United States District Court, D. Nevada
before the court is Magistrate Judge Ferenbach's
(“Judge Ferenbach”) report and recommendation
(“R&R”) denying defendant Johnson's
(“defendant”) motion to suppress. (ECF No. 43).
Defendant filed an objection. (ECF No. 46). The United States
of America (“the government”) did not respond,
and the time to do so has passed.
before the court is defendant's motion to suppress. (ECF
No. 38). The government filed a response (ECF No. 41), to
which defendant replied (ECF No. 42).
parties do not object to the factual presentation in the
R&R. 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. When a party timely objects to a magistrate
judge's report and recommendation, the court must
“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.
Fourth Amendment protects “[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 United States Supreme Court created the
exclusionary rule as “a deterrent sanction that bars
the prosecution from introducing evidence obtained by way of
a Fourth Amendment violation.” Davis v. United
States, 564 U.S. 229, 231-32 (2011).
is ‘not a personal constitutional right,' nor is it
designed to ‘redress the injury' occasioned by an
unconstitutional search.” Id. at 236 (quoting
Stone v. Powell, 428 U.S. 465, 486 (1976)).
“[I]t has been the law that ‘capacity to claim
the protection of the Fourth Amendment depends . . . upon
whether the person who claims the protection of the Amendment
has a legitimate expectation of privacy in the invaded
place.'” Minnesota v. Olson, 495 U.S. 91,
95-96 (1990) (quoting Rakas v. Illinois, 439 U.S.
128, 143 (1978)). “A subjective expectation of privacy
is legitimate if it is one that society is prepared to
recognize as reasonable.” Id. at 96 (citations
and quotation marks omitted). “The burden is on the
defendants to establish that, under the totality of the
circumstances, the search or the seizure violated their
legitimate expectation of privacy.” United States
v. Reyes-Bosque, 596 F.3d 1017, 1026 (9th Cir. 2010)
(quotation marks, alterations, and citation omitted).
when an encounter is classified as a seizure must [the court]
determine whether there was reasonable suspicion.”
United States v. Hernandez, 27 F.3d 1403, 1406 (9th
Cir. 1994). “[W]hen an officer, without reasonable
suspicion or probable cause, approaches an individual, the
individual has a right to ignore the police and go about his
business.” Illinois v. Wardlow, 528 U.S. 119,
124 (2000) (citation omitted). “Precedent instructs
that where an individual flees from police, no submission
occurs until the defendant is physically subdued.”
United States v. McClendon, 713 F.3d 1211, 1215 (9th
Ferenbach denied defendant's motion to suppress, holding
that “the [d]efendant has not met his burden to
establish a reasonable expectation of privacy in the items
seized from the bush or on the ground at the apartment
complex. Police seized items from public areas of an
apartment complex, not from [d]efendant's person.”
(ECF No. 43 at 3). Now objecting to Judge Ferenbach's
holding, defendant continues to assert that he need not
address his expectation of privacy because, in his view, the
officers did not have reasonable suspicion to stop him.
(See generally ECF No. 46).
court need not reach the issue of whether the officers had
reasonable suspicion to stop defendant. The parties do not
dispute that the officers had every right to approach
defendant to engage in a “consensual encounter.”
(ECF Nos. 41 at 2; 43 at 5; 46 at 5). Similarly, the parties
do not dispute that defendant had every right to decline such
an “encounter.” (ECF Nos. 41; 43 at 5; 46 at
nonetheless contends that the officers approaching him was
not an attempted “consensual encounter, ” but a
seizure. The United States Supreme Court's holding in
McClendon belies this contention because a Fourth
Amendment seizure does not occur until a fleeing individual
submits or is ...