United States v. Brown
| Docket Number | 4:21-CR-40066-KES |
| Decision Date | 19 November 2021 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. VANCE WARKATA BROWN, Defendant. |
| Court | U.S. District Court — District of South Dakota |
REPORT AND RECOMMENDATION
Defendant Vance Warkata Brown is before the court on an indictment charging him with possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(2), and 922(g)(9). See Docket No. 1. Mr. Brown has filed a motion to suppress certain evidence. See Docket No. 35. The United States (“government”) resists the motion. See Docket No. 39. 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, United States District Judge.
An evidentiary hearing was held on November 8, 2021, in Sioux Falls, South Dakota. Mr. Brown was there in person along with his lawyer Amanda D. Kippley, Assistant Federal Public Defender. The government was represented by its Assistant United States Attorney, Tamara P. Nash. Two witnesses testified and two exhibits were received into evidence. From this testimony and these exhibits, the court makes the following findings of fact.
On November 24, 2020, at approximately 1:54 a.m., Officer Kyler Pekarek[1] of the Yankton Police Department was patrolling East Highway 50 near Ferdig Street in Yankton South Dakota. While following a maroon 2004 Chevrolet K1500 Officer Pekarek observed the driver turn east onto Highway 50, avoiding the inside lane, and enter the outside lane. (01:01, Exhibit 1A)[2]. Officer Pekarek initiated a traffic stop based on a violation of SDCL § 32-26-18[3].
Upon making the stop, Officer Pekarek approached the vehicle's passenger-side window. (00:46, Exhibit 1B). Officer Pekarek told the driver and passenger of the vehicle the reason for the stop was a “turn violation.” (00:54, Exhibit 1B). Officer Pekarek informed the occupants that he was not going to write them a ticket for the lane violation. (01:23, Exhibit 1B). Officer Pekarek confirmed that the driver had an ID and identified the driver as the defendant, Mr. Vance Brown. (01:44, Exhibit 1B). Officer Pekarek requested that Mr. Brown follow him to his patrol vehicle. Id. The passenger identified herself as Sara Stokes and indicated that she did not have identification on her person. (01:52, Exhibit 1B).
While approaching the patrol vehicle, Mr. Brown expressed fear of getting into Officer Pekarek's car with the dog in the back seat, stating “I will sit on the ground, I don't want to be by a dog.” (02:15, Exhibit 1B). Nonetheless, Mr. Brown got into the front passenger seat of the patrol vehicle. (02:21, Exhibit 1B). During this time, another law enforcement vehicle belonging to Officer Jericho Osborne[4] was parked behind Officer Pekarek's car. Both Officer Pekarek and Officer Osborne testified that it was routine practice of the Yankton Police Department for there to be two police cars during a traffic stop at this time of night due to officer safety concerns. Officer Osborne testified that his primary role was to keep an eye on the suspect's vehicle and to provide back-up for Officer Pekarek if needed. Officer Pekarek testified that he never requested assistance and there was no previous coordination with any officer regarding Mr. Brown's traffic stop.
While inside the patrol vehicle, Officer Pekarek described his reason for the stop to Mr. Brown. (02:44, Exhibit 1B). As Officer Pekarek conducted a NCIC[5] query search into Mr. Brown's identification, he simultaneously asked where Mr. Brown was coming from that evening, what brought Mr. Brown into town, and where Mr. Brown was from originally. (03:15, Exhibit 1B). Mr. Brown stated they were coming from the Cockatoo Gentlemen's Club, which is also where Ms. Stokes worked. (03:20, Exhibit 1B). Officer Pekarek testified that the Cockatoo Gentlemen's Club is known for the sale and use of illegal drugs in Yankton, South Dakota. Furthermore, Officer Pekarek testified that during this initial conversation, he observed Mr. Brown's carotid artery beating out of his neck, he was breathing heavily, his chest was raised, his body was rigid, he was staring straight ahead, and he was showing other signs of nervous behavior.
Mr. Brown then asked Officer Pekarek for directions to the “Lodge Motel.” (03:23, Exhibit 1B). Officer Pekarek questioned if he meant the “Econo Lodge, ” Mr. Brown said yes, and Officer Pekarek indicated that it was “all the way back on Broadway.” (03:30, Exhibit 1B).
While the conversation continued, Officer Pekarek began to write a warning for the lane violation. (03:33, Exhibit 1B). As Officer Pekarek worked on the warning, he learned that Mr. Brown's driver's license was revoked. (07:05, Exhibit 1B). Mr. Brown asked what a revoked license meant, and Officer Pekarek said, “I am just going to write you a ticket, that's it . . . Normally, you go to jail.”[6] (07:23, Exhibit 1B). Officer Pekarek asked Mr. Brown what he was revoked for, and Mr. Brown indicated he was unsure. (07:40, Exhibit 1B). Officer Pekarek then handed Mr. Brown the lane violation warning, told him he could just throw it away, and began writing the citation for driving with a revoked license. (07:54, Exhibit 1B).
As Officer Pekarek continued working on the citation, he advised Mr. Brown that he was a K9 unit and asked, “Is there anything up in the vehicle I need to know about?” (09:30, Exhibit 1B). Mr. Brown responded in the negative. Officer Pekarek then asked Mr. Brown if there were pills, heroin, cocaine, or methamphetamine in the vehicle. (10:00, Exhibit 1B). Again, Mr. Brown responded in the negative. When asked about heroin, Mr. Brown began to laugh and can be seen scratching or rubbing his head. (10:12, Exhibit 1B). Officer Pekarek testified that, in his training and experience, this was a grooming gesture. Officer Pekarek explained that a grooming gesture, such as forced laughter and scratching of the head that he observed Mr. Brown doing, is a way for people to calm their nerves in stressful situations. Additionally, Officer Pekarek testified that he continued to observe the nervous behavior-carotid beating quickly, raised chest, heavy breathing-that he had previously seen. When being questioned on whether these physical indications were normal signs of nervousness when being stopped by the police, Officer Pekarek stated that, in his experience, a suspect's nerves tend to calm down once they find out they are only getting a ticket and are not going to jail; here, Officer Pekarek testified Mr. Brown's nerves continued to get increasingly worse as the traffic stop progressed.
While continuing to work on the citation, Officer Pekarek requested consent to search the vehicle. (10:33, Exhibit 1B). Mr. Brown denied consent. Officer Pekarek then asked for consent to deploy his K9, Reno, around the vehicle. (11:01, Exhibit 1B). Again, Mr. Brown denied consent. Officer Pekarek then exited the patrol vehicle, walked to the passenger side of Mr. Brown's car, and asked Ms. Stokes if there was any marijuana in the car. (11:28, Exhibit 1B). Ms. Stokes admitted that they do smoke, but stated there were just cigarettes in the car. (12:00, Exhibit 1B). Officer Pekarek instructed Ms. Stokes to roll up her window while he deployed his K9 around the vehicle. (12:20, Exhibit 1B).
When questioned as to why he chose to deploy his K9 after being denied consent by Mr. Brown, Officer Pekarek testified that Mr. Brown's nervous behavior; off-topic conversations; the fact they were coming from the Cockatoo Gentlemen's Club, which was a place known for criminal activity; the fact the car was registered to Mr. Brown's brother in Sioux Falls when Mr. Brown lived four hours away in Rogers, Minnesota; and Mr. Brown's stated destination for the evening was completely off route, gave Officer Pekarek suspicion of criminal activity.
Shortly afterward, Officer Pekarek deployed his K9, Reno. (12:35, Exhibit 1B). Reno provided a positive indication for the odor of narcotics in Mr. Brown's vehicle. (12:50, Exhibit 1B). Once he returned to his patrol vehicle, Officer Pekarek informed Mr. Brown that the dog indicated to the odor of drugs and asked, again, “Is there anything I need to know about?” (13:20, Exhibit 1B). Officer Pekarek advised that he would be conducting a search of the vehicle. (13:22, Exhibit 1B). Mr. Brown admitted to smoking “pot roaches” in the vehicle earlier that day but denied anything else would be inside. (13:27, Exhibit 1B). Officer Pekarek then asked Mr. Brown if he had been on “paper” before (14:45, Exhibit 1B), to which Mr. Brown responded that he had been on probation for a 3rd offense driving under the influence. (15:28, Exhibit 1B).
Officer Pekarek informed Mr. Brown that the reason he asked him about drugs in the first place was because “your carotid was going, breathing heavy, your body is rigid, bringing up other conversations and topics, stuff like that.” (15:34 Exhibit 1B). Mr. Brown began to laugh at this. (15:58, Exhibit 1B). As Officer Pekarek exited to begin his search, Reno began to bark in the back seat, which frightened Mr. Brown to the point he exited the vehicle. (16:42, Exhibit 1B). Mr. Brown commented that the dog was probably why he had the physical indicators Officer Pekarek cited. (16:54, Exhibit 1B). Officer Pekarek then walked over to Mr. Brown's vehicle and asked Ms. Stokes to step out while he conducted the search. (17:46, Exhibit 1B). Once Ms. Stokes stepped out, Officer Pekarek began his search of the vehicle. (18:35, Exhibit 1B). While Officer Pekarek conducted the search, Mr. Brown and...
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