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United States v. Coleman

United States District Court, D. Nevada

September 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DEAN COLEMAN, Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before 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].

         II. FACTUAL FINDINGS

         The 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.

         Ostorga 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.

         Ostorga 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.

         Ostorga 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.

         Coleman 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.

         Importantly, 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.

         Ostorga 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 “yes.”

         Ostorga 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.

         III. LEGAL STANDARD

         A. Permissible ...


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