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United States v. Lowe

United States District Court, D. Nevada

October 10, 2014

UNITED STATES OF AMERICA, Plaintiff.
v.
LANALSIKOV LOWE, Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION [DOC. 63] AND DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED ON NOVEMBER 25, 2013 [DOC. 38], DEFENDANT'S MOTION TO SUPPRESS HIS POST-ARREST STATEMENT [DOC. 39], AND DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A CELLULAR TELEPHONE [DOC. 40]

JENNIFER A. DORSEY, District Judge.

Defendant Lanalsikov Lowe is charged with possession of cocaine with intent to distribute and two counts of being a felon in possession of a firearm. Doc. 30. He moves to suppress the cocaine recovered from his pocket during a search incident to arrest, a firearm recovered from a consensual search of the apartment he was sharing with his girlfriend, post-arrest statements, and evidence obtained from the search of his cell phone conducted pursuant to a search warrant while he was in pre-trial custody. Docs. 38, 39, 40. Magistrate Judge Ferenbach conducted an evidentiary hearing[1] on these motions and now recommends that I deny the motion to suppress Lowe's post-arrest statements as moot because the government does not intend to introduce them, and deny the other suppression motions because Lowe's arrest and the subsequent searches were constitutionally sound. Doc. 63. Lowe objects. Doc. 72. After a de novo review, I adopt Magistrate Judge Ferenbach's findings, accept his recommendations, and deny Lowe's motions to suppress. Docs. 38, 39, 40, 63.

Background

A. Lowe's arrest and the search of his pockets

Early in the morning on November 25, 2013, the Las Vegas Metropolitan Police Department responded to a domestic violence call. S.M. reported that defendant Lanalsikov Lowe, whom she had been dating for two years, [2] had tried to suffocate her with a pillow and a comforter.[3] Every time she tried to get away, she told Officer Forson, Lowe punched her in the ribs, telling her, among other things, "This is the end bitch, " and "Say goodbye to life."[4] She reported that Lowe forced her into the bedroom and ordered her to have sex with him;[5] Lowe eventually fell asleep, and S.M. snuck out of the apartment to contact the police.[6] When the officers arrived, they observed and photographed bruising on S.M.'s neck and reddening on her face.[7]

S.M. gave the officers a key and permission to enter her apartment, where Lowe had been living for about a month after being released from prison.[8] Officers located Lowe passed out in the bedroom and arrested him for battery by strangulation and domestic violence, based on S.M.'s visible injuries and her explanation of their origins.[9] In a search immediately incident to Lowe's arrest, officers recovered from Lowe's pocket five grams of cocaine distributed evenly among five separate baggies.[10]

B. The search of the apartment

Lowe was taken to the Clark County Detention Center ("CCDC"), and a records check confirmed that he was a convicted felon.[11] In another interview with police, S.M. reported that Lowe owned firearms and had recently sold one, [12] Lowe's current job was selling drugs, [13] she did not own any firearms and any firearm found in her apartment would belong to Lowe, [14] and she has seen Lowe sell firearms in the past.[15] S.M., who was the lessee on the apartment lease, then signed a consent form authorizing the officers to search her apartment for "firearms/narcotics/narcotics para[phrenalia]" related to the investigation of "battery domestic violence/possession of controlled substance."[16]

During the ensuing search, Officer Foster removed a pink vinyl basket from a shelf in the hallway closet; inside, he discovered a firearm.[17] Aware that Lowe was a felon, Foster left the firearm where it was and immediately notified detectives in the Firearms Investigation Unit, who obtained a telephonic warrant to seize it.[18] While executing the warrant, the detectives recovered the firearm: a Phoenix Arms model Raven, 25 caliber, semi-automatic pistol[19]; a firearm magazine loaded with several rounds of 9-millimeter ammunition; and numerous shotgun shells.[20]

C. The search of Lowe's cell phone

On February 13, 2014, while Lowe was being held at the Nevada Southern Detention Center and his cell phone was being stored in the center's inventory room with his personal effects, the phone's back cover and battery were removed, and its serial number was obtained.[21] Special Agent Lavon Cuyler with the Bureau of Alcohol, Tobacco, Firearms, and Explosives then obtained a warrant to search the electronic contents of the phone.[22] The search produced a photograph of a firearm.[23]

D. Lowe's motions to suppress

Lowe moves to suppress the narcotics and firearm seized on November 25, 2013, arguing that the arrest and search incident to that arrest were both unlawful because they were warrantless; the firearm was discovered outside the physical area of a search incident to arrest or a protective sweep; the firearm was not in plain view; and the officers lacked probable cause to search the hallway closet where the gun was found and their search exceeded the scope of S.M.'s consent.[24] He further contends that the evidence obtained from his cell phone should be suppressed because the phone search lacked probable cause[25] and "the good faith exception to the exclusionary rule does not rescue a warrant that lacks probable cause."[26]

Magistrate Judge Ferenbach conducted a two-hour evidentiary hearing on Lowe's motions on August 4, 2014.[27] He heard testimony from Officers Forson, Foster, and Farrington, and arguments from both the government and Lowe's attorneys.[28] In his resulting 16-page Report and Recommendation, [29] Magistrate Judge Ferenbach found that Lowe's arrest was reasonable because the officers had "probable cause that [Lowe] had committed a crime of battery by strangulation based on S.M.'s statements, which were consistent with the visible bruising on her neck and reddening near her mouth, as well as her hysterical crying when they arrived."[30] He then found that the search incident to arrest was reasonable because the officers lawfully arrested Lowe and "it is well-settled that searches incident to arrest are lawful under the Fourth Amendment."[31] And he found that the search of S.M.'s apartment was reasonable because "S.M. gave voluntary consent to search for drugs and firearms, ...


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