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United States v. Brown

United States District Court, D. Nevada

January 16, 2018

JUSTIN BROWN, Defendants.


         Presently before the court is Magistrate Judge Ferenbach's report and recommendation (“R&R”). (ECF No. 55). Defendant Justin Brown filed an objection to the R&R on October 30, 2017. (ECF No. 63). Also on November 13, 2017, the government filed a response. (ECF No. 64).

         Defendant filed a motion to suppress evidence on May 1, 2017. (ECF No. 20). The government responded on May 11, 2017 (ECF No. 21) and defendant replied on June 16, 2017 (ECF No. 39).

         Defendant also filed a motion to dismiss or suppress evidence on June 14, 2017. (ECF No. 36). The government responded on June 28, 2017 (ECF No. 45), and defendant replied on July 14, 2017 (ECF No. 49.).

         I. Legal Standard

         This court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1).

         II. Discussion

         In the report and recommendation, Magistrate Judge Ferenbach found that 1) the search incident to arrest violated Brown's Fourth Amendment rights; 2) Brown's statements are therefore inadmissible, but the firearm should still be admitted under the inevitable discovery doctrine; 3) while law enforcement officers did not activate their Body Worn Cameras (“BWCs”) at the appropriate times in accordance with law enforcement polices, the officers did not violate Brown's due process rights; and 4) the officers' failure to record does not merit sanction by the court in the form of suppression. (ECF No. 55). The government concurs with Magistrate Judge Ferenbach's findings and asks the court to adopt the report and recommendation. (ECF No. 64).

         Brown objects to Magistrate Judge Ferenbach's finding that the firearm is admissible under the inevitable discovery doctrine. (ECF No. 63). Brown also objects to Magistrate Judge Ferenbach's finding that the officers' failure to correctly operate their BWCs did not violate Brown's due process rights, or, in the alternative, warrant sanction. (ECF No. 63). Lastly, Brown does not object to any factual assertions made in the R&R, and thus the court adopts them in their entirety and references them herein.

         i. Search incident to arrest

         The Fourth Amendment makes warrantless searches and seizures per se unreasonable, subject to a few specific and well-delineated exceptions (See United States v. Cervantes, 703 F.3d 1135, 1138-39 (9th Cir. 2012)). One exception is a search incident to a lawful arrest. (See Arizona v. Gant, 556 U.S. 332, 338 (2009)). This exception allows a policer officer “who makes a lawful arrest” to search the “arrestee's person and the area ‘within [the arrestee's] immediate control.'” (See Davis v. United States, 564 U.S. 229, 232 (2011) (quoting Chimel v. California, 395 U.S. 752, 763 (1969))). The area “within [an arrestee's] immediate control” is defined as “the area from with which [an arrestee might gain possession of a weapon or destructible evidence.” (See Chimel, 395 U.S. at 763). The purpose of the exception is to protect the officers and to safeguard any evidence the arrestee may try to hide or destroy. (See Gant, 556 U.S. at 339).

         Here, Officer Lebario, the first arriving officer, put Brown in handcuffs, patted him down, and placed him in his patrol car located about 15 to 20 feet away from the stolen vehicle and adjacent to Brown's luggage. (ECF No. 55). Officer Lebario then locked the door. (Id.). Brown remained in Officer Lebario's patrol car until he was transported away from the scene. (Id.).

         When officers decided to arrest Brown after discovering the warrant, Brown was already handcuffed and locked in Officer Lebario's patrol car. (Id.). Officers then conducted a search of Brown's luggage and belongings. The items searched were not possibly within Brown's immediate control, as he was still handcuffed and locked in the back of Officer Lebario's patrol car. Further, neither justification for the exception - to protect arresting officers or to safeguard evidence - is present here. Accordingly, the search was unlawful and violated Brown's Fourth Amendment rights.

         The exclusionary rule prevents admission of any evidence that is the “fruit” of an unlawful search. (See Wong v. United States, 371, U.S. 471, 484 (1963)). Nonetheless, if it can be shown that illegally discovered evidence could also be the result of “means sufficiently distinguishable to be purged of the primary taint, ” then that evidence is admissible. (See United States v. Davis, 332 F.3d 1163, 1170-71 (9th Cir. 2003)).

         a. ...

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