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United States v. Beale

United States District Court, D. Nevada

December 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL TERRELL BEALE, Defendant.

          REPORT AND RECOMMENDATION

          C. W. HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.

         Presently before the court is Defendant Michael Beale's Motion to Suppress Evidence (ECF No. 33), filed on July 24, 2017, the Government's Response (ECF No. 35), filed August 7, 2017, Beale's Reply (ECF No. 37), filed August 16, 2017, the Government's Surreply (ECF No. 45), filed August 29, 2017, and Beale's Response to the Government's Surreply (ECF No. 46), filed September 5, 2017. An evidentiary hearing was conducted on November 6, 2017. (Mins. of Proceedings (ECF No. 53).) After the evidentiary hearing, Beale submitted an additional brief regarding the legality of the search and seizure (ECF No. 54), filed November 13, 2017, and the Government responded (ECF No. 56) on November 20, 2017.

         I. BACKGROUND

         On May 11, 2016, Las Vegas Metropolitan Police Department (“LVMPD”) officers responded to a call for assistance regarding the destruction of property by a man at Sienna Suites, a furnished apartment complex in Las Vegas. They subsequently recovered a firearm located in a stairwell of the apartment complex which was eventually connected to Beale by DNA evidence seized under a state search warrant. Beale is charged by Criminal Indictment with 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). ((ECF No. 1).)

         Beale first moved to suppress DNA evidence seized as the result of a state court search warrant because it violated his Fourth Amendment rights. Specifically, he argued that the police lacked a lawful basis for his detention or arrest, and therefore the DNA evidence obtained from him must be suppressed. After Beale filed his motion to suppress, the Government obtained DNA evidence based upon a search warrant from a federal judge, and then opposed Beale's motion to suppress to suppress the state DNA evidence on the grounds that it was moot.

         In reply, Beale makes two arguments. First, Beale reiterates his argument that his detention was illegal, and notes that the Government failed to respond to this argument. Second, Beale argues that the federal search warrant was not supported by probable cause and moved for a Franks[1] hearing because the federal affidavit omitted information material to the determination of probable cause. Specifically, Beale asserts that the federal warrant application omitted the fact that when Beale was confronted by police officers, and then walked down the stairs, he was “showing his hands the entire time.” Beale argues that this fact negates probable cause because if he was showing his hands the entire time, he could not have possessed or dropped the gun in the stairwell. The Government filed a surreply indicating that it did not concede Beale's illegal seizure and that there was reasonable suspicion to justify Beale's detention.[2] Based upon this dispute, the Court conducted a hearing as to whether there was a legal basis to seize Beale, and a Franks hearing on the limited question of whether the omission regarding Beale showing his hands the entire time was true. (Mins. of Proceedings (ECF No. 53).)

         II. ANALYSIS

         A. Pertinent Facts

         LVMPD Officer Kara Mahon testified that in the afternoon of May 11, 2016, she responded to a domestic violence call at the Sienna Suites located on Boulder Highway in Las Vegas. Sienna Suites has furnished apartments for rent. While handling that call, the officers received a second complaint by a woman later identified as Ms. Gustat. She said that a man was in her third floor apartment destroying her property. After resolving the first domestic violence call, Officer Mahon started to investigate Ms. Gustat's complaint. As Officer Mahon and her partner, Officer Murguia, accompanied Ms. Gustat to the third floor apartment, Ms. Gustat said that her boyfriend (Beale) might have a weapon. When they arrived, using one of two stairwells leading to the apartment on the third floor, Ms. Gustat then saw and identified Beale, who had just come out of an apartment and was standing at the stairwell about 20 yards away.

         To allow her to investigate Ms. Gustat's allegations, Officer Mahon yelled for Beale to “stop” and stay there. Beale momentarily stopped, looked at the officer, but then walked in the opposite direction and went down the stairs. Beale had nothing in his hands at that time, and Officer Mahon did not see him drop anything. Officer Mahon testified that Beale never put his hands up and did not have his hands up as he walked away from her and proceeded down the stairs. As she often did, she said she may have told Beale to “show your hands, ” or words to that effect, but was not sure she did so. Officer Mahon and Officer Murguia, using separate staircases, pursued Beale to the ground floor. Officer Mahon testified that even after she caught up with, and confronted Beale, he continued to back away from her and would not “stay put” while they were talking. Beale also refused to identify himself. Officer Mahon testified that Beale was detained so that she could continue her investigation into the destruction of property. Fearing he would flee, the officers handcuffed Beale.

         Because a crowd of about five unknown people gathered at the base of the stairwell where Beale was detained, Officer Murguia moved Beale to a patrol car located about 25 to 30 yards away. Officer Mahon returned to the third-floor apartment to investigate Ms. Gustat's complaint about the destruction of property. Ms. Gustat was hysterical and had been crying. As she began to investigate, Officer Murguia radioed Officer Mahon and told her that a Sienna Suites security officer said that there was a gun on the stairwell where Beale had been. Officer Mahon immediately went down the stairwell where Beale had fled and found and seized a firearm on the steps between the second and ground floors. She testified that three or four minutes passed from the time Beale was detained at the bottom of the stairs until she located the firearm. Officer Mahon also testified that, upon finding the firearm, she believed that she had reasonable suspicion to investigate whether Beale had illegally possessed the firearm.

         When Officer Mahon returned to the patrol car with the firearm, she saw Officer Murguia and two other officers struggle to place Beale into the patrol car. Beale refused to sit in the partrol car, and kicked at the officers. Finally, Beale got in the patrol car. Officer Mahon then returned to the apartment to continue her investigation with Ms. Gustat. Officer Mahon said that when she began her investigation, she did not know what was being destroyed in the apartment or who had leased the apartment. At the apartment, she did not see any destroyed property, but the apartment was in disarray. She later learned that after Beale was placed in the car, he used a lighter retrieved from his pocket to burn the seat belt and free himself, and had been placed under arrest for obstructing a police officer and destruction of property. Beale was then moved to another police vehicle, and kicked out the windows in the car, and was thereafter hobbled.

         Detective Erik Morris, LVMPD testified that he arrived at the scene in response to a call for investigative assistance because a firearm was found, and a search warrant would be needed. After being briefed by Officers Mahon and Murguia, he prepared an affidavit to support the search warrant for Beale's DNA, and then called Judge Hafen, a state judge. Detective Morris was sworn and read his affidavit to Judge Hafen on a recorded line, and received search authorization. He testified that he later executed the search warrant, believing that it was lawful. He testified that the recording of his affidavit was later transcribed. The verbatim transcript of the search warrant indicates, in pertinent part, that:

Officers went up to the ah, top of the breezeway, third floor, where “4311” is located and observed a black male adult outside of apartment “4311”and order him to come towards them. Um, showing his hands the entire time, but the black male fled the opposite direction, down the opposite set of stairs.

         Government Exhibit 4. Detective Morris testified that he intended to communicate that the black male adult had been ordered to come towards the officers showing his hands the entire time, not that the suspect was showing his hands the entire time when he was confronted.

         B. Investigative Detention

         Beale asserts his detention pending Officer Mahon's investigation violated his Fourth Amendment rights, and therefore the fruits of that illegal detention (the DNA test results) should be suppressed. The Government argues that there was reasonable suspicion to detain Beale pending investigation, and the detention was lawful.

         An investigatory detention under the Fourth Amendment must be supported by “reasonable suspicion that criminal activity may be afoot.” See Terry v. Ohio, 392 U.S. 1 (1968); United States v. Arvizu, 534 U.S. 266, 273 (2002). In assessing whether an officer has reasonable suspicion to conduct an investigatory detention, reviewing courts “look at the ‘totality of the circumstances' of each case to see whether the detaining officer had a ‘particularized and objective basis' for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273 (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)). “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is ...


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