United States District Court, D. Nevada
REPORT OF FINDINGS AND RECOMMENDATION (Mtn to Suppress - Dkt. #15)
PEGGY A. LEEN, Magistrate Judge.
Before the court is Defendant Corey Sanders' ("Sanders") Motion to Suppress Evidence (Dkt. #15) 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. #16), Sanders' Reply (Dkt. #18), and evidence admitted in an evidentiary hearing conducted January 26, 2015. Brian Pugh appeared on behalf of the Defendant, and Alexandra Michael appeared on behalf of the United States.
Sanders is charged in an Indictment (Dkt. #1) returned November 12, 2014, with felon in possession of a firearm in violation of 18 U.S.C.§ 922(g)(1) and 924(a)(2). He made an initial appearance and was appointed counsel on November 19, 2014, and detained following a detention hearing. See Minutes of Proceedings (Dkt. #8).
The charge arises out of an October 30, 2014, traffic stop by officers of the Las Vegas Metropolitan Police Department ("LVMPD") near the corner of Lake Mead and Martin Luther King Blvd. in Las Vegas, Nevada. Sanders was a passenger in a green Ford Taurus which was pulled over, according to the officer's report, for "obstruction of view" based on the officer's observation of two air fresheners hanging from the rearview mirror. According to the arrest report, as officers Perez and Eberling approached, they recognized "a distinct smell similar to that of marijuana emanating from the vehicle." Sanders was removed from the vehicle and questioned by Eberling regarding drugs and firearms and a firearm was recovered from Sanders' person.
I. The Parties' Positions.
A. Sanders' Motion to Suppress.
The motion to suppress argues that the traffic stop was not based on reasonable suspicion that a traffic offense had been committed. NRS 484D.435(1) requires that windshield and windows must be unobstructed. The Nevada statute is "practically identical" to an Anchorage Municipal Code section the Ninth Circuit addressed in United States v. King, 244 F.3d 737, 739 (9th Cir. 2001). There, Ninth Circuit concluded that the driver did not violate the code by driving with a parking placard hanging from the rearview mirror because the use of the word "upon" in the code required direct contact with the windshield and an object hanging elsewhere, even in close proximity, did not violate the code. The court held that the officer's mistake of law did not form a basis for reasonable suspicion to initiate the traffic stop and reversed the district judge's denial of King's motion to suppress.
Sanders acknowledges that the Supreme Court's recent decision in Heinen v. North Carolina, 574 U.S. ___ (Dec. 15, 2014), held that a police officer's mistake of law in making a traffic stop did not require suppression of evidence obtained from the stop if the officer's mistake of law was reasonable. However, in Heinen, one of the bases for the Court's determination was that the North Carolina statute the officer relied upon was subject to more than one interpretation. In this case, by contrast, the Nevada statute is not ambiguous-having something hanging from a rearview mirror is not "upon" the windshield and is not proscribed by statute.
B. The Government's Opposition.
The government opposes the motion arguing that prior to the stop, the officers observed two tree air fresheners hanging from the rearview mirror that were causing an obstructed view of the driver in violation of NRS 484D.435. The officers were also suspicious before the stop because the occupants of the vehicle drove by and did not look in the direction of the marked patrol car. The officers pulled behind the vehicle and ran the license plate which came back to a female owner. The vehicle was operated by a male and the officers pulled the vehicle over initiating the patrol car lights. The driver did not stop right away, but continued about a block before pulling into a parking lot area. As the officers approached the vehicle, they observed the driver and the passenger making furtive movements back and forth with their hands and arms. The officers also smelled marijuana coming from the vehicle. The officers later recovered marijuana, Lortab pills and a firearm from Sanders.
The government argues that the traffic stop was supported by reasonable suspicion because the officers had specific and articulable facts to suggest that the occupants were engaged in criminal activity. The government concedes that the language of the Nevada statute prohibiting obstructing a windshield or window is similar to the language the Ninth Circuit interpreted in the Anchorage Municipal Code in United States v. King . However, the government maintains that Heinen "is more on point than King. " In King, the officer pulled the vehicle over after observing King driving a car with a disabled person's parking identification placard hanging from the rearview mirror which the officer did not typically associate with young persons. The officer followed the vehicle and noticed a rental car company sticker and radioed to see if the car was stolen. The response was negative. The officer pulled the vehicle over without noting any additional suspicious activity. The Ninth Circuit only considered the single factor supporting the traffic stop in finding the officer lacked reasonable suspicion to believe the driver had violated a traffic law. By contrast in this case, there are additional factors contributing to the officers' reasonable suspicion to conduct the traffic stop.
The United States argues that in Heinen v. North Carolina , the Supreme Court held that when an officer makes a mistake of law in interpreting a traffic code violation during a traffic stop, suppression is not required as long as the mistake of law was reasonable. The United States relies on United States v. Griffin, 109 F.3d 706, 708 (11th Cir. 1997) for the proposition that officers who smelled the odor of marijuana during a traffic stop had reasonable suspicion of criminal activity warranting an investigatory detention. The government also argues that, even if the officers were mistaken that two items hanging from a rearview mirror were a violation of NRS 484D.435(1), the mistake was reasonable and suppression is not required.
C. Sanders' Reply.
Sanders' reply argues that before Heinen was decided, the Ninth Circuit had held that an officer's mistake of law could not support reasonable suspicion for a seizure. Heinen applies an objective reasonableness test to determine whether a mistake of law supports reasonable suspicion to conduct a traffic stop. In this case, the officers' mistake was not reasonable because the Ninth Circuit decided King in 2001, thirteen years prior to the stop. King interpreted the Anchorage Municipal Code section which is virtually identical to the Nevada Revised Statute concluding that the code did not prohibit an object hanging from somewhere other than the windshield and windows. Thus, the officers could not reasonably rely upon NRS 484D.435(1) to support this stop. The Supreme Court's decision in Heinen concurred with the North Carolina Court of Appeals that the North Carolina statute was ambiguous and, therefore, the officer's interpretation of the law was reasonable. In light of King, there is no ambiguity in NRS 484D.435(1). Items hanging from a rearview mirror are not "upon" the windshield and the officer's mistake of law was objectively unreasonable.
Sanders also argues that the officers' observations of furtive movements and the odor of marijuana are not relevant to the motion to suppress because once the traffic stop was effected, the seizure had already occurred. The court should therefore suppress all evidence seized from the October 30, 2014, stop.
II. The Evidentiary Hearing.
At the evidentiary hearing, the government called officers Ashley Perez and Justin Eberling. The defense did not call any witnesses. The defendant was canvassed and acknowledged he understood he had the right to testify if he wished, but could not be compelled to testify if he did not, and that his silence could not be commented on or used against him if he ...