USA v. Brown

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
VANCE WARKATA BROWN,
Defendant.
4:21-CR-40066-01-KES
ORDER ADOPTING IN PART AND
REJECTING IN PART THE REPORT
AND RECOMMENDATION AND
GRANTING BROWN’S MOTION TO
SUPPRESS
Defendant, Vance Warkata Brown, is charged with possession of a
firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(2),
and 922 (g)(9). Docket 1. Brown moves to suppress all evidence obtained
during a search of his vehicle, arguing that this evidence was obtained in
violation of the Fourth Amendment to the United States Constitution. Dockets
35-36. He also moves to suppress all statements made by him after the
deployment of a police canine and the seizure of evidence from his vehicle,
arguing that these statements are fruit of the poisonous tree. 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
hearing, the magistrate judge recommended that Brown’s motion to suppress
be denied. Docket 45. Brown objects to the magistrate judge’s Report and
Recommendation. Docket 49. For the reasons set forth below, the court adopts
in part and rejects in part the Report and Recommendation and grants Brown’s
motion to suppress.
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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 the early morning of November 24, 2020, Kyler Pekarek, then an
officer and canine handler with the Yankton Police Department, made a traffic
stop of a vehicle that he observed make a turn violation. Docket 44 at 4-7.
Officer Pekarek made contact with the driver, identified as Vance Warkata
Brown, and a female passenger. Id. at 7. Officer Pekarek informed them that he
would be issuing a warning for the turn violation, and he asked Brown to
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accompany him back to his patrol vehicle. Id. at 8-9. Sometime between the
beginning of the stop and when Officer Pekarek and Brown walked back to
Officer Pekarek’s vehicle, another officer had arrived and parked behind Officer
Pekarek’s vehicle, and then was standing near the police vehicles. Exhibit 1B at
1:58.1
As they approached his patrol car, Officer Pekarek mentioned to Brown
that his dog was in the back seat, and Brown immediately took several steps
away from the car and expressed fear of being near the dog, saying “I’ll just
stand right here. I’ll sit on the ground. I don’t want to [unintelligible] no dog.”
Id. at 2:06-2:15. Officer Pekarek reassured Brown about the dog, and
immediately after Brown sat in the front seat of the patrol car, he looked back
at the dog and said, “Please don’t bark.” Id. at 2:31. After Officer Pekarek again
explained the reason he stopped Brown, Brown looked back at the dog a
second time and said, “Please, please puppy don’t.” Id. at 3:08.
While Officer Pekarek ran a check on Brown’s identification, he asked
Brown his reason for being in the area, and Brown answered that the
passenger was working at the Cockatoo. Id. at 3:15. Brown then asked, “Can
you help us get to the Lodge motel?” Id. at 3:20. Officer Pekarek asked “which
one,” and Brown appeared to answer, “uh . . . she knows.” Id. at 3:25. Officer
Pekarek asked if Brown meant the Econolodge, and Brown answered, “That’s
it.” Id. at 3:35. Officer Pekarek then told Brown that the Econolodge was
1 Exhibit 1B is video footage from Officer Pekarek’s body-worn camera.
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located “all the way back on Broadway,” to which Brown responded, “I don’t
think that’s it. We’re following the GPS.” Id. at 3:38. Then Brown remarked that
he did not know the turn violation for which he was stopped was a traffic
violation. Id. at 3:41. Through additional questions, Officer Pekarek learned
that the car belonged to Brown’s brother, who lived in Sioux Falls, while Brown
lived in Rogers, Minnesota. Id. at 4:03-4:55. He also learned that Brown had
been staying with his brother since “sometime last week.” Id. at 5:00.
Next, Officer Pekarek asked Brown if he knew his license was revoked,
Brown responded that he did not, and Officer Pekarek informed Brown that he
would be writing him a ticket for that, though normally he would go to jail for
it. Id. at 7:01-7:27. Officer Pekarek then returned to questions about the car,
asking Brown if he used his brother’s car often. Id. at 8:43. Brown responded,
“Anytime I need it. Sometimes I take his mother to the grocery store, or doctors’
appointments. She’s an older person so, don’t nobody really help her get
around like that. I try to help the best way I can.” Id. at 8:45-9:08.
Then, while still working on the ticket for driving with a revoked license,
Officer Pekarek said, “Like I said, my dog’s back there, so is there anything in
the vehicle [unintelligible] needs to know about at all?” Id. at 9:33. Brown said
there was not, and then Officer Pekarek told Brown that if there was just a
weed pipe or less than an ounce of weed, he would only get a ticket, not go to
jail, and Brown said nothing like that was in his car. Id. at 9:37-9:52. Officer
Pekarek asked about pills, and Brown disclosed that he had painkillers with
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him and began to take them out of his pocket, but Officer Pekarek indicated he
was not concerned about that type of pill. Id. at 10:00.
Officer Pekarek next asked about heroin, and Brown looked at Officer
Pekarek with a startled expression, laughed, said “no,” and then ran his hand
over the top of his head. Id. at 10:10. Officer Pekarek then asked about
cocaine, Brown said “no,” and then said, “We just came up here to work. That’s
it. Well, she did. Hopefully I can get a job there as bouncer.” Id. at 10:18.
Officer Pekarek asked about methamphetamine, and Brown again said “no.” Id.
at 10:27. Then, Officer Pekarek asked if he could search the vehicle, Brown
asked whether he was allowed to refuse, and when he was told that he could,
Brown said, “No. Trying to get to the hotel because it’s two in the morning.
Tired as hell.” Id. at 10:35. Officer Pekarek then placed the unfinished ticket for
the revoked license on top of his car’s dashboard. Id. at 10:50; Docket 44 at
31-32. Officer Pekarek then asked for consent to deploy his dog around
Brown’s vehicle, and Brown said “no.” Exhibit 1B at 11:05.
Officer Pekarek then deployed his dog around Brown’s vehicle, and the
dog indicated to the odor of drugs at the driver’s side door. Id. at 12:36-12:56.
Based on that indication, Officer Pekarek told Brown that he was going to
search his vehicle. Id. at 13:20. Officer Pekarek then explained to Brown that
he asked him about drugs because “your carotid was going, you’re breathing
heavy, you’re rigid, . . . you’re bringing up other conversation, you’re changing
the topic, stuff like that.” Id. at 15:33. Brown asked him to “say that again,”
and Officer Pekarek repeated the first three of these reasons, adding “you
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probably don’t even realize it because it’s physiological stuff, that’s it.” Id. at
15:43. When Officer Pekarek searched Brown’s vehicle, he found a black, forty-
five caliber high point handgun. Docket 44 at 19; Exhibit 1B at 27:35. After he
found the gun, Officer Pekarek said to Brown, “I’m trying to figure out whose
gun it is.” Exhibit 1B at 38:18. Brown said the gun was his. Id. at 38:25.
Brown then explained that, because he was not a violent offender and did not
have drug convictions, he was allowed to possess the gun. Id. at 38:27-38:44.
Eventually, Officer Pekarek completed the citation for driving with a revoked
license and released Brown from the scene. Id. at 1:00:00-1:04:10.
In the police report, Officer Pekarek justified the canine deployment
because of Brown’s nervousness.2 See Docket 44 at 33-34. At the evidentiary
hearing, Officer Pekarek justified the canine deployment based on the
physiological observations he provided to Brown during the stop, and he also
provided reasons that he did not mention to Brown that night or include in his
police report, including: that Brown was coming from the Cockatoo
Gentlemen’s Club, which Officer Pekarek testified was known for the sale and
use of illegal drugs;3 that Brown was “way off route for the Lodge that he was
going to”; that Brown said he could use his brother’s vehicle whenever he
wanted, despite living four hours away from his brother; and Brown’s
2 The police report was not offered as evidence at the evidentiary hearing, but
Officer Pekarek testified to its contents. See Docket 44 at 33-34.
3 Officer Pekarek noted in the police report that Brown and his passenger were
coming from the Cockatoo Gentlemen’s Club, but he did not indicate this as a
reason for the canine deployment. Docket 44 at 33-34, 59-60.
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“grooming gesture” of scratching his head when asked about heroin. Id. at 11,
14, 16-18. The government does not list any of these reasons in its
Memorandum in Resistance to Defendant’s Motion to Suppress. See Docket 39.
It merely states that Officer Pekarek had reasonable suspicion to prolong the
stop. Id. at 9.
The magistrate judge concluded that Officer Pekarek should have
completed the tasks related to Brown’s lane change violation and his driving
with a revoked license “much sooner than he did.” Docket 45 at 20. But the
magistrate judge concluded that the “traffic stop was not unreasonably
prolonged and Mr. Brown’s Fourth Amendment rights were not violated”
because Officer Pekarek had reasonable suspicion that Brown was engaged in
unlawful activity. Id. at 31. Because there was no Fourth Amendment violation,
the magistrate judge concluded that Brown’s statements after the canine
deployment and search were not “fruit of the poisonous tree.” Id. at 31-32. The
magistrate judge also concluded that these statements were not obtained in
violation of Miranda. Id. at 42. Thus, the magistrate judge recommended that
Brown’s motion to suppress be denied. Id. at 43.
DISCUSSION
Brown objects to several of the magistrate judge’s factual findings and
the magistrate judge’s legal conclusion that Officer Pekarek had reasonable
suspicion to prolong the traffic stop and deploy his canine. Docket 49 at 2-9.
Brown also argues that statements he made to Officer Pekarek after the canine
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deployment and search of his vehicle should be suppressed as fruit of the
poisonous tree. Id. at 9.
A. Brown’s Factual Objections
1. Officer Pekarek’s Testimony Regarding Signs of Nervousness and
Increasing Nervousness
Brown’s first factual objection concerns Officer Pekarek’s testimony
about the physiological signs of Brown’s nervousness, which included a visibly
pulsating carotid artery, heavy breathing, a rigid body, and staring straight
ahead. Id. at 2. Brown claims that the magistrate judge “did not directly
address whether these alleged signs were in fact present based on the video,
but rather appears to rely on Officer Pekarek’s testimony,” and that “the videos
contradict Officer Pekarek’s description and show that he was not exhibiting
these” signs. Id.; see also Docket 36 at 8.
A court is entitled to “give weight to [a] magistrate judge’s credibility
determination.” United States v. Scares the Hawk, 683 F. Supp. 2d 1036, 1037
(D.S.D. 2009) (quoting United States v. Martinez-Amaya, 67 F.3d 678, 681 (8th
Cir. 1995)). But here, the magistrate judge did not make a specific credibility
determination regarding Officer Pekarek’s testimony, and the Report and
Recommendation does not address Brown’s argument that the video evidence
contradicts Officer Pekarek’s testimony about the physical signs of
nervousness. Although the Report and Recommendation cites to the body-worn
camera video in its discussion of the facts, its discussion of the physical signs
of Brown’s nervousness does not cite to the video. See Docket 45 at 4-5.
Instead, the magistrate judge relies only on Officer Pekarek’s testimony to
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establish that these signs of nervousness were present. Id. The court has
reviewed the video evidence, and it finds that some of these signs of
nervousness are not visible.
Officer Pekarek testified that he could see Brown’s “heart beating up the
side of his neck.” 	Docket 44 at 12. But Brown is wearing a letterman-style coat
with a thick collar that covers much of his neck throughout this encounter.
Although there may be instances where a person’s heartbeat could be visible to
another person while not being discernable on a video, it is not credible that
Officer Pekarek could see Brown’s “heart beating up the side of his neck”
through the thick collar of Brown’s coat. Thus, the court finds that Officer
Pekarek was not able to see Brown’s heartbeat in his neck.
Officer Pekarek also testified that Brown’s “chest appeared to be rising
and falling at a rapid rate.” Id. A few deep breaths and long exhales from Brown
are visible and audible just after Brown looks back at the dog and says “Please,
please puppy don’t.” Exhibit 1B at 3:08. At no other time in the video is
Brown’s breathing audible or is Brown’s chest visibly rising and falling. In fact,
Brown’s coat is protruding away from his body, obstructing a direct view of his
chest. Based on this video evidence, the court also finds that Officer Pekarek
was not able to see Brown’s chest rapidly rising and falling.
Another sign of nervousness Officer Pekarek said he observed was that
“there were . . . times during the silence where [Brown’s] body appeared to be
rigid and he was staring straight ahead.” Docket 44 at 12. The court finds that
Brown does largely stare straight ahead when not engaged in conversation with
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Officer Pekarek, and that Brown’s posture could be described as rigid during
these lulls in conversation.
Brown also objects to the magistrate judge’s “factual finding[] that
accept[s] Officer Pekarek’s testimony . . . that Brown’s nerves ‘continued to get
increasingly worse as the traffic stop progressed.’ ” Docket 49 at 2 (quoting
Docket 45 at 5-6); see also Docket 45 at 31. As described above, the court does
not credit Officer Pekarek’s testimony regarding Brown’s visible pulse and rapid
breathing. For the remaining signs of nervousness—rigid body posture and
staring straight ahead—the court finds, based on the video evidence, that these
remained constant as the traffic stop progressed.
2. Officer Pekarek’s Testimony Regarding the “Grooming Gesture”
Next, Brown’s objects to the magistrate judge’s “factual finding[] that
accept[s] Officer Pekarek’s testimony that Brown made a ‘grooming gesture’
when asked about heroin.” Docket 49 at 2. The body-worn camera video does
show that Brown ran his hand over his head when Officer Pekarek asked him
about heroin. Exhibit 1B at 10:10. Officer Pekarek described a grooming
gesture as “a way to relieve stress,” and that, based on his training and
experience, Brown’s grooming gesture demonstrated that being asked about
heroin was “a trigger question” for him. Docket 44 at 15, 34.
In conducting a reasonable suspicion analysis, a “court may consider
any added meaning that certain conduct might suggest to experienced officers
in the field, trained in the observation of criminal activity.” United States v.
Jones, 269 F.3d 919, 927 (8th Cir. 2001). But a court does not have to simply
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defer to an officer’s conclusion regarding the meaning of certain behaviors. See
United States v. Beck, 140 F.3d 1129, 1138-39 (8th Cir. 1998) (rejecting
presence of fast-food wrappers in car as indicative of drug trafficking because
officer “offered no basis for his supposition . . . from which any reviewing
authority can gauge the reasonableness of his assumption.”); see also United
States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011) (“[A]n officer and the
[g]overnment must do more than simply label a behavior as ‘suspicious’ to
make it so. The [g]overnment must also be able to either articulate why a
particular behavior is suspicious or logically demonstrate . . . that the behavior
is likely to be indicative of some more sinister activity than may appear at first
glance.”).
Here, Officer Pekarek conceded that there “are completely normal
reasons someone might scratch their head[,]” as Brown did, but that his
training and experience enabled him to differentiate between “grooming
gestures” and 	“normal behavior.” Docket 44 at 34. According to Officer
Pekarek, he can distinguish these by comparison to “[t]he baseline,” which is a
“[n]ormal question[] that . . . shouldn’t cause any difficulty to answer.” Id. at
34-35. Officer Pekarek did not elaborate further on which questions he
considered “normal,” and it is unclear how he would know a “baseline” for
Brown, a person he had never previously met. See Beck, 140 F.3d at 1139
(concluding that “any suspicion associated with [defendant’s] nervous
demeanor . . . to be, at best, minimal” because the officer “had never previously
met [defendant] and therefore had no measure by which to gauge [his] behavior
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during the traffic stop with his usual demeanor”). Alternatively, Officer Pekarek
offered that “[i]f the scratching of the head manifests during all questions, it
would be a normal response.” Docket 44 at 35. Because Officer Pekarek was
unable to provide a basis from which the court could “gauge the
reasonableness of his assumption” that this was a “grooming gesture” and not
a “normal” gesture, the court does not include this behavior in its reasonable
suspicion analysis. See Beck, 140 F.3d at 1139.
3. Officer Pekarek’s Testimony Regarding Other Indicia of Criminal
Activity
Brown’s final factual objection concerns the magistrate judge’s finding
that Officer Pekarek developed reasonable suspicion based, in part, on Brown
coming from the Cockatoo, which he testified was a known location for the sale
of drugs, and on Brown’s statement he could use his brother’s car whenever he
wanted, despite Brown living four hours away from where his brother lived.
Docket 49 at 3-4. Brown argues that because these reasons were not included
in the list of justifications Officer Pekarek provided to him during the stop and
they were not included in Officer Pekarek’s written report about the stop, that
Officer Pekarek did not actually consider these facts in concluding that he had
reasonable suspicion to prolong the traffic stop. Id.
To determine whether reasonable suspicion exists, courts “consider ‘what
the officer reasonably knew at the time,’ rather than assessing the existence of
reasonable suspicion ‘with the vision of hindsight.’ ” United Sates v. Slater, 979
F.3d 626, 629 (8th Cir. 2020) (quoting United States v. Hollins, 685 F.3d 703,
706 (8th Cir. 2012)). There is, however, no requirement that officers provide all
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the factors giving rise to reasonable suspicion during the traffic stop. The court
finds that the evidence does support Officer Pekarek’s testimony that he relied
on Brown coming from the Cockatoo and Brown’s statements about using his
brother’s car in determining that he had reasonable suspicion. Though Officer
Pekarek did not specifically list coming from the Cockatoo as a reason for
suspicion in his report, the fact that Brown was coming from there was
included in the report. Docket 44 at 59. The video evidence also shows that
Officer Pekarek asked several questions regarding the car’s ownership, the
relationship between Brown and the car’s owner and between the car’s owner
and the passenger, where each of them lived, and the frequency with which
Brown used the vehicle. Exhibit 1B at 4:03-4:55; 8:43-9:08. This supports
Officer Pekarek’s testimony that he considered this arrangement to be unusual.
B. Whether Officer Pekarek Had Reasonable Suspicion to Prolong the
Traffic Stop
An officer can stop a vehicle when there is “probable cause to believe that
a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810
(1996). A traffic stop “that is justified solely by the interest in issuing a warning
ticket to the driver can become unlawful if it is prolonged beyond the time
reasonably required to complete that mission.” Illinois v. Caballes, 543 U.S.
405, 407 (2005). To prolong the traffic stop beyond the time reasonably needed
to fulfill the stop’s mission, an officer needs reasonable suspicion of additional
unlawful activity. Rodriguez v. United States, 575 U.S. 348, 354 (2015).
The magistrate judge found that the original mission of the traffic stop
was Brown’s lane change violation, but that this mission was later expanded to
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include addressing Brown driving with a revoked license. Docket 45 at 15. The
magistrate judge also found that “a reasonable police officer would, and
should, have completed the tasks tied to investigating and writing a
citation . . . much sooner than [Officer Pekarek] did.” Id. at 20. Neither party
objects to these findings. See Docket 49. Instead, Brown objects to the
magistrate judge’s conclusion that Officer Pekarek had reasonable suspicion to
prolong the traffic stop, which allowed for the canine deployment and
subsequent search of the vehicle. Docket 49 at 5.
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.” Navarette v. California, 572 U.S. 393, 397 (2014) (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)).
1. Applicability of Barrera and Peralez
Brown objects to the magistrate judge’s conclusion that reliance on
United States v. Barrera, 2020 WL 6268395 (D.S.D. Oct. 10, 2020) and United
States v. Peralez, 526 F.3d 1115 (8th Cir. 2008) is “misplaced” and
“inapposite,” respectively. Docket 49 at 5-7. In Barrera, a magistrate judge
recommended that the motion to suppress be granted because the officer
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prolonged the traffic stop beyond the time it should have taken to complete the
warning ticket and the officer did not have the reasonable suspicion necessary
to prolong the stop. 2020 WL 6268395 at *4-5. The magistrate judge here
found that reliance on Barrera is “misplaced” because in Barrera the officer did
not learn anything suspicious about the defendant’s driver’s license, whereas
here, Officer Pekarek learned that Brown’s license had been revoked. Docket 45
at 25-26. But as the magistrate judge found, and to which neither party
objects, Officer Pekarek should have completed the citation for the driving with
a revoked license “much sooner than he did.” Id. at 20. Thus, the question here
is the same as it was in Barerra: did the officer have reasonable suspicion to
prolong the stop beyond the time needed to complete the mission of the traffic
stop? Thus, although Barrera is not binding, the court rejects the magistrate
judge’s finding that reliance on Barrera is “misplaced.”
In contrast, in Peralez, the question was whether the “blended process”
the officer used, “interspersing drug interdiction questions with the routine
processing of a traffic stop,” prolonged the stop. 526 F.3d at 1119. Here, the
magistrate judge has already made a finding that the stop was prolonged. The
only remaining question is whether Officer Pekarek had reasonable suspicion
to do so. Thus, the court adopts the magistrate judge’s finding that Peralez is
“inapposite.” Docket 45 at 25.
2. Reasonable Suspicion Analysis
The magistrate judge relied on the following factors in determining that
Officer Pekarek had reasonable suspicion to prolong the traffic stop: (1)
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Brown’s nervous behavior, which included rigid body posture, staring straight
ahead, and changing the topic of conversation;4 (2) coming from the Cockatoo,
a place known to Officer Pekarek for illegal drug activity; (3) traveling off route
for his destination; (4) and the car being registered to Brown’s brother in Sioux
Falls, while Brown lived four hours away.
Nervousness, when combined with “several other more revealing facts
can generate reasonable suspicion.” Jones, 269 F.3d at 928. “Generally,
however, ‘nervousness is of limited significance in determining reasonable
suspicion.’ ” Id. (quoting United States v. Fernandez, 18 F.3d 874, 879 (10th
Cir. 1994). This is especially true when the nervousness could be due to other
factors, or when “the alleged signs of nervousness are not the kind of unusual,
exceptional, or more objective manifestations of nervousness[.]” Id. at 929
(internal quotation marks omitted). Here, Brown’s nervousness includes rigid
body posture and staring straight ahead when not engaged in conversation
with Officer Pekarek. These are not “unusual” or “exceptional” manifestations
of nervousness, particularly considering that Brown was sitting directly in front
of Officer Pekarek’s dog, of which he was afraid.
Regarding Brown changing the topic of conversation, Officer Pekarek
testified that after being asked about cocaine, Brown “changed the topic to they
4 The magistrate judge also relied on Brown’s “carotid artery beating out of his
neck, heavy breathing, [and] raised chest” as part of Brown’s nervous behavior
and on the “grooming gesture” in concluding that Officer Pekarek had
reasonable suspicion to prolong the traffic stop. Because of the court’s factual
findings regarding these behaviors, the court does not include them in its
reasonable suspicion analysis.
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were down here for work[,] and he was hoping to find a job at the Cockatoo as a
bouncer.” Docket 44 at 14; see also id. at 16 (“[W]hen asked about
cocaine . . . he diverted the conversation to the Cockatoo and how he hopes to
get a job[.]”). A review of this exchange on the body-worn video, however, does
not support Officer Pekarek’s testimony that Brown was “divert[ing] the
conversation.” Officer Pekarek asked whether his dog would find anything in
his vehicle, and Brown said no. Exhibit 1B at 9:33. Officer Pekarek asked
whether there was any weed in the vehicle, and Brown said no. Exhibit 1B at
9:37. Officer Pekarek asked if there were any pills, and Brown disclosed he had
pain pills with him. Exhibit 1B at 10:00. Officer Pekarek asked whether there
was any heroin in the vehicle, and Brown said no. Exhibit 1B at 10:10. Officer
Pekarek then asked if there was any cocaine, and Brown said, “No, no, no. We
just came up here to work, that’s it. Well, she did. Hopefully I can get a job
there working as a bouncer.” Placing Brown’s statement about working at the
Cockatoo in the context of the full conversation, Brown was trying to
demonstrate that, just as he stated earlier in response to a question from
Officer Pekarek, they were out that night because of work, not drugs. Thus, the
court concludes that any suspicion arising from Brown’s nervous demeanor
was, at best, minimal. See Beck, 140 F.3d at 1139.
The remaining facts—coming from a place known for drug activity, being
off-route for the motel, and the circumstances surrounding Brown’s use of his
brother’s car—are of the type that have been relied on to establish reasonable
suspicion in previous cases. See United States v. Collins, 883 F.3d 1029, 1032
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(8th Cir. 2018) (“Factors that may reasonably lead an experienced officer to
investigate include . . . location of the suspect parties . . . .” (quoting United
States v. Quinn, 812 F.3d 694, 697-98 (8th Cir. 2016))); United States v. Riley,
684 F.3d 758, 764 (8th Cir. 2012) (“[R]easonable suspicion [can] derive from
‘unusual or suspicious travel plans.’ ” (quoting Beck, 140 F.3d at 1139)); Jones,
269 F.3d at 928 (“[A]n inconsistent answer regarding present
destination . . . casts suspicion and doubt on the legitimacy of the activity
being investigated.”).
Viewing these facts in context, however, shows that they are less
suspicious than they may first appear. For example, though Officer Pekarek
testified that the Cockatoo was a place known for drug activity, he had no
information to suggest that Brown’s visit to the club conformed with patterns of
drug activity or that anyone involved in this drug activity was present at the
club when Brown was present. Compare Collins, 883 F.3d at 1033 (reasonable
suspicion where defendant visited known site of drug sales in a manner that
conformed with drug distribution and at a time when known drug dealer was
present), with United States v. Crawford, 891 F. 2d 680, 682 (8th Cir. 1989) (no
reasonable suspicion where defendant entered apartment building where
known drug dealer lived because no evidence was presented to show that
defendant entered dealer’s apartment or had any other connection to dealer).
An examination of the two cases that the magistrate judge primarily
relied on in concluding that Officer Pekarek had reasonable suspicion—Riley,
684 F.3d 758, and United States v. Foley, 206 F.3d 802 (8th Cir. 2000)—
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likewise reveal that the circumstances here are less suspicious than those
previously found to constitute reasonable suspicion. In Riley, the court found
that Riley “exhibited undue nervousness in the form of a visibly elevated heart
rate, shallow breathing, and repetitive gesticulations, such as wiping his face
and scratching his head.” 684 F. 3d at 763 (internal quotation marks omitted).
These signs of nervousness are more “exceptional” than the rigid posture and
staring straight ahead that Brown exhibited during lulls in his conversation
with Officer Pekarek. See Jones, 18 F.3d at 929. In addition to providing
inconsistent answers about his travel plans, Riley also misrepresented that a
domestic battery arrest was the extent of his criminal history. Riley, 684 F.3d
at 763. The officer knew, however, that Riley had several drug violations and
felony arrests, including for assaulting a law enforcement officer. Id. In
contrast, when Officer Pekarek prolonged the stop, he was not aware of any
criminal history for Brown and had no knowledge that Brown had made any
misrepresentations to him.5
In Foley, the name on the rental agreement did not match either of the
individuals in the car. 206 F.3d at 804. Foley indicated that his daughter-in-
law had rented the vehicle in her name, but he could not remember his
5 Officer Pekarek later received information from dispatch that Brown had a
criminal history and learned that Brown’s relationship to the passenger was
not as Brown originally described. But Officer Pekarek did not have this
information until after he searched Brown’s car. This information, then, could
not have been used to establish reasonable suspicion. See Slater, 979 F.3d at
629 (courts must “consider what the officer reasonably knew at the time, rather
than assessing the existence of reasonable suspicion with the vision of
hindsight” (cleaned up)).
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daughter-in-law’s name. Id. Foley and the driver provided different accounts of
how they traveled to California and different reasons for their visit to the state.
Id. Foley himself provided two different reasons for their visit. Id. Here, Brown
appeared unsure about which motel he was trying to find and where this motel
was located. But any suspicion raised by this is partly mitigated by Officer
Pekarek’s knowledge that Brown was not from the area. Similarly, though
Officer Pekarek found Brown’s statements about his use of his brother’s car to
be odd because of the distance between where each of them lived, Officer
Pekarek also knew that Brown had been in town since the previous week, again
making this less suspicious. See Beck, 140 F.3d at 1139 (“We are unwilling to
suggest that a job search in a distant location is inherently suspicious merely
because similar employment opportunities exist in closer proximity to one’s
residence,” despite officer’s “subjective disbelief of [defendant’s] reason for his
travels.”).
“It is not necessary that the behavior on which reasonable suspicion is
grounded be susceptible only to an interpretation of guilt.” Beck, 140 F. 3d at
1136. An officer must, however, “be acting on facts directly relating to the
suspect or the suspect’s conduct and not just on a hunch or circumstances
which describe a very broad category of predominantly innocent travelers.” Id.
(cleaned up). Thus, when factors can be consistent with innocent conduct, and
the officer lacks a particularized, objective basis for relating those factors to
criminal activity, reasonable suspicion has not been established. See id. at
1126-30 (reasonable suspicion not generated by combination of seven factors,
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where each could be consistent with innocent conduct); Jones, 269 F. 3d at
922-23, 928-30 (reasonable suspicion not generated by defendant’s
nervousness and multiple incorrect and inconsistent answers regarding his
criminal history where there were explanations for both factors “consistent with
innocent behavior”).
Here, the government relies on several factors to establish reasonable
suspicion. The court has found that some of these factors, such as the visibly
pulsing heartbeat and rapid breathing, did not occur as a factual matter, and
that any suspicion arising from the other signs of nervousness were minimal,
at best. There are explanations for the remaining factors that are consistent
with innocent conduct, and the government has failed to articulate more than a
hunch for how these facts warrant suspicion that Brown was committing a
crime. Thus, Officer Pekarek did not have reasonable suspicion to prolong the
traffic stop to deploy his canine. Because Officer Pekarek conceded that, but for
the dog’s indication he would not have searched Brown’s vehicle, this search
was in violation of the Fourth Amendment, and any evidence obtained from the
search of Brown’s car, including the gun, is suppressed. See Mapp v. Ohio, 367
U.S. 643, 654 (1961).
C. Whether Brown’s Statements are Fruit of the Poisonous Tree
The magistrate judge also concluded that, because there was no Fourth
Amendment violation in the extension of the traffic stop, which allowed for the
canine deployment and subsequent search of Brown’s vehicle, there was also
no “fruit of the poisonous tree” violation regarding statements made by Brown
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after the canine deployment and vehicle search. Docket 45 at 31-32. Brown
objects to this conclusion. Docket 49 at 9.
“[I]ndirect fruits of an illegal search or arrest should be suppressed when
they bear a sufficiently close relationship to the underlying illegality.” United
States v. Simpson, 439 F.3d 490, 495 (8th Cir. 2006) (quoting New York v.
Harris, 495 U.S. 14, 19 (1990)). This evidence may still be admissible, however,
if “the unlawful conduct has become so attenuated or has been interrupted by
some intervening circumstance so as to remove the ‘taint’ imposed upon that
evidence by the original illegality.” Id. (quoting United States v. Crews, 445 U.S.
463, 470 (1980)). Three factors are relevant in determining whether there is
sufficient attenuation: “(1) the time elapsed between the illegality and
acquisition of the evidence; (2) the presence of intervening circumstances; and
(3) the purpose and flagrancy of the official misconduct.” Id. (citing Brown v.
Illinois, 422 U.S. 590, 603-04 (1975)).
Here, the first two factors easily weigh in favor of suppression. Almost no
time elapsed between the canine deployment and Brown’s statements.
Immediately after the dog indicated to the odor of drugs, Officer Pekarek
returned to his patrol vehicle and asked Brown additional questions based on
the dog’s indication. Exhibit 1B at 13:20. Similarly, Brown’s statements about
the gun were made approximately ten minutes after Officer Pekarek found the
gun, and the only thing that occurred between finding the gun and those
statements was Officer Pekarek’s continued searching of Brown’s vehicle.
Exhibit 1B 27:35-38:18. Officer Pekarek also admitted that the conversation
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about the gun only occurred because of the search of Brown’s vehicle. Docket
44 at 37. The third factor also weighs in favor of suppression because Officer
Pekarek relied on facts that the court has found did not occur to justify his
extension of the traffic stop. Thus, all statements made by Brown after the
canine deployment are suppressed.
CONCLUSION
The court adopts in part and rejects in part the magistrate judge’s Report
and Recommendation denying Brown’s motion to suppress. Thus, it is
ORDERED that
1. The portions of the Report and Recommendation (Docket 45) that were
not objected to by either party are adopted in full. With regard to the objections
filed by the defendant, the Report and Recommendation is adopted regarding
the magistrate judge’s findings that Officer Pekarek observed Brown’s rigid
body posture and staring straight head; that Officer Pekarek relied on Brown
coming from the Cockatoo and the distance between where Brown and his
brother each lived in developing suspicion; and that Peralez is inapposite to
this case.
2. The Report and Recommendation (Docket 45) is otherwise rejected.
3. Brown’s motion to suppress (Docket 36) is granted in full.
Dated February 1, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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