United States District Court, D. Nevada
For Dayne Beck, Defendant: Heidi A Ojeda, Shari L. Kaufman, LEAD ATTORNEYS, Federal Public Defender, Las Vegas, NV.
For USA, Plaintiff: Phillip N. Smith, Jr., United States Attorney's Office, LEAD ATTORNEY, Las Vegas, NV.
REPORT OF FINDINGS AND RECOMMENDATION
Peggy A. Leen, United States Magistrate Judge.
(Mtn to Suppress - Dkt. #31)
This matter is before the court on Defendant Dayne Beck's Motion to Suppress Physical Evidence and Statements Pursuant to the Fourth and Fifth Amendment (Dkt. #31) which was referred to the undersigned for a report of findings and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. The court has considered the Motion, the government's Response (Dkt. #35), Beck's Reply (Dkt. #36), and the evidence and arguments adduced at an evidentiary hearing conducted October 10, 2014.
I. Procedural History.
Beck is charged in an Indictment (Dkt. #1) returned August 7, 2012, with possession of a firearm by a convicted felon in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). The indictment arises out of a vehicle stop and arrest by officers of the Las Vegas Metropolitan Police Department (" LVMPD") on August 7, 2012. Beck was driving a dark blue BMW and was initially pulled over for operating an unregistered vehicle with " Sovereign Nation" license plates at approximately 12:30 a.m. near the corner of Tropicana Avenue and Mountain Vista Street in Las Vegas, Nevada.
II. The Parties' Positions.
A. Beck's Motion to Suppress.
The motion to suppress argues that the traffic stop was an unlawful search and seizure in violation of the Fourth Amendment. Beck asserts there are inconsistencies concerning the justification for the original stop in the arrest report and the officer's report. The officer who conducted the initial stop, Officer Hibbetts, wrote an arrest report that indicated he pulled Beck over for failure to have a license plate light. However, his officer's report states that Beck was stopped for driving an unregistered vehicle. The same report indicates the vehicle was registered through California DMV, but the registration was suspended. Beck requested an evidentiary hearing " to determine if the initial traffic stop was valid."
The motion to suppress also claims that officers conducted an unlawful warrantless search of his vehicle without probable cause and abused their discretion by impounding and conducting an inventory search of the vehicle. Beck argues that the traffic violation alone was insufficient to justify impounding the vehicle under the Fourth Amendment, and Ninth Circuit case law requires a showing that the impoundment was necessary as " a valid caretaking purpose." Citing United States v. Cervantes, 703 F.3d 1135, 1142 (9th Cir. 2012), Beck maintains that strict reliance on state codes and police department policies regarding impounding and inventory searches is " insufficient to justify an impoundment under the community caretaking exception."
The LVMPD policy manual requires that the decision to impound a car and conduct an inventory search must be done pursuant to standardized criteria which limits the discretion of the officers and ensures the impoundment and inventory are legally performed and not a pretext for a general exploratory search. An excerpt of LVMPD's manual containing its vehicle impound and search policy is attached as Exhibit C to the motion. The manual provides twelve circumstances that justify impoundment of a vehicle per department policy--none of which were present in this case. The motion requested an evidentiary hearing to establish Beck's contention that his vehicle was legally parked in a private parking lot and that the officers abused their discretion by impounding the vehicle.
Beck also seeks to suppress his statements made at the time of the traffic stop, claiming he was subjected to custodial interrogation before Miranda rights were administered. Beck argues he was taken into police custody, handcuffed, and under formal arrest by the officers before a search of his person or vehicle was conducted. A patdown search of his person revealed a baggy of a green, leafy substance suspected to be marijuana. A search of his vehicle recovered a backpack found in the trunk which contained approximately 4.4 grams of marijuana and a firearm. Beck was subjected to custodial interrogation when Hibbetts asked him if the gun was his and if it was registered. These were questions that the officers should have known were likely to elicit an incriminating response, and therefore, any statements Beck made concerning his ownership of the firearm and its registration should be suppressed.
B. The Government's Response.
The government opposes the motion, asserting Officer Hibbetts conducted a valid traffic stop of Beck's BMW. The response claims that as Officer Hibbetts was traveling eastbound on Tropicana Avenue near Mountain Vista, he observed Beck's unregistered dark blue BMW without a license plate light traveling westbound through the side-view mirror. Hibbetts did a u-turn, pulling behind the BMW, and observed that the vehicle was not legally registered and was displaying a " Sovereign Nation" license plate.
Hibbetts conducted a traffic stop of the vehicle and made contact with the driver on the driver's side. The black male adult, later identified as Beck, initially refused to roll down the window, but then he only rolled it down approximately one inch and asked why he had been stopped. Hibbetts explained that the BMW had no license plate light and was not registered in Nevada. Hibbetts asked for Beck's identification, registration, and proof of insurance. Beck reportedly replied that he did not have to provide them because he did not break the law. Hibbetts explained it was against the law to operate a vehicle on the roadway without a license plate light, and Beck allegedly responded that he did not have to follow the law. After further discussion, Hibbetts again asked for Beck's identification, and Beck reportedly handed Hibbetts an " Affidavit of Truth." At this point, Hibbetts called for backup, and Officer Pacifico, Sergeant Stoddard, and Sergeant Cowely responded.
Pacifico approached the driver's side of the BMW to make contact with Beck while the other officers stood back. Pacifico convinced Beck to roll down the window some more, and he smelled marijuana. After additional conversation, Beck eventually produced a card that indicated he was a " Sovereign Citizen" by the name of Darius Lathanium. The officers believed this identification was false and conducted a records check. Pacifico was eventually able to convince Beck to get out of the vehicle. Beck was placed under arrest for refusing to provide identification and not having valid registration or proof of insurance for the vehicle. A search incident to arrest located a green leafy substance in a clear plastic bag inside the right cargo pocket of Beck's shorts. Hibbetts concluded the substance was marijuana based on his training and experience and later confirmed this with a field test. Beck's vehicle was searched because of the marijuana found on Beck's person and because Pacifico detected the odor of marijuana emanating from the vehicle. Hibbetts checked the vehicle's VIN and learned that it was registered to Dayne Beck in California, but the vehicle's registration was suspended.
An inventory search of the BMW was conducted because of Beck's arrest and failure to identify himself and because the vehicle had no valid insurance, and the registration was suspended. Officer Pacifico located an orange bag in the trunk of the vehicle which contained several glass smoking pipes, a small scale, an additional 4.4 grams of a green leafy substance in a small, orange pill bottle, a birth certificate, medical records, and additional identification papers in the name of Dayne Beck. Officer Pacifico also found a loaded firearm with additional magazines inside of the bag in the trunk. Hibbetts asked Beck if the firearm was registered to him and if it was his firearm. Beck reportedly responded, " Yes, it's registered like my vehicle." A record check reflected that the gun was not registered. A national criminal database check of " Dayne Beck" and his identifiers was conducted which revealed that Beck had a California felony conviction for robbery. Beck was eventually arrested for possession of a controlled substance, felon in possession of a firearm, and for the traffic violations and was transported to the Clark County Detention Center.
The government argues that Hibbetts conducted a valid traffic stop which developed probable cause to search the vehicle for controlled substances. The government's response argued that an evidentiary hearing would establish that Officer Pacifico could and did smell marijuana emanating from the vehicle which, in and of itself, established probable cause to conduct a search for controlled substances. Additionally, a search of Beck's person incident to arrest bolstered the probable cause when marijuana was recovered. Officer Pacifico had thirteen years of law enforcement experience at the time the green leafy substance was recovered and when he detected the odor emanating from the vehicle. Pacifico reasonably believed the green leafy substance was marijuana and that the odor emanating from the vehicle was marijuana.
Although the government claims that the police conducted a lawful search of the vehicle based on probable cause, it argues in the alternative that the search was a lawful, valid inventory search conducted according to LVMPD policy. In this case, Beck was taken into custody, failed to identify himself, had no auto insurance, his vehicle's registration was suspended, and the vehicle was not displaying valid registration. Under these circumstances, the vehicle could not be lawfully operated, and the impoundment and inventory search were conducted according to department policy. Citing Miranda v. City of Cornelius, 429 F.3d 858 865 (9th Cir. 2005), the government argues that a vehicle impound may be proper under the community caretaking doctrine if the driver's violation of a vehicular regulation prevents the driver from lawfully operating the vehicle.
The government concedes that Beck was in custody for purposes of the requirement to administer Miranda warnings. However, the government disputes that the questions Beck was asked about whether the gun was his and registered were interrogation or its functional equivalent which required Miranda warnings. Interrogation means express questioning or its functional equivalent, which includes words or actions on the part of the police, that the police should know are reasonably likely to elicit an incriminating response. The police were not aware that Beck was a convicted felon until the end of the encounter. When Hibbetts asked Beck if the firearm was Beck's and whether or not it was registered to Beck, Hibbetts did not know Beck could not lawfully possess a firearm, and Hibbett's question was not reasonably likely to elicit an incriminating response. Therefore, there was no Miranda violation, and Beck's statements need not be suppressed.
C. Beck's Reply.
Beck's reply reiterates arguments that the government has the burden of showing that a warrantless search and seizure of the vehicle falls under a valid exceptions to the warrant requirement, that the officers lacked probable cause to search the vehicle, abused their discretion in impounding and conducting an inventory search of the vehicle, and that Beck's Fifth Amendment rights were violated when he was interrogated without being advised of his Miranda rights.
III. Evidentiary Hearing.
At the evidentiary hearing, the government called Officer Kristopher Hibbetts and Vincent Pacifico to testify. Beck called defense investigator Al Tobin. The court canvassed Beck to determine whether he had been advised of his right to testify. Beck acknowledged that after conferring with counsel, he was well aware that he had the right to testify, and the right to decline to testify, that his silence could not be used against him, and that it was his decision after conferring with counsel not to testify.
A. Testimony of Officer Hibbetts.
Officer Hibbetts has been employed by LVMPD for four years and was on duty on August 7, 2012, at approximately 12:30 a.m., in the area of Tropicana and Mountain Vista. Hibbetts was traveling eastbound and observed a BMW driving westbound. It was one of the only cars on the road, and Hibbetts saw that it did not have a license plate light, which is a violation of the Nevada traffic code. Hibbetts did a u-turn, pulling behind the BMW to investigate. The BMW was stopped at a traffic light. Hibbetts noticed the BMW was not properly registered, i.e., it was not displaying a valid license plate. Hibbetts had never seen the plate before from Nevada or any other state, and it had a number of unusual emblems and markings. Hibbetts conducted a traffic stop for unregistered vehicle and lacking a license plate light.
Hibbetts pulled the BMW over on the northwest corner of Tropicana and Mountain Vista. He approached the vehicle on the driver's side but could not see inside because it had dark, tinted windows. Hibbetts got the driver to roll down the window a crack and attempted to engage the driver in conversation. Hibbetts backed up a little because he could not see the driver's hands and spoke to the driver a little further back than usual. He asked the driver for his driver's license, registration, and proof of insurance. Hibbetts spoke to the driver for approximately two or three minutes by himself. During this initial conversation, Beck stated that he was a Moor, that his vehicle was a vessel, and that he did not have to follow traffic ...