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United States v. Rivera

United States District Court, D. Nevada

February 10, 2017




         I. SUMMARY

         Defendant Carlos Rivera (“Rivera”) was arrested and charged with one count of being a felon in possession of a firearm. Before the Court is Rivera's Motion to Suppress (“Motion”). (ECF No. 16.) The Government filed a response (ECF No. 18) to which Rivera replied (ECF No. 21). The Court held an evidentiary hearing on February 6, 2017 (“Hearing”). (ECF No. 36.) At the Hearing, the Court heard testimony from Officer James Ahdunko and Officer Nathan Janning.[1] (Id.) For the reasons discussed herein, the Motion is granted.


         The following facts are taken from the exhibits attached to the parties' briefs and the testimony at the Hearing. On November 3, 2016, Elizabeth Axtell (“Axtell”) was visiting her brother, who was staying in room #5 at the Campion Motel (“Motel”) in Sparks, when she heard commotion in the room next door. She walked over to room #4 and knocked on the door. A white woman with curly blond hair, later identified as Shantera Frenna (“Frenna”), refused to open the door and instead tapped a handgun against the window of the room. Axtell returned to her brother's room and called 911. She told the operator that she did not know who the woman was, but she suspected that the woman suffered from mental health problems. She also told the operator that she believed the room belonged to a man named Mark, but she did not know where he was.

         Sparks police officers were deployed to the Motel. Officer Janning was the first to arrive. (ECF No. 21-1 at 4.) He approached the Motel on foot with his weapon drawn and noticed a man and a woman walking across the hotel's parking lot. (Id.) Officer Janning believed the woman matched the description of the woman with the gun, and also noticed that she was spinning and waiving her arms, which he believed may have been indicative of the mental illness mentioned in the 911 call. (Id.) The man and woman, later identified as Jamie Tanberg (“Tanberg”) and Marcelino Gomez (“Gomez”), began to enter a car that had just pulled up. Officer Janning approached the car and ordered Tanberg and Gomez to the ground. After several other officers arrived, they detained and searched Tanberg and Gomez. The officers found a realistic looking pellet gun on Gomez. Officer Janning believed that the pellet gun was gun referred to in the 911 call. (Id.)

         Officer Ahdunko arrived at the Motel and helped Officer Janning and others detain Tanberg and Gomez. (ECF No. 18-3 at 2.) While Officer Janning questioned the detained suspects, Officer Ahdunko went to speak with the 911 caller, Axtell. (Id.) As he walked past room #4, Officer Ahdunko noticed clothing and other items had been thrown out on the sidewalk and parking lot in front of the room and also noticed that the room was still occupied.[2] (Id.) Before going to room #5 to speak with Axtell, he and another officer knocked on the door of room #4. Frenna answered the door. Officer Ahdunko could see that behind her the small room was in disarray and a man was sleeping on the bed. He also noticed a large imprint in the drywall. (Id.) Frenna stepped out of the room to talk to the officers. (ECF No. 36 at 33.)

         Officer Ahdunko recognized Frenna because just four days earlier, on October 30, he responded to a complaint that she was trespassing in room #4 and helped remove her from the premises. (ECF No. 36 at 10-11.) During the October 30th incident, Ahdunko learned that the lessee of room #4 was a man named Mark Atkins. He also learned that, though the Motel does not have a manager's office, a woman named Nancy Hedges (“Hedges”), who lived at the Motel, served as the de facto on-site manager.[3] Hedges signed the October 30th trespassing complaint.

         On November 3, after Frenna exited the room, Officer Ahdunko did not notice any obvious signs of injury on her or the man on the bed. (ECF No. 36 at 35.) He asked Frenna if she was okay, and she replied that she was. (ECF No. 18-3 at 2.) Frenna was cooperative and was relatively calm. Her hands were exposed and not hidden in her pockets. She told the officers that she wanted their help because she believed a child was trapped in the walls of the room. (Id.) Because of his earlier contact with her, Officer Ahdunko knew that Frenna exhibited signs of mental illness and was easily agitated. He did not detain or pat her down because he believed it would upset her and make the situation more difficult. (ECF No. 36 at 15-16.) Officer Ahdunko estimated that his initial exchange with Frenna took about 2 or 3 minutes. (ECF No. 36 at 33.)

         After making contact with Frenna, Officer Ahdunko went to room #5 and spoke with Axtell about what she had seen and heard. (ECF No. 18-3 at 2.) Officer Ahdunko estimated that his conversation with Axtell lasted about 3 minutes. (ECF No. 36 at 36.) Adunko continued to investigate by returning to the parking lot to speak with Tanberg. He asked Tanberg if she had been in room #4 that evening. Tanberg responded that she had not, and she was visiting friends in room #10. (Id.) Officer Ahdunko then returned to Axtell and asked if Frenna, who was still standing outside of room #4, was the women she had seen in the window. Axtell said Frenna may have been the woman, but she was not 100% certain. (ECF No. 36 at 15.)

         After speaking to Axtell, Ahdunko determined that there was not probable cause to arrest Frenna for the crime of brandishing a weapon based on the behavior Axtell reported. (ECF No. 36 at 23-24.) This conclusion was based in part on Axtell informing Officer Ahdunko that the weapon was never actually aimed at her. (Id. at 63-64.) Nevertheless, Officer Ahdunko asked Frenna if the officers could enter room #4. Frenna responded “yes.” He then asked her where the gun was, and she said it was somewhere in the room, possibly near the bathroom. (ECF No. 18-3 at 2-3.)

         Officers Ahdunko and Beruman entered room #4. After looking around the room, they attempted to wake the man on the bed. He was unresponsive. (ECF No. 18-3 at 3.) Officer Beruman attempted to flip the man over, and as he did the officers noticed a black handgun underneath the pillow. (Id.) Officer Ahdunko grabbed the gun while other officers placed the man in handcuffs. The officers identified the man as the defendant, Carlos Rivera. They performed a criminal history check and determined that he was an ex-felon. The officers took Rivera into custody. (Id.)

         Rivera was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (ECF No. 1.)

         III. ...

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