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United States v. Rangel-Ibarra

United States District Court, D. Nevada

September 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ERICK RANGEL-IBARRA, Defendant.

          REPORT AND RECOMMENDATION

          DANIEL J. ALBREGTS. UNITED STATES MAGISTRATE JUDGE

         Presently before the Court is Defendant Erick Rangel-Ibarra's Motion to Suppress Evidence of the firearm officers found during the course of a traffic stop as fruit of an unlawful search, filed on June 14, 2019. (ECF No. 20). The Government filed a Response to the Defendant's Motion on June 28, 2019. (ECF No. 22). Rangel-Ibarra filed a Reply on July 10, 2019 (ECF No. 28). The Court conducted an evidentiary hearing on August 15, 2019 (Mins. of Proceedings (ECF No. 34)). At the hearing two Las Vegas Metropolitan Police Officers testified and the court admitted into evidence Defendant's exhibits 1 and 2. At the conclusion of the hearing, the Court indicated it would file a written Report and Recommendation and took the matter under advisement. This Report and Recommendation follows.

         I. BACKGROUND

         Rangel-Ibarra is charged in a one count Criminal Indictment with Possession of a Firearm by a Prohibited Person in violation of Title 18 U.S.C. §922(g)(5)(B) and 924(a)(2)[1]. The charges are a result of a traffic stop of Rangel-Ibarra conducted on August 25, 2018; after which, a pat down search of Rangel-Ibarra resulted in law enforcement finding a Glock 9-milimeter hand gun. Rangel-Ibarra now moves for suppression of the firearm officers found during the course of the traffic stop as the fruit of an unlawful search. (ECF No. 20)

         II. TESTIMONY AND EVIDENCE

         On August 25, 2018, at approximately 5:00 p.m., Las Vegas Metropolitan Police Department Officers Ashley Barney and Alfred Garcia, while operating in plain clothes capacity in an unmarked unit, witnessed a vehicle driving recklessly, weaving in and out of traffic at a high rate of speed, driving into oncoming traffic to pass before re-entering the appropriate lane and driving on the shoulder of the road. Both officers testified that the vehicle was driving so recklessly that, in their opinion, the driver had a reckless disregard for the safety of others. Both officers testified that they normally would not pull over a vehicle for a traffic violation when they were in an unmarked car, but given the recklessness of the driving violations and their belief that the driver had a total disregard for the safety of others on the road, they decided to chase the vehicle and effectuate a traffic stop. They were ultimately able to catch the car because of other traffic in the area slowing it down. Once behind the vehicle, they activated their lights and the vehicle pulled over.

         Both officers testified that they immediately exited their vehicle almost before the vehicle was stopped and as they did so the driver of the vehicle started to get out of his car. Officer Garcia, who was driving the patrol car, approached the driver's side and immediately ordered the driver back into the vehicle. The driver got back in the vehicle and closed the door. Officer Garcia approached the driver's side of the vehicle with his firearm drawn in the ready position. As he approached the vehicle, he could see the driver looking at him from the inside mirror. He also saw the driver reach with the left part of his body either into the side panel of the door or underneath the seat. Officer Garcia testified that as he approached the vehicle, he could see the driver's eyes were wide open and the driver was shaky. The driver did not respond to the officer's questions regarding his driving so Officer Garcia ordered him out of the vehicle.[2]

         As the driver exited the vehicle, he lifted up his pants which were baggy and loose. Both officers testified that the driver's clothing was extremely baggie with a big long loose t-shirt. Officer Garcia testified that he was “messing around kind of like towards his waistband area.” Officer Garcia testified at that stage he turned the driver around to face his vehicle and placed his hands on top of his head. The officer testified that he asked the driver if he had any weapons on him and the driver did not respond. Officer Garcia testified that he then did a pat down search on the driver around the waistband over his shirt and immediately felt the handle of a gun. Upon removing the weapon, the officer determined it was a black semi-automatic Glock pistol. The officer identified Rangel-Ibarra as the driver of the vehicle and the individual who possessed the weapon in question.

         Both officers testified that in their experience it is unusual for an individual to immediately exit his vehicle after being stopped for a traffic violation. Officers testified that in their experience when an individual does that it is likely that they will try to flee or otherwise were involved in illegal activity. Both officers also testified that based upon Rangel-Ibarra's extremely reckless driving, and his utter disregard for the safety of others as a result of this driving, together with not knowing anything about the individual driving the car, they had concern for their safety. Additionally, officers testified that the driver made furtive movements reaching for the side panel or perhaps under his seat, and that they could not see the driver's hands which caused them further concern for their safety. Finally, Officer Garcia testified that upon exiting the vehicle, Rangel-Ibarra was reaching toward the waistband area of his loose and baggy clothes where in his experience individuals will carry weapons. Officer Garcia testified that the totality of the circumstances gave him a reasonable suspicion that the officers may be in danger and for that reason he conducted a brief pat down of Rangel-Ibarra at which time he immediately felt the handle of a gun.

         III. LEGAL STANDARDS AND ANALYSIS 1.

         Fourth Amendment

         The Fourth Amendment addresses “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. amend. IV. The Fourth Amendment protects reasonable and legitimate expectations of privacy. Katz v. United States, 389 U.S. 347, 353 (1967). It protects “people, not places.” Id. at 351. The Fourth Amendment protection against unreasonable searches and seizures extends to brief investigatory stops of persons or vehicles that fall short of traditional arrests. Ramirez v. City of Buena Park, 560 F.3d 1012, 1020 (9th Cir. 2009) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Evidence obtained in violation of the Fourth Amendment and evidence derived from it may be suppressed as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 484-88 (1963). However, the Fourth Amendment is satisfied if the officer's actions are supported by a reasonable suspicion. Arvizu, 534 U.S. at 273.

         2. Validity of the Initial Traffic Stop and Pat Down Search

         A police officer who has reasonable suspicion or probable cause to believe that a violation of traffic laws has occurred may stop the vehicle to investigate the infraction. See Whren v. United States, 517 U.S. 806, 812-13 (1996); see also United States v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir. 2000). The government has the burden of proving by a preponderance of the evidence that the officers had lawful grounds to stop Rangel-Ibarra and that the subsequent pat down search of him complied with the Fourth Amendment. See United States v. Cortez-Rivera, 454 F.3d 1038, 1041-42 (9th ...


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