Gant that has nothing to do with whether dangerous instrumentalities are
within a suspect’s reach.
The government argues Mr. Nelson was not in custody at the time of the
search, but was in investigative detention. 	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-
4335. 	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 440-441 (quoting
California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)).
The Court acknowledged that a traffic stop Asignificantly 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 436-438. 	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 vehicles, thus reducing
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the ability of an unscrupulous policeman to Ause 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 Anoncoercive 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.
The Eighth Circuit discussed the application of Berkemer to a traffic stop
in United States v. Morse, 569 F.3d 882 (8th Cir. 2009). 	In that case, police
stopped the vehicle in which Morse was a passenger. 	Id. at 883. 	The driver
was arrested for driving with a suspended license and the officer asked Morse
to exit the vehicle so as to conduct a search of the vehicle incident to arrest.
Id. 	When Morse exited, the officer told Morse he was going to conduct a pat-
down search and asked Morse if he had anything on his person the officer
should know about. 	Id. 	At that point, Morse told the officer he had crack
cocaine in his pocket. 	Id. 	Morse later moved to suppress his statement and
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the fruits of the officer=s search of his person because the interrogation by the
officer was without benefit of Miranda warnings. 	Id.
The district court granted the motion to suppress, declining to apply the
holding of Berkemer because the district court held that Athe questioning of
[Morse] was not in connection to the reason for the stop and far exceeded a
routine roadside questioning.@ 	Id. at 884. 	The Eighth Circuit reversed, holding
that Berkemer controlled the analysis. 	Id. at 884-85. 	The court held that,
under Berkemer, the mere fact that Morse did not feel free to leave was not
determinative of whether Miranda warnings were required. 	Id. 	In addition, the
court noted that Morse was asked only a Amodest number of questions@ and the
facts did not establish a situation tantamount to a formal arrest. 	Id.
In United States v. Rodriguez, 711, F.3d 928, 935 (8th Cir. 2013)2, the
court also found the defendant was not in custody during questioning at a
traffic stop. 	The facts in that case were the defendant was stopped after police
observed his vehicle had no license plates and the registration had expired. 	Id.
at 933. 	As the police officer approached Rodriguez’s car, he saw a television
and speakers in the back seat. 	Id. 	Rodriguez told the officer his driver’s
license was suspended, but gave him his date of birth. 	Id. 	The vehicle was not
registered either to Rodriguez or his passenger. 	Id. 	The officer returned to his
patrol car to run a records search, leaving the two men in Rodriguez’s car. 	Id.
2 This is not the same Eighth Circuit Rodriguez case that was overturned by the
Supreme Court in 2015 discussed in part B above. 	The Supreme Court case
involved Dennys Rodriguez while the 2013 Eighth Circuit case cited above
concerns Roberto Rodriguez. 	Compare Rodriguez, 575 U.S. at 348, with
Rodriguez, 711 F.3d at 928.
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While seated in his patrol car, the officer saw Rodriguez and the passenger
reaching for the floorboard and looking back at the officer. 	Id. 	The records
check revealed the car was registered to a third party and there was a possible
felony arrest warrant outstanding for Rodriguez. 	Id.
Fearing for his safety, the officer called for backup. 	Id. 	When assistance
arrived, the officers ordered Rodriguez out of his car. 	Id. 	The officer asked
Rodriguez what he had been reaching for and Rodriguez told the officer there
was a handgun in the center console. 	Id. 	The officer then handcuffed
Rodriguez for officer safety, but told Rodriguez he was not under arrest. 	Id.
The officer then put Rodriguez into his patrol car. 	Id. 	The officer asked
Rodriguez if there was any other contraband in his car, and Rodriguez
admitted there was a methamphetamine pipe under the driver’s seat. 	Id. 	The
second officer similarly handcuffed the passenger and placed the passenger
into a separate patrol car. 	Id.
On appeal, Rodriguez argued he was “in custody” for purposes of
Miranda as soon as the officer ordered him to exit his vehicle. 	Id. at 935. 	The
issue of whether Rodriguez was “in custody” when he was handcuffed and
seated in the back of the officer’s patrol vehicle was not raised, briefed or
argued on appeal. 	Id. at 935 n.2. 	As to the issue of whether Rodriguez was “in
custody” at the moment he was ordered to exit his car, the court held he was
not. 	Id. at 935. 	At that moment, the officer had legitimate concerns for his
own safety because of the reach for the floorboards, the nature of the car was
suspicious (no license plates and registered to a third party with different last
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name than either Rodriguez or his passenger), and there was a possible felony
warrant for Rodriguez, for whom the officer had not received any form of
identification. 	Id. 	Under these circumstances, the court held the officer was
justified under Berkemer and Terry in removing Rodriguez from the car and
securing him while the officer investigated further. 	Id.
Under the totality of the circumstances, the court holds that Mr. Nelson
was not in custody prior to his actual arrest. 	As can be seen from the videos,
he exercised substantial freedom of movement. 	He repeatedly disobeyed
officers’ instructions. 	He had access to his cell phone and in fact made a call
to his girlfriend. 	He walked wherever he wanted except that he was not allowed
to approach the Saturn or Mr. Davis. 	He was not handcuffed. 	He was not
searched. 	It is true he was not free to leave, but that temporary detention is
consistent with what is allowable under Berkemer in order to complete the
mission of a traffic stop.
CONCLUSION
Based on the foregoing facts, law and analysis, this magistrate judge
respectfully recommends that Mr. Nelson’s motion to suppress [Docket No. 40],
be denied in its entirety.
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.
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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 August 9, 2022, nunc pro tunc August 8, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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