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United States v. Hylton

United States District Court, D. Nevada

November 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY DELANO HYLTON, JR., Defendant.

          ORDER AND REPORT & RECOMMENDATION (DOCKET NOS. 36, 38)

          NANCY J. KOPPE, United States Magistrate Judge

         This 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 As Defendant's corrected motion to suppress evidence superseded his original motion, the Court RECOMMENDS denial of Defendant's original motion to suppress evidence, Docket No. 36, as moot.

         1. BACKGROUND[1]

         On 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.

         Officer 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.

         Officer 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.

         Officer 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.

         Officer 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 - 23:24.

         Defendant 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.

         The 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.

         On 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. . . . . . . . .

         II. ANALYSIS

         A. Evidentiary Hearing[2]

         The 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).

         “A 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 ...


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