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United States v. Cisneros

United States District Court, D. Nevada

February 20, 2018

United States of America, Plaintiff
v.
Gilberto Cisneros, Defendant

          ORDER OVERRULING OBJECTION; ADOPTING REPORT AND RECOMMENDATION; DENYING MOTION TO DISMISS; AND GRANTING MOTION TO SUPPRESS [ECF NOS. 30, 43, 45]

          JENNIFER A. DORSEY U.S. DISTRICT JUDGE.

         Defendant Gilberto Cisneros was weaving in and out of construction cones on his motorcycle when he was pulled over by a Las Vegas Metropolitan Police Officer.[1] The officer ordered Cisneros to step off his motorcycle and stand near the patrol car. He then patted Cisneros down for weapons and discovered a firearm in Cisneros's waistband.[2] The officer's bodycam did not record the entire encounter.[3] Cisneros was arrested and charged with being a felon in possession of a firearm.[4]

         Cisneros challenges the patdown search as lacking reasonable suspicion, and he moves to suppress the gun, statements he made after the gun was found, and the DNA evidence collected from him after his arrest.[5] He also moves to dismiss for destruction of evidence based on the bodycam malfunction.[6] After an extensive evidentiary hearing, Magistrate Judge Peggy Leen recommends that I grant the motion to suppress and deny the dismissal motion.[7] The government objects to the suppression recommendation, arguing that the circumstances known to the officer justified the Terry frisk.[8] But no party objects to the recommendation to deny the motion to dismiss. After a de novo review of the suppression issue, I find that the patdown search was conducted without reasonable suspicion. So, I accept Magistrate Judge Leen's findings and recommendation, overrule the government's objection, deny the motion to dismiss, and grant the motion to suppress.

         Discussion

         A. Specific-objection standard

         A district court reviews objections to a magistrate judge's proposed findings and recommendations de novo.[9] “[R]eview de novo means that the court should make an independent determination of the issues and should not give any special weight to the prior determination of the [magistrate judge].”[10] “Normally, the judge . . . will consider the record [that] has been developed before the magistrate and make [her] own determination on the basis of that record, without being bound to adopt the findings and conclusions of the magistrate.”[11]“The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.”[12]

         B. Terry frisk requirements and the exclusionary rule

         “The Fourth Amendment guarantees ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'”[13] In Terry v. Ohio, the Supreme Court held that a law-enforcement officer may briefly stop individuals for investigative purposes if the officer has a reasonable suspicion that the individual is engaged in criminal activity.[14] “[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”[15]Determining whether the officer's “specific and articulable facts” constitute reasonable suspicion requires an objective, totality-of-circumstances evaluation.[16]

         But a Terry stop does not automatically entitle the officer to perform a Terry frisk-a patdown-of the stopped individual.[17] An officer may only perform a Terry frisk if he “is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous.”[18] The stop and the frisk are thus two independent intrusions into the individual's personal security, so the officer must have an independent, reasonable suspicion to justify each act. “A mere inchoate and unparticularized suspicion or hunch that a person is armed and dangerous does not establish reasonable suspicion, and circumstances suggesting only that a suspect would be dangerous if armed are insufficient. There must be adequate reason to believe the suspect is armed.”[19] “Importantly, reasonable suspicion must be individualized: even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted.”[20]

         Evidence obtained from an illegal Terry frisk must be suppressed under the exclusionary rule.[21] “[T]he exclusionary rule extends beyond evidence directly obtained in violation of the Fourth Amendment to the ‘fruit of the poisonous tree.'”[22] So, “the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful seizure [or search] . . . .”[23]

         C. The officer's Terry frisk was not supported by reasonable suspicion.

         The officer identified several factors that he felt justified patting down Cisneros:

1. Cisneros traveled a “pretty significant distance” before pulling over after he activated his lights and sirens, and the officer believed that Cisneros may have used that time to decide what to do or call for backup;[24]
2. The officer was alone during the stop;[25]
3. Cisneros was wearing a baggy shirt and pants on a hot day, and the officer believed that Cisneros did so to hide any bulges in his clothing caused by weapons;[26]
4. Cisneros was wearing a Mongols vest, which suggested that he is a member of the Mongols outlaw motorcycle gang;[27]
5. There was an ongoing feud between two other motorcycle gangs-the Vagos and Hells Angels-that had resulted in violent encounters between those groups and law enforcement;[28]
6. The officer stopped Cisneros in a “hot spot” area for violent crime;[29]
7. He recognized the motorcycle-but not Cisneros-because it was outside an apartment that he searched two weeks earlier in which he found ammunition.[30]

         But none of these facts alone or in combination supports the reasonable suspicion that Cisneros was armed and dangerous during this routine traffic stop.

         First, the officer approximated the “pretty significant distance” at only 150 feet, which does not seem “significant” to the undersigned.[31] Plus, over that 150 feet, Cisneros was not driving recklessly or trying to outrun the officer; he just didn't pull over immediately.[32]

         Second, it is not unusual for a patrol officer to perform a traffic stop alone and without backup.[33] Regardless, the fact that the officer was alone did not suggest in any way that Cisneros-as opposed to any other target of a traffic stop by a lone officer-would be armed and dangerous.

         Third, although Cisneros was wearing baggy clothes, the officer testified that he didn't see a bulge in Cisneros's clothing, [34] Cisneros was compliant and not aggressive, [35] and ...


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