United States of America v. Kujali Strawther

Sioux Falls, South Dakota criminal defense lawyer represented the Defendant charged with felony possession of a firearm.



On the afternoon of November 21, 2022, Eric Peterson, a South Dakota

Highway Patrol officer, was positioned for traffic enforcement on Interstate 90 in a

65-miles-per-hour zone. Around 2 p.m., a white SUV drove by at what appeared to

Peterson to be close to 80 miles per hour; by the time he could clock its speed, his

radar gun reported the SUV traveling 74 miles per hour.



Peterson followed the SUV and initiated a traffic stop. He found Strawther

behind the wheel, a woman in the passenger seat, and four children in the back. He

explained the reason for the stop and asked for Strawther's license and registration.

Strawther and the passenger said that they had rented the SUV and showed him a

rental agreement. Peterson told them he planned to issue a courtesy warning for

speeding and asked Strawther to accompany him to his patrol car while he completed

the paperwork. By this point, a little more than four minutes had elapsed since the

stop began.



Strawther went with Peterson to the patrol car and sat in the passenger seat.

The two engaged in small talk while Peterson ran information Strawther had given

him. Ultimately, Peterson wrote a courtesy warning, including Strawther's name,

height, weight, address, phone number, date of birth, vehicle information, and that

he had been traveling 74 miles per hour in a 65-miles-per-hour zone. After about

three-and-a-half minutes of sitting in the patrol car with Strawther, Peterson saw the

female passenger emerge from the SUV and walk to one of its rear doors. Peterson

told Strawther that he was going to check on her and also check the rental's vehicle

identification number (VIN)



After exiting the patrol car, Peterson approached the passenger, who told him

that she was changing one of the children's diapers. According to Peterson, while

they briefly conversed, he smelled the odor of burnt marijuana emanating from the

SUV.2 Peterson finished speaking with the passenger, checked the vehicle's VIN,

and returned to his patrol car, where he told Strawther about the marijuana odor and

asked whether Strawther had been smoking. Strawther denied that any marijuana

was in the SUV, but he admitted to having smoked in the vehicle while in California

and suggested his clothes might be the culprit behind the smell.

At Strawther's suppression hearing, Peterson testified: "When I asked

[Strawther] about the marijuana, he really opened his eyes, and I could see his

heartbeat begin to pound more underneath his clothing in his stomach, and I could

see his bottom lip quivering.” In assessing this testimony, the district court agreed

with the magistrate judge's conclusion that "Peterson's description of Strawther's

physicality in this moment [was] not credible,” as "Peterson could not have seen

Strawther's heartbeat in his stomach,” and video of the exchange did not show his

bottom lip quivering. Instead, the court concluded that Strawther was merely

"animated” and "[h]is demeanor appeared nervous.” The court chose to "credit[] the

remainder of Peterson's testimony,” however, because it was "corroborated by the

video and audio evidence.”



Peterson left the patrol car, returned to the passenger, and asked her whether

she had smoked marijuana in the SUV. She told him that she did not smoke but that

Strawther might have some in a "sling-type bag” in the SUV. Peterson then walked

2 At the suppression hearing, Peterson testified that he smelled burnt marijuana

coming from the SUV as soon as he first approached it. The district court did not

explicitly adopt this testimony in its factual findings, but whether he smelled burnt

marijuana at the stop's onset or later while speaking with the passenger does not

ultimately change the constitutionality of this search.-4-

back to Strawther and asked him whether he had a medical marijuana card. Strawther

said he did not. At this point, about eight-and-a-half minutes into the stop, Peterson

told Strawther he was going to search the SUV and asked "for honesty” as to whether

he would find anything. Strawther replied that there were about two pounds of

marijuana in the vehicle.



Peterson called for backup, and Sergeant Josh Olson and Trooper Dan Hup

soon arrived. Once they were on the scene, Peterson told the officers about

Strawther's speeding, noting he saw Strawther going "74.” The officers searched the

vehicle and found a little over two pounds of raw marijuana in a duffel bag in the

back. Hup testified that while aiding the search, he also smelled burnt marijuana.

However, the officers found no drug paraphernalia—such as lighters, rolling papers,

or a vacuum sealer—that might have been associated with the odor of burnt, as

opposed to raw, marijuana. Finally, the officers found a gun in the female

passenger's purse, which appeared to have been equipped with a "sear switch” that

allowed it to be fired like an automatic weapon. Both the passenger and Strawther

told Peterson that the gun belonged to Strawther. At this point, the officers arrested

Strawther.

Affirmed