United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Mr. Coleman's Motion to Suppress [ECF No.
26]. The Court held an evidentiary hearing over several days
on this Motion. For the reasons stated below, the Court
GRANTS the Motion to Suppress [ECF No. 26].
Court makes the following factual findings. On January 18,
2018 at around 11:00 p.m., Las Vegas Metropolitan Police
Officer Juan Ostorga conducted a vehicle stop of the vehicle
being driven by Defendant Dean Coleman. At the time of the
stop Ostorga was a member of a “violent crime
unit” or a “vc unit.” The mandate for this
unit was to patrol with an emphasis on
‘proactively' investigating crimes related to
gangs, drugs and guns. This vc unit uses vehicle stops as a
means of proactively and pretextually investigating crimes
related to gangs, drugs and guns.
pulled Coleman over because Coleman was driving with high
beam lights on in traffic in violation of Nevada law. N.R.S.
§ 484D.215 Ostorga was driving in a marked patrol
vehicle with a partner, patrol officer Sergio Felix. Both
vehicles pulled over into a parking lot near a fast food
restaurant. The patrol car came to a stop behind
Coleman's vehicle-not completely blocking it in but
making it difficult for Coleman to turn around if the patrol
car did not move. Ostorga exited his vehicle and approached
Coleman's vehicle on the driver's side. From behind
Coleman's car, Ostorga ordered Coleman in a loud voice to
roll down all of the windows in the car. Coleman complied and
then put his hands in the air. As Ostorga walked up to the
vehicle, he had flashlight out and on. Felix also had his
flashlight out and was looking into the car. Both could see
into the entire interior area of the car. Coleman's
driver-side window was completely down when Ostorga arrived
at the driver's door. The officers did not see any
illegal contraband or weapons in plain view in the interior
of the vehicle.
then told Coleman that he was pulling him over because he was
driving with high beams on his car. Coleman admitted that he
was driving with high beams on. He stated that he was driving
this way, because one of the normal headlights was out. He
had a replacement bulb in the trunk of the car but he had not
yet replaced the light. Ostorga asked Coleman for his license
and registration. Coleman told Ostorga that the vehicle
belonged to his girlfriend and that he did not have a
driver's license. Coleman said he did have a Nevada
identification card. Ostorga ordered Coleman to provide the
ID card and Coleman complied.
then asked Coleman if he had ever been arrested previously.
Coleman admitted that he had previously been convicted of
robbery and that he had recently been released from prison.
Ostorga then asked Coleman “who do you roll
with?” He also asked Coleman where Coleman was from.
Coleman said he was from California. Ostorga then repeated
his question “who do you roll with?” Ostorga said
if he were to call “California gangs” what would
they say about Coleman. Coleman then admitted that he had
been a “Blood” gang member but that he was no
longer involved with gangs. Ostorga said that Coleman should
have told him that Coleman was a Blood earlier. Ostorga said
“I am just going to keep asking you until you tell
me.” Ostorga then asked Coleman which Blood gang had
Coleman belonged to and Coleman said had been a “Piru
Blood.” This last exchange took less than a minute.
Ostraga then walked backed to his patrol car with
Coleman's Nevada ID card.
than asked his partner, Felix, to conduct a check of
Coleman's ID card and to look for warrants. Felix, who
was seated in the car, told Ostorga that Coleman had a
previous conviction for robbery, battery and weapons
possession. The officers did not discover any outstanding
state warrants for Coleman's arrest. Felix and Ostorga
also discovered that Coleman was currently on federal
probation or supervised release. The officers did not have
much experience with federal probation or supervised release.
They did not know that Coleman's traffic violations could
serve as basis for supervised release violations which could
lead to his arrest or a summons.
after finding that Coleman had no warrants, the officers
decided to conduct an additional check/request for
information regarding his federal probation officer. The
officers had decided not to arrest him for any traffic
violations or other violations, including violations of his
federal supervised release. Ostorga, however, did tell Felix
to try to contact Coleman's probation officer for the
purpose of getting permission to search the vehicle. Ostorga
decided to further investigate Coleman for guns or drugs or
other gang-related criminal activity/evidence. Ostorga then
told Felix that he was going to take Coleman out of the car
to search him. He did this to further investigate Coleman and
search the vehicle.
then walked back to the Coleman's car. He ordered Coleman
to step out of the vehicle. The Court finds that Ostorga did
this to further investigate Coleman not because he had a
subjective safety concern. Indeed, he told Coleman he was not
worried about safety even after hearing about Coleman's
record and he told Coleman he could put his hands down while
seated in the car. Coleman complied with the order to get out
of the vehicle. Ostorga then ordered Coleman to place his
hands behind his back. Coleman complied. Ostorga then
searched Coleman's body and clothing. He did not find any
weapons or contraband. Ostorga then ordered Coleman to stand
in front of Ostorga 's patrol car. Coleman complied.
Coleman placed his hands on the front of the patrol car.
After Coleman complied with Ostorga 's order to stand in
front of the patrol car, Ostorga then conducted another
search of the visible interior of the vehicle with his
flashlight. He did not find any illegal contraband or
weapons. Ostorga then asked Coleman “Nothing in the car
that I should be aware of?” And Coleman responded
“no.” Ostorga then asked, “Be cool if I
search it?” Coleman did not respond to this question.
Ostorga then asked “What's up? You okay if I search
it?” Coleman, who was then standing in front of the
patrol car with his hands on the hood replied
then began a thorough search of the vehicle. Upon removing a
panel of a compartment near the leg area of the driver's
side of the vehicle, Ostorga observed a weapon-a handgun. He
then walked back to his patrol car and placed handcuffs on
Coleman. Ostorga told Coleman he was being handcuffed and
placed into custody for having the weapon.