United States District Court, D. Nevada
ORDER AND REPORT & RECOMMENDATION (DOCKET NOS.
J. KOPPE, United States Magistrate Judge
matter was referred to the undersigned Magistrate Judge on
defendant Anthony Delano Hylton Jr.'s motion to suppress
evidence and corrected motion to suppress evidence. Docket
Nos. 36, 38. The Court has considered Defendant's motion,
the United States' response, and defendant's reply.
Docket Nos. 36, 38. 39, 43. As Defendant's corrected
motion to suppress evidence superseded his original motion,
the Court RECOMMENDS denial of Defendant's original
motion to suppress evidence, Docket No. 36, as moot.
December 5, 2016, at approximately 6:02 a.m., Las Vegas
Metropolitan Police Department (“LVMPD”) Patrol
Officer Childers was assigned to a suspicious vehicle call at
the intersection of Flamingo Road and S. Jones Boulevard in
Las Vegas, Nevada. Docket No. 39-1 at 2. LVMPD Patrol
Officers Hinkel and Wright were assigned to the call as
backup units. Id. When Officer Childers arrived at
the intersection, he observed a black Ford sedan idling in
the intersection, with the front half of the vehicle jutting
out from the westbound number 1 lane into the eastbound
number 1 lane. Id.
Childers parked his vehicle nose-to-nose with the sedan, as
he had been taught to do while investigating a potential
Driving Under the Influence (“DUI”) case.
Id. Officer Hinkel arrived on the scene as Officer
Childers began to approach the sedan, and the two approached
together. Id. The officers observed a male later
identified as Defendant sleeping behind the wheel of the
vehicle, and smelled the odor of marijuana emanating from the
vehicle. Id.; Childers Bodycam Pt 1 of 4 at 00:43 -
00:49; Hinkel Bodycam Pt 2 of 3 at 1:16 - 1:18. Officer
Childers knocked on the window of the vehicle and gave verbal
commands to Defendant, who rolled his window down. Docket No.
39-1 at 2; Childers Bodycam Pt 1 of 4 at 1:08 - 1:24; Hinkel
Bodycam Pt 2 of 3 at 1:18 - 1:38. Once the window was down,
Officer Childers was able to confirm that the odor of
marijuana emanated from the vehicle. Docket No. 39-1 at 2.
Defendant was dazed and unaware of how he had gotten to the
intersection, and had difficulty putting his car into park.
Id.; Childers Bodycam Pt 1 of 4 at 1:23 - 1:46;
Hinkel Bodycam Pt 2 of 3 at 1:38 - 1:57. Officer Childers
asked Defendant to turn off the car and exit his vehicle with
his identification. Docket No. 39-1 at 2; Childers Bodycam Pt
1 of 4 at 2:07 - 2:31. Officer Childers told Defendant that
his car “reeks of weed.” Childers Bodycam Pt 1 of
4 at 3:02 - 3:06.
Childers asked Defendant if he had identification. Childers
Bodycam Pt 1 of 4 at 5:17-5:19. Defendant said it was in his
car, and started walking toward the car until Officer Hinkel
told him to stay where he was and that he (Officer Hinkel)
would get the identification. Officer Hinkel asked Defendant
where the identification was in his vehicle. Hinkel Bodycam
Pt 2 of 3 at 5:28 - 5:39. Defendant said his identification
was in the back seat of the vehicle. Hinkel Bodycam Pt 2 of 3
at 5:39 - 5:44. Officer Hinkel asked for further
clarification of where the identification would be found, and
headed toward the vehicle to find it. Hinkel Bodycam Pt 2 of
3 at 5:44 - 5:58.
Childers told Officer Hinkel that he can search the car
“because of the weed.” Childers Bodycam Pt 1 of 4
at 5:50-5:53. As Officer Childers asked Defendant basic
questions and conducted Field Sobriety Tests on Defendant,
Officer Hinkel looked through the back seat of
Defendant's car and found an unlocked gun case sitting on
the rear passenger side seat of Defendant's vehicle.
Docket No. 39-1 at 2; Childers Bodycam Pt 1 of 4 at 5:55 -
15:29; Hinkel Bodycam Pt 2 of 3 at 5:58 - 6:26. Inside the
case, Officer Hinkel found a black .45 caliber Rock Island
handgun with brown wooden handle grips, loaded with one round
in the chamber. Docket No. 39-1 at 2-3; Hinkel Bodycam Pt 2
of 3 at 6:26 - 6:33. The gun case contained a total of three
magazines and the firearm and case contained a total of 23
rounds. Docket No. 39-1 at 3. Officer Hinkel searched the
rest of the vehicle, and found no marijuana, though he did
find approximately $1, 100 in cash in the center console in
the front seat. Hinkel Bodycam Pt 2 of 3 at 7:28 - 9:17,
20:06 - 20:07.
Childers confirmed with Officer Hinkel that the gun was found
in the back seat of Defendant's vehicle, and that it was
not “like an under the influence, possession-type
thing.” Hinkel Bodycam Pt 2 of 3 at 19:11 - 19:15. He
also spoke with Officer Hinkel about a Drug Recognition
Expert, and determined that one worked on day shift. Childers
Bodycam Pt 2 of 4 at 00:44 - 00:46; Hinkel Bodycam Pt 2 of 3
at 19:23 - 19:25. Officer Childers determined that Defendant
did not have nystagmus and that, although he failed the other
two Field Sobriety Tests, that failure could be due to the
very cold weather. Childers Bodycam Pt 2 of 4 at 00:50 -
00:59; Hinkel Bodycam Pt 2 of 3 at 19:32 - 19:38. Officer
Childers said that, because of the cold weather, he would
probably have failed the Field Sobriety tests, too. Officer
Hinkel responded, “And you don't even drink or do
drugs.” Hinkel Bodycam Pt 2 of 3 at 19:38 - 19:43. When
Officer Childers asked what Officer Hinkel had said, Officer
Hinkel repeated, “You don't even drink or smell
like marijuana.” Hinkel Bodycam Pt 2 of 3 at 19:43 -
19:46. Officer Childers stated again that Defendant's car
“reeked, ” and Officer Hinkel said that he had
found a little “shaker ... thing.” Childers
Bodycam Pt 2 of 4 at 1:08 -1:09; Hinkel Bodycam Pt 2 of 3 at
19:46 - 19:53. Also, officers found an open container of
alcohol in Defendant's vehicle, as well as a bottle with
what appeared to be crushed “Advil or Ibuprofen”
in it. Hinkel Bodycam Pt 2 of 3 at 19:56 - 19:58, 23:20 -
apologized for falling asleep in the intersection, and said
that he was tired because he had been awake since 5:30 that
morning. Hinkel Bodycam Pt 2 of 3 at 24:54 - 25:14. Defendant
said he had a gun in his back seat because he works in real
estate. Hinkel Bodycam Pt 2 of 3 at 26:15 - 26:27. Defendant
admitted to smoking marijuana recreationally, but said
“it is not enough to make me fall asleep.” Hinkel
Bodycam Pt 3 of 3 at 2:42 - 2:51.
officers determined, through a records check, that Defendant
was convicted in 2007 of felony battery with substantial
bodily harm. Docket No. 39-1 at 3; Hinkel Bodycam Pt 3 of 3
at 2:20 - 2:36, 6:43 - 7:03. At 6:49 a.m., Officer Childers
placed Defendant under arrest for ex-felon in possession of a
firearm and advised him of his Miranda rights.
Docket No. 39-1 at 3; Hinkel Bodycam Pt 3 of 3 at 7:38 -
7:58. Officer Childers told Defendant that a firearm had been
found in his car, and Defendant stated that he believed he
could legally possess a firearm since his conviction was nine
years earlier. Docket No. 39-1 at 3; Childers Bodycam Pt 3 of
4 at 5:44 - 5:51; Hinkel Bodycam Pt 3 of 3 at 8:03 - 8:11,
8:18 - 8:28. Additionally, Defendant said that he purchased
the firearm at a store somewhere on Boulder Highway, and was
able to accurately describe it without the officers showing
it to him. Docket No. 39-1 at 3; Childers Bodycam Pt 4 of 4
at 00:48 - 1:11; 2:16 - 2:20.
March 8, 2017, a complaint was issued charging Defendant with
two counts of armed bank robbery, in violation of Title 18,
United States Code, Sections 2113(a) and (d); and two counts
of use of a firearm in a crime of violence, in violation of
Title 18, United States Code, Section 924(c)(1). Docket No.
1. On March 21, 2017, a federal grand jury issued an
indictment charging Defendant with two counts of armed bank
robbery, in violation of Title 18, United States Code,
Sections 2113(a) and (d); and two counts of use of a firearm
in a crime of violence, in violation of Title 18, United
States Code, Section 924(c)(1). Docket No. 8. On October 3,
2017, a federal grand jury issued a superseding indictment
charging Defendant with two counts of armed bank robbery, in
violation of Title 18, United States Code, Sections 2113(a)
and (d); two counts of use and carry of a firearm during and
in relation to a crime of violence, in violation of Title 18,
United States Code, Section 924(c)(1)(A)(iii); and one count
of felon in possession of a firearm, in violation of Title
18, United States Code, Sections 922(g)(1) and 924(a)(2).
Docket No. 30. Defendant now asks the Court to suppress the
firearm found in his vehicle on December 5, 2016. Docket No.
38. . . . . . . . .
United States Court of Appeals for the Ninth Circuit has held
that an evidentiary hearing on a motion to suppress need only
be held if the moving papers allege facts with sufficient
definiteness, clarity, and specificity to enable the court to
conclude that contested issues of material fact exist.
United States v. Howell, 231 F.3d 615, 620 (9th Cir.
2000) (citing United States v. Walczak, 783 F.2d
852, 857 (9th Cir. 1986); United States v. Harris,
914 F.2d 927, 933 (7th Cir. 1990); United States v.
Irwin, 613 F.2d 1182, 1187 (9th Cir. 1980); United
States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972).
hearing will not be held on a defendant's pre-trial
motion to suppress merely because a defendant wants one.
Rather, the defendant must demonstrate that a
‘significant disputed factual issue' exists such
that a hearing is required.” Howell, 231 F.3d
at 621 (citing Harris, 914 F.2d at 933). The
determination of whether an evidentiary hearing is
appropriate rests in the reasoned discretion of the district
court. United States v. Santora, 600 F.2d 1317, 1320
(9th Cir.), amended by609 F.2d 433 (1979). In the
instant case, Defendant has not requested an evidentiary
hearing. Further, both parties relied upon the same report
and body camera footage generated by LVMPD in presenting the
facts, though the parties in some instances interpret the
facts differently. The Court concludes that no ...