D.S.D.: Def’s past history with drugs didn’t support RS for continuing this stop

Knowledge of defendant’s past history with drugs and trafficking collectively didn’t provide reasonable suspicion that he was involved in the day in question. United States v. Johnson, 2021 U.S. Dist. LEXIS 52210 (D.S.D. Mar. 16, 2021):

Rowe, Mosley, and Harry are distinguishable from this case because the investigators lacked reasonable suspicion or probable cause to believe the Pontiac contained contraband or that it or its occupants were involved in criminal activity. Here, the government argues police had probable cause beyond that required for an ordinary traffic stop based upon the investigators’ knowledge of the trafficking operation, numerous unspecified drug seizures in 2019, the monitored calls that linked [TEXT REDACTED BY THE COURT] the trafficking operation, including surveillance related to the November 3 delivery from Omaha, surveillance of Mr. Phiengsai’s apartment7Link to the text of the note on November 7, 2019, and the methamphetamine found during the traffic stop of Ms. Devaney and Ms. Sidel earlier in the afternoon on November 7. See Docket No. 30 at p. 9. But these things, taken together, do not amount to reasonable suspicion or probable cause to believe the Pontiac contained contraband or that it or its occupants were involved in criminal activity.

The investigators who were monitoring 3610 E. 6th Street saw Austin Johnson doing what appeared to be countersurveillance after they resumed surveillance following the traffic stop of Ms. Devaney. Austin Johnson, driving his Chevrolet pickup, drove slowly and looked into Special Agent Glenn’s vehicle in what appeared to Special Agent Glenn to be an attempt to determine whether the investigators were conducting surveillance of the apartment building. Although Austin Johnson was not a target of the ongoing narcotics investigation, Special Agent Glenn testified he was known to the investigators from previous narcotics investigations, and they formed the belief that Austin Johnson might be the unidentified roommate. Then, the investigators observed Austin Johnson return to the apartment building.

Based upon his past involvement in narcotics operations, his presence at Mr. Phiengsai’s apartment building close in time to the known narcotics trafficking activity between Mr. Phiengsai and Ms. Devaney, and his countersurveillance behavior, the investigators had some basis to believe Austin Johnson was involved in the narcotics operation. Then, when the Pontiac departed the apartment parking lot approximately two hours later, investigators knew it was registered to Austin Johnson, but they could not confirm the driver’s identity due to the tinted windows. While it is true investigators had reason to believe there was a significant amount of methamphetamine from a recent shipment from Omaha still in the hands of the trafficking operation, and possibly in the care of Mr. Phiengsai, Special Agent Glenn testified that investigators had no reason to believe the Pontiac was involved in the larger trafficking operation. Thus, the only information investigators had connecting the Pontiac to any narcotics activity was that it was registered to Austin Johnson.

This information falls far short of the facts police knew in Rowe, Mosley, and Harry that supported reasonable suspicion or probable cause to believe the vehicles in those cases contained contraband or evidence of a crime. In Rowe, the confidential informant told investigators, and investigators corroborated, that the cocaine would be driven in a gray BMW owned by a particular person from Arizona to Minnesota on a certain date. Thereafter police obtained the license plate number for a gray BMW owned by that particular person. Then, on the appointed day, they located that vehicle driving on the interstate in Minnesota. These facts clearly support probable cause to believe the BMW contained contraband.

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