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United States v. Cisneros

United States District Court, D. Nevada

December 14, 2017


         Mot Dismiss or Suppress - ECF, 30



         Before the court is defendant Gilberto Cisneros' (“Cisneros”) Motion to Dismiss or Alternatively to Suppress Evidence (Evidentiary Hearing Requested) (ECF No. 30) which was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice. The court has considered the motion, the government's Response (ECF No. 31), and Cisneros' Reply (ECF No. 33), as well as evidence taken at an evidentiary hearing held November 1, 2017.


         Cisneros is charged in an Indictment (ECF No. 13) returned April 19, 2017, with felon of possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The indictment arises out of an arrest by Las Vegas Metropolitan Police Department (“LVMPD”) Officer Propp on March 20, 2017 following a traffic stop.

         I. The Motion to Dismiss or Suppress

          In the current motion, Cisneros seeks to dismiss the indictment against him, or in the alternative, to suppress evidence arising out of the stop and arrest. The motion to dismiss argues that documents produced in discovery in this case indicate the arresting officer filled out reports stating that when Officer Propp initiated the stop, he got out of his patrol car with his body camera recording. However, the government informed defense counsel that there was no bodycam recording. Cisneros argues that the failure to preserve the bodycam recording of this stop constitutes a due process violation because the lost evidence may be potentially exculpatory and the defendant is unable to obtain comparable evidence by other reasonably available means.

         Alternatively, he seeks to suppress evidence derived from the stop and arrest asserting Fourth and Fifth Amendment violations occurred. First, he alleges that Officer Propp did not have specific and articulable facts that Cisneros was armed and presently dangerous to justify a pat down which recovered the firearm at issue in this indictment. He acknowledges that in a traffic stop setting, police may detain an automobile and its occupants pending inquiry into a vehicular violation based on reasonable suspicion. However, to justify the pat down of the driver, the police must have reasonable suspicion that the person subjected to the frisk is armed and dangerous. Reasonable suspicion is an objective standard. The court must determine whether a reasonably prudent person would have been warranted in believing the suspect was armed and presented a threat to the officer's safety while he was investigating suspicious behavior. The officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, justify the intrusion caused by the pat down. The court applies a totality-of-the-circumstances test. Here, Cisneros claims the government cannot meet its burden of showing articulable, particularized facts to establish reasonable suspicion that Cisneros was armed and dangerous when Propp patted him down.

         Cisneros also argues that the traffic stop in this case was unjustifiably prolonged and exceeded the scope of a permissible traffic violation stop. Citing Illinois v. Caballes, 543 U.S. 405, 407 (2005), Cisneros argues that a seizure lawful at its inception may violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. The Supreme Court requires that the length and scope of detention be strictly tied to and justified by the circumstances which rendered its initiation permissible. Tasks unrelated to the purpose of the stop are unlawful if they add time to the stop and are not otherwise supported by independent reasonable suspicion of wrongdoing. Here, Cisneros claims Propp unlawfully prolonged the length and exceeded the scope of the traffic stop by patting Cisneros down instead of merely taking his license and writing a ticket for minor traffic violations.

         Third, Cisneros claims that Propp's actions ripened into an arrest that was not supported by probable cause. In determining whether an arrest has occurred, the court considers both the intrusiveness of the stop, and the degree to which the defendant's liberty was restricted as well as the justification for the use of police tactics. An arrest must be supported by probable cause, which is determined under the totality of the facts and circumstances known to the arresting officer at the time of the arrest. The test is whether a prudent person would have concluded that there was a fair probability that the suspect had committed a crime. Here, Cisneros claims the officer's actions “ripened into an arrest” for many of the same reasons that he claims Propp unlawfully prolonged the traffic stop. Cisneros was patted down, his gun was seized, and he was placed in handcuffs in the back of the patrol car. These intrusive actions, Cisneros argues, were disproportionate to the situation Officer Propp faced. Cisneros was cooperative and non-threatening, and at no point did Propp have probable cause to arrest Cisneros until he ran a records check and learned Cisneros had a prior felony conviction.

         Fourth, Cisneros argues the court should suppress all fruits of the unconstitutional pat down and prolonged seizure under the fruit of the poisonous tree doctrine. This includes the gun seized from his waistband and any statement or DNA evidence collected from Cisneros while he was in custody at the Clark County Detention Center.

         Finally, the motion asked for an evidentiary hearing to determine if the government could meet its burden of establishing that Cisneros received and waived Miranda warnings before a custodial interrogation. The original police report and Officer Propp's declaration of arrest in this case make no mention of any Miranda warnings being administered or waived. The original arrest report and declaration of arrest do not mention any interrogation. Only an amended arrest report provides a “somewhat detailed description” of the warnings, the waiver, and the interrogation. However, the amended report is undated, unsigned, and not approved by a supervisory officer. Under these circumstances, Cisneros claims the government must prove at an evidentiary hearing that sufficient Miranda warnings were given and a valid waiver was obtained.

         II. The Government's Response

         The government opposes the motion arguing that Cisneros' traffic stop and pat down were lawful under the totality of the circumstances. The government claims that on March 20, 2017, at approximately 4:40 p.m., Officer Propp initiated a traffic stop by activating his lights and sirens after observing Cisneros commit multiple traffic violations. Cisneros did not initially stop his motorcycle and continued driving for approximately 150 yards. Once stopped, Propp observed the defendant wearing a “Mongols” vest. Propp could not “make out his face” because he was wearing a helmet and a face mask and looking away from the officer. The government claims that recent criminal events, including an attempted murder involving rival motorcycle gangs, and the fact that Cisneros was wearing “gang-related clothing” caused the officer to exercise extreme caution. Officer Propp told Cisneros to get off the motorcycle, move to the front of the police vehicle, and place his hands behind his back. Officer Propp then informed Cisneros that he was going to conduct a pat down for weapons for officer safety and almost immediately felt the bulge of a handgun in the waistband. Propp then handcuffed Cisneros and conducted a records check which revealed that Cisneros had felony convictions which prohibited him from lawfully possessing a firearm. Cisneros was then placed into the back of the police car, arrested, and transported to jail. At the police station, Propp read Cisneros Miranda warnings which Cisneros waived. During questioning Cisneros admitted to possessing the firearm.

         The government argues the court should deny the motion to dismiss because Officer Propp did not engage in any bad faith. The failure to record the stop and arrest was the result of an equipment malfunction. Evidence was never collected and therefore could not have been preserved or destroyed. The case that Cisneros relies upon, California v. Trombetta, 467 U.S. 479 (1984), deals specifically with evidence that was collected and later destroyed. However, in Miller v. Vasquez, 868 F.2d 1116, 1119 (9th Cir. 1989), the Ninth Circuit held that Trombetta does not create a duty on behalf of law enforcement to obtain evidence. The defense does not claim that Propp or Cisneros did or said anything that, if captured on video, would be critical to the defense case, or prove to be exculpatory. To prevail on a failure to collect evidence challenge, the defendant must show that the officer acted in bad faith. No bad faith occurred here. Officer Propp believed his bodycam was working, but later found this was not the case and made efforts to get it working while at the scene. Propp's March 19, 2017 report indicates he was able to record portions of the stop after Cisneros was handcuffed and while Miranda warnings were given. The government acknowledges that the defense was not provided with the bodycam recording Propp was able to record until after this motion was filed. Counsel for the government apologizes and represents that he recalled discussions about bodycam videos with defense counsel, but did not realize until after the motion was filed that available bodycam videos were not produced.

         The government argues that Officer Propp had reasonable suspicion to conduct a traffic stop and direct Cisneros to get off his motorcycle. The government also claims Officer Propp had reasonable suspicion to conduct a pat down for officer safety. The government argues maintains reasonable suspicion requires a particularized and objective basis for suspecting legal wrongdoing which is less than the showing required for probable cause. Reasonable suspicion is dependent upon the content of the information the officer has and its degree of reliability under the totality of the circumstances. The Supreme Court has recognized that traffic stops are dangerous. The Supreme Court has also recognized that officers must routinely exercise unquestioned command of the situation during a traffic stop to reduce the risk of harm to police and vehicle occupants. In this case, Cisneros failed to stop his motorcycle for approximately 150 yards, looked away from the officer once stopped, and was wearing an oversized “Mongols” motorcycle vest with a “1%” patch symbolizing his affiliation with a motorcycle gang with a history of criminal activity. Officer Propp was alone and knew of recent altercations with other motorcycle groups. It was therefore reasonable to conduct a brief and immediate pat down for weapons which revealed the gun on Cisneros' waistband.

         The government also contends that an officer may prolong a traffic stop if the prolongation is supported by independent reasonable suspicion. This is what occurred in this case. Less than five minutes after the initial stop, Officer Propp had retrieved the handgun, ran the defendant's criminal record, and determined he was a convicted felon before placing him in the patrol car. Under these circumstances, the stop was not unjustifiably prolonged or disproportionate as evidenced by the available video.

         Finally, the government maintains that Cisneros received and waived appropriate Miranda warnings prior to being questioned about the firearm.

         III. The Reply

         Cisneros' replies that the inconsistencies in Propp's written reports and the bodycam recordings that were preserved call into question Propp's credibility. Officer Propp is a key witness in this case. A missing body camera recording is exculpatory. It is not credible to believe that Officer Propp was able to record only after Propp had stopped Cisneros, patted him down, found and seized the gun, and placed Cisneros in handcuffs. From what Cisneros understands, two other uniformed officers' bodycam recordings also started recording after Cisneros was in handcuffs and standing at the hood of Propp's patrol vehicle. The timing and consistency of the start time of the recordings “does not seem coincidental.” Defense counsel requested bodycam recording by email on April 28, 2017. The government responded it would send the recording over when it was received. During follow up discussions, counsel for the government informed defense counsel that there were no body camera recordings in this case. However, on July 19, 2017, the government forwarded Officer Propp's report about his body camera which was dated March 19, 2017. An email chain reflects that Officer Propp emailed this report to the government's FBI case agent on May 1, 2017. Only after the defense filed a motion to dismiss or suppress did government counsel inform defense counsel the government had had the bodycam recording since April 2017.

         The reply also reiterates arguments raised in the motion that the government has the burden of establishing a valid basis for the traffic stop. The government's opposition to the motion does not identify facts that support a reasonable belief that Cisneros was armed or presently dangerous to justify the pat down. The government's response also fails to show each point of the stop was justified, or that Propp possessed probable cause at the point Cisneros' detention ripened into an arrest. Finally, with respect to the Fifth Amendment violation, the government claims that bodycam recording provided Cisneros Miranda warnings at the police station and that Cisneros waived prior to being questioned about the firearm. However, the bodycam recording was not attached to the response. The government's response does not meet its heavy burden to prove a valid Miranda waiver. The court should therefore grant the motion to dismiss, or alternatively, to suppress.

         IV. The Evidentiary Hearing

         At the evidentiary hearing the government called two witnesses, LVMPD Officer Anthony Propp, and Detective Shane Price. After the government rested, the court canvassed Cisneros about whether he understood he had the right to testify or not. Mr. Cisneros acknowledged he understood his rights and stated that after conferring with counsel, it was his decision not to testify at the evidentiary hearing.

         A. Testimony of Officer Propp

          Officer Propp has been employed by LVMPD for approximately three years and is assigned to regular patrol. On March 20, 2017, he was in uniform in a marked patrol vehicle when he observed the defendant, Gilberto Cisneros, driving a motorcycle. He pulled Cisneros over for traffic violations in the area of Lake Mead and Nellis Boulevard in Las Vegas. Propp observed Cisneros driving in a construction zone going through marked pylons and cones. These were put up as traffic control devices to protect construction workers. Propp pulled behind Cisneros as Cisneros made a northbound turn on Nellis. Propp observed Cisneros go from the #1 to the #2 to the #3 lane without staying in the far #1 lane. Cisneros did not signal when he changed lanes, but did signal when he turned left onto Nellis. Propp activated his lights and sirens near the area where the Taqueria Arandas is located. Cisneros traveled “a pretty significant ...

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