United States District Court, D. Nevada
REPORT AND RECOMMENDATION
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
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,
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
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.
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 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. 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
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.
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.
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.
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.
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
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.
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.
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.
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 ...