United States District Court, D. Nevada
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).
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).
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.).
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.
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).
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.
Search incident to arrest
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).
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.).
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.
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.