USA v. Hernandez

1
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
RIGOBERTO HERNANDEZ,
Defendant.
1:22-CR-10016-CBK
REPORT AND
RECOMMENDATION FOR
DISPOSITION OF MOTION
TO SUPPRESS
In this possession with intent to distribute a controlled substance case, Rigoberto
Hernandez seeks to suppress, on Fourth Amendment and exclusionary rule grounds,
evidence and statements acquired from him and his vehicle following, and as a result of,
a traffic stop. Because investigators had no probable cause (or reasonable suspicion) of a
law violation to justify pulling Hernandez over, the suppression motion should be
granted.
BACKGROUND
On January 20, 2022, Brown County Sheriff’s Office Investigators Wes Graff and
Jon Lemke surveilled a residence in Aberdeen, South Dakota, and – through a course of
events – arrested a male with outstanding warrants and for unlawfully possessing
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 1 of 21 PageID #: <pageID>

2
controlled substances. After the arrest, the male disclosed who had been helping him sell
drugs in the Aberdeen area, the type and color vehicle the person drove, and where that
person stayed. 	The description, though incomplete, provided Graff and other officers
with enough detail to identify the suspected drug dealer’s address and vehicle.
At around 7:30 a.m. the next morning, January 21, 2022, Graff and Lemke sat in
Graff’s unmarked Tahoe, about two blocks away from the address, and waited. 	After
about 30 to 45 minutes, they saw a black SUV, matching the description given, back out
of the driveway. Graff and Lemke observed that the vehicle had no front or rear license
plates. They “paralleled” the SUV, travelling east on a street one block to the north and
arrived at an intersection perpendicular to the SUV’s route of travel at 8:13 a.m. Graff,
driving, and Lemke, in the passenger seat, waited in the Tahoe at the intersection. Graff
and Lemke saw, from a block or two away, the SUV approaching them as it traveled
eastward. Graff noticed a crack in the SUV’s windshield. Lemke, who likewise had eyes
on the SUV, did not see any windshield crack.
Graff turned left at the intersection and followed the SUV. As he did so, Lemke
alerted Graff to the temporary license permit in the SUV’s back window. After about two
blocks, the SUV turned right into a Cenex gas station. The SUV just entered the Cenex
lot as Graff, only a few seconds behind, rounded that same right turn and switched on
his emergency lights. Graff stopped the SUV because it had no license plates and had a
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 2 of 21 PageID #: <pageID>

3
cracked windshield. The SUV came to a stop at a gas pump. Graff and Lemke got out of
the Tahoe and approached the SUV, finding Hernandez behind the wheel.
As other officers gathered at the scene, Graff escorted Hernandez to Graff’s Tahoe
for written warnings on the alleged license plate and windshield crack violations.
Meanwhile, Officer Tom Barstad, a K9 handler with the Aberdeen Police Department,
deployed his drug detection dog, Neko, who indicated to the presence of drugs in the
SUV. Hernandez was then detained and his SUV searched. Inside it, Graff, Barstad, and
Brandon Mills, a Brown County Sheriff’s Deputy, found a handgun, marijuana, ecstasy
pills, methamphetamine, and a glass jar of other pills containing suspected fentanyl.
Mills also seized multiple wads of currency from Hernandez’s person. In a subsequent
post-arrest interview, Hernandez made inculpatory statements, admitting that the
marijuana and some pills were his.
Graff and Lemke both testified at the evidentiary hearing about their observations
from the Tahoe in connection with the traffic stop. Barstad also testified at the hearing.
The Court received as evidence a portion of Barstad’s body camera recording taken
during the stop. 	Barstad followed directly behind Graff and Lemke and arrived at the
Cenex moments after they did. The body camera recorded the two-block pursuit before
Graff activated his emergency lights.
The camera footage shows that Hernandez did have presumably valid temporary
vehicle license permits on display. 	The front temporary permit was attached to the
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 3 of 21 PageID #: <pageID>

4
bottom right hand (passenger) side of the windshield, and the rear permit at the bottom
left hand (driver) side of the back window – right where they were supposed to be. The
tint and light coating of dust slightly reduced the transparency of the rear window, but
the rear wiper cleared the dust coating within its swath. 	About half of the temporary
permit, attached to the interior of the window, was within that swath.
Camera footage also showed the front windshield condition. 	The crack on the
windshield was a singular, lengthy crack, but was not tree-like or spiderwebbed. 	The
crack extended from the lower driver’s side of the window, upward in an angular
fashion, and then rightward toward the center of the windshield with the apex being just
over the steering wheel. 	From the footage, an outside viewer could only see the crack
from distinct angles and not necessarily from a distant, head-on, or perpendicular
vantage point.
DISCUSSION
A. Stop
Hernandez challenges the lawfulness of his traffic stop. He maintains that, from
an objective standpoint and based on the evidence, the windshield crack did not
significantly impair his view and the temporary permits were properly displayed, in
contradiction with Graff’s stated reasons for stopping him. Because the stop lacked the
foundation necessary to support it, Hernandez says, he was wrongfully seized in
violation of the Fourth Amendment.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 4 of 21 PageID #: <pageID>

5
The stop of a motor vehicle is a “seizure” of its occupants that must be conducted
in accordance with the Fourth Amendment.1 A traffic stop is legal and comports with
this Amendment if it is supported by probable cause to believe that a violation of law has
occurred.2 An officer has probable cause to conduct such a stop when he observes any
minor traffic violation.3
A traffic stop can also be justified by a lesser showing of “reasonable suspicion”
under the Terry4 standard.5 	Officers making a Terry stop “must be able to articulate
something more than a ‘inchoate and unparticularized suspicion’ or ‘hunch.’”6 	The
Fourth Amendment requires some minimal level of “objective justification” for making
the stop.7 	Probable cause means “‘a fair probability that contraband or evidence of a
crime will be found,’ and the level of suspicion required for a Terry stop is obviously less
1 See Brendlin v. California, 551 U.S. 249, 255-59 (2007).
2 See Whren v. United States, 517 U.S. 806, 810 (1996).
3 See United States v. Sallis, 507 F.3d 646, 649 (8th Cir. 2007); United States v. Bloomfield, 40
F.3d 910, 915 (8th Cir. 1994) (en banc).
4 Terry v. Ohio, 392 U.S. 1 (1968).
5 See Heien v. North Carolina, 574 U.S. 54, 60-61 (2014); United States v. Winters, 491 F.3d
918, 921 (8th Cir. 2007).
6 United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 27).
7 INS v. Delgado, 466 U.S. 210, 217 (1984).
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 5 of 21 PageID #: <pageID>

6
demanding than for probable cause.”8 	There must be “a ‘particularized and objective
basis’ for suspecting criminal activity at the time the stop is made.”9
“Reasonable suspicion, like probable cause, is dependent upon the content of
information possessed by [officers] and its degree of reliability. Both factors – quantity
and quality – are considered in the ‘totality of the circumstances – the whole picture’ that
must be taken into account when evaluating whether there is reasonable suspicion.”10 If
the stop is not supported by reasonable suspicion or if officers exceed the proper scope
of the stop, then any evidence derived from it must be excluded from trial.11
Other than intelligence that the owner/operator of the black SUV may have
engaged in drug trafficking, there was nothing suspicious about the vehicle. 	As the
government acknowledges, Hernandez’s stop was a probable cause one – premised
solely on two alleged traffic violations: the lack of license plates and a cracked
windshield.12 	The Court therefore must examine the objective evidence (body camera
footage and still shots from it) and witness testimony to determine whether there was a
8 Sokolow, 490 U.S. at 7 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
9 United States v. Spotts, 275 F.3d 714, 718 (8th Cir. 2002).
10 Alabama v. White, 496 U.S. 325, 330 (1990) (quoting United States v. Cortez, 449 U.S. 411,
417 (1981)).
11 See Wong Sun v. United States, 371 U.S. 471, 484 (1963); United States v. Wheat, 278 F.3d
722, 726 (8th Cir. 2001).
12 Docket No. 37 at 4.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 6 of 21 PageID #: <pageID>

7
basis to stop Hernandez and the SUV. 	If no traffic violations occurred, then the Court
must evaluate whether Graff’s mistaken conclusion to the contrary was objectively
reasonable.13
1. 	Temporary Permits
Graff was in charge of this traffic stop and called the shots.14 Graff says that he
pulled Hernandez over for violating the license plate statute,15 but eventually, decided to
write a warning for “improper display of the paper plates.”16 South Dakota provides for
the operation of a newly purchased vehicle on a state highway for 45 days if the vehicle
has affixed temporary license permits in the interior of the front and rear windows.17
13 See Riley v. California, 573 U.S. 373, 381 (2014) (“the ultimate touchstone of the Fourth
Amendment is ‘reasonableness.’”); Heien, 574 U.S. at 60-61 (2014) (quoting Brinegar v.
United States, 338 U.S. 160, 176 (1949)) (“To be reasonable is not to be perfect, and the
Fourth Amendment allows for some mistakes on the part of government officials, giving
them ‘fair leeway for enforcing the law and the community’s protection.’”); see also Heien,
574 U.S. at 66 (“The Fourth Amendment tolerates only reasonable mistakes, and those
mistakes—whether of fact or of law – must be objectively reasonable”).
14 Mot. Hr’g Tr. 61, 77, 96 (Oct. 6, 2022).
15 Id. at 17-18.
16 Docket No. 30 Ex. 1 (Graff’s Incident Report).
17 See SDCL § 32-6B-26 (“a forty-five day license permit . . . . authorizes the operation of
the vehicle upon the highways of this state for a period of forty-five days after the date
of sale . . . .”); SDCL § 32-6B-27 (requiring temporary permits to “be affixed to the inside
windows, to the front at the lower right-hand corner of the windshield, and to the rear
on the lower left-hand corner of the rear window or to the lower rear portion of the left
rear window.”).
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 7 of 21 PageID #: <pageID>

8
Hernandez argues that since his vehicle had the proper temporary permits correctly
displayed, Graff’s faulty conclusion that Hernandez violated the license plate and
temporary permit laws was an invalid reason for the stop.
In Hollins, the Eighth Circuit ratified a traffic stop (and subsequent search and
arrest) based on a mistaken observation that a vehicle had no license plates or temporary
permits.18 The officers observed no plates or permits until they approached the vehicle
and shined a spotlight on it, at which time they noticed a valid “In Transit” permit was
present.19 Even then, after the officers saw the permit in the window, the appeals court
found that their experience with fraudulent temporary permits justified investigation of
the permit’s validity by checking the driver’s license, registration, and insurance.20
According to the court, probable cause for the traffic stop did not dissolve when, after
initiating the stop, the officers noticed the temporary permits and verified them.21
Hollins, though, is inapposite. 	The officers in Hollins needed to approach the
vehicle and use a spotlight to see the permits. Here, before pulling Hernandez over, Graff
and Lemke saw, or should have seen (based on the lighting conditions then and Graff
being able to see a windshield crack), the front temporary license permit. Graff also had
18 United States v. Hollins, 685 F.3d 703, 706 (8th Cir. 2012).
19 Id.
20 Id. at 707.
21 Id.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 8 of 21 PageID #: <pageID>

9
actual or apparent knowledge (through Lemke) of the rear permit. After Hernandez was
stopped, Graff and Lemke – without inspecting their validity – used “improper display”
of temporary permits as a reason to escort Hernandez to the Tahoe and detain him until
Barstad could run Neko around the SUV. 	Hernandez’s SUV could not be stopped on
temporary permit or license plate grounds.
a. 	The Front Permit
As Graff and Lemke (from a couple of blocks away) observed Hernandez back out
of the driveway, they could not see the SUV’s license plates or temporary permits.22 The
sun was just rising in Aberdeen at the time Graff and Lemke “paralleled” the SUV on a
street one block to the north.23 The duo met the SUV at an intersection and then followed
it.24 Graff testified that, as the SUV approached them at the intersection and passed them
by, he did not observe the permit on display in the SUV’s front windshield.25 Lemke, in
the front passenger seat of the Tahoe, also said he did not see the front permit when the
SUV crossed in front of them.26
22 Mot. Hr’g Tr. 13, 61.
23 Id. at 13.
24 Id.
25 Id. at 17.
26 Id. at 79.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 9 of 21 PageID #: <pageID>

10
The Court, however, finds it hard to believe that neither Graff nor Lemke could
see the temporary permit on the front windshield’s lower passenger-side corner. 	The
permit is bright white paper with black block lettering. Graff claims he could see no part
of the permit despite seeing, at one point, half to three-quarters of the windshield.27 While
the permit’s spot on the slightly curved windshield was the furthest distance from Graff
and Lemke’s vantage, it was still far more apparent than the windshield crack Graff
described in great detail and used as another basis for the stop. With the sun just coming
up, the SUV’s entire windshield would have been visible to Graff and Lemke as they
waited for the vehicle at the intersection. 	And, as the body camera reflects, traffic that
morning was not heavy enough to continuously obstruct their view. Willful blindness is
not encompassed by the Fourth Amendment’s “reasonable mistake” leeway. 	That
Graff—alone—could make out the windshield crack but he and Lemke—together—never
saw the front permit is difficult to fathom.
b. 	The Rear Permit
When Graff turned and followed directly behind the SUV, he insisted that he did
not know about the temporary license permit in the rear window because of the window
tint and dirt coating.28 But while Graff denied ever seeing the rear permit, Lemke testified
27 Id. at 57.
28 Id. at 17-18.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 10 of 21 PageID #: <pageID>

11
that, from 75 to 100 feet away, he did see the permit in the back window when Graff pulled
out and followed the SUV.29 Lemke also said that he told Graff about the permit before
Graff initiated the traffic stop.30 So, through his cohort seeing and telling him about it,
Graff should have known, or at a minimum suspected, the SUV had temporary permits.
Graff nevertheless went ahead and stopped the SUV because it did not have any license
plates.
As the body camera reveals, the back window Graff characterized as being “dirty”
merely had a light coat of dust on it with a clear area in the middle, where the rear wiper
had been used, leaving only the window tint as a visual obstruction.31 The tint though
did not violate any laws and is not alleged to. Admittedly, the tinted windows made the
rear permit harder to see. 	But Hernandez was headed into the Cenex when Graff
activated the Tahoe’s emergency lights and was coming to a stop at a gas pump under a
well-lit canopy.32 At least at that point, Graff should have seen the rear permit.
It is troubling that Graff stopped the SUV after Lemke told him of the temporary
permit. And it is tough to accept Graff’s failure or refusal to give credence to what Lemke
29 Id. at 74.
30 Id. at 72.
31 Mot. Hr’g Ex. A at 00:32 (Oct. 6, 2022).
32 Docket No. 30 Ex. 2.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 11 of 21 PageID #: <pageID>

12
said and stop the SUV for not having any operational credentials when Graff had good
reason to know, or believe, this was not true.
c. 	Failing to inspect the permits
After Lemke, and at some point, Graff, acknowledged the existence of the
temporary permits, no one at the scene bothered to check on their validity. Nothing in
the record shows that Graff or Lemke ever looked into the legitimacy of the permits at
all. Even if they did, state law33 does not authorize officers to stop a vehicle exclusively
to inspect temporary permits when they are correctly placed on the windows.
Graff says he saw the outline of the rear permit when he was 10-15 feet away from
the SUV, but never tried to determine the authenticity of the permit.34 The placement of
the permit left at least the latter part of the expiration date visible from the outside: upon
closer view anyone could see the permit expired on the 22nd of a month in 2022.35
Enough of the permit was visible in the rear wiper swath to be assured that the permit
had not expired.
33 SDCL §§ 32-6B-26 and 27.
34 Mot. Hr’g Tr. 37, 42-43.
35 Id. at 74-75; Mot. Hr’g Ex. A at 00:32.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 12 of 21 PageID #: <pageID>

13
Nobody bothered to check on the completely unobstructed front permit either.
When Lemke, acting as cover officer, approached the SUV and watched Hernandez from
the vehicle’s passenger side, he did not even look at the front permit.36
Rather than run a quick check on the temporary permits, Graff quickly whisked
Hernandez into the Tahoe to write up warning citations.37 But warnings should not be
written for complying with the law, and Graff admitted that the permits were in the right
locations.38 	Getting Hernandez out of the SUV cleared the way for Barstad to deploy
Neko. Graff had no vehicle credentialing justification to extract Hernandez from the SUV
in the first place. 	Any claim to the contrary is not credible or supported by the record
evidence.
2. 	Cracked Windshield
Graff 	likewise 	claimed 	that 	he 	stopped 	Hernandez 	because 	of 	a 	cracked
windshield.39 	South Dakota law prohibits cracks, breaks, shatters, or distortions in
vehicle glass that “significantly impair[] the vision of the motor vehicle operator.”40
Hernandez admits his windshield was cracked, but maintains that no officer could
36 Mot. Hr’g Tr. 72.
37 Id. at 19-20.
38 Id. at 28.
39 Docket No. 30 Ex. 1.
40 SDCL § 32-15-2.3.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 13 of 21 PageID #: <pageID>

14
reasonably believe it “significantly impair[ed]” his vision and that the crack could thus
not be validly used as a reason to stop him.
The government cites Foster in response, where the Eighth Circuit approved a
traffic stop launched because of the defendant’s “unsafe windshield (several cracks),”
even though photos showed that the crack “did not go all the way across the windshield
nor did it obstruct the driver’s view.”41 Although the Foster court found the defendant
did not violate the applicable Arkansas statute prohibiting “safety defects,” it upheld the
stop because an “officer’s ‘incomplete observations may give reasonable suspicion for a
traffic stop,’ even if subsequent examination reveals no traffic law violation.”42
Foster, however, is distinguishable on at least two grounds. First, South Dakota’s
statute is much more specific than Arkansas’s general “safety defect” prohibition and
requires there be (1) a crack, break, shatter, or distortion in the glass of a vehicle that (2)
“significantly impairs” the driver’s vision. 	Not just any crack, therefore, will provide
probable cause for a violation. The crack must be a significant visual impairment for the
driver. 	Second, Foster is misaligned because officer credibility for the stop was not an
issue in the case. Here, it is.
41 United States v. Foster, 15 F.4th 874, 876-77 (8th Cir. 2021).
42 Id. at 877 (quoting Hollins, 685 F.3d at 706).
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 14 of 21 PageID #: <pageID>

15
Graff stopped Hernandez in part because of the cracked windshield; he did so
based on his belief that the crack “could impair” Hernandez’s vision.43 Graff added that
he believed the statute allowed him to stop a motorist who had a windshield crack that
“severely hindered” the driver’s vision.44 But there is no evidence that such a standard,
which is not what the statute demands, was satisfied (or, for that matter, convincing proof
Graff could reasonably determine that the crack severely hindered Hernandez’s vision).
Graff’s story about seeing the crack from the intersection is suspect. 	Although
Graff testified he believed the crack was a substantial impairment, he did so only when
pressed on cross-examination and reminded of the statutory terms. Graff said nothing in
his report or on direct examination about the crack being anything more than an
impairment.45 He likewise never produced the warning ticket (nor did the government)
to support his claim that a law violation occurred and that he had probable cause to stop
the vehicle under the cracked windshield statute.
A simple “impairment” of a vehicle windshield does not offend the statute. Graff’s
belief that it does (which is the government’s position) is unreasonable. Even then, it is
43 Mot. Hr’g Tr. 17.
44 Id. at 40.
45 See Docket No. 30-1 (acknowledging a cracked windshield but saying nothing about it
being a substantial impairment); Mot. Hr’g Tr. 17 (testifying that the crack appeared to
“be in the way” and “could impair” the driver’s vision).
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 15 of 21 PageID #: <pageID>

16
far-fetched to believe the crack in Hernandez’s windshield was visible, much less that
Graff could make a determination of significant impairment from 300 to 500, or even
within 40 to 50, feet away, in a partly cloudy sunrise.46 To conclude otherwise would
allow officers to stop a vehicle with any kind of perceived visual impairment (including
a single windshield crack) whether or not the impairment (or crack) is significant. Doing
so is unreasonable and would countenance overreaching.
The peak of the crack is not a significant impairment to the driver’s vision
(especially for a driver Hernandez’s size), being a singular mark that passes horizontally
at a height just over the steering wheel.47 That said, Graff contends he could see the crack
on the windshield one block away (500 feet he says;48 300 feet according to Lemke49) but
could not see the temporary license permit (or any part of it) in the rear of the SUV while
a trailing the vehicle at a much closer distance.50 Lemke, while in the Tahoe’s passenger
seat at the intersection as Hernandez passed by, never saw the crack – and was marginally
nearer to the SUV than Graff.51 And Lemke still did not notice the crack when he walked
46 Id. at 52, 71.
47 Mot. Hr’g Ex. A at 06:49.
48 Mot. Hr’g Tr. 51.
49 Id. at 71.
50 Id. at 17, 18.
51 Id. at 70, 79.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 16 of 21 PageID #: <pageID>

17
around the front of the SUV and stood next to the passenger door of the vehicle acting as
a “cover” for Graff.52 If the crack was apparent, then Lemke would have told someone
about it.53 Until he reviewed his body camera footage, Barstad did not recall seeing a
crack on the SUV’s windshield either – at any time.54
There is no way Graff could have reasonably believed that the crack significantly
impaired Hernandez’s vision. Graff’s testimony – that he observed a discreet windshield
crack while he sat at the intersection and watched the SUV for one block – conflicts with
the body camera recording, Lemke and Barstad’s testimony, and even Graff’s own
testimony that he did not see the much larger front temporary permit or later, the rear
permit. In short, what Graff claimed he saw or did not see was not credible. His stop of
Hernandez’s SUV, for the supposed cracked windshield infraction, was objectively
unreasonable.
B. Expansion
Hernandez also argues that the traffic stop was extended beyond constitutional
bounds.55 But because the stop was not justified from the start and tainted all evidence
52 Id. at 79-82.
53 Id. at 82.
54 Id. at 100-101.
55 Docket No. 49 at 12.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 17 of 21 PageID #: <pageID>

18
later obtained from Hernandez and the SUV, there is no need to address his alternative
argument.
C. Tainted Fruit
The legality of the stop depends on whether Graff’s belief – that two traffic safety
laws were violated – was objectively reasonable. If there was no probable cause for the
stop, then the stop was unlawful, and all evidence garnered afterward is fruit of the
poisonous tree.56
Graff was just looking for a reason to pull Hernandez over.57 The crack and the
absence of license plates (or a readable temporary permit) were all he could come up
with. 	He identified no other traffic violations or reasons to stop the SUV. 	But Graff
cannot rely on the lack of any license plates as a basis for the stop because Lemke told
him the vehicle had a temporary permit in the rear window, and Graff saw, or should
have seen, there was one in the front window too. 	That Graff saw there was no front
plate and could see up to three-quarters of the windshield, but did not see the front
permit, is difficult to reconcile.
56 See Wong Sun, 371 U.S. at 487-88.
57 Mot. Hr’g Tr. 12.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 18 of 21 PageID #: <pageID>

19
It is also implausible that Graff could see the windshield crack when Lemke, who
was closer and never noticed it, observed the SUV for a longer distance (1-2 blocks58) than
Graff did (1 block59). Not even Barstad could say, after reviewing his body camera, that
the crack was a significant impairment.60
Because the Hernandez traffic stop was unlawful, all evidence acquired from and
as a result of the stop became tainted fruit and should be suppressed.
CONCLUSION
The basis for Hernandez’s traffic stop – unacceptably displayed permits (or
missing license plates) and a crack in the windshield – is unfounded. In mustering up a
reason to stop Hernandez and search for drugs, Graff unreasonably concluded that the
windshield crack was a significant impairment to Hernandez’s vision. And, with respect
to the lack of license plates or “improper” display of temporary license permits, Lemke
saw, and Graff should have seen, the correctly placed temporary permits before stopping
Hernandez. A dissection of the objective evidence and in-court testimony establishes that
Hernandez did not reasonably appear to be violating the temporary permit statute, and
without more, Graff had no justification for pulling Hernandez over. The permits were
58 Id. at 69-70.
59 Id. at 30, 39-40, 50-51.
60 Id. at 101.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 19 of 21 PageID #: <pageID>

20
visible, appeared genuine, and had not expired. 	Graff and his comrades could have
quickly, and easily, confirmed the validity of the permits if he or those assisting him
wanted to. 	But they focused on something else – making a drug bust. 	A laudable
endeavor but only if done within the strictures of the Fourth Amendment. Hernandez’s
stop was not (because it was objectively unreasonable) and, as a consequence, all
evidence seized from him and the SUV at the scene (drugs, gun, and cash) and obtained
during his post-arrest interview (inculpatory statements) should be suppressed.
RECOMMENDATION
Based on the authorities and legal analysis discussed in this report, the weight of
the evidence before the Court, and the credibility of the witnesses who testified at the
evidentiary hearing, it is
RECOMMENDED that Hernandez’s Motion to Suppress61 be granted.
NOTICE
The parties consented to a three-business day objection period (agreeing to cut the
prescribed two-week time62) to keep the upcoming trial on track. They thus have three
working days after service of this report and recommendation to object to the same.
61 Docket No. 29.
62 See 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(b).
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 20 of 21 PageID #: <pageID>

21
Unless an extension of time for cause is later obtained,63 failure to file timely objections
will result in the waiver of the right to appeal questions of fact.64 	Objections must
“identify[] those issues on which further review is desired[.]”65
DATED this 22nd day of October, 2022.
BY THE COURT:
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
63 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)).
64 See Thompson, 897 F.2d at 357; Nash, 781 at 667.
65 Arn, 474 U.S. at 155.
Case 1:22-cr-10016-CBK Document 55 Filed 10/22/22 Page 21 of 21 PageID #: <pageID>