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United States v. Vargas

United States District Court, D. Nevada

March 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE FRANCISCO VARGAS, Defendant.

          REPORT & RECOMMENDATION (DOCKET NO. 17)

          NANCY J. KOPPE United States Magistrate Judge

          This matter was referred to the undersigned Magistrate Judge on Defendant's Motion to Suppress Evidence. Docket No. 17. The Court has considered Defendant's motion, the United States' response, Defendant's reply, the evidence adduced at the evidentiary hearing on this matter, and the parties' arguments. Docket Nos. 17, 22, 25, 29.[1]

I. BACKGROUND

         A. Testimony of Detective Hefner

         On November 1, 2016, at approximately 8:34 p.m., Las Vegas Metropolitan Police Department (LVMPD) Officer[2] Aaron Hefner, while operating an unmarked vehicle along with LVMPD Officer Paul Kunz, observed a black Chrysler 300 "driving erratically" southbound on Mountain Vista north of Tropicana.[3] Hearing Tr. (2/15/2017) at 1:11 - 1:12 p.m., 1:22 p.m., 1:25 p.m.; Docket No. 17-1 at 3. The vehicle was not maintaining its lane, and was straddling the number 2 and 3 travel lanes, so that the dots that divide the lanes were in between the wheels of the vehicle. Hearing Tr. (2/15/2017) at 1:12 p.m. As Officer Hefner watched the vehicle, it continued to fail to maintain its lane, and then made a westbound turn onto Tropicana without a signal, from a lane that was not the turn lane. Hearing Tr. (2/15/2017) at 1:12 p.m., 1:23 p.m. The officers' vehicle was about three to four car lengths behind the black Chrysler when Officer Hefner made these observations, though no other vehicles were between the black Chrysler and the officers' vehicle. Hearing Tr. (2/15/2017) at 1:12 p.m., 1:23 p.m. Officer Hefner called in the plate on the vehicle, which took approximately 20 seconds. Hearing Tr. (2/15/2017) at 1:23 p.m. Based on the traffic violations that they observed, the officers conducted a traffic stop of the vehicle on Tropicana, west of Mountain Vista by activating the lights and sirens on their vehicle. Hearing Tr. (2/15/2017) at 1:13 p.m., 1:23 p.m. The Chrysler pulled over immediately. Hearing Tr. (2/15/2017) at 1:24 p.m.

         Officer Hefner did not recognize the vehicle and, prior to stopping it, did not know who was driving it. Hearing Tr. (2/15/2017) at 1:13 p.m., 1:25 p.m. During the traffic stop, Officer Hefner's vehicle was parked two to three car lengths behind the black Chrysler. Hearing Tr. (2/15/2017) at 1:13 p.m. Both Officer Hefner and Officer Kunz exited their vehicle; Officer Hefner approached the driver side of the Chrysler, and Officer Kunz approached the passenger side. Hearing Tr. (2/15/2017) at 1:13 p.m. Officer Hefner was wearing a tactical vest that had "Police" written on it, as well as a police badge. Hearing Tr. (2/15/2017) at 1:13 p.m.

         When Officer Hefner spoke with the driver, he realized that she was Kristal Green, who is a known narcotics user and trafficker, and is someone his squad had previously come into contact with and arrested. Hearing Tr. (2/15/2017) at 1:14 p.m. He further described Green as a "known problem person in the area." Hearing Tr. (2/15/2017) at 1:14 p.m. She had been involved in several drug-related offenses in the area. Hearing Tr. (2/15/2017) at 1:31 p.m. Officer Hefner has, in the past, been involved in arresting Green; however, not every prior contact he has had with her resulted in an arrest. Hearing Tr. (2/15/2017) at 1:31 p.m., 1:34 p.m. Officer Hefner did not, however, recognize the front passenger in the vehicle (later identified as Defendant Jose Vargas). Hearing Tr. (2/15/2017) at 1:14 p.m., 1:34 - 1:35 p.m.

         Officer Hefner started asking Green the typical questions he asks during a traffic stop, including where she was headed and whether she had a driver's license on her person. Hearing Tr. (2/15/2017) at 1:14 - 1:15 p.m., 1:32 p.m. He noted that Green was "really, really nervous;" she would not look at Officer Hefner, and her hands were shaking during the encounter. Hearing Tr. (2/15/2017) at 1:15 p.m., 1:34 p.m. Officer Hefner asked Green if she had any weapons or drugs in the vehicle or on her person, and Green responded that she had her license, and that she did not have any drugs on her person or in the vehicle. Hearing Tr. (2/15/2017) at 1:15 p.m., 1:33 p.m. Officer Hefner asked Green if there were any guns on her person or in the vehicle, and she said no. Hearing Tr. (2/15/2017) at 1:20 p.m., 1:33 p.m. It took "a matter of seconds" for Officer Hefner to ask the questions of Green. Hearing Tr. (2/15/2017) at 1:33 p.m.

         Officer Hefner then asked Green to exit the vehicle based on her nervous demeanor, as well as the fact that the area they were in was a "very high crime area." Hearing Tr. (2/15/2017) at 1:15 p.m., 1:24 p.m., 1:35 p.m., 1:46- 1:47 p.m. His squad makes "a lot" of proactive stops and conducts many investigations in that area due to "drugs, weapons, and violent crimes that occur there." Hearing Tr. (2/15/2017) at 1:13 p.m., 1:46 p.m. Officer Hefner's purpose in asking Green to exit the vehicle was to remove her from her vehicle in case there were any weapons or anything else illegal in there, so that he could talk to her in front of the police vehicle, in a more controlled environment, and to possibly conduct a patdown. Hearing Tr. (2/15/2017)atl:15-l:16p.m., l:35-1:36 p.m. It's "normal" for Officer Hefner's squad to remove people from vehicles to talk to them. Hearing Tr. (2/15/2017) at 1:36 p.m. Once Green exited the vehicle, Officer Hefner could see that she was wearing very tight-fitting clothing, so he could see she did not have a weapon and never patted her down. Hearing Tr. (2/15/2017) at 1:37 p.m., 1:46 p.m., 1:49 p.m.

         At the same time that Officer Hefner asked Green to exit the vehicle, Officer Kunz asked Defendant to do so as well, and Officer Hefner saw Defendant exit the vehicle. Hearing Tr. (2/15/2017) at 1:16 p.m. As Officer Kunz and Defendant walked toward the officers' vehicle, Officer Hefner heard Officer Kunz tell Defendant several times to stop reaching in his pockets. Hearing Tr. (2/15/2017) at 1:16 p.m. Hearing Officer Kunz tell Defendant to stop reaching in his pockets raised a red flag, so Officer Hefner made sure to look over to see what was happening. Hearing Tr. (2/15/2017) at 1:37 p.m. Officer Hefner looked over and saw Defendant fidgeting and moving his hands toward his pockets. Hearing Tr. (2/15/2017) at 1:16 p.m. Officer Hefner saw Defendant's hands in his front pocket area while Officer Kunz told him not to reach in that area. Hearing Tr. (2/15/2017) at 1:37 p.m. After Officer Kunz told Defendant two to three times to stop moving his hands toward his pockets, he told Defendant to put his hands behind his back because Officer Kunz was going to pat him down for weapons. Hearing Tr. (2/15/2017) at 1:17 p.m. At this time, the officers did not know if Defendant was a felon, or if he had a license to carry a concealed weapon (CCW). Hearing Tr. (2/15/2017) at 1:39 p.m.

         After Officer Kunz told Defendant he was going to pat him down, Officer Hefner heard Defendant say, "This is illegal. You can't do that. I have my protection in there." Hearing Tr. (2/15/2017) at 1:18p.m., 1:39p.m. Officer Hefner heard Officer Kunz ask Defendant what he meant by his protection, and he heard Defendant respond that he had a gun. Hearing Tr. (2/15/2017) at 1:18 p.m. When Defendant made this comment, Officer Kunz was holding onto his hands behind his back, but had not yet started to conduct the patdown. Hearing Tr. (2/15/2017) at 1:18 - 1:19 p.m. Defendant was detained, but not under arrest at this point. Hearing Tr. (2/15/2017) at 1:19 p.m. Officer Hefner saw Officer Kunz reach into Defendant's pocket and remove a small loaded revolver. Hearing Tr. (2/15/2017) at 1:19 - 1:20 p.m. Prior to Officer Kunz removing the firearm, it was concealed on Defendant's person. Hearing Tr. (2/15/2017) at 1:19p.m. Approximately three to five minutes elapsed from the time of the initial stop to the time the firearm was found on Defendant's person. Hearing Tr. (2/15/2017) at 1:40 p.m.

         Another unmarked unit, with two officers, arrived at the scene shortly after Officers Hefner and Kunz had Defendant and Green exit their vehicle. Hearing Tr. (2/15/2017) at 1:26 p.m., 1:29 p.m., 1:36 p.m., 1:44 p.m.[4] By the time the second unit arrived on the scene, the firearm had been recovered and Defendant was in cuffs. Hearing Tr. (2/15/2017) at 1:29 p.m. After the firearm was found, the officers handcuffed Defendant, secured the firearm and photographed it, and spoke with the other officers on the scene prior to notifying dispatch that they had a male in custody. Hearing Tr. (2/15/2017) at 1:41 p.m. They also informed dispatch that all officers were safe. Hearing Tr. (2/15/2017) at 1:41 p.m.

         Officer Hefner is fluent in the Spanish language, and is a department-certified translator. Hearing Tr. (2/15/2017) at 1:20 p.m. He currently translates approximately three to four times per day. Hearing Tr. (2/15/2017) at 1:21 p.m. Officer Hefner spoke to Defendant in English, and noted that Defendant understood English to the extent that he did not need to speak to Defendant in Spanish. Hearing Tr. (2/15/2017) at 1:38 p.m.

         B. Testimony of Officer Kunz

         On November 1, 2016, at approximately 8:30 p.m., LVMPD Officer Paul Kunz was on duty in an unmarked vehicle with his partner Officer Hefner traveling southbound on Mountain Vista approaching Tropicana. Hearing Tr. (2/15/2017) at 1:51 - 1:52 p.m., 2:11 p.m. Officer Kunz observed a black Chrysler traveling westbound on a residential street make a southbound turn onto Mountain Vista. While traveling southbound on Mountain Vista, the vehicle straddled lanes 2 and 3, with wheels in each lane as it drove. Hearing Tr. (2/15/2017) at 1:52 -1:53 p.m., 2:12 -2:13 p.m. The vehicle then made a westbound turn onto Tropicana without using a signal. Hearing Tr. (2/15/2017) at 1:53 p.m., 2:13 p.m. The officers were approximately two to three carlengths behind the vehicle when Officer Kunz made these observations. Hearing Tr. (2/15/2017) at 1:53 p.m. The officers made the turn onto Tropicana, called in to the radio, and conducted a traffic stop, with lights and siren, of the vehicle in front of the Q-Mall shopping center due to the traffic violations. Hearing Tr. (2/15/2017) at 1:53 - 1:54 p.m., 2:14 p.m.[5] The officers were not in uniform, but each was wearing a tactical vest with "Police" on it, as well as an LVMPD badge and patch. Hearing Tr. (2/15/2017) at 1:54 p.m. During the stop, the officers' vehicle was parked approximately 15 feet behind the black Chrysler. Hearing Tr. (2/15/2017) at 1:54 p.m.

         Both officers exited the vehicle quickly, and Officer Kunz approached the passenger side of the vehicle while Officer Hefner approached the driver's side. Hearing Tr. (2/15/2017) at 1:55 p.m., 2:15 p.m. When he approached, Officer Kunz observed Defendant in the front passenger seat of the vehicle, and did not recognize him as someone he had seen before. Hearing Tr. (2/15/2017) at 1:55 -1:56 p.m. Officer Hefner told Officer Kunz that Green was the driver, and Officer Kunz looked into the vehicle, because he could not see the driver from his vantage point. Once he looked inside, Officer Kunz recognized Green as someone he had dealt with numerous times in the past. Hearing Tr. (2/15/2017) at 1:55 p.m.

         Officer Kunz asked Defendant if there were any weapons or narcotics in the vehicle. Rather than responding to Officer Kunz's questions, however, Defendant looked straight ahead with his hands in his lap. Officer Kunz noticed that Defendant was shaking. Hearing Tr. (2/15/2017) at 1:56 p.m., 2:16 - 2:17 p.m. During this time, Officer Kunz was standing to the right side of Defendant, at the window. Hearing Tr. (2/15/2017) at 1:57 p.m. Officer Kunz also asked Defendant for his identification. Defendant still failed to acknowledge the officer, and continued to look straight ahead. Hearing Tr. (2/15/2017) at 1:57 p.m., 2:16 p.m. Approximately three to four minutes after the vehicle was stopped, Officer Hefner told Officer Kunz he was going to have the driver step out of the vehicle, and Officer Kunz then asked Defendant to step out of the vehicle. Hearing Tr. (2/15/2017) at 1:58p.m., 2:17p.m. Officer Kunz did not want to walk away from the vehicle while Defendant was inside, particularly considering that Defendant had not answered his question regarding weapons. He wanted Defendant to be visible, and to not have access to any weapons that may be in the vehicle while the officers were with the driver at their vehicle. Hearing Tr. (2/15/2017) at 1:58-1:59 p.m.

         When Officer Kunz asked Defendant to step out of the vehicle, he did so. Hearing Tr. (2/15/2017) at 1:59 - 2:00 p.m., 2:18 p.m. Officer Kunz then told Defendant to keep his hands where the officers could see them and not to reach in his pockets. Hearing Tr. (2/15/2017) at 1:59 p.m., 2:19 p.m., 2:22 p.m. When Officer Kunz asked Defendant to step out of the vehicle, he intended to take him to the officers' vehicle and ask for consent to conduct a patdown. Hearing Tr. (2/15/2017) at 2:00 p.m., 2:19 p.m., 2:31 p.m.[6] As they walked next to each other toward the officers' vehicle, however, Defendant walked with his hands at his sides and then moved them toward the front pockets of his jeans. Officer Kunz told Defendant to stop and not reach toward his pockets. Defendant then put his hands down at his sides again. As they continued walking, Defendant reached toward his front jeans pockets again. Officer Kunz told Defendant to stop again, and he put his hands down, then reached for his front jeans pockets again. Officer Kunz told Defendant three times not to reach for his pockets and, when he continued to do so, Officer Kunz grabbed his hands and held them to his sides because he did not want ...


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