USA v. Rederick

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
LARRY DEAN REDERICK,
Defendant.
4:20-CR-40066-KES
REPORT AND RECOMMENDATION
INTRODUCTION
Defendant Larry Dean Rederick is before the court on an indictment
charging him with conspiracy to distribute 50 grams or more of
methamphetamine (actual). 	See Docket No. 1. 	Mr. Rederick has filed a motion
to suppress certain evidence. 	See Docket No. 42. 	The United States
(“government”) resists the motion. 	See Docket No. 48. 	This matter has been
referred to this magistrate judge for holding an evidentiary hearing and
recommending a disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the
October 16, 2014, standing order of the Honorable Karen E. Schreier, district
judge.
FACTS
An evidentiary hearing was held on June 22, 2021. 	Mr. Rederick was
there in person along with his lawyer, Mr. Robert Tiefenthaler. 	The government
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was represented by its Special Assistant United States Attorney, Mr. Mark
Hodges. 	Five witnesses testified and 10 exhibits were received into evidence.
From this testimony and these exhibits, the court makes the following findings
of fact.
In the spring of 2019 Special Agent Ryan Pennock with the South Dakota
Division of Criminal Investigation (“DCI”) was investigating Mr. Rederick for
possible narcotics distribution. 	On May 28, 2019, Agent Pennock assisted in
the interview of Brandi Jerome, who had just been arrested on drug charges.
Jerome identified Mr. Rederick as a source of methamphetamine. 	Jerome had
met Mr. Rederick through Brionna Eckman two weeks previous and in that
time had received meth from him seven times.
During the two-week acquaintance, Jerome saw Mr. Rederick obtain one
kilo of meth from near Irene, South Dakota. 	Jerome stated Mr. Rederick lived
in a camper on his parents’ farm. 	She described seeing Mr. Rederick store
methamphetamine in a shaving kit in a black box inside this camper as well as
in Mr. Rederick’s shop. 	Jerome stated that Mr. Rederick told her he was
“cartel.” 	She also described seeing Mr. Rederick in possession of large
amounts of currency.
Agent Pennock also helped interview Mary Mitchell on the same date.
Ms. Mitchell had also just been arrested on drug charges. 	Mitchell described
buying psilocybin mushrooms from Mr. Rederick as well as meth. 	Mitchell
stated she did not pay Mr. Rederick money for these drugs but instead cleaned
Mr. Rederick’s vehicle in payment. 	Mitchell stated Mr. Rederick always had
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meth on him. 	She stated she bought meth from him several times. 	She also
observed frequent come-and-go traffic from Mr. Rederick’s residence. 	Mitchell
related that Mr. Rederick told her he needed to “re-up” his drug supply at a
location five hours away and that it was “hell.” 	Mitchell also met Mr. Rederick
through Brionna Eckman.
In early October, 2019, Agent Pennock interviewed Brandon Wolff, who
had also just been arrested on drug charges. 	Wolff told Agent Pennock he was
a meth distributor out of Norfolk, Nebraska, which is directly south of Yankton,
South Dakota, on Highway 81. 	Yankton is in the southeast corner of South
Dakota. 	Immediately before his arrest, Wolff stated he was negotiating with
Mr. Rederick to sell him one pound of meth for $7,000. 	The sale was not
consummated due to Wolff’s arrest.
Examination of Wolff’s cellular phone revealed texts between Wolff and
Mr. Rederick substantiating what Wolff told Agent Pennock. 	The phone
revealed there were prior drug transactions between Wolff and Mr. Rederick.
On October 4, 2019, the day before Wolff’s arrest, Wolff texted Mr. Rederick to
say he had already made Mr. Rederick enough money. 	Mr. Rederick responded
he could make Wolff $800 per week. 	Mr. Rederick stated he would do the
transaction for $5,800 front, no push. 	Agent Pennock testified that $5,800 was
approximately the going price for a pound of meth at this time.
Other texts on Wolff’s phone with another individual discussed that
Mr. Rederick’s drug prices were higher than Wolff’s. 	It appeared to Agent
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Pennock that Wolff was attempting to take over Mr. Rederick’s book of drug
business.
Agent Pennock also interviewed Erick Walters in October 2019. 	Walters
told Agent Pennock he had worked for Mr. Rederick as a mechanic
(Mr. Rederick bought and sold cars as a business). 	Walters accurately stated
that Mr. Rederick was living in a camper on his parents’ farm. 	Walters said he
saw Mr. Rederick smoking meth in the mechanic shop where Walters was
working. 	He asked if he could have some, and Mr. Rederick began giving
Walters meth, with Walters eventually paying for it.
Walters said in July 2019 he saw Mr. Rederick with ten pounds of meth
which was stored in the toolbox of Mr. Rederick’s white Ford pick-up. 	Walters
identified the meth as originating in Kansas City. 	Walters stated Mr. Rederick
went to the Omaha area to pick up these 10 pounds. 	Walters stated that
Mr. Rederick would stop at the home of Steve Miller in Akron, Iowa, on his way
back from supply trips to Omaha.
Walters told Agent Pennock he worked for Mr. Rederick until August
2019. 	He stated after he quit working for Mr. Rederick, he made three
additional purchases of meth from him. 	Altogether, Walters estimated he
bought meth from Mr. Rederick 10 to 15 times. 	He stated he had knowledge of
multiple other persons who purchased drugs from Mr. Rederick.
On December 3, 2019, Agent Pennock interviewed a confidential
informant (“CI”) who had been working with the Yankton Police Department.
The CI identified Mr. Rederick as a significant source of meth and the CI’s own
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source of meth. 	The CI indicated Mr. Rederick obtained his meth from the
Omaha area and that Mr. Rederick had invited the CI to accompany him on his
supply trips. 	The CI told Agent Pennock that Mr. Rederick lived in a camper on
his parents’ farm. 	The CI stated he had been to Mr. Rederick’s residence
multiple times and had seen large quantities of meth in the camper.
After the interview with the CI, Agent Pennock applied for and received a
pen register/trap and trace order which allowed him to see what phone
numbers Mr. Rederick was in contact with. 	Agent Pennock also received a
warrant for cell site location information which would show in real time the
approximate location of Mr. Rederick’s phone. 	Agent Pennock received cell site
information every 15 minutes or whenever Mr. Rederick made contact with
another phone.
During Agent Pennock’s surveillance of Mr. Rederick, he identified Lance
Willits as one of Mr. Rederick’s contacts. 	Further investigation revealed that
Willits lived outside of Pierce, Nebraska. 	Pierce is north of Norfolk, Nebraska,
and west of Highway 81.
A detective in Nebraska whom Agent Pennock contacted told Agent
Pennock that Willits was a drug dealer with prior drug convictions. 	Agent
Pennock reasoned Willits might be Mr. Rederick’s source of supply for meth.
Although Willits was approximately two hours away from Omaha, his residence
was straight south of Yankton, South Dakota, on Highway 81 heading toward
Omaha, Nebraska. 	Also, Pierce is near the town of Norfolk, and Agent Pennock
knew that Mr. Rederick’s prior source of supply, Brandon Wolff, had been
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located in Norfolk. 	Agent Pennock testified that Norfolk is a drug supply town
for residents of in the southeast corner of South Dakota.
Sometime prior to January 3, 2020, Agent Pennock observed that
Mr. Rederick traveled to Texas. 	Agent Pennock testified that Texas is a source
state for drugs. 	When Mr. Rederick came back to South Dakota, Agent
Pennock contacted the South Dakota Highway Patrol and asked them to follow
Mr. Rederick’s vehicle and stop him if they could develop independent probable
cause for a traffic stop. 	Mr. Rederick was stopped, and Trooper Cody Jansen
had his drug detection dog, Rex, sniff Mr. Rederick’s vehicle. 	Rex indicated to
the presence of the odor of drugs in the vehicle, but a subsequent search of the
vehicle failed to locate any drugs. 	Mr. Rederick was not arrested.
Subsequently on May 28, 2020, Agent Pennock interviewed Ricky Geidd.
Geidd told Agent Pennock he lived within a mile of Mr. Rederick’s camper.
After the January 3, 2020, traffic stop, Mr. Rederick told Geidd that he had in
fact had a user amount of meth with him at the traffic stop but the police had
missed it when searching Mr. Rederick’s vehicle. 	Mr. Rederick also told Geidd
that he had made a drug connection while he was in Texas.
Back on January 9, 2020, Agent Pennock was monitoring Mr. Rederick’s
location and saw that he had left his home and traveled to Yankton. 	At this
time, the pen register/trap and trace indicated Mr. Rederick was in contact
with Willits. 	Around 3:40 p.m., Mr. Rederick left Yankton and headed south
into Nebraska on Highway 81. 	Sometime after 4 p.m. Mr. Rederick arrived at
Willits’ residence near Pierce, Nebraska.
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When Mr. Rederick arrived in the vicinity of Willits’ home, electronic
communication between the two ceased. 	Agent Pennock observed that Mr.
Rederick’s phone was north of Pierce in an area Agent Pennock believed to be
consistent with Willits’ address. 	Agent Pennock did not approach Willits’ home
because he knew from prior investigation there were outdoor surveillance
cameras and he did not want to reveal his presence.
Agent Pennock contacted Nebraska police to see if they would be able to
assist with a stop of Mr. Rederick’s vehicle when he left Willits’ home.
Nebraska authorities were not able to assist Agent Pennock. 	Agent Pennock
then contacted South Dakota Highway Patrol Troopers Eric Peterson and Cody
Jansen, the K-9 officer who worked with Rex. 	Agent Pennock asked both
troopers to be available near Yankton to make a stop of Mr. Rederick’s vehicle
when he crossed back into South Dakota. 	Agent Pennock explained to the
troopers the background of his investigation of Mr. Rederick. 	He specifically
told them that Mr. Rederick was at a location in Nebraska that Agent Pennock
thought was his source of supply for meth. 	Agent Pennock asked the troopers
to try to establish independent probable cause to stop Mr. Rederick, but to stop
him in any event even if there was no traffic violation observed.
Agent Pennock explained that the reason for asking troopers to make a
stop based on independent probable cause was so that his investigation would
not be revealed to Mr. Rederick. 	If no drugs were found in Mr. Rederick’s
vehicle—as happened on January 3—Mr. Rederick would not learn of the
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investigation of himself and Agent Pennock could continue pursuing further
information and investigation without having “blown his cover.”
Throughout the day, Agent Pennock updated Troopers Peterson and
Jansen on Mr. Rederick’s movements. 	At about 5:10 p.m. Mr. Rederick left
Willits’ house and went to Norfolk, arriving at 5:25 p.m. 	While in Norfolk,
Mr. Rederick communicated three times with Willits electronically. 	At 7:05
p.m. Mr. Rederick drove back to Willits’ home. 	At approximately 8 p.m. Agent
Pennock saw Mr. Rederick drive by Jerry’s Hilltop where Agent Pennock was
sitting in his car observing. 	He observed Mr. Rederick to be driving north on
Highway 81 in a white Ford pick-up towing a flatbed trailer behind with a red
sedan on top of the trailer. 	This information was relayed to the troopers.
Because of all the information Agent Pennock had developed in his
investigation of Mr. Rederick, he believed the trip to Willits’ home was either for
the purpose of picking up drugs or dropping off a payoff.
Trooper Peterson was waiting by the bridge on Highway 81 that crosses
the Missouri River separating South Dakota from Nebraska at that location.
When Mr. Rederick crossed into South Dakota, Trooper Peterson followed him
as he turned onto Second Street and traveled east. 	As Mr. Rederick made this
turn, Trooper Peterson observed that there was no illumination of the license
plate on the trailer as required by South Dakota law. 	The license plate was not
illuminated either by the taillights on the trailer or by an independent light.
The license plate was located behind and off to the side of the trailer’s taillights.
Thus, the light emitted from the trailer’s taillights shown backwards from the
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trailer, while the license plate was located behind the taillights, closer to the
pick-up and off to the left-hand side of the taillights. 	This can clearly be seen
in Exhibit 4, the dashcam video from Trooper Jansen’s patrol car. 	Although
the trailer license plate can be seen in the dashcam video from Trooper
Peterson’s vehicle, it was dark out and Trooper Peterson’s headlights from his
patrol car were lighting up the license plate.
From Second Street, Mr. Rederick turned right onto Highway 50. 	At this
point, Trooper Peterson stopped Mr. Rederick by activating his lights and siren.
Trooper Peterson’s dashcam video activated at this time. 	See Exhibit 3.
Trooper Peterson made contact with Mr. Rederick, who was the only
occupant in the pick-up at 1:31 into Exhibit 3.1 At 2:37 Mr. Rederick exited
his pick-up and walked back to Trooper Peterson’s patrol vehicle with him
whereupon both men took a seat inside the car. 	Trooper Peterson must have
already told Mr. Rederick that he was being stopped for not having his trailer
license plate illuminated. 	While walking back to the patrol vehicle,
Mr. Rederick bent over and examined the trailer license plate and Trooper
Peterson stated, “you see what I mean?”
At five minutes into the stop, Mr. Rederick was already stating he wanted
to get going. 	Trooper Peterson explained he had to check out the registration
for both the truck and the trailer and then he would get him going. 	Trooper
1 In their briefs, the parties reference the real time the events were occurring—i.e. 20:57 or
21:13. In Exhibit 3, the real time of day is not imprinted or visible to the court, only the time
elapsed on the video is available to the court. Therefore, the description of events at the traffic
stop are described using the elapsed time rather than the actual hour of the day.
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Peterson noted that the license plate for the truck was a dealer plate and asked
if Mr. Rederick had the VIN.2
Mr. Rederick apparently expressed frustration or agitation as Trooper
Peterson asked, “what’s wrong?” 	Mr. Rederick stated he “dealt with you guys
the other night over some bull---- too.” 	Mr. Rederick added “we’ll see how this
goes.”
Trooper Peterson responded, “we’ll see how what goes?” 	Mr. Rederick
stated, “you’re giving me a warning.” 	Trooper Peterson asked, “you doing
alright?” 	Mr. Rederick responded in a sarcastic voice “oh yeah, I’m doing
great.” 	He then added that he just wanted to go. 	Trooper Peterson observed
aloud that Mr. Rederick seemed extremely anxious to go. 	Mr. Rederick stated
again that he had been stopped a few nights previously and had not been doing
anything wrong at that time. 	At this point 6:31 had elapsed into the
traffic stop.
Trooper Peterson stated aloud that Mr. Rederick seemed a little anxious.
He noted Mr. Rederick’s hands were shaking and was so anxious to get home.
Mr. Rederick stated, “yeah, I just want to get home.” 	Trooper Peterson stated
he would get the warning issued and get him on his way. 	Trooper Peterson
asked again if Mr. Rederick had the VIN for the pick-up. 	Mr. Rederick did not,
so Trooper Peterson said he would just go up and take a picture of the VIN
2 Vehicle Identification Number. A VIN is a unique 17-digit number assigned to each vehicle
upon its manufacture. Trooper Peterson explained that dealer license plates do not return the
owner information so the status of a vehicle with dealer plates has to be verified by searching
the database using the vehicle’s VIN.
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through the windshield. 	Trooper Peterson went to the front of the truck and
immediately returned, explaining that there was something blocking the view.
He asked if he could either move the obstruction or open the door to get the
VIN off the door jamb.
Mr. Rederick told him to just get it off the door jamb. 	As Trooper
Peterson walked back toward the truck, Mr. Rederick called out “Just the
door!” as if he wanted to make sure the officer did not enter into the truck any
further than looking at the door jamb. 	It was 9:09 when Trooper Peterson
resumed his seat in the patrol car.
He asked Mr. Rederick about his trip to Norfolk (a subject the two had
talked about earlier). 	Mr. Rederick asked him why he was asking so many
questions. 	He then asked Trooper Peterson about his day. 	Trooper Peterson
responded to the questions. 	Mr. Rederick expressed impatience. 	Trooper
Peterson explained he was working on getting the warning prepared. 	He
explained dealer plates do not return with registration information.
Trooper Peterson asked if Mr. Rederick had anything to be nervous
about. 	Mr. Rederick gave a noncommittal answer. 	Trooper Peterson asked
about his driver’s license. 	There was silence for a time and Trooper Peterson
can be heard working on a computer. 	He asked Mr. Rederick if he was doing
okay. 	Mr. Rederick said he was just thinking about the tie-down strap that
secured the red sedan to the trailer, seeing that it had broken.
Trooper Peterson stated he had all of Mr. Rederick’s information now. 	At
11:45 Mr. Rederick exclaimed, “I don’t know why you don’t just let me go.”
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He claimed the police were harassing him. 	At 12:03 Trooper Peterson told
Mr. Rederick he had a “couple of questions for him” because it “just didn’t
quite seem right.” 	Mr. Rederick talks over the top of Trooper Peterson saying
“no, no, nope . . . Just give me my warning and let me go.” 	At 12:27
Mr. Rederick asked if he was being detained or arrested because he would like
to know that.
Trooper Peterson stated he wasn’t sure what he was getting at.
Mr. Rederick stated if he wasn’t being arrested or detained, he wanted to go
home. 	At this point, 12:49 into the video, Trooper Peterson called “125” and
asked him to “come over this way.” 	Presumably “125” is Trooper Jansen with
his K-9 Rex. 	Trooper Peterson explained that Mr. Rederick was being detained
while he wrote out the warning ticket and asked him some questions.
Mr. Rederick replied that this traffic stop should take no longer than a normal
traffic stop and that if Trooper Peterson extended the stop longer than
necessary, “nothing after that can be [considered].” 	Trooper Peterson stated it
was not taking any longer than normal.
“Just fill out the report,” Mr. Rederick stated. 	“How long has this taken?”
he asked. 	Trooper Peterson stated he was filling out the report; he explained
he had to get the VIN (and that prolonged the stop) and that he did not have
control over how fast the computer system worked. 	Mr. Rederick lectured
Trooper Peterson on the law again and stated, “you’re fine. 	We’re already past
it. 	I know the law real well.” 	Trooper Peterson asked Mr. Rederick “what’s the
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law?” 	At 15:18 Mr. Rederick asked Trooper Peterson for his card and then
asked, “are you done?” 	Trooper Peterson stated he was “almost done.”
At 16:09 Trooper Peterson told Mr. Rederick he was proofreading the
ticket. 	“Everything looks good.” 	Mr. Rederick then said “good” and asked if he
was free to go. 	Trooper Peterson told him at 16:36 that he was done issuing
the warning ticket, but that Mr. Rederick was not free to go. 	Mr. Rederick
asked why. 	Trooper Peterson responded that he believed something else was
going on. 	Mr. Rederick asked why he thought that. 	Trooper Peterson replied
that Mr. Rederick was being detained on reasonable suspicion of “something.”
Trooper Jansen contacted Trooper Peterson and indicated he was arriving
imminently. 	Mr. Rederick kept asking why he was being detained and Trooper
Peterson explained he was waiting for a K-9 to arrive. 	Mr. Rederick again
asked for the trooper’s card and the card of the K-9 officer that was arriving.
He stated he did not have to answer the trooper’s questions.
The two then debated the law, with Mr. Rederick asserting the traffic stop
was taking longer than necessary to check out his license, insurance and
registration and Trooper Peterson asserting he had a reasonable articulable
suspicion to extend the stop. 	“Why? Because I was irritated?” Mr. Rederick
asked. 	Mr. Rederick threatened to get out of the patrol car and leave. 	Trooper
Peterson explained he was being detained and if he tried to leave that would be
obstruction of an officer. 	Mr. Rederick stated he did not want the K-9 and
made clear he was not giving permission for the K-9 to search.
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At 22:21 Trooper Jansen arrived. 	Trooper Peterson asked him to have
the vehicles sniffed. 	He explained to Trooper Jansen that Mr. Rederick had
been constantly asking when he could leave, that he was highly agitated, that
the ticket had taken longer than normal to write because he had to get the
pick-up VIN, and that something “just wasn’t right.” 	Trooper Peterson told
Trooper Jansen that Mr. Rederick denied consent to search and refused to
answer any more questions.
Trooper Jansen and Rex had successfully completed a drug dog detection
course consisting of 240 hours of coursework between September and early
November 2019. 	During the schooling, the dogs are taught to detect the odor
(not the physical presence) of various narcotics while the handlers are taught
to read their dog and work with them as a team to effectively search. 	Handlers
must learn what their dog’s “alert” behavior is and become adept at recognizing
it. 	Handlers must also teach their dogs a learned “indication” behavior.
An “alert” is an innate behavior a dog exhibits when sniffing something of
interest to the dog. 	It can be a change in posture, a change in breathing
patterns, a wagging of the tail, a head check (turning the head back toward the
source of an odor) or any number of other behaviors. 	The alert is not taught—
it is the dog’s natural way of telegraphing that it is smelling something of
interest.
The “indication” is a learned behavior that is taught. 	As the dog learns to
recognize the smells it is being taught to find, it is taught to either sit, or lay
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down, or some other easily-observed learned action to signify to the handler
that the dog has located the scent.
Rex was taught to detect the odor of methamphetamine as well as five
other controlled substances. 	Trooper Jansen explained that Rex’s alert
behavior consisted of breathing fast like an air compressor, wagging his tail
faster than normal, adopting a more rigid body posture, and doing head
checks. 	In any given search, Rex might exhibit one or more of these behaviors.
Trooper Jansen testified Rex’s alert behaviors are objectively observable if a
person is there with Rex.
At the conclusion of the drug dog detection schooling, Rex and Trooper
Jansen passed the certification testing and began work together. 	After initial
certification, Rex and Trooper Jansen had to complete 16 hours of documented
additional training every month. 	In addition, South Dakota is one of only four
states in the nation that require certification of drug dog teams initially, and an
annual recertification every year thereafter. 	Rex and Trooper Jansen’s initial
certification was introduced into evidence, as well as their training records, and
their subsequent recertification in October 2020. 	See Exhibits 5, 6 and A. 	Rex
was retired from active duty in January 2021, due to a back injury he
sustained in the line of duty. 	Trooper Jansen testified that prior to January 9,
2020, Rex had never falsely alerted or indicated.
On the evening of January 9, 2020, Trooper Jansen first walked around
the pick-up and trailer by himself and then he and Rex made two circuits
around Mr. Rederick’s pick-up and trailer together. 	The first pass Trooper
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Jansen let Rex have a “free pass,” and the second time Trooper Jansen directed
Rex where to sniff. 	Dashcam videos from Trooper Jansen’s and Trooper
Peterson’s patrol cars show partial views of Rex’s passes around the pick-up
and trailer, but neither video shows the entirety of that action. 	Trooper Jansen
testified that on both passes around Mr. Rederick’s pick-up and trailer, Rex
alerted to the driver’s side door of the pick-up. 	On the second pass around,
Rex alerted to the trunk of the car on top of the trailer (a red Chevrolet sedan)
and to the passenger’s side door on the pick-up. 	After making the second pass
around the vehicles, Rex indicated by sitting down near the passenger’s side
door of the pick-up. 	Trooper Jansen put Rex back into his patrol vehicle and
then notified Trooper Peterson at 27:25 that Rex had indicated.
Trooper Jansen testified that the alert behavior he witnessed from Rex as
to the trunk of the red sedan was that Rex exhibited the breathing change and
the speedier tail wag.
Following Rex’s alerts and indication, Trooper Peterson told Mr. Rederick
he was going to search and asked if Trooper Peterson would find anything.
Mr. Rederick denied that there was anything in the pick-up and stated the car
was not registered to him. 	He asked again if he could leave. 	Trooper Peterson
said he was not free to leave then he searched Mr. Rederick’s pick-up. 	No
drugs were found. 	The red sedan on top of the trailer was searched next and
five zip-lock baggies were discovered. 	Two of the baggies were empty, and the
other three contained a whitish crystal-like substance that later proved to be
methamphetamine weighing .89 pounds or just under one pound.
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Trooper Jansen notified Agent Pennock of their roadside findings. 	Agent
Pennock then drafted affidavits and applications for search warrants for
Mr. Rederick’s home and outbuildings, his person, and his cellular phone. 	A
state court judge issued the warrants. 	See Exhibits 1 and 2.
Mr. Rederick called Dr. Mary Cablk to testify. 	See Exhibit C (Dr. Cablk’s
curriculum vitae). 	Dr. Cablk testified that the South Dakota Highway Patrol’s
dog training manual, Exhibit B, was based on the Utah Peace Officer
Standards and Training (POST) training method which was designed in the
1990s. 	She opined that the Utah POST training program does not produce
reliable results, that it does not use double-blind testing, and the dog
psychology on which it is based is outmoded. 	Dr. Cablk conceded that there is
currently no nationally-accepted standard for training drug detection dogs. 	Dr.
Cablk admitted that other jurisdictions besides South Dakota use the Utah
POST method of training—specifically Colorado and Ohio.
Dr. Cablk also reviewed Rex’s certification and training records. 	She
testified the records were confusing and she was not sure what they meant.
She testified no one had reviewed the training records. 	She criticized training
Rex with objects which had residual drug smell on them as opposed to training
him using actual narcotics themselves. 	She testified there was no evidence Rex
was subjected to any blind or double-blind testing. 	Blind testing is where
neither the dog nor the handler know if any drugs are hidden in a search
scenario and, if so, where they are. 	Double-blind testing is where no one in the
room including the judge knows if or where any drugs are hidden. 	She also
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testified she did not find evidence that Rex had been tested in scenarios where
no drugs were hidden.
Ultimately, as to Rex, Dr. Cablk could not opine that he was either
reliable or unreliable based on her review of the records. 	She watched video of
Rex’s circuit around Mr. Rederick’s pick-up and trailer from the night of
January 9, 2020. 	This video only showed a portion of Rex’s behavior primarily
from the driver’s side and rear vantage point. 	She opined she could not detect
additional or more vigorous tail wagging from Rex when he sniffed the trunk of
the red sedan. 	Dr. Cablk has never trained any drug detection K-9 teams
herself.
Lt. Christopher Koltz also testified. 	He is the supervisor for all K-9 teams
in the South Dakota Highway Patrol, has been a K-9 handler since 1999, and
runs the South Dakota Highway Patrol’s certification schooling and testing. 	He
explained that Dr. Cablk’s testimony interpreting Rex’s certification and
training forms was in error. 	Rex had been subject to blind testing, but the
forms used at the time called it “unknown” instead of using the term “blind.”
For example, Lt. Koltz testified when a K-9 and their handler perform searches
in the seven scenarios required for certification, the handler has no idea
whether any drugs are hidden and, if so, what the drugs are and where they
are. 	Both Lt. Koltz and Trooper Jansen testified that Rex’s training included
exercises where drugs were actually hidden and some scenarios where there
were no drugs hidden.
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Although Lt. Koltz conceded the highway patrol has not used double-
blind testing (where even the judge has no idea if there are drugs hidden), he
testified it does not matter for the dog’s reliability. 	Since alert behavior is an
innate behavior, neither a handler nor the judge can cue this untrained
behavior. 	Thus, if the judge knows where drugs are hidden, this does not cue
the dog’s alert behavior because the alert behavior is not learned.
Lt. Koltz testified that he does not strictly follow the South Dakota
Highway Patrol manual when conducting training or certification. 	He views the
manual as a guide only and conceded that parts of it may need to be updated.
For example, the manual says a dog should never be “cheated” in training.
“Cheating” is the process of pretending to reward a dog for searching well, but
actually not giving the dog a tangible reward. 	Lt. Koltz testified this admonition
from the manual is not followed. 	He explained that, during testing, cheating
the dog is required as handlers are not allowed to give the dogs tangible
rewards. 	If one doesn’t acclimate the dog to cheating during training, it may
become very frustrated during the certification process where it must search in
seven scenarios and be cheated every time. 	Lt. Koltz testified it would do a
disservice to the dog not to train it using cheats randomly so that on “test day”
receiving cheats instead of real rewards would not be a novel circumstance.
Lt. Koltz has traveled the United States extensively and is familiar with
other training methods used for police dogs in other jurisdictions. 	He testified
the Utah POST method or protocol is used in 13 other states. 	He testified the
program of training and certification in South Dakota produces reliable results
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and is comparable to results obtained by other states. 	He testified South
Dakota is one of only four states that require certification of K-9 teams and
annual mandatory recertification.
Regarding Rex’s training records, Lt. Koltz testified he reviewed all the
work Rex and Trooper Jansen did, but that he just did not fill out the “reviewed
by” box on the training form.
Mr. Rederick now moves to suppress his statements from the traffic stop,
the evidence obtained from the traffic stop, and the evidence obtained by
executing the search warrants. 	He argues the traffic stop was not supported
by either probable cause or reasonable suspicion and that the stop was
unconstitutionally delayed in order to bring a drug dog to the scene.
Mr. Rederick challenges the reliability and accuracy of Rex as well as
challenging whether Rex alerted or indicted. 	To the extent Rex indicated only
to Mr. Rederick’s pick-up and not the red sedan, Mr. Rederick argues that
Rex’s indication cannot provide probable cause for searching the red sedan,
but only gave rise to probable cause to search his pick-up. 	Finally,
Mr. Rederick argues the subsequent search warrants were fruit of the
poisonous tree of the Fourth Amendment violation which occurred at the traffic
stop. 	The government resists all of these arguments.
DISCUSSION
A. 	Whether the Traffic Stop of Mr. Rederick Was Legal
The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. 	When a law enforcement officer stops a
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motor vehicle and questions its occupants, the stop constitutes a seizure under
the Fourth Amendment, “even though the purpose of the stop is limited and
the resulting detention quite brief.” 	Brendlin v. California, 551 U.S. 249,
255-56 (2007) (quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979)); United
States v. Wheat, 278 F.3d 722, 726 (8th Cir. 2001). 	A stop results in a seizure
under the Fourth Amendment of all occupants of the vehicle, driver and
passengers. 	Brendlin, 551 U.S. at 255-56. 	A traffic stop may be lawfully made
under two circumstances. 	If there is probable cause to stop the vehicle, such a
stop is lawful. 	United States v. Sallis, 507 F.3d 646, 649 (8th Cir. 2007)
(quoting Untied States v. Coney, 456 F.3d 850, 855-856 (8th Cir. 2006)
(quoting United States v. Linkous, 285 F.3d 716, 719 (8th Cir. 2002))). 	Also, if
there is reasonable suspicion to stop the vehicle, the stop complies with the
Fourth Amendment. 	Navarette v. California, 572 U.S. 393, 396-97 (2014);
United States v. Spotts, 275 F.3d 714, 718 (8th Cir. 2002); United States v.
Bell, 183 F.3d 746, 749 (8th Cir. 1999).
1. 	Trooper Peterson Had Probable Cause for the Stop
Probable cause exists where the totality of the facts and circumstances
are sufficient to lead a reasonable person to believe that the defendant has
committed a crime. 	There need only be a probability or substantial chance of
criminal activity, rather than an actual showing of criminal activity. 	United
States v. Torres-Lona, 491 F.3d 750, 755-56 (8th Cir. 2007). 	There must be
evidence which would “warrant a man of reasonable caution in the belief” that
a crime has been committed. 	Wong Sun v. United States, 371 U.S. 471, 479
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(1963). 	Trooper Peterson testified he effectuated the stop of Mr. Rederick
because the license plate on his trailer was not properly illuminated as
required by South Dakota law.
South Dakota state law requires that the license plate (“registration
plate” in the words of the statute) of a vehicle shall be illuminated by a white
light near the plate that renders it clearly legible from a distance of 50 feet to
the rear. 	See SDCL § 32-17-11.3 The white light illuminating the license plate
must come on at any time whenever the headlamps of the vehicle are activated.
Id. 	The white light can be a separate light dedicated to illuminating the license
plate, or it can be a white light that is part of the taillights required by SDCL
§ 32-17-8. 	Id.
South Dakota Codified Law § 32-17-8 requires motor vehicles or a vehicle
or trailer being drawn at the end of a combination of vehicles to have at least
two tail lamps mounted on the rear which emit a red light plainly visible from a
distance of 1,000 feet to the rear. 	SDCL § 32-17-8. 	If there is a combination of
vehicles, only the rearmost vehicle in the string needs to have taillights meeting
this specification. 	Id.
3 SDCL § 32-17-11 reads in full as follows:
Either the rear lamps required by § 32-17-8 or a separate lamp shall be so
constructed and placed as to illuminate with a white light the rear registration
plate and render it clearly legible from a distance of fifty feet to the rear. If the
rear registration plate is illuminated by an electric lamp other than the
required rear lamps, the lamps shall be turned on or off only by the same
control switch at all times whenever headlamps are lighted.
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Mr. Rederick asserts two arguments with regard to the above statutes.
One, as a matter of law, he argues the red taillights on a trailer can suffice to
illuminate a license plate on a trailer being towed. 	Second, as a matter of fact,
he argues the red taillights on his trailer on January 9, 2020, illuminated his
license plate for a distance of 50 feet behind his trailer. 	In the court’s
estimation, he is wrong on both counts.
First, as to the legal argument, SDCL § 32-17-11 clearly requires a white
light to illuminate the license plate. 	That white light can come from a separate
light dedicated to illuminating the license plate or it can come from the
taillights. 	There are taillights which emit red as well as white light, with the
white light on the inside of the lamp closest to the license plate. 	In either
event, it is clear the statute requires a white light for illuminating the license
plate.
Second, even if Mr. Rederick’s legal argument is credited that a red
taillight can suffice to illuminate a license plate on a trailer, the red taillights
on Mr. Rederick’s trailer did not illuminate the trailer’s license plate. 	The court
makes this factual finding based on Trooper Peterson’s testimony to that effect
and on the dashcam video from Trooper Jansen’s patrol vehicle. 	Trooper
Peterson described the license plate on the trailer as being mounted behind
and off to the left of the taillights on the trailer so that the red light emitted
from the taillights began at a point in front of the license plate and showed
away from the license plate. 	The dashcam video confirms this description. 	See
Exhibit 4. 	The light from the taillights would have to have shined backward
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(i.e. toward the pick-up instead of toward oncoming traffic) and to the left in
order to illuminate the trailer’s license plate. 	The taillights did not do so.4
Based on the court’s reading of the South Dakota statutes and its factual
findings, the court concludes that Trooper Peterson had probable cause to stop
Mr. Rederick’s vehicle on January 9, 2020, for failing to have the license plate
on his trailer properly illuminated. 	United States v. Pena-Ponce, 588 F.3d 579,
583 (8th Cir. 2009) (stating that “[a]n officer’s observation of a traffic violation,
however minor, gives the officer probable cause to stop a vehicle, even if the
officer would have ignored the violation but for a suspicion that greater crimes
are afoot”) (citation omitted). 	As such, the stop did not run afoul of
Mr. Rederick’s Fourth Amendment rights.
2. 	Trooper Peterson Had Reasonable Suspicion That Mr. Rederick
Was Involved in Illegal Drug Trafficking
An alternate justification for a traffic stop is reasonable suspicion.
United States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001). 	Here, aside from
the traffic violation discussed above, Trooper Peterson had a reasonable
suspicion that Mr. Rederick was involved in drug trafficking.
An officer making a traffic stop based upon “reasonable suspicion” “must
be able to articulate something more than an ‘inchoate and unparticularized
suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(citation omitted). 	Instead, police must have “a ‘particularized and objective
4 The court finds it telling that Mr. Rederick, who argued with Trooper Peterson about nearly
everything during the January 9, 2020, traffic stop, never suggested that his license plate on
his trailer actually was properly illuminated.
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basis for suspecting the particular person stopped of criminal activity.’ ”
Navarette, 572 U.S. at 396 (citation omitted).
“Reasonable suspicion” in support of a traffic stop “is dependent upon
both the content of information possessed by police and its degree of
reliability.” 	Id. at 397 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).
In evaluating the standard, courts must take into account “the whole picture,”
the “totality of the circumstances.” 	Id. 	A mere “hunch” does not suffice, but
the standard requires “considerably less than proof of wrongdoing by a
preponderance of the evidence” or probable cause. 	Id. (quoting Sokolow, 490
U.S. at 7). 	A traffic stop need not be based on the police officer's personal
observation—it can be based on information supplied by a third party. 	Id.
Even a single anonymous tip may provide the necessary reasonable suspicion if
the indicia of reliability are sufficient—such as richness of detail, eyewitness
observation, use of the 911 system to report the tip, and an absence of any
reason to suspect the tipster had a motive to fabricate. 	Id. 	“When a team of
law enforcement officers is involved in an investigation, the issue is whether all
the information known to the team provided ‘specific and articulable facts
which, taken together with rational inferences from those facts, reasonably
warrant’ the investigative stop.” 	United States v. Collins, 883 F.3d 1029, 1032
(8th Cir. 2018) (quoting United States v. Winters, 491 F.3d 918, 921 (8th Cir.
2007)).
“[T]he constitutional reasonableness of a traffic stop does not depend on
the actual motivations of the officer involved, and the subjective intentions of
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the officer making the stop are irrelevant in determining the validity of the
stop.” 	United States v. Herrera-Gonzalez, 474 F.3d 1105, 1109 (8th Cir. 2007).
See also United States v. Andrews, 465 F.3d 346, 347 (8th Cir. 2006) (per
curiam) (A[T]he fourth amendment is not violated if an objectively good reason
for a traffic stop exists, whatever the actual subjective motive of the officer
making the stop may have been.@). 	Although a traffic violation can provide the
basis for a traffic stop, there is no requirement that a traffic violation occur if
there are other grounds providing the officer with a reasonable, articulable
suspicion of criminal activity. 	United States v. Jacobsen, 391 F.3d 904,
906-07 (8th Cir. 2004) (quoting United States v. Mora-Higuera, 269 F.3d 905,
909 (8th Cir. 2001)).
Here, Agent Pennock had a wealth of information from multiple sources
each of which corroborated the other. 	Five separate people had independently
indicated that they purchased drugs from Mr. Rederick or, in the case of
Brandon Wolff, supplied drugs to him. 	These disclosures were against each of
the informant’s penal interests as the disclosures implicated not only
Mr. Rederick but themselves as well. 	United States v. Leppert, 408 F.3d 1039,
1042 (8th Cir. 2005) (an informant’s admissions against their own penal
interest are presumptively credible). 	Each person separately and accurately
described Mr. Rederick’s living quarters. 	Cell phone data corroborated
Brandon Wolff’s account of drug transactions and negotiations with
Mr. Rederick. 	United States v. Nieman, 520 F.3d 834, 839-40 (8th Cir. 2008);
United States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998) (informants are
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reliable where they give specific details that are partially or wholly corroborated
by other informants). Finally, each informant’s information was based on their
own personal observations of Mr. Rederick, his possession of drugs, and his
statements. 	United States v. Stevens, 530 F.3d 714, 718-19 (8th Cir. 2008)
(informant information is reliable when based on personal observations).
Agent Pennock had learned that Mr. Rederick’s source of drugs was in
the Omaha area, that Mr. Rederick’s immediate past supplier (Wolff) was from
Norfolk, and that in the wake of Wolff’s arrest, Mr. Rederick began having
contact with Lance Willits, someone who lived near Norfolk, was believed to be
currently involved in drug trafficking, and who had prior drug convictions.
On January 9, 2020, Agent Pennock knew that Mr. Rederick was in
communication with Willits, that he traveled to the immediate area of Willits’
residence, left and hung out in Norfolk for a while, then went back to Willits’
residence where he stayed a relatively short amount of time before leaving and
traveling back to South Dakota.
Agent Pennock relayed much of this information in summary fashion to
both Trooper Peterson and Trooper Jansen. 	In particular, Agent Pennock gave
the troopers play-by-play updates on Mr. Rederick’s movements and with
whom he was communicating on the day in question. 	The information was
from a reliable source (a DCI investigator). 	The content of the information
known to police as well as its reliability were both high. 	Navarette, 572 U.S. at
397. 	The Fourth Amendment does not require that Trooper Peterson had
personal observation of the facts, just that the facts supplied by another were
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reliable. 	Id. 	Under the totality of these circumstances, the court has little
trouble concluding that Trooper Peterson had reasonable suspicion to stop
Mr. Rederick on suspicion of drug trafficking activity.
B. 	Whether the Traffic Stop Was Illegally Prolonged
Mr. Rederick argues that, even if Trooper Peterson’s initial stop of him
was constitutional, Trooper Peterson violated Mr. Rederick’s Fourth
Amendment rights by unduly prolonging the traffic stop. 	“For purposes of
constitutional analysis, a traffic stop is characterized as an investigative
detention, rather than a custodial arrest. 	Berkemer v. McCarty, 468 U.S. 420,
439 . . . (1984). 	As such, a traffic stop is governed by the principles of Terry v.
Ohio, 392 U.S. 1 . . . (1968).” 	Jones, 269 F.3d at 924.
The constitutional analysis under Terry is two-part: (1) “whether the
officer’s action was justified at its inception,” and (2) “whether it was
reasonably related in scope to the circumstances which justified the
interference in the first place.” 	Terry, 392 U.S. at 20. 	Thus, a traffic stop that
is “lawful at its inception can nevertheless violate the Fourth Amendment
because its manner of execution unreasonably infringes . . . interests protected
by the Fourth Amendment[.]” 	United States v. Jacobsen, 466 U.S. 109, 124
(1984). 	The court has already concluded Trooper Peterson’s actions at the
inception of the traffic stop were justified. 	It now turns to the question whether
the length of the traffic stop was also justified.
“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
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violation that warranted the stop, [Illinois v. Caballes, 543 U.S. 405, 407
(2005)], and attend to related safety concerns[.]” 	Rodriguez v. United States,
575 U.S. 348, 354 (2015). 	See also Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion) (“The scope of the detention must be carefully tailored to its
underlying justification.”). 	“[A]n investigative detention must be temporary and
last no longer than is necessary to effectuate the purpose of the stop.
Similarly, the investigative methods employed should be the least intrusive
means reasonably available to verify or dispel the officer’s suspicion in a short
period of time.” 	Royer, 460 U.S. at 500. 	“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 mission.”
Caballes, 543 U.S. at 407. 	“Authority for the seizure thus ends when tasks
tied to the traffic infraction are—or reasonably should have been—completed.”
Rodriguez, 575 U.S. at 354.
“Beyond determining whether to issue a traffic ticket, an officer’s mission
[during a traffic stop typically] includes . . . 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. 	See also United States v. Sanchez, 417 F.3d 971, 975 (8th
Cir. 2005) (finding other inquiries incident to a traffic stop may include
“inquiring about the occupants’ destination, route, and purpose” (quotation
omitted)). 	“When complications arise ‘in carrying out the traffic-related
purposes of the stop, . . . police may reasonably detain a driver for a longer
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duration than when a stop is strictly routine.’ ” 	United States v. Soderman,
983 F.3d 369, 374 (8th Cir. 2020) (quoting United States v. Olivera-Mendez,
484 F.3d 505, 510 (8th Cir. 2007)).
Absent further reasonable suspicion, an officer may not conduct
unrelated checks that extend the stop beyond the time reasonably required to
complete its original mission. 	Rodriguez, 575 U.S. at 354-55. 	Yet, an officer
may lawfully engage in unrelated inquires so long as they do not measurably
extend the duration of the stop. 	Id. at 355. 	The Supreme Court in Rodriguez
found that a dog sniff is not an ordinary inquiry incident to a traffic stop and,
“by contrast, is a measure aimed at ‘detect[ing] evidence of ordinary criminal
wrongdoing.” 	Id. (quoting Indianapolis v. Edmond, 531 U.S. 32, 40-41 (2000)).
“[A] dog sniff is not fairly characterized as part of the officer’s traffic mission.”
Rodriguez, 575 U.S. at 356.
Here, the key question initially is: 	what was the purpose of the stop? 	If
the purpose of the stop was to issue a warning ticket for failing to have a
license plate properly illuminated, the length of the stop must be fairly
abbreviated before running afoul of the Fourth Amendment. 	It is the warning-
ticket measuring stick Mr. Rederick argues should be used to determine if
Trooper Peterson violated his Fourth Amendment rights.
But the government argues the purpose of the stop was to further Agent
Pennock’s investigation into Mr. Rederick’s suspected drug trafficking. 	Using
this measuring stick, the government argues the permissible duration of the
stop under the Fourth Amendment is much longer than the mere issuance of a
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traffic ticket. 	The government cites a case decided in January of this year in
support of its position: 	United States v. Magallon, 984 F.3d 1263 (8th
Cir. 2021).
In Magallon, officers stopped a vehicle in which three men were
occupants, believing that one or more of them was involved in
methamphetamine trafficking in Des Moines, Iowa. 	Id. at 1272-74. 	Officers
separated the three men and questioned them separately, one at a time, with
Garcia being questioned last. 	Id. 	Garcia sat handcuffed in the back of a patrol
car for over an hour before police came to question him. 	Id. 	Eventually,
Garcia gave consent to search his nearby car and methamphetamine was
found therein. 	Id. 	Garcia moved to suppress the search of his nearby car,
arguing that the officers unduly delayed the traffic stop in violation of the
Fourth Amendment. 	Id. at 1278.
The court noted that a police stop cannot exceed the time needed to
handle the matter for which the stop was made. 	Id. 	But the duration of a stop
is directly related to the “mission” of the stop with the only requirement being
that officers must act “reasonably diligent[ly]” in carrying out their mission. 	Id.
Once an officer’s “reasonable suspicion or probable cause dissipates, the stop
must also cease.” 	Id.
In Magallon, the Eighth Circuit defined the mission of the stop as “to
investigate the GMC Sierra and its passengers’ involvement with drug
trafficking.” 	Id. at 1279. 	Since that mission was ongoing for the duration of
the traffic stop, and since “addressing the suspicion of drug activity required
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time,” the duration of the stop did not violate Garcia’s Fourth Amendment
rights. 	Id. 	Reasonable suspicion of drug trafficking remained extant for the
entire duration of the stop and the officers worked diligently in pursing the
investigation of their suspicions. 	Id.
So, too, here. 	The purpose of the stop was to investigate Mr. Rederick for
drug trafficking. 	This is evident in Agent Pennock’s instructions to the troopers
to stop Mr. Rederick in any event, even if they observed no independent
probable cause arising from a traffic violation. 	The development of an
independent reason for the stop was merely a precaution to avoid having to
reveal the drug investigation should a search reveal no evidence of wrongdoing.
Given the mission of the search—investigating Mr. Rederick for possible
drug trafficking--all the officers involved acted diligently. 	Agent Pennock
arranged to have Trooper Peterson and Trooper Jansen standing by. 	Trooper
Peterson first obtained the VIN from the pick-up at 9:09 and finished writing
the warning ticket only seven minutes later. 	Trooper Peterson contacted
Trooper Jansen to bring Rex promptly—12:49 minutes after the stop was
initiated and even before he had finished issuing the warning ticket. 	Trooper
Jansen arrived at 22:21. 	At 27:25 Trooper Jansen notified Trooper Peterson
that Rex had indicated to the presence of drugs. 	Only 27 and a half minutes
elapsed from start of the traffic stop until Rex finished his sniff. 	This is far less
than the hour-plus duration of the drug investigative stop in Magallon.
In addition, the reasonable suspicion did not dissipate as the troopers
were conducting their investigation. 	Mr. Rederick showed abnormal signs of
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agitation and nervousness. 	Almost immediately he began asking then
demanding to leave. 	Rex alerted and indicated to the presence of the odor of
drugs. 	There was never a point in time during the 27 minutes that elapsed
where one could say the troopers’ reasonable suspicions were allayed. 	The
court concludes, given the drug investigation mission of the stop, that the
duration of the stop did not violate Mr. Rederick’s Fourth Amendment rights.
C. 	Whether Rex Provided Probable Cause for the Search
1. 	Whether Rex Is Reliable and Whether He Alerted
Mr. Rederick argues that Rex is not reliable and that he did not alert to
the red sedan. 	Furthermore, he argues that although Rex may have alerted
and indicated to the pick-up, that did not provide probable cause to search the
red sedan on the flatbed trailer being towed behind the pick-up.
In Florida v. Harris, 568 U.S. 237, 245-46 (2013), the Supreme Court
held an alert of a drug dog to a vehicle during a traffic stop may provide
probable cause to search the vehicle if the drug dog is reliable and the alert is
reliable under the circumstances. 	In determining whether the drug dog is
reliable and whether its alert was reliable under the circumstances, courts
should not apply an “inflexible” set of rigid requirements in every case, but
instead should consider relevant facts under the circumstances. 	Id. at 244-45.
Such factors to consider may include “evidence of a dog’s satisfactory
performance in a certification or training program,” whether the dog “has
recently and successfully completed a training program that evaluated his
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proficiency in locating drugs,” and “evidence of the dog’s (or handler’s) history
in the field . . . may sometimes be relevant.” 	Id. at 246-47.
Even if the dog is shown to be generally reliable, “circumstances
surrounding a particular alert may undermine the case for probable cause—if,
say, the officer cued the dog (consciously or not), or if the team was working
under unfamiliar conditions.” 	Id. at 247. 	“The question . . . is whether all the
facts surrounding a dog’s alert, viewed through the lens of common sense,
would make a reasonably prudent person think that a search would reveal
contraband or evidence of a crime.” 	Id. at 248.
Here, the court pauses for an aside. 	Justice Kagan wrote for a
unanimous Court in Harris that a generally reliable drug dog which alerts
under circumstances indicating the alert is reliable provides probable cause for
a search. 	Id. at 245-46. 	But the record in this case is replete with evidence
that Rex alerts not to the presence of actual drugs, but to the odor of drugs. 	If
this were a fact that escaped the notice of the Harris Court, there might be
room for this court to distinguish the Harris holding from this case.
However, the Harris opinion is replete with references to the fact that
Aldo, the dog in that case, alerted only to the odor of drugs, just like Rex. 	See,
e.g., Harris, 568 U.S. at 248. 	But here is the nuance this fact raises that the
Harris Court failed to acknowledge or discuss: 	If a dog is trained to indicate
only to the odor of contraband, how can one conclude that an indication means
the contraband itself is more probably than not present in that location? 	After
all, it is not a crime to have the odor of contraband in one’s car and finding
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such an odor does not result in police obtaining evidence of a crime. 	Instead, it
is only the possession of the contraband itself that gives rise to a crime and
evidence of a crime. 	The Fourth Amendment requires probable cause of
evidence of a crime. 	There are myriad ways the odor of a drug may be
present in a vehicle without the actual contraband drug being present, such as
contaminated money in general circulation, a car that has been driven by
someone previously who had drugs in the car, etc.
However, this court is at “the bottom of the totem pole” in the federal
judiciary. 	It is bound to follow decisions of courts above it. 	The Supreme
Court has held that a reliable drug dog alert indicating the presence of the
odor of drugs gives rise to probable cause for a search of the place indicated.
This court is bound by that holding, even if it appears an oversimplification of
the analysis.
The court turns, then, to the question whether Rex is reliable, whether
he indicated or alerted to Ms. Rederick’s vehicle on January 9, 2020, and,
finally, whether that indication or alert was reliable. 	The court finds Rex to be
reliable generally. 	He successfully completed the 240-hour training school in
September through early November 2019, and successfully completed the
seven separate testing scenarios necessary to be certified in November 2019.
See Exhibit 5.
Mr. Rederick’s expert, Dr. Cablk, never examined Rex or tested him. 	Her
ultimate opinion was that she could not opine whether Rex was reliable or
unreliable. 	Dr. Cablk essentially found the records to be unavailing, in part
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because she did not know how to interpret them. 	For example, she asserted
that testing should include blind and double-blind tests. 	Because the records
did not use those terms, she stated she could not tell whether Rex had been
tested in this manner. 	But Lt. Koltz testified that an “unknown” test is the
same as “blind” test—the handler is unaware of whether there are any drugs
hidden in a scenario or, if so, where. 	Thus, Rex was tested using the “blind”
method, Dr. Cablk was simply unable to ascertain this from reading the
records because they did not use this term of art.
Dr. Cablk also took issue with the Utah POST method of training, on
which the South Dakota dog training manual draws heavily. 	But, again, she
did not opine that a dog trained under the Utah POST method was unreliable
nor did she opine that Rex specifically was unreliable.
Dr. Cablk took issue with the concept that a dog displaying innate alert
behavior is indicative of the presence of drug odor. 	She explained that dogs
display alert behavior in all manner of circumstances. 	But, again, she did not
opine that Rex was unreliable when his handler observed him displaying alert
behavior.
Dr. Cablk opined that Rex was not displaying faster-than-normal tail
wagging when he sniffed the trunk of the red sedan in the dashcam video.
Dr. Cablk did not undermine the other alert Trooper Jansen said Rex displayed
when sniffing the trunk—faster breathing. 	Furthermore, Dr. Cablk’s opinion is
undermined somewhat by the fact she could not observe Rex during his entire
ambit of the pick-up and trailer. 	She could only view him for part of that
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circuit; thus she did not have comparative grounds to see his tail wagging at
other places on the car. 	Finally, Rex indicated by sitting down off camera, so
Dr. Cablk did not observe this behavior as well.
The court concludes that none of Dr. Cablk’s testimony serves to
undermine the general reliability of Rex. 	In addition to the successful find of
drugs in the January 9, 2020, traffic stop, we only have evidence of one other
stop—the stop of Mr. Rederick on January 3, 2020. 	Rex alerted and indicated
on that occasion and, although the humans found no drugs, we know with the
benefit of Ricky Geidd’s later statement that there were drugs present on that
occasion. 	Thus, the court has no evidence that Rex is unreliable generally or
that he has ever given a “false positive” alert.5
Another factor Harris directs the court to consider is whether Rex’s alert
and indication on the night of January 9, 2020, was unreliable even if Rex is
reliable generally. 	No facts were adduced that would cause the court to believe
circumstances existed at the traffic stop that night rendering the results of
Rex’s search unreliable.
There was evidence in the record that on another occasion when the
wind was blowing 50 miles per hour that Rex’s search behavior was “all over
the place.” 	But the night of January 9 there was testimony of only a little wind,
nothing like 50 mph. 	There was also no evidence that Rex was behaving
5 Lt. Koltz was adamant that a drug dog can never give a false alert. His reasoning was that a
drug dog alerts to the odor of drugs, so the alert is valid, even if actual drugs are not found.
The court rejects this portion of Lt. Koltz’s testimony as a beach too far. If humans are fallible,
and we most certainly are, dogs who are trained by humans are no doubt fallible too.
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erratically. 	Mr. Rederick does not assert that Trooper Jansen cued Rex
consciously or unconsciously.
Dr. Cablk testified that, based on testimony she gave in the District of
Utah, a court ruled that dogs trained by the Utah POST method are unreliable.
The court does not read United States v. Jordan, 455 F. Supp. 3d 1247
(D. Utah 2020), to so hold. 	In Jordan, a drug dog, Tank, had not indicated at
defendant’s vehicle as Rex did in Mr. Rederick’s case. 	Id. at 1249-50. 	During
the search, Tank’s attention was frequently not on defendant’s vehicle, but was
drawn to passing traffic and things on the sidewalk, leading the court to
conclude Tank did not demonstrate a “consistent and intense interest by Tank
in the vehicle or any odor coming from it.” 	Id. at 1253. 	In this case, Rex
displayed consistent and intense interest in Mr. Rederick’s vehicle.
Tank’s veterinary records indicated that he suffered serious health
conditions causing him pain which might have served to distract him during
his search. 	Id. at 1250. 	Furthermore, the documents produced relative to
Tank revealed that his handler had conducted very scant training with him in
and around the time of the search at issue in the case—contrary to Rex’s
extensive and consistent training records herein. 	Id. at 1251. 	While Rex was
tested using blind methodology, Tank was not tested using blind methodology.
Id. at 1256.
Based on the totality of facts in that case, the Jordan court held that
Tank’s certification, including the absence of blind testing, as well as the
circumstances of the sniff of defendant’s vehicle, the court concluded that
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Tank’s sniff was not reliable and did not provide probable cause for the
automobile search that ensued.
To be sure, the Jordan court was critical of the Utah POST method of
training. 	Id. at 1257. 	But the Jordan decision is distinguishable on all the
factual grounds highlighted above. 	In addition, Lt. Koltz testified that when he
conducts K-9 training, the South Dakota Highway Patrol manual is merely a
guide. 	He does not follow it slavishly. 	Therefore, defects in the Utah POST
method are not per se attributable to Rex.
The bottom line is this. 	The totality of circumstances, including Rex’s
training and certification, his good (though short) track record, the behavior he
showed at the scene of the traffic stop, and Dr. Cablk’s inability to say that Rex
was unreliable or that his alert on the night in question was unreliable, lead
this court to conclude both Rex and his alert were reliable. 	The court
concludes that Rex is generally reliable in detecting the odor of drugs and that
his search, alerts, and indication on the night of the traffic stop were reliable.
2. 	Whether Rex’s Alert Provided Probable Cause to Search the
Vehicle on the Trailer
Even if Rex is reliable and his alert is reliable, Mr. Rederick argues Rex
indicated at most to Mr. Rederick’s pick-up, not the red sedan he was towing
on the trailer. 	Because Rex did not indicate to the trailer or the red sedan
being towed on that trailer, Mr. Rederick argues Rex’s alert did not provide
probable cause to search the red sedan. 	At most, Rex’s alert only provided
probable cause to search Mr. Rederick’s pick-up, the search of which yielded
no contraband.
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Again, the government has a case directly on point. 	In United States v.
Tuton, 893 F.3d 562, 567-68 (8th Cir. 2018), a drug detection dog named Hemi
alerted to luggage in a bus’s luggage compartment, but Hemi did not display an
indication, which in his case involved either sitting or standing before the
source of the odor and staring at it. 	The court nevertheless held that Hemi’s
alert to the luggage compartment gave the police probable cause to search
Tuton’s bag which was in the compartment. 	Id. at 571. 	See also United States
v. Holleman, 743 F.3d 1152, 1154, 1156 (8th Cir. 2014) (drug dog who alerted
but did not indicate when led around defendant’s vehicle nevertheless supplied
probable cause to search the vehicle); United States v. Parada, 577 F.3d 1275,
1282 (10th Cir. 2009) (same).
The court has found as a matter of fact based on Trooper Jansen’s
testimony that Rex indeed alerted to the trunk of the red sedan. 	The court
rejected Dr. Cablk’s testimony that Rex did not alert because Dr. Cablk was not
in a good position to see and compare Rex’s tail wagging at the trunk as
compared to other places on his circuit round the pick-up and trailer. 	Also, as
mentioned, Dr. Cablk did not dispute or refute Trooper Jansen’s testimony that
Rex also alerted to the trunk of the red sedan by breathing quickly in his “air
compressor” fashion. 	Having found that Rex is reliable generally, that he in
fact alerted to the trunk of the red sedan, and that his alert on January 9 was
reliable, the court concludes that Rex’s alert to the trunk of the red sedan
supplied the officers with probable cause to search that location.
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D. 	Whether Mr. Rederick’s Statements Were Made in Custody
Mr. Rederick argues that all of his statements made at the traffic stop on
January 9, 2020, should be suppressed as in violation of the rule announced
in Miranda. 	“[A]n individual must be advised of the right to be free from
compulsory self-incrimination, and the right to the assistance of an attorney,
any time a person is taken into custody for questioning.” 	United States v.
Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990) (citing Miranda v. Arizona, 384
U.S. 436, 444 (1966)). 	Accordingly, a Miranda warning is required prior to law
enforcement questioning an individual whenever the individual is in custody
and is being interrogated. 	United States v. Flores-Sandoval, 474 F.3d 1142,
1146 (8th Cir. 2007).
Some courts have placed the burden of proving that the defendant was
not in custody at the time of the interrogation on the government. 	See United
States v. Charbonneau, 979 F. Supp. 1177, 1181 (S.D. Ohio 1997). 	Other
courts have placed the initial burden on the defendant to prove that he was “in
custody,” with the burden of proof shifting to the government to prove a
voluntary waiver only after the defendant has sustained his initial burden. 	See
United States v. Moore, 104 F.3d 377, 392 (D.C. Cir. 1997) (Silberman, J.,
concurring) (“[I]t is the appellant’s burden to establish factually that he was in
custody as a pre-condition to an argument that the Constitution protects his
silence[.]”). 	The Eighth Circuit appears not to have addressed this issue yet,
although some district courts within the circuit have. 	See, e.g., United States
v. Morriss, No. 06-6010-01-CR-SJ-SOW, 2006 WL 3519344, at *12 (W.D. Mo.
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Dec. 6, 2006) (placing initial burden on defendant and citing to extra-circuit
cases for authority). 	For purposes of this report and recommendation, the
court has placed the burden of proving that Mr. Rederick’s statements were not
the subject of custodial interrogation on the government. 	See United States v.
McCarty, No. CR. 08-50035, 2008 WL 11404530, at *5 (D.S.D. Aug. 25, 2008)
(placing burden on government to show defendant’s statements were not the
subject of custodial interrogation), report and recommendation adopted as
modified, 2008 WL 11404531 (D.S.D. Oct. 7, 2008), aff’d, 612 F.3d 1020 (8th
Cir. 2010).
A suspect is considered to be “in custody” either upon his or her formal
arrest or “under any other circumstances where the suspect is deprived of his”
or her “freedom of action in any significant way.” 	Griffin, 922 F.2d at 1347
(citing Miranda, 384 U.S. at 444; Berkemer, 468 U.S. at 429). 	Absent formal
arrest, a suspect is deemed is be “in custody” where a reasonable person in the
suspect=s position would have believed that his freedom of action had been
curtailed to a “degree associated with formal arrest.” 	Berkemer, 468 U.S. at
442; United States v. Black Bear, 422 F.3d 658, 661 (8th Cir. 2005); Griffin,
922 F.2d at 1347; United States v. Carter, 884 F.2d 368, 370 (8th Cir. 1989).
The test is one of objective reasonableness judged from the point of view of the
suspect, not from the point of view of the interrogator. 	Berkemer, 468 U.S. at
442; Black Bear, 422 F.3d at 661; Griffin, 922 F.2d at 1347; Carter, 884 F.2d
at 370. 	In determining whether a suspect reasonably believed himself or
herself to be in custody, the court examines the totality of the circumstances.
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Carter, 884 F.2d at 370 (citing United States v. Lanier, 838 F.2d 281, 285 (8th
Cir. 1988) (per curiam)).
Under the totality of the circumstances test, six nonexclusive factors
have emerged with some frequency: 	(1) whether the suspect was informed that
he was free to leave and that answering the interrogator’s questions was
voluntary; (2) whether the suspect possessed freedom of movement during the
interrogation; (3) whether the suspect initiated contact with the interrogator or
voluntarily acquiesced in the interrogation; (4) whether the interrogator
employed strong-arm tactics or strategies; (5) whether the atmosphere of the
interrogation was dominated by the police; and (6) whether the suspect was
arrested at the close of the interrogation. 	See United States v. Flores-Sandoval,
474 F.3d 1142, 1146-47 (8th Cir. 2007) (citing Griffin, 922 F.2d at 1349).
Reference to these factors is helpful, but these factors are not exclusive and
custody “cannot be resolved merely by counting up the number of factors on
each side of the balance and rendering a decision accordingly.” 	Flores-
Sandoval, 474 F.3d at 1147 (citation omitted). 	In addition, the place where the
interrogation took place, the purpose of the interrogation, the length of the
interrogation, and other factors are also to be considered. 	Griffin, 922 F.2d at
1348; Carter, 884 F.2d at 370.
In United States v. Czichray, 378 F.3d 822, 827 (8th Cir. 2004), the
Eighth Circuit cautioned the Griffin factors are by no means exhaustive and
should not be applied “ritualistically.” 	The Eighth Circuit has emphasized “an
express advisement that the suspect is not under arrest and that his
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participation in any questioning is voluntary” is the most obvious and effective
means of demonstrating he has not been taken into custody. 	United States v.
Brave Heart, 397 F.3d 1035, 1039 (8th Cir. 2005). 	The Eighth Circuit regards
the twin admonitions that the suspect is free to leave and does not have to
answer questions to be “weighty in the custody analysis.” 	United States v.
Perrin, 659 F.3d 718, 720-21 (8th Cir. 2011). 	The Griffin factors still appear in
Eighth Circuit case law after Czichray and continue to be cited with approval
for determining the custody issue. 	See id.
Mr. Rederick began asking at five minutes into the traffic stop if he could
leave—he and Trooper Peterson had only just sat down in the patrol car at
approximately the three-minute mark. 	He continually asked to leave
throughout the traffic stop. 	Because Mr. Rederick’s requests at this early stage
of the traffic stop were unreasonable—no officer can check licensing,
registration, and insurance on two vehicles and write a ticket in two minutes—
the court does not take his questions as conclusive of the issue.
However, at 16:36 Trooper Peterson finished writing the warning ticket
and, at this point, Trooper Peterson clearly told Mr. Rederick that he was not
free to leave. 	No Miranda warnings were given. 	All statements made by
Mr. Rederick from 16:36 forward on Exhibit 3 should be suppressed as he was
in custody during this time. 	Additionally, the government does not dispute
that he was subject to interrogation during this time.
As to statements made prior to 16:36 on the video, the court concludes
Mr. Rederick was not in custody. 	In reality, it is highly unlikely Trooper
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Peterson would have allowed Mr. Rederick to leave at any point once he
stopped him unless they searched his vehicles and came up empty-handed.
But, as discussed above, the test is whether a reasonable person in
Mr. Rederick’s position—not Trooper Peterson’s position—would have thought
they were free to go.
The Supreme Court in Berkemer v. McCarty, 468 U.S. 420 (1984),
addressed the issue of whether a motorist who is the subject of a traffic stop is
“in custody” for purposes of Miranda. 	After the motorist is formally arrested on
a traffic violation, no matter how minor, the Court held that Miranda warnings
are required. 	Berkemer, 468 U.S. at 434-35. 	However, during the traffic stop
itself and prior to arrest, the Court held that Miranda applies only when and if
the “suspect’s freedom of action is curtailed to a ‘degree associated with formal
arrest.’ ” 	Id. at 440-41 (quoting California v. Beheler, 463 U.S. 1121, 1125
(1983) (per curiam).
The Court acknowledged that a traffic stop “significantly curtails the
‘freedom of action’ of the driver and the passengers” in the detained vehicle,
noting that drivers who see a policeman’s signal neither feel free to ignore that
signal nor to drive away once stopped. 	Id. at 436. 	However, a traffic stop is
generally devoid of those elements of coercion that prompted the
announcement of the rule in Miranda. 	Id. at 436-38. 	For example, the
detention is presumptively temporary and brief, with the driver being allowed to
continue on his way after a check of his license and registration and, perhaps,
the issuance of a citation. 	Id. at 437. 	Also, the interrogation takes place in
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public, subject to observation by pedestrians and other vehicles, thus reducing
the ability of an unscrupulous policeman to “use illegitimate means to elicit
self-incriminating statements and diminish[ing] the motorist=s fear that, if he
does not cooperate, he will be subjected to abuse.” 	Id. at 438. 	Thus, the Court
concluded that the “noncoercive aspect of ordinary traffic stops prompts us to
hold that persons temporarily detained pursuant to such stops are not ‘in
custody’ for the purposes of Miranda.” 	Id. at 440.
The Berkemer Court directed courts to consider factors such as the
following in determining whether a suspect at a traffic stop was “in custody”
such that Miranda warnings were required: 	period of time elapsed between the
traffic stop and the arrest, whether the suspect was informed his detention was
only temporary or that he was not under arrest, and the character and nature
of the interaction between the police and the suspect at the stop. 	Id.
at 441-42.
The Eighth Circuit discussed the application of Berkemer to a traffic stop
in United States v. Morse, 569 F.3d 882 (8th Cir. 2009). 	In that case, police
stopped the vehicle in which Morse was a passenger. 	Id. at 883. 	The driver
was arrested for driving with a suspended license and the officer asked Morse
to exit the vehicle so as to conduct a search of the vehicle incident to arrest.
Id. 	When Morse exited, the officer told Morse he was going to conduct a pat-
down search and asked Morse if he had anything on his person the officer
should know about. 	Id. 	At that point, Morse told the officer he had crack
cocaine in his pocket. 	Id. 	Morse later moved to suppress his statement and
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the fruits of the officer=s search of his person because the interrogation by the
officer was without benefit of Miranda warnings. 	Id.
The district court granted the motion to suppress, declining to apply the
holding of Berkemer because the district court held that “the questioning of
[Morse] was not in connection to the reason for the stop and far exceeded a
routine roadside questioning.” 	Id. at 884. 	The Eighth Circuit reversed, holding
that Berkemer controlled the analysis. 	Id. at 884-85. 	The court held that,
under Berkemer, the mere fact that Morse did not feel free to leave was not
determinative of whether Miranda warnings were required. 	Id. 	In addition, the
court noted that Morse was asked only a “modest number of questions” and
the facts did not establish a situation tantamount to a formal arrest. 	Id.
Here, up to the point Trooper Peterson told Mr. Rederick he was not free
to leave at 16:36, this appeared from all outwardly observable circumstances to
be a normal traffic stop. 	Trooper Peterson took Mr. Rederick’s driver’s license
and insurance information, he was checking to see if the pick-up and trailer
were licensed to Mr. Rederick (or if they were reported as stolen), he was
checking to see if there were any outstanding arrest warrants for Mr. Rederick,
and he was preparing a written warning ticket. 	As such, the period before
16:36 on the video falls within the holding of Berkemer. 	Accordingly, the court
recommends that all statements by Mr. Rederick prior to 16:36 on the video not
be suppressed and that all statements after that time on the video be
suppressed.
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E. 	Whether Subsequently-Discovered Evidence Should Be Suppressed
as Fruit of the Poisonous Tree
Mr. Rederick argues that the evidence from the search warrants executed
at his home, on his person, and on his cell phone should be suppressed as
poisonous fruit of the Fourth Amendment violation at the traffic stop. 	Other
than arguing that the search warrants derive from illegally-obtained evidence
from the traffic stop, Mr. Rederick makes no other argument that the search
warrants are invalid or lacking in probable cause. 	The court has found that no
Fourth Amendment violation occurred at the traffic stop, so the search
warrants were not derived from a constitutional violation.
The court has concluded that Mr. Rederick’s statements should be
partially suppressed as violative of the rule announced in Miranda. 	However,
none of those statements appear in Agent Pennock’s search warrant affidavits.
See Exhibits 1 & 2. 	Therefore, the search warrants were not derived from or
dependent upon the Miranda violation. 	The court recommends denying
Mr. Rederick’s motion to suppress the fruits of the search warrants duly issued
by the state court.
CONCLUSION
Based on the foregoing law, facts, and analysis, this magistrate judge
respectfully recommends that Mr. Rederick’s motion to suppress [Docket
No. 42] be granted in part by suppressing any statements made after 16:36 on
the dashcam video of Trooper Peterson (Exhibit 3). 	The court recommends that
Mr. Rederick’s motion to suppress be denied in all other respects.
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NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
district court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED June 25, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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