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United States v. Payan

United States District Court, D. Nevada

December 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ROGELIO PAYAN, Defendant.

          ORDER

          GLORIA M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Pending before the Court is the Order and Report and Recommendation, (ECF No. 79), entered by the Honorable Magistrate Judge Nancy J. Koppe on August 15, 2017, denying Defendant Rogelio Payan's (“Defendant's”) request for a Franks hearing and Motion to Suppress, (ECF No. 42). Defendant filed his Objection, (ECF No. 84), to which the Government filed a Response, (ECF No. 88).

         I. BACKGROUND

         The instant Motion arises from an Application and Affidavit for a search warrant (“Affidavit”) of Defendant's residence filed by North Las Vegas Police Officer D. Fellig (“Fellig”) on December 22, 2015 and the search warrant issued. (See Aff. for Search Warrant at 5, Ex. B to Mot. to Suppress, ECF No. 42-1). As detailed thoroughly in Judge Koppe's Order and Report and Recommendation, the Affidavit provides “substantial detail surrounding the investigation, including information given to law enforcement by two confidential informants.” (Order and R. & R. 1:21-5:9, ECF No. 79).

         After reviewing the Affidavit, North Las Vegas Township Justice of the Peace Kalani Hoo issued a search warrant for Defendant's residence that included a nighttime search clause. (Id. at 16-18). Police executed the warrant on December 23, 2015. (See also Follow-Up Report at 18, Ex. D to Mot. to Suppress, ECF No. 42-2). The executing officers used bearcats in front of the residence, deployed a Def-Tec 25 distraction device in the front yard of the residence, and played several pre-recorded announcements from a Long Range Acoustic Device to announce their presence. (See Information Report at 29, Ex. F to Mot. to Suppress, ECF No. 42-2). Subsequently, the AMOR unit used robots to gain entry to home and safely clear the residence. (Id.). No individuals were harmed as a result of this search. (Id.). After the search was completed, the officers seized a Glock handgun from Defendant's residence. (See Mot. to Suppress 7:9, ECF No. 42); (see also Search Warrant Follow-Up Report at 21-24, Ex. E to Mot. to Suppress, ECF No. 42-2).

         On August 9, 2016, a federal grand jury sitting in the District of Nevada issued an Indictment charging Defendant with one count of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (ECF No. 1). In his Motion to Suppress, Defendant seeks to suppress “the evidence seized through a December 22, 2015[, ] search warrant pursuant to Franks v. Delaware, 438 U.S. 154 (1978), including a Glock 21.45 caliber handgun and [Defendant's] statements.” (Mot. to Suppress 1:21-23, ECF No. 42). Defendant alleges that a Franks hearing is proper because “Fellig deliberately or recklessly included misstatements or omissions in the warrant's [A]ffidavit, and a redacted or supplemented affidavit would not support establish [sic] probable cause.” (Id. 14:5-14, 16:5-7). In the combined Order and Report and Recommendation, Judge Koppe ordered that the request for a Franks hearing is denied and recommended denial of Defendant's Motion to Suppress. (Order and R. & R. 14:1- 6). Consequently, Defendant filed an Objection, to both Judge Koppe's Order and Recommendation. (See Obj. 13:15, 13:22-24, ECF No. 84).

         II. LEGAL STANDARD

         A. Objection to Magistrate Judge's Order

         When reviewing the order of a magistrate judge, the order should only be set aside if the order is clearly erroneous or contrary to law. Fed.R.Civ.P. 72(a); LR IB 3-1(a); 28 U.S.C. § 636(b)(1)(A); Laxalt v. McClatchy, 602 F.Supp. 214, 216 (D. Nev. 1985). A magistrate judge's order is “clearly erroneous” if the court has “a definite and firm conviction that a mistake has been committed.” See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Burdick v. Comm'r IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” UnitedHealth Grp., Inc. v. United Healthcare, Inc., No. 2:14-cv-00224-RCJ, 2014 WL 4635882, at *1 (D. Nev. Sept. 16, 2014). When reviewing the order, however, the magistrate judge “is afforded broad discretion, which will be overruled only if abused.” Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007). The district judge “may not simply substitute its judgment” for that of the magistrate judge. Grimes v. City and County of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (citing United States v. BNS, Inc., 858 F.2d 456, 464 (9th Cir. 1988)).

         B. Objection to Magistrate Judge's Findings and Recommendations

         A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the Report to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations of the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).

         III. DISCUSSION

         In the instant filing, Defendant objects to Judge Koppe's Order denying Defendant's request for a Franks hearing. Additionally, Defendant objects to Judge Koppe's recommendation that his Motion to Suppress be denied.[1] The Court will address each objection in turn.

         A. Objection to Order ...


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