United States v. Conteh, 5:15-cr-50101

Background

On July 10, 2015 Trooper Zac Bader stopped a rental Jeep for speeding; occupants were Victor Sasay (driver), Tapsiru Dainkeh (front passenger) and Roy Conteh (rear passenger). Trooper obtained IDs and a Hertz rental agreement and issued a warning ticket.
Trooper Bader contacted HSI SA Nicholas Saroff during the stop; Saroff arrived within 45 minutes. The stop was later found to have been unlawfully extended and the subsequent search of the Jeep suppressed.
A South Dakota Fusion Center BOLO (July 10 Fusion Report) and later BOLOs from Wyoming, Utah and other jurisdictions contained photographs and information about suspects allegedly using stolen credit cards; those reports circulated among multiple agencies the same day or shortly after the stop.
Trooper Bader and SA Saroff independently received photographs and identification information from Fusion/BOLO reports and other jurisdictions (Wyoming, Nebraska, Utah, Colorado) and pursued investigative leads after July 10, 2015.
Magistrate judge recommended suppression in part; district court adopted the R&R on June 26, 2017 suppressing physical evidence seized during the stop but allowing statements made during the stop to be used by the government.
Defendants moved in limine (Wong Sun challenge) to exclude evidence and information arising from the July 10 stop; government argued independent-source/inevitable-discovery justified admission. Court held a hearing and ruled defendants’ second motion in limine granted in part and denied in part; Fusion Center motion denied.

Issues

Issue	Government's Argument	Defendants' Argument	Held
Admissibility of physical evidence seized during July 10 stop	Physical evidence is tainted by unlawful prolongation and search, but independent/inevitable discovery by other agencies supports admissibility of derivative information	Evidence and information derived from the stop (and subsequent searches) must be excluded as fruit of unlawful seizure	Physical evidence seized during the stop remains suppressed; however, certain identification/info from independent sources admitted under independent-source/inevitable-discovery doctrines
Admissibility of statements made during stop	Statements are admissible because defendants were not in custody and magistrate found no basis to suppress them	Statements should be suppressed as fruit of unlawful stop/expansion	Statements made during the traffic stop are admissible for government’s case-in-chief (magistrate’s R&R adopted)
Independent source / inevitable discovery applicability	Government proved by preponderance that Fusion/BOLO reports and multi-jurisdictional investigation were lawful, independently pursued, and would have led to discovery absent the stop	Defendants argue the Fusion/BOLO materials and subsequent investigative leads were obtained because of information obtained at the stop and thus tainted	Court found government met burden: SA Saroff and other agencies conducted independent investigations; Fusion/BOLO discovery was inevitable/independent of the unlawful extension, so much of the non-seized investigatory material is admissible
Challenge to Fusion Center identification/BOLO use (Fusion Center motion)	Fusion/BOLO distribution and subsequent identification were routine law-enforcement communications and not tainted by the stop	Fusion Center identification efforts are fruit of the unlawful stop and should be excluded	Fusion Center motion denied; court concluded Fusion/BOLO materials and inter-agency information were independent and admissible consistent with order

Key Cases Cited

Wong Sun v. United States, 371 U.S. 471 (rule excluding direct and derivative fruit of unlawful searches and seizures)
Nix v. Williams, 467 U.S. 431 (inevitable discovery doctrine)
Segura v. United States, 468 U.S. 796 (independent source doctrine)
Murray v. United States, 487 U.S. 533 (relationship between independent source and inevitable discovery doctrines)
Bourjaily v. United States, 483 U.S. 171 (preponderance standard for inevitable discovery)
United States v. Conner, 127 F.3d 663 (8th Cir.) (elements government must prove for inevitable-discovery exception)
United States v. Villalba-Alvarado, 345 F.3d 1007 (8th Cir.) (focus on what officers likely would have done absent misconduct)
United States v. Peralez, 526 F.3d 1115 (8th Cir.) (suppression appropriate where unlawful prolongation is a but-for cause of obtaining evidence)
United States v. Olivera–Mendez, 484 F.3d 505 (8th Cir.) (suppression when constitutional violation caused discovery)