United States District Court, D. Nevada
before the court is Magistrate Judge Leen's report and
recommendation (“R&R”). (ECF No. 39).
Defendant Quarsie Kareem Jacobs (“defendant”)
filed an objection (ECF No. 40), to which the United States
of America (“the government”) responded (ECF No.
before the court is defendant's motion to suppress. (ECF
No. 21). The government filed a response (ECF No. 23), to
which defendant replied (ECF No. 25).
parties do not object to the factual presentation in the
R&R. Rather, defendant objects to Magistrate Judge
Leen's legal analysis with respect to the pertinent
facts. See (ECF No. 40). Therefore, the court adopts the
factual representation in the R&R and will detail factual
and procedural background in the discussion section of this
order as necessary to explain the court's holding.
may file specific written objections to the findings and
recommendations of a United States magistrate judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
LR IB 3-2. Where a party timely objects to a magistrate
judge's report and recommendation, 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). The
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
to Local Rule IB 3-2(a), a party may object to the report and
recommendation of a magistrate judge within fourteen (14)
days from the date of service of the findings and
recommendations. Similarly, Local Rule 7-2 provides that a
party must file an opposition to a motion within fourteen
(14) days after service of the motion.
moves to suppress evidence of a handgun recovered as the
result of a warrantless search incident to arrest by Las
Vegas Metropolitan Police Department (“LVMPD”)
officers on November 22, 2018. (ECF No. 21). Defendant was
stopped by LVMPD Officer Villanueva for allegedly violating a
Clark County jaywalking statute. (ECF No. 39 at 14).
the course of the stop, Officer Villanueva indicated to
defendant that Officer Gonzalez (who arrived after initial
contact was made with defendant) would need to conduct a
pat-down of defendant's person, and asked defendant if he
had any weapons or narcotics on him. Id. In
response, defendant admitted that he had “found”
a gun and that it was in his pocket. Id. After
retrieving the firearm and conducting a records check, the
officers charged defendant with ownership/possession of a gun
by a prohibited person, carrying a concealed weapon without a
permit, and buying, possessing, or receiving stolen property.
Id. at 2.
Gonzalez and Villanueva conceded that they did not have
reasonable suspicion to believe that defendant was armed and
dangerous at the time of the search. Id. at 14.
Rather, the officers had nothing more than a
“hunch” that defendant could be armed.
Id. Thus, the officers lacked the reasonable
suspicion required to conduct a “pat-down”
incident to an investigative stop. Id.
the officers concede that they lacked reasonable suspicion to
believe that defendant was armed and dangerous, the only way
the handgun could have been recovered lawfully is if the
LVMPD officers had probable cause to arrest defendant for a
crime already committed, which would have permitted the
officers to conduct a search of defendant's person
incident to a lawful arrest. See Arizona v. Gant,
556 U.S. 332, 339 (2009).
search incident to a lawful arrest exception to the warrant
requirement allows a police officer to search an arrestee and
the area within the arrestee's immediate control.
Gant, 556 U.S. at 339. However, to be deemed a
lawful search, the officers must have had probable cause to
arrest the defendant; i.e., probable cause to
believe that the defendant had committed a crime prior to the
arrest. See id. at 339; United States v.
Mota, 982 F.2d 1384, 1386-87 (9th Cir. 1993).
light of the foregoing, the court must consider whether
officers Villanueva and Gonzalez had probable cause to arrest
defendant for jaywalking. First, the R&R finds, and the
parties do not dispute, that the stop occurred in
unincorporated Clark County. (ECF No. 39 at ...