United States v. Conteh
| Decision Date | 31 May 2016 |
| Docket Number | 5:15-CR-50101-JLV |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ROY CONTEH , VICTOR SASAY a/k/a Victor Sesay, and TAPSIRU DAINKEH, Defendants. |
| Court | U.S. District Court — District of South Dakota |
REPORT AND RECOMMENDATION
Pending are Defendants' Motions to Suppress (Doc. 97, 103, 105). A hearing was held on Monday, March 7, 2016. Roy Conteh, Victor Sesay, and Tapsiru Dainkeh were personally present and represented by their attorneys of record, Shiloh MacNally, John Rusch, and Jamy Patterson, respectively. The Government was represented by Megan Poppen. Six witnesses testified at the hearing. Forty exhibits were received into evidence. Both parties have submitted briefs and oral argument was heard at the conclusion of the hearing. Based on careful consideration of all the evidence, and counsels' written and oral arguments, the Court respectfully recommends that the motions to suppress be granted in part and denied in part.
JURISDICTION
Defendants were initially charged in an Indictment with Aggravated Identity Theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2 and Possession of Unauthorized Access Device, in violation of 18 U.S.C. §§ 1029(a)(3) and 2.
Subsequent to the evidentiary hearing, Defendants were charged in a Superseding Indictment with Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C. §§ 1349 and 1344; Bank Fraud, in violation of 18 U.S.C. §§ 1344(2) and 2; Aggravated Identity Theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2; and Possession of Unauthorized Access Device, in violation of 18 U.S.C. §§ 1029(a)(1) and 2.
The pending Motions were referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Chief Judge Jeffrey L. Viken's Standing Order dated March 9, 2015.
FACTUAL BACKGROUND
On July 10, 2015, at approximately 12:18 p.m., Trooper Zac Bader was in his patrol car in the median on Interstate 90 near mile marker 66 facing west-bound. He saw a vehicle that appeared to be driving above the posted speed limit. He activated his radar, which allegedly measured the vehicle driving 69 miles per hour in a 65 mile per hour zone. He recognized this car as a Colorado rental car that, at the time, appeared to be driven by a single black male. Trooper Bader testified that he observed the car following too close to another vehicle, but was unable to gauge the distance quickly enough. He initiated a traffic stop at about mile 69 on Interstate 90.
Trooper Bader testified that his radar measured the correct speed of the correct vehicle. He testified that if he doubted that it was the defendants' car speeding, he would not have made the traffic stop. Victor Sesay testified that he used a GPS device that told him the speed limit while he was driving. Hetestified that the device has the ability to flash on the left hand side of the device if he travels above the speed limit. He testified that he was not traveling above the speed limit and the device was not flashing. Mr. Sesay also testified that there were other vehicles traveling faster than he was. Trooper Bader testified that there were vehicles traveling in front of the car the defendants were traveling in, but it was not those vehicles' speeds that he captured.
Mr. Sesay testified that Trooper Bader followed the defendants' car for some time before initiating the traffic stop. Trooper Bader testified that he initiated the traffic stop immediately. The command log shows that Trooper Bader initiated the traffic stop at 12:18 p.m. (Exhibit B). A vehicle registration query (Exhibit 2) for the license plate of the defendant's vehicle was run through the National Crime Information Center ("NCIC") database at 13:14:44. That time is believed by the defense to be 1:14 p.m. Central Time, or 12:14 p.m. Mountain Time.1 The vehicle registration query was also run through the South Dakota database. (Exhibit 2). The time stamp is 12:16 p.m. (Exhibit 2). Trooper Bader testified that he thought the time might be off by a few minutes, because he did not remember running the plates before stopping the car. But, he testified it is possible that he ran the plates while following the car.
After stopping the defendants' car, Trooper Bader approached the vehicle from the passenger's side. When he approached, he saw, in the rear-cargo area of the vehicle, "nicer high end luggage" and "newer gift bags", which indicatedrecent purchases. He observed three black males inside the car. He described the vehicles' occupants as "wearing nicer clothing, jewelry, accessories if you will as far as kind of high end watches and stuff like that as far as the clothing goes." Trooper Bader also testified that there was a center console (not in reference to the cup holders) where he saw an "unusual amount of gift cards or pre-paid debit type cards." He "knew it was enough to kind of make [him] look at it and take note of it."2 He estimated the amount of the cards to be more than five but fewer than ten or twelve.3 Mr. Sesay testified that they did not have debit or gift cards sitting out and visible to Trooper Bader.
Trooper Bader thought all three defendants appeared to be nervous and uneasy with his presence, but testified that this was common for an initial traffic stop. He asked the driver, Victor Sesay, for his driver's license and rental contract information. Victor Sesay handed Trooper Bader his driver's license. The rental contract was provided by Tapsiru Dainkeh, the front passenger. Mr. Dainkeh identified himself as the renter of the vehicle.
Trooper Bader had Mr. Sesay come back to the patrol vehicle with him, which is his usual protocol. Mr. Sesay sat in the front, passenger seat in Trooper Bader's vehicle. Trooper Bader testified that Mr. Sesay appeared overly nervous and was rubbing his hands on top of his legs like he was trying to get sweat off of his hands. Mr. Sesay seemed uncomfortable, but was friendlywhile in the car. Trooper Bader testified that it is typical for someone to be nervous when they come to his patrol vehicle, but Mr. Sesay's nervousness increased throughout the traffic stop. Trooper Bader testified that Mr. Sesay spent time looking at his phone and trying to hide what he was doing on his phone in between his legs. The two discussed the reason for the stop and engaged in general conversation such as where the defendants were going, where they were coming from, and the reason for their trip. While this was going on, Trooper Bader ran a driver's license query (Exhibit 3), which checked the status of Mr. Sesay's license. Mr. Sesay had a valid driver's license out of Maryland. Exhibit 3 shows that the license query on Mr. Sesay was done through NCIC at 13:23:23, which would have been 12:23 p.m. Mountain Time. Trooper Bader testified that this time was correct. Exhibit 3 also shows the time stamp for the query run through the South Dakota database as 12:26 p.m. Mountain Time.
It was about this time that Trooper Bader informed Mr. Sesay he would merely be receiving a warning ticket. The warning ticket4 is time stamped 12:28 p.m. Trooper Bader testified that this is when the warning ticket was "opened." Trooper Bader initiated the process to auto-populate the information received from the query into a citation. While a citation populates, Trooper Bader said he likes to engage in conversation with the individual in his car to "bypass time and help their outlook on law enforcement, if you will."
Trooper Bader questioned Mr. Sesay about travel details. He asked where the defendants were coming from. Mr. Sesay responded that they were coming from Wyoming and were heading back to Denver, Colorado that day for a wedding. Trooper Bader testified this indicated that the defendants were currently off route5 and he asked Mr. Sesay how they got to Denver. Mr. Sesay responded that the three had flown to Denver and traveled to Wyoming. Trooper Bader said the responses were very vague, lacked details on where the wedding was located, who was getting married, to whom the person was marrying, how long Mr. Sesay had known the person, and when the wedding was supposed to take place. Trooper Bader testified that Mr. Sesay conveyed a generic story and timeline. Based on his training and experience, Trooper Bader said these responses indicated Mr. Sesay was lying about the trip and it raised suspicion of criminal activity. As Mr. Sesay was answering these questions, he appeared to be breathing heavily, wiping his hands, continuously looking at his phone, and trying to come up with answers for simple questions.
Trooper Bader testified that he expected responses from Mr. Sesay because "people are, for the most part, friendly and they will engage in conversation with you." He went on to testify that he did not think it was reasonable for a person to try and continue about his business and not engage in friendly conversation. He could only think of a couple of times when someone has taken that approach.
Trooper Bader next questioned Mr. Sesay about consent to search and the items in the vehicle.6 Trooper Bader asked Mr. Sesay if there was anything illegal inside of the vehicle and if he would consent to search of the car and his property. According to Trooper Bader, Mr. Sesay did not object to the search.
Trooper Bader then approached Mr. Dainkeh and Mr. Conteh and asked about the reason for the trip and consent to search. According to Trooper Bader, they were nervous and uncomfortable talking about the trip. According to Trooper Bader, they provided details about the trip that were inconsistent with Mr. Sesay's details. For example, Mr. Dainkeh mentioned they were driving to Sioux Falls before going to Denver, but Mr. Sesay had not mentioned Sioux Falls.
The questioning regarding the trip itinerary of Mr. Sesay, Mr. Dainkeh and Mr. Conteh occurred between 12:28 p.m., when the warning ticket was opened, until approximately 12:49 p.m. (Exhibit B), when Trooper Bader requested backup. Therefore, 21 minutes elapsed between when Trooper Bader...
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