USA v. Guerue

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ALUN JAMES GUERUE,
Defendant.
3:21-CR-30096-RAL
REPORT AND
RECOMMENDATION FOR
DISPOSITION OF MOTION
TO SUPPRESS
In this prohibited firearm possession case, Alun James Guerue (Guerue) seeks to
suppress evidence obtained as a result of an unlawfully extended traffic stop of the
vehicle he was behind the wheel of, and questions an officer asked about the presence of
weapons and drugs in the vehicle. 	Guerue also seeks to prevent the government from
using the statements he made to a special agent the day after under the exclusionary rule.
Because the evidence and statements emanated from permissible officer inquiries that
did not unreasonably prolong the mission and duration of the stop, Guerue’s suppression
motion should be denied.
BACKGROUND
Around 6:30 p.m. on February 26, 2021, Gerald Dillon (Dillon), a patrol sergeant
and K-9 handler for the Rosebud Sioux Tribe (RST), observed a vehicle travelling 81 mph
in a 65-mph zone on SD Highway 18, west of Soldier Creek Community. 	As Dillon
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turned around, the driver pulled off the highway onto an approach. Dillon activated his
emergency lights but the driver kept going, proceeding to an adjoining residential
driveway where the vehicle eventually stopped. 	At some point, at or before the stop,
Dillon noticed the front passenger bend down. 	Although the vehicle had tinted
windows, it was sunset, Dillon had his headlights on, and he could see the passenger
hunched over.
Dillon got out of his truck and walked up to the driver’s side of the stopped
vehicle. 	When queried about the reason for the stop, the driver admitted it was
“[p]robably because I was speeding.”1 	Dillon requested to see a driver’s license and
registration for the vehicle but the driver said he did not have a license or any ID on him.
The driver did provide his name – Guerue – and date of birth but did not know where
the vehicle registration was. Dillon asked who lived in the adjacent home and Guerue
responded that it was his aunt’s house. After identifying the passenger, S.O. (a 17-year-
old juvenile and Guerue’s brother), Dillon continued:
Officer Dillon: 	Okay, you don’t carry any weapons inside the vehicle or
anything?
Guerue: 	I do actually.
Officer Dillon: 	You do, what do you got with you?
Guerue: 	A, or no, no, no it’s my G19 I have with me.
1 Suppr. Hr’g Ex. 1 at 18:39:22-18:39:27 (Sept. 8, 2022).
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Officer Dillon: 	Okay where’s that at?
Guerue: 	It’s under his [S.O.’s] seat.
Officer Dillon: 	It’s under his seat?
Guerue: 	Yeah.
Officer Dillon: 	Okay, [S.O.] I’m just going to have you step on out okay, just
for safety reasons, I’m going to grab that [(the gun)] and you’ll
get it back when we leave okay.
Guerue: 	Yeah, for sure.2
Dillon located a Glock 19 pistol, seized it, and took the gun back with him to his
truck. There, at 6:43 p.m. (about three minutes into the stop), he called in to dispatch to
request warrant and license checks on Guerue and S.O. and to run the firearm’s serial
number in the national database.
Approximately two minutes later, Dillon returned, informed Guerue that the
license plates on the vehicle had expired seven months earlier, and directed Guerue to
step out of the vehicle and stand behind it. 	After a brief discourse about the name of
Guerue’s aunt and why he pulled into her driveway, Dillon patted Guerue down, but
found nothing on him. 	Dillon then asked Guerue, “Anything in the vehicle I need to
know 	about?” 	“Any 	marijuana?” 	“Cocaine, 	nothing 	like 	that?” 	“No
2 Suppr. Hr’g Ex. 1 at 18:41:03-18:41:25.
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methamphetamine?”3 all to which Guerue responded in the negative. 	Guerue though
would not give Dillon consent to search the vehicle.
Dillon instructed Guerue to stand in front of Dillon’s truck. Dillon stepped behind
the driver’s side door of the truck and radioed for another officer to assist him. 	He
explained to Guerue the reason for the delay (Dillon was still waiting for the information
from dispatch) and then posed a hypothetical question to Guerue: “If I run my dog
around the car, is he going to alert to anything?” Guerue responded “No.”4
RST Officer Samuel Antoine arrived contemporaneously and spoke with Dillon.
Dillon advised his colleague that he planned to deploy his K-9, Santos, and did so at 6:52
p.m. Santos promptly alerted to the presence of illegal drugs as he sniffed the seam to
the driver’s door of the vehicle. Dillon handcuffed and placed Guerue in a rear seat of
the truck. At 6:53:19 p.m., roughly 10 minutes after Dillon’s records check call in, dispatch
radioed back with the requested information, reporting that Guerue and S.O. had no
warrants, Guerue’s driver’s license was suspended, and no record could be found on the
Glock.
Based on Santos’s alert, Dillon and Antoine searched the vehicle and found 602
grams of marijuana, 27 grams of cocaine, $672 in cash, a large grinder, ammunition, an
3 Id. at 18:46:11-18:46:30.
4 Id. at 18:51:15-18:51:19.
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iPhone, and mail addressed to Guerue. Dillon notified Guerue and S.O.’s mother of the
arrests and told her that the vehicle parked in the driveway would be towed and subject
to an evidence hold. 	Dillon and Antoine subsequently transported both brothers to
separate detention facilities (adult and juvenile ones) where the two were held on tribal
drug charges.
Shortly before 2:00 p.m. the next day (February 27, 2021), Rosebud Special Agent
Joshua Antman interviewed Guerue at the tribal jail.5 During the interview, and after
being Mirandized, Guerue made incriminating statements about the gun and drugs in the
vehicle.6
Eight months later, a federal grand jury indicted Guerue and charged him with
being a prohibited person in possession of a firearm. Afterward, he moved to suppress
the evidence seized following the vehicle stop and the statements he gave to Antman
during the jail interview.7 The government opposed the motion.8
5 Docket Nos. 28 at 3; 29 at 3.
6 Docket Nos. 28 at 3; 29 at 3-4.
7 Docket Nos. 27, 28.
8 Docket No. 29.
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DISCUSSION
A. Expansion of the Stop
1. 	Weapons Inquiry
Guerue first claims that Dillon did not have the requisite reasonable suspicion to
expand the traffic stop beyond the issuance of a speeding ticket.9 He posits that Dillon’s
questions about weapons, taking of the Glock, and request for an information check on
the gun were improper and unnecessarily prolonged the stop. As a consequence, Guerue
says, the evidence found in the vehicle became the fruit of an unconstitutional search and
seizure and should be suppressed.10 But Dillon’s weapons inquiry related to the stop’s
mission and did not unreasonably extend the course of the stop.
A vehicle stop for a traffic violation is a seizure for constitutional purposes and
justifies a police investigation into the violation.11 A routine traffic stop is more like a
Terry12 stop than a formal arrest.13 	Like a stop under Terry, “the tolerable duration of
9 Docket No. 28 at 3-5.
10 Id.
11 Rodriguez v. United States, 575 U.S. 348, 354 (2015).
12 Terry v. Ohio, 392 U.S. 1 (1968).
13 Rodriguez, 575 U.S. at 354.
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police inquiries in the traffic stop context is determined by the seizure’s ‘mission’ – to
address the traffic violation that warranted the stop and attend to related safety concerns.”14
The “mission” of a traffic stop includes (1) addressing the traffic violation (and in
the process deciding whether to issue a ticket for the violation); (2) conducting “ordinary
inquiries 	incident 	to 	the 	stop”; 	and 	(3) 	taking 	“certain 	negligibly 	burdensome
precautions” to ensure officer safety.15 Authority for the seizure ends when these tasks
are – or reasonably should have been – completed.16
Because traffic stops are “especially fraught with danger to police officers,”17 an
officer may need to take certain precautions to complete his mission safely.18 The Fourth
Amendment categorically permits an officer to order the driver19 and all passengers20 out
of the vehicle during a stop for officer safety. 	The officer may take these precautions
because his safety “stems from the mission of the stop itself.”21
14 Id. (emphasis added).
15 Id. at 355-56.
16 Id. at 354.
17 Id. at 356.
18 Id.
19 Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977).
20 Maryland v. Wilson, 519 U.S. 408, 411 (1997).
21 Rodriguez, 575 U.S. at 356.
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The Fourth Amendment also “tolerate[s] certain unrelated investigations that [do]
not lengthen the roadside detention.”22 That is, the detention or seizure remains lawful
despite unrelated on-the-scene inquiries so long as they do not measurably extend the
length of the stop.23
With these precepts in mind, the Court now must examine whether Dillon’s
questions about weapons were part of the mission of the stop and, if not, whether they
measurably extended the stop’s duration.
a. 	Mission
Dillon’s single question about Guerue carrying any weapons inside the vehicle
related to officer safety and therefore to the mission of the traffic stop.24 	Dillon was
22 Id. at 354; see also Arizona v. Johnson, 555 U.S. 323, 327-38 (2009) (questioning); Illinois v.
Caballes, 543 U.S. 405, 407-08 (2005) (dog sniff).
23 Johnson, 555 U.S. at 333; see also Rodriguez, 575 U.S. at 355 (“An officer, in other words,
may conduct certain unrelated checks during an otherwise lawful traffic stop.”).
24 Rodriguez, 575 U.S. 355-56; see also Johnson, 555 U.S. at 327 (finding stop, which included
officer asking if there were any weapons in vehicle, was legitimate); United States v. Yang,
39 F.4th 893, 902-03 (7th Cir. 2022) (officer’s question about whether there were any
weapons in truck was “proper because it concerned officer safety”); United States v. Racer,
No. 2:20-CR-00095, 2021 WL 1342536, at *2 (S.D.W. Va. Apr. 9, 2021) (officer’s single
question, whether defendant was carrying any firearms, was “perhaps the most basic of
inquiries related to officer safety, . . . it was related to the mission of the stop itself[,] and
d[id] not violate the Fourth Amendment”), aff'd, No. 21-4642, 2022 WL 2526999 (4th Cir.
July 7, 2022); United States v. McReynolds, No. CR-18-01170-001-PHX-GMS, 2019 WL
2869669, at *3 (D. Ariz. July 3, 2019) (during traffic stop, officers may take such steps as
are reasonably necessary to protect their personal safety and to maintain status quo
during course of stop including questioning vehicle’s occupants about any weapons that
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outnumbered and needed to know if Guerue or S.O. had any dangerous weapons in the
vehicle.25 	Several factors aroused Dillon’s suspicions early on: (1) Guerue’s perceived
evasive maneuver turning off the highway onto an approach;26 (2) his decision to drive
on and ultimately to stop and park in someone else’s driveway;27 (3) S.O.’s bending down
in his seat after Guerue had stopped or was in the process of doing so;28 and (4) Guerue
and S.O. not having a driver’s license, any identification, or a vehicle registration.29
Dillon’s suspicions heightened when Guerue said he had his unholstered “G19” loose
under S.O.’s seat.30
may be in car), aff’d, Nos. 20-10115, 20-10125, 2021 WL 5492984 (9th Cir. Nov. 23, 2021);
State v. Wright, 386 Wis.2d 495, 508-09, 926 N.W.2d 157, 164 (2019) (officer’s question
about presence of weapons in car directly related to officer safety and was part of traffic
stop’s mission).
25 See United States v. Buzzard, 1 F.4th 198, 203-04 (4th Cir.) (officer outnumbered and
needed to know more about what occupants had in car), cert. denied, 142 S.Ct. 728 (2021).
26 Suppr. Hr’g Tr. 12-13 (Sept. 8, 2022).
27 Id.
28 Id. at 13-14; Mot. Hr’g Tr. 16-18 (Oct. 3, 2022).
29 Suppr. Hr’g Tr. 15-16, 18, 21.
30 Suppr. Hr’g Ex. 1 at 18:41:16-18:41:45; see United States v. Cox, 992 F.3d 706, 710 (8th Cir.
2021) (trooper’s question about weapons or drugs in vehicle came only after his
suspicions were raised by conduct and statements of vehicle occupants); see also United
States v. Hill, 852 F.3d 377, 380-84 (4th Cir. 2017) (affirming denial of suppression motion
where officer asked occupants three times whether there were any firearms in car;
following third inquiry, one occupant responded he had a firearm at which point officer
shouted “gun”).
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But even in the absence of reasonable suspicion, courts have held the mission of
the traffic stop encompasses an officer’s right to inquire about the presence of weapons
in the vehicle.31 	As one court has reasoned, “If a police officer may, in the interest of
officer safety, order all occupants out of the vehicle for the duration of the stop without
violating the Fourth Amendment, [then] the officer may take a less burdensome
precaution to [secure his] safety.”32
Given the circumstances, Dillon’s questions about the gun, and his seizure of it,
were within the mission of the stop and appropriate responses to the safety hazards he
faced.
b. 	Reasonable Detention
Yet even assuming Dillon’s weapons questions were unrelated to the mission of
the traffic stop, the questions did not violate the Fourth Amendment by unduly
lengthening the stop. 	Unlike the dog sniff that unreasonably elongates the mission-
31 See, e.g., United States v. Arrington, No. 3:19-CR-00108-RGJ, 2019 WL 5789852, at *3 (W.D.
Ky. Nov. 6, 2019) (“the first part of [the officer’s] question, about weapons [in the car],
was directly related to officer safety, and thus ‘does not bespeak a lack of diligence’”);
McReynolds, 2019 WL 2869669, at *1, 3 (it was reasonable for officer to ask vehicle’s
occupants if they had any weapons); People v. Campbell, 329 Mich. App. 185, 199, 942
N.W.2d 51, 60 (2019) (“a police officer is free to question a lawfully detained person about
the presence of weapons in his or her vehicle because such an inquiry relates to the
officer’s ability to conduct the traffic stop in a safe manner”); see also Racer, 2021 WL
1342536, at *2 (citing cases in which courts have recognized the authority of “officers
conducting a traffic stop [to] inquire about dangerous weapons”).
32 Wright, 386 Wis. 2d at 508, 926 N.W.2d at 163.
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related activities of a traffic stop,33 the two questions Dillon asked about the gun
amounted to such a de minimis extension of time they can hardly be measured. 	These
questions did not unlawfully prolong the stop.34
Nor did the seizure of the Glock or request to have dispatch run warrant, license,
and gun registration checks stretch the stop beyond constitutional bounds.35 Although
33 See and compare Rodriguez, 575 U.S. at 352 (dog sniff prolonged stop beyond time
reasonably required to complete mission of stop) with Caballes, 543 U.S. at 407-08 (dog
sniff added no time to traffic stop because it was conducted simultaneously with mission-
related activities); see also Wright 386 Wis. 2d at 512-13, 926 N.W.2d at 165-66 (explaining
key facts that lead to different conclusions in Rodriguez and Cabelles).
34 See Buzzard, 1 F.4th at 204 (officer’s question “didn’t extend the stop even a second” and
“passe[d] constitutional muster under Rodriguez even if it exceeded the scope of the stop’s
mission”); McReynolds, 2019 WL 2869669, at *3 (“[officer’s] question – whether the men
had weapons – did not unreasonably prolong the traffic stop”); Arrington, 2019 WL
5789852, at *3 (“Because the questions related to officer safety and only delayed the stop
a few seconds, the officer’s questions did not convert the encounter into an unlawful
seizure.”); United States v. Herrera, No. 17-CR-10112-ADB, 2018 WL 1020112, at *3 (D.
Mass. Feb. 22, 2018) (“asking [d]efendant whether he had any weapons . . . , which took
at most a minute or two, did not meaningfully extend the length of the stop and was
otherwise reasonable under the circumstances known to the officer”); see also Hill, 852
F.3d at 380, 384 (officer’s inquiry, three times, whether there were firearms in the car “did
not cause the stop to be prolonged”).
35 See McReynolds, 2019 WL 2869669, at *1, 3-4.
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the checks took 10 minutes to complete,36 Santos had alerted, to the odor of drugs in the
vehicle, by then.37
2. 	Drugs Inquiry
Much of what was just said about Dillon’s weapons query applies with equal force
to 	his 	questions 	about 	whether 	there 	were 	drugs 	(marijuana, 	cocaine, 	and
methamphetamine) in the vehicle. The questions took less than ten seconds to ask38 and
did not lengthen the stop in any meaningful way.39 And they were based on suspicions
36 Hill, 852 F.3d at 380, 382-83 (20-minute stop, with 8 minutes to search DMV, NCIC, and
PISTOL databases, acceptable); McReynolds, 2019 WL 2869669, at *1 (stop of just under 20
minutes, in which records checks conducted on occupants of speeding car and gun
removed from it, permissible).
37 Caballes, 543 U.S. at 406, 408 (while one officer was in process of writing warning ticket,
another officer walked his K-9 around car; no extension of stop beyond time reasonably
necessary to complete stop’s mission); Hill, 852 F.3d at 384 (use of K-9 at scene was
“contemporaneous” with officers’ diligent pursuit of stop’s mission).
38 Suppr. Hr’g Ex. 1 at 18:46:20-18:46:29.
39 Buzzard, 1 F.4th at 204 (officer’s question to driver – if there was anything illegal in car
– did not unlawfully prolong stop especially since he had not received information
needed to perform checks on driver of vehicle yet); Hill, 852 F.3d at 380, 384 (20-minute
stop where vehicle occupants asked – 3 times – if there were any drugs or firearms in car
did not impermissibly expand scope of stop or time needed to pursue stop’s mission);
McReynolds, 2019 WL 2869669, at * 1, 3 (officer’s questions about weapons and drugs did
not unreasonably lengthen less than 20-minute stop); Arrington, 2019 WL 5789852, at *1-
3 (officer’s query, whether driver had any “drugs, weapons, [or] dead bodies in the car,”
only delayed stop a “few seconds” and “did not measurably extend the otherwise proper
stop”); State v. Brown, 392 Wis. 2d 454, 460, 472, 495, 945 N.W.2d 584, 587, 593-94 (2020)
(question if there was anything on driver’s person officer “needed to know about” or “be
concerned about” (asked to see if driver “had any illegal weapons or drugs”), did not
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garnered from (1) Guerue’s unusual and circuitous manner of pulling over;40 (2) S.O.’s
furtive movement as the vehicle stopped;41 (3) no one having a driver’s license or any
identification;42 (4) a lapsed vehicle registration and expired license plates;43 (5) an aunt
whose first name Guerue could not remember;44 and (6) the presence of Guerue’s “G19”
under the front passenger seat.45 	These suspicions exceeded those Dillon needed to
inquire about drugs.46
“measurably extend the duration of the stop” because it was posed “concurrently with
mission-related activities”).
40 Suppr. Hr’g Tr. 12-13.
41 Mot. Hr’g Tr. 16-18.
42 Suppr. Hr’g Tr. 15-16.
43 Id. at 18, 21.
44 Suppr. Hr’g Ex. 1 at 18:45:31-18:45:46.
45 Id. at 18:41:03-18:41:16; Suppr. Hr’g Tr. 17.
46 United States v. Callison, 2 F.4th 1128, 1132 (8th Cir. 2021) (officer had requisite
reasonable suspicion to ask if there was anything illegal in car when car pulled into
unknown driveway after a few blocks; it was nighttime, driver was nervous, and
occupants told conflicting stories about travel plans); United States v. Davis, 943 F.3d 1129,
1133 (8th Cir. 2019) (finding reasonable suspicion of drug trafficking and that drug
related questions did not unlawfully extend traffic stop where driver nervous, neither
driver nor passenger was on rental agreement, and loaded pistol in vehicle); see also Hill,
852 F.3d at 384 (officer did not conduct traffic stop in slow or inefficient manner to expand
criminal investigation beyond temporal confines of stop without reasonable suspicion of
criminal activity).
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Peralez,47 Guerue relies on, is distinguishable. 	The officer in Peralez, without
anything to suggest criminal activity was afoot, repeatedly asked drug interdiction
questions that more than doubled the time the defendant was detained.48 By contrast,
Dillon’s drug questions were neither recast nor of any appreciable duration and he had
the reasonable suspicion to justify asking them.
B. The Interview
Guerue likewise claims the statements he made, the day after the stop and while
in custody, should be suppressed as the fruit of Dillon’s illegally drawn-out traffic stop
and the search and seizure conducted during the stop.49 But because Dillon’s questions
(about weapons and drugs)50 did not impermissibly expand the stop or offend the Fourth
Amendment, there is no poisonous tree from which tainted fruit might sprout. 	So,
Guerue’s statements are fully admissible.51
47 United States v. Peralez, 526 F.3d 1115 (8th Cir. 2008).
48 Id. at 1117-18, 1121.
49 Docket No. 28 at 5.
50 Suppr. Hr’g Ex. 1 at 18:41:03-18:41:25, 18:46:11-18:46:30.
51 See United States v. Yorgensen, 845 F.3d 908, 913 (8th Cir. 2017) (“The exclusionary rule
applies to statements that result from a Fourth Amendment violation . . .” when “police
obtain the statement ‘by exploitation of that illegality . . . .’”) (quoting Wong Sun v. United
States, 371 U.S. 471, 487-88).
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CONCLUSION
Since Dillon’s weapons inquiry at the beginning of the stop was permissible for
officer safety reasons, any extra time dispatch took to run the serial number of the seized
gun (with the warrants and driver’s license checks), did not measurably extend – for
Fourth Amendment purposes – the traffic stop. And Dillon had the reasonable suspicion
he needed to ask, and did not invalidate the stop with, his questions to Guerue about
whether there were any drugs in the vehicle. In the end, none of the evidence obtained
during the stop, or the statements Guerue made the ensuing day, should be suppressed.
RECOMMENDATION
In accordance with the authorities and legal analysis set forth in this report, and
the record now before the Court, it is
RECOMMENDED that Guerue’s Motion to Suppress Evidence52 be denied.
NOTICE
The parties have 14 calendar days after service of this report and recommendation
to object to the same.53 Unless an extension of time for cause is later obtained,54 failure to
52 See Docket No. 27.
53 See 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(b).
54 See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990); Nash v. Black, 781 F.2d 665, 667 &
n.3 (8th Cir. 1986) (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)).
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file timely objections will result in the waiver of the right to appeal questions of fact.55
Objections must “identify[] those issues on which further review is desired[.]”56
Dated this 24th day of October, 2022, at Pierre, South Dakota.
BY THE COURT:
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
55See Thompson, 897 F.2d at 357; Nash, 781 at 667.
56Arn, 474 U.S. at 155.
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