USA v. Hansen

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
PAUL DONALD HANSEN,
Defendant.
4:21-CR-40080-01-KES
ORDER ADOPTING REPORT
AND RECOMMENDATION AS MODIFIED
AND DENYING IN PART AND GRANTING
IN PART MOTION TO SUPPRESS
Defendant, Paul Donald Hansen, is charged in an indictment with possession of
an unregistered firearm in violation of 26 U.S.C. §§ 5861(d), 5845, and 5871. Docket
1. Hansen moves to suppress all evidence seized as the result of the search of his
vehicle on October 3, 2020. Docket 28. Hansen alleges that the initial stop, extended
duration of the stop, and actual search of his vehicle violate the Fourth Amendment.
Dockets 28, 29. Hansen also moves to suppress statements that he made to a law
enforcement officer on October 3, 2020, under both the Fourth and Fifth
Amendments.1 Docket 28. The United States resists Hansen’s motion to suppress.
Dockets 32, 33. The court referred Hansen’s motion to Magistrate Judge Veronica
Duffy under 28 U.S.C. § 636(b)(1)(B). After holding an evidentiary hearing, Magistrate
1 Magistrate Judge Duffy recommends that all of Hansen’s statements made to
the officers after he was placed into handcuffs at approximately the 33:15 mark
in Exhibit 1 should be suppressed in violation of Miranda v. Arizona, 384 U.S.
436 (1966). Docket 36 at 33-34. Magistrate Judge Duffy further recommends
that all statements made by Hansen prior to him being placed in handcuffs
should not be suppressed because he was not in custody at that point. Neither
party objects to Magistrate Judge Duffy’s conclusions. The court agrees with
Magistrate Judge Duffy’s conclusions. Thus, Magistrate Judge Duffy’s
reasoning and conclusions on the Miranda issues are adopted in full.
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Judge Duffy recommended Hansen’s motion to suppress be denied in part and granted
in part. Dockets 36, 38. Hansen filed objections to the Report and Recommendation.
Docket 41. After a de novo review of the Report and Recommendation and a review of
the record, the court adopts the Report and Recommendation as modified below and
denies in part and grants in part Hansen’s motion to suppress.
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). 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).
FACTS
A full recitation of the facts can be found in the Report and Recommendation
(Docket 36). The court has conducted a de novo review of the evidence2 and
2 The evidentiary hearing was held on November 24, 2021. See Docket 34.
Exhibits 1 and 2 were received by Magistrate Judge Duffy. Exhibit 1 depicts
three different video angles from Officer Hoesli’s patrol vehicle. Exhibit 2
depicts the video from Sergeant Crosby’s dash cam.
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incorporates herein the facts as set forth in Magistrate Judge Duffy’s Report and
Recommendation.
DISCUSSION
Hansen raises three objections to Magistrate Judge Duffy’s Report and
Recommendation related to his rights under the Fourth Amendment. Docket 41.
I. 	Reasonable Suspicion Existed to Approach Hansen’s Vehicle.
Hansen first objects to Magistrate Judge Duffy’s finding Officer Hoesli had
reasonable suspicion to approach Hansen’s vehicle. Id. at 5-6.
The Fourth Amendment protects against unreasonable searches and seizures
by the government. U.S. Const. amend. IV. “A traffic stop constitutes a seizure under
the Fourth Amendment.” United States v. Peralez, 526 F.3d 1115, 1119 (8th Cir.
2008). “A seizure for a traffic violation justifies a police investigation of that violation.”
Rodriguez v. United States, 575 U.S. 348, 354 (2015). A routine traffic stop, then, is
similar to a Terry stop, rather than a formal arrest. Id.
Under Terry v. Ohio, a brief investigatory stop must be supported by reasonable
suspicion that criminal activity may be afoot. 392 U.S. 1, 30 (1968); United States v.
Slater, 979 F.3d 626, 629 (8th Cir. 2020). “The ‘reasonable suspicion’ necessary to
justify [a traffic] stop ‘is dependent upon both the content of information possessed by
police and its degree of reliability.’ ” Navarette v. California, 572 U.S. 393, 397 (2014)
(quoting Alabama v. White, 496 U.S. 325, 330 (1990)). To determine whether
reasonable suspicion exists, the court considers the totality of the circumstances
considering the officer’s experience and specialized training. Slater, 979 F.3d at 629;
United States v. Green, 946 F.3d 433, 439 (8th Cir. 2019). “Although the reasonable-
suspicion standard requires more than ‘a mere hunch . . . the likelihood of criminal
activity need not rise to the level required for probable cause, and it falls considerably
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short of satisfying a preponderance of the evidence standard.’ ” Slater, 979 F.3d at 629
(alteration in original) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)).
Because review of reasonable suspicion depends upon a totality of the circumstances
analysis, the court does not view individual elements of suspicion in isolation. United
States v. Sanchez, 955 F.3d 669, 675 (8th Cir. 2020). Instead, the individual elements
of suspicion are viewed in light of one another, and the court gives “ ‘due weight’ to the
officer’s inferences when assessing the overall level of suspicion.” Id. (quoting Ornelas
v. United States, 517 U.S. 690, 699 (1996)).
Hansen objects to Magistrate Judge Duffy’s conclusion that reasonable
suspicion existed for Officer Hoesli to approach Hansen’s vehicle. Docket 41 at 5-6.
Here, Hansen’s vehicle was parked in a construction area at 1 a.m. near an RV
dealership where multiple thefts had occurred. See Docket 38 at 7-8, 45-46. Sergeant
Crosby testified that he and Officer Hoesli previously received a tip from an employee
of the RV dealership that “people were parking to the west of the [dealership] and
walking onto the business property because he could see footprints in the dirt in that
area.” Id. at 46. Sergeant Crosby further testified that, in the past, he took reports of
vehicle burglaries, tire rim thefts, catalytic converter thefts, and electronic thefts out of
the RV dealership. Id. Sergeant Crosby also noted that, from his training and
experience, people that are involved in thefts are also commonly involved in drug
activity. Id. at 46-47.
Hansen argues that he was parked roughly 600 yards away from the RV
dealership, which, he contends, would be an absurd place to park for someone who
planned to burglarize the RV dealership. Docket 41 at 6. The court’s review of Exhibit
2 demonstrates that Hansen’s vehicle is clearly visible and in close proximity to the RV
dealership as Sergeant Crosby drives through the dealership. As Sergeant Crosby
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testified, he had information that people parked west of the RV dealership and walked
onto the property to commit thefts of property. Docket 38 at 46. It is not inconceivable
for someone to park away from the RV dealership to avoid detection, walk to the lot,
and commit theft. Hansen’s proximity to the RV dealership, combined with the time of
day and previous reports of theft from the RV dealership, established reasonable
suspicion for Officer Hoesli to approach Hansen’s vehicle. Thus, Hansen’s first
objection is overruled.
II. 	The Seizure Was Not Unlawfully Prolonged.
Hansen next objects to Magistrate Judge Duffy’s conclusion that the seizure
was not unlawfully prolonged. Docket 41 at 6-10. Specifically, Hansen contends that
any reasonable suspicion for the initial stop was dispelled upon Officer Hoesli making
contact with Hansen. Id. at 9.
“Like a Terry stop, the tolerable duration of 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.” Rodriguez, 575 U.S. at
354 (citations omitted). An officer’s mission during a traffic stop also includes
“ordinary inquiries incident to [the traffic] stop.” Illinois v. Caballes, 543 U.S. 405, 408
(2005). Generally, those inquiries “involve checking the driver’s license, determining
whether there are outstanding warrants against the driver, and inspecting the
automobile’s registration and proof of insurance.” Rodriguez, 575 U.S. at 355. Thus, a
traffic stop may only last as long as necessary to achieve that mission. Id. “Authority
for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably
should have been—completed. Id.; see also Caballes, 543 U.S. at 407 (“A seizure 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
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mission.”). Absent at least reasonable suspicion of additional criminal activity, officers
“may not conduct unrelated checks that extend the stop beyond the time reasonably
required to complete its original mission.” United States v. Soderman, 983 F.3d 369,
374 (8th Cir. 2020).
Hansen contends that Officer Hoesli and Sergeant Crosby unlawfully prolonged
the seizure. Docket 41 at 6-10. Specifically, Hansen argues that the seizure’s original
mission and related tasks should have been completed by the 21:00 minute mark of
the stop. Id. at 10. Because Sergeant Crosby did not observe the syringe in Hansen’s
vehicle until the 32:32 mark, Hansen alleges that he was unlawfully seized for the 11
intervening minutes. Id. Here, the court agrees with Magistrate Judge Duffy that there
were complications with routine tasks associated with the traffic stop and reasonable
suspicion of further criminal activity that lawfully prolonged the seizure. First,
regarding reasonable suspicion, Officer Hoesli and Sergeant Crosby suspected
prostitution when they encountered Hansen and his passenger, Nadia Khalil, due to
the age difference between the two, the time of day, and the fact that they were in a
construction zone. Docket 38 at 10-12, 48; see also Exhibits 1, 2. The stop was
lawfully extended for the officers to investigate and dispel their suspicion.
Second, both Hansen’s and Khalil’s behavior gave rise to reasonable suspicion.
Officer Hoesli testified that when Khalil exited the vehicle, “she seemed very distant,
disinterested, out of it[,]” and sluggish. Id. at 15. Based on Officer Hoesli’s experience
as an emergency medical technician, he believed that Khalil was either under the
influence of a narcotic or experiencing a medical event. Id. at 16. Sergeant Crosby also
suspected that Khalil may be impaired due to her “zoned out” demeanor. Id. at 53.
Sergeant Crosby states that he believes Khalil is under the influence of some narcotic
on more than one occasion in the court’s review of Exhibit 1. Officer Hoesli further
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testified that he found it suspicious that Khalil did not want her purse brought with
her to the jail after she discovered she would be arrested for her active warrant. Id at
18. Regarding Hansen, Officer Hoesli testified that he was nervous during the stop. Id.
at 23. Sergeant Crosby testified that he felt Hansen was trying to control his
movements, which he found to be suspicious. Id. at 53. Hansen can be heard on
Exhibit 2 telling Sergeant Crosby to “calm down” and that “it’s not you against me, it’s
us against them.” Hansen is also audibly nervous on Exhibit 2 when Sergeant Crosby
directs him to sit in his patrol vehicle, asking Sergeant Crosby multiple times if he can
stay outside of the vehicle. The court agrees with Magistrate Judge Duffy that both
Hansen and Khalil’s suspicious behavior amounted to reasonable suspicion that the
two may have been involved in drug activity, which lawfully extended the stop for the
officers to investigate.
Third, and most importantly, the officers learned that Khalil had an active
warrant for her arrest in Brookings County. The officers received verbal confirmation
from Brookings County that it wanted Khalil arrested at approximately the 20:50 mark
on Exhibit 1. The officers did not receive written confirmation from Brookings County
that it wanted Khalil taken into custody until approximately the 55:00 mark on
Exhibit 1. A traffic stop may last as long as necessary to achieve the mission of the
traffic stop and related inquiries, including dealing with an active arrest warrant.
Rodriguez, 575 U.S. at 355. The court agrees with Magistrate Judge Duffy and finds
that Khalil’s warrant and related complications arising from its execution lawfully
prolonged the seizure until at least the 55:00 mark into the seizure.
Because law enforcement had reasonable suspicion that Hansen and Khalil
may be engaged in additional criminal activity and because Khalil had an active arrest
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warrant, the seizure was not unlawfully prolonged. Thus, Hansen’s second objection is
overruled.
III. 	The Plain View Exception to The Warrant Requirement Applies to The
Search of Hansen’s Vehicle.
Finally, Hansen objects to Magistrate Judge Duffy’s conclusion that the plain
view exception to the warrant requirement applied to the warrantless search of
Hansen’s vehicle. Docket 41 at 10-11. Hansen argues that the officers were not
lawfully present at his vehicle when they observed the syringe. Id. at 10. Additionally,
Hansen contends that the incriminating nature of the syringe was not readily
apparent to the officers. Id. at 10-11.
“A warrantless [search] ‘is per se unreasonable, unless the police can show that
it falls within one of a carefully defined set of exceptions.’ ” United States v. Lewis, 864
F.3d 937, 943 (8th Cir. 2017) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474
(1971)). One such exception is the plain view exception. See generally Horton v.
California, 496 U.S. 128, 133 (1990). Under the plain view exception, the government
is required to prove (1) the officer is lawfully present in the place where the evidence
could be plainly viewed; (2) the incriminating nature of the object is immediately
apparent to the officer; and (3) the officer has lawful access to the object. Lewis, 864
F.3d at 943
The court must first determine whether the officers were lawfully present when
they observed the syringe in Hansen’s vehicle in plain view. The court previously
determined that the stop was lawfully prolonged until at least approximately the 55:00
mark in Exhibit 1 due to the existence of reasonable suspicion that Hansen and Khalil
were engaged in drug activity and complications arising from Khalil’s arrest warrant.
Because the officers observed the syringe at approximately the 33:20 mark in Exhibit
1, long before they received written confirmation of Khalil’s arrest warrant, they were
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lawfully present and able to look through the windows of Hansen’s vehicle for any
incriminating objects. See United States v. Beatty, 170 F.3d 811, 814 (8th Cir. 1999)
(noting that neither reasonable suspicion nor probable cause is necessary for an
officer to look inside the windows of a vehicle so long as officers have a right to be in
close proximity to the vehicle). Because the officers were lawfully present when they
observed the syringe in plain view, the court also concludes that the officers had
lawful access to the syringe because they did not have to manipulate the syringe in
any way to observe it. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (holding
that plain view cannot justify the seizure of an item if its incriminating nature is not
immediately apparent without some further search of the item).
Hansen finally contends that “there was nothing inherently criminal about” the
syringe that Sergeant Crosby observed in plain view. Docket 41 at 10. Under the
second prong of the plain view analysis, “officers must have ‘probable cause to
associate the property with criminal activity.’ ” United States v. Brooks, 645 F.3d 971,
976 (8th Cir. 2011) (quoting United States v. Hatten, 68 F.3d 257, 261 (8th Cir. 1995)).
Probable cause does not require hard certainties, but only that the facts would
warrant a reasonable person to believe that the item may be contraband or evidence of
a crime. Hatten, 68 F.3d at 261. In Exhibits 1 and 2, Hansen can be heard arguing
that he is a diabetic and that the syringe is a medical device. As Magistrate Judge
Duffy noted, the officers were not required to believe Hansen’s explanation for the
presence of the syringe. See Docket 36 at 29.
Here, the officers had probable cause to associate the syringe with drug activity
because they both believed, and it appeared, that Khalil was under the influence of
some narcotic. Additionally, Officer Hoesli testified that in his experience as an
emergency medical technician, most diabetics no longer use syringes to inject insulin.
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See Docket 38 at 22-23. Both officers testified that syringes like the one observed in
Hansen’s vehicle are indicative of narcotics use. Id. at 22, 55. The law does not require
that the officers be certain that the syringe is evidence of criminal activity, it only
requires that a reasonable person believe that the syringe may be evidence of criminal
activity. See Hatten, 68 F.3d at 261. Under the circumstances, the court finds that the
syringe, coupled with Hansen’s and Khalil’s behavior, gave the officers probable cause
to believe that it may be evidence of criminal activity.
The officers were lawfully present when they observed the syringe in Hansen’s
vehicle. Given the surrounding circumstances, the incriminating nature of the syringe
was apparent to both Officer Hoesli and Sergeant Crosby. Finally, because the officers
did not have to manipulate the syringe to determine its incriminating nature, they had
lawful access to it. Thus, the plain view exception to the warrant requirement applies
and Hansen’s final objection is overruled.
CONCLUSION
Hansen’s initial seizure by Officer Hoesli was supported by reasonable
suspicion. Hansen’s seizure was not unlawfully prolonged because Officer Hoesli and
Sergeant Crosby developed reasonable suspicion that Hansen and Khalil may be
engaged in narcotic activity and because of complications arising from Khalil’s arrest
warrant out of Brookings County. Next, the plain view doctrine applies to the search of
Hansen’s vehicle and resulting seizure of incriminating evidence, including the
shotgun that is the basis for Hansen’s indictment. Finally, Hansen’s statements prior
to being placed in handcuffs are admissible under the Fifth Amendment, but his
statements after being placed in handcuffs are suppressed as violating Miranda. The
court adopts Magistrate Judge Duffy’s report and recommendation as modified and
denies in part and grants in part Hansen’s motion to suppress. Thus, it is
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ORDERED that the report and recommendation (Docket 36) denying in part
and granting in part Hansen’s motion to suppress is adopted as modified by this
opinion.
Dated February 3, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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