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United States v. Roberts

United States District Court, D. Nevada

December 26, 2019

ZURYESS ROBERTS, et al., Defendants.



         I. SUMMARY

         Defendant Zuryess Roberts, who was 18 years old at the time he was arrested and interrogated by police officers, has brought three separate motions to suppress in this action. (ECF Nos. 34, 35, 38.) The first motion seeks to suppress contents recovered from his cellphone upon the execution of a warrant. (ECF No. 34.) The second motion seeks suppression of statements Defendant made in responding to questioning by the officers. (ECF No. 35.) The third motion asks the Court to suppress items that were seized upon a search of Defendant and the car he was driving. (ECF No. 38.)[1] For the reasons below, the Court will grant the first motion in full. The Court will grant the other two motions in part and denied them in part.


         The underlying facts are not in dispute and derive from the parties' exhibits and testimony at the Hearing. (See ECF No. 55.)

         On January 17, 2019, Defendant was charged by superseding indictment with four counts: conspiracy to steal, take or carry away firearms from the premises of a federal firearms licensee under 18 U.S.C. §§ 922(u) and 371 (Count One); theft of firearms from the same such premises under 18 U.S.C. §§ 922(u) and 924(i)(1) (Count Two); possession of stolen firearms under 18 U.S.C. §§ 922(j) and 924(a)(2) (Count Three); and transportation of stolen firearms under 18 U.S.C. §§ 922(i) and 924(a)(2) (Count Four). (ECF No. 20.)

         A. Search of Defendant and Car He Was Driving

         The charges stem from Defendant's arrest on September 30, 2018, and related events. On that day, a few minutes after 7:30 p.m., Officers Michael Jones and Wesley Pittman of the Vallejo Police Department (“Vallejo PD”) (collectively, “Officers”) responded to reports of shots heard in the area. (ECF No. 38-10.) Several minutes past 8:00 p.m., the Officers were driving their marked police car in the area of Concoran Avenue and Mini Drive when they noticed the car Defendant was driving. (Id. at 2; ECF No. 38-1 at 2 (police narrative).) The car was a dark colored Toyota Camry which approached the Officers going northbound as they traveled southbound. (Id.) The Officers noticed that the car's lights were “not fully turned on.” (Id.) Jones ran a records check on the car, which revealed the car's registration had expired the year before. (Id.) The Officers watched as Defendant parked the car against the curb in a residential neighborhood. (Id.)

         The Officers decided to stop Defendant based on a suspected violation of California Vehicle Code (“CVC”) §§ 24250 and 4000(a). (Id.) The former requires that a vehicle be equipped with lighting equipment when driving during darkness. Cal. Vehicle Code § 24250. The latter requires that a vehicle be registered to be driven. Id. § 4000(a)(1). The Officers got out of their car and approached Defendant. (ECF No. 38-2 at 00:00-00:34.) According to the Officers' testimony at the Hearing, they had been calling after Defendant, but this was not captured on their body cameras. Defendant was not in the immediate vicinity of his car at this point. (Id.) Defendant was walking towards an apartment building when the Officers caught up with him. (Id.)

         Officer Jones beamed his flashlight on Defendant and directed him to “come here.” (Id. at 00:30-00:36.) As he approached Defendant, Jones told Defendant that the car he had been driving had registration that was over a year expired. (Id.) Defendant stopped walking and turned to face Jones, with his hands up and palms facing Jones. (Id.) Defendant transferred his keys from his left hand to his right hand. (Id.) Defendant slowly lowered his now empty left hand towards his waist, keeping his right hand raised. (Id.) Jones grabbed Defendant's left arm while telling him to, “keep your hands up.” (Id. at 00:37.) While forcing Defendant's hands above his head, Jones repeatedly told him to, “relax man.” (Id. at 00:37-00:41.) Defendant complied as Jones held his hands above his head and commanded Defendant to widen his stance. (Id. at 00:42-00:45.) Jones asked Defendant if he had identification on him and Defendant responded, “No sir.” (Id. at 00:45- 00:47). Jones indicated that he was detaining Defendant, “real quick” for driving without a license. (Id. 00:53-00:55.) Approximately 25 seconds elapsed from the time Jones directed Defendant's attention to the time he “detained” Defendant.

         Jones handcuffed Defendant, with Defendant questioning Jones' conduct and again asserting that he did not have identification on him. (Id. at 00:55-1:25.) Upon handcuffing Defendant, the Officers unzipped and searched his pockets. (Id. at 01:15- 01:23.) From searching Defendant, the Officers took Defendant's keys, an Apple iPhone S (“Phone”), and a substantial sum of cash. (ECF No. 38-9 at 6.)

         Thereafter, Jones sat Defendant in the back of the patrol car (ECF No. 38-2 at 01:38-01:40), while Pittman looked through the windows of the car Defendant had been driving, using his flashlight (ECF No. 38-4 at 0:00-00:30). Based on testimony at the Hearing, it became clear that Pittman then went back to the patrol car and asked Defendant a series of questions largely irrelevant to the traffic infractions. (Id. at 00:55- 02:47.) Jones can also be heard simultaneously asking Defendant questions. (Id.) Pittman's questions included whether Defendant had ever been arrested, whether he was on probation or parole, whether he worked, how much he got paid, and asking multiple times whether there was anything illegal in the car. (Id.) As to the latter, Defendant responded, “No.” (Id.). This questioning was not preceded by either Officer reading Defendant his Miranda[2] rights. Shortly after, one officer stated on radio that Defendant was arrested “for pursuit and 148.”[3] (Id. at 03:01-03:11.)

         The Officers decided to search the car. In searching, Pittman began under the front driver seat. (ECF No. 38-7 at 00:00-00:35.) Pittman looked around the interior of the car before digging through a black backpack, tossing out items and looking at paperwork. (Id. at 00:35-01:30.) He made no notation of the items inside nor otherwise indicating that he was conducting an inventory search. (Id.) Pittman then moved to the backseat where he also moved items around, shining his flashlight on clothes and shoes. (Id. at 02:00-02:09.) He went to the trunk and opened a black bag, finding several firearms inside. (Id. at 02:09- 02:25.) Pittman called Jones over, commenting, “Good thing we're going to inventory this thing.” (Id. at 02:30-02:38.)

         One body camera video also showed Jones searching in the trunk of the car. (ECF No. 38-6 at 00:30-00:48.) At the Hearing, the government pointed out that this video shows Jones picking up a sheet (claimed for inventory) after Pittman's search-i.e., after the discovery of the firearms. (Id.) In the video, Jones removed spare tires from the car's trunk. (Id. at 00:48-01:01.) He also lifted and inspected the area under the trunk lining before replacing the spare tires and closing the trunk. (Id. at 01:00-01:15.) Jones then pushed the car's rear passenger window down and examined a bag therein by lifting it up. (Id. at 01:15-01:24.) Jones did not look inside the bag. (Id.) He then checked behind and under the car's rear passenger seat and tossed some items around in the car, before moving to the front passenger seat. (Id. at 01:24-02:10.) Jones made no notations of the items inside the car during this search, which concluded with him picking up a piece of paper that was inside the car and then turning off his body camera. (Id. at 02:10-02:58.)

         Ultimately, the Officers seized the firearms, clothes, shoes, a backpack, and the cash found in Defendant's pocket and a wallet containing a substantial amount of additional cash and applied to forfeit those assets. (ECF No. 38-1 at 2-3; ECF No. 48-4 at 2.) Subsequent investigation into the firearms revealed that they had been stolen from gun stores in Sparks and Reno, Nevada (“Stores”). (E.g., ECF No. 34-1 at 4-5.)

         B. Questioning

         After his arrest, Defendant was brought to the police station where he was interrogated by Pittman, beginning around 10 p.m. (ECF No. 35-1 at 00:00-00:34, 04:16- 04:19.) Pittman prefaced his questioning, stating “I'm going to ask you some questions, but it's kinda just routine, dude. I'm going to read you your rights real quick, okay?” (Id. at 00:34-00:36.) He then recited a Miranda warning, asking Defendant if he understands. (Id. at 00:36-01:11.) Defendant nodded his head that he understood, and Pittman began his questioning. (Id.) Pittman began by asking background questions, including who Defendant lived with. (Id. at 01:00-1:30.) Defendant responded, informing that he lived with his mother. (Id.) Defendant shortly thereafter mentioned “I'm tired bro.” (01:36-01:37.) Defendant also confirmed, in response to a question, that he had not yet graduated. (02:02-02:19.) Roughly another 28 minutes of questioning passed when Pittman decided to leave. (Id. at 02:19-30:40.) During the passing time, Pittman's questions largely focused on the purchase of the car and related circumstances, where Defendant was going at the time of his arrest, where Defendant got the money he had on him and other money-related questions, and where Defendant spent the two previous days-September 28 and 29. (Id.) To the latter question, Defendant informed that he had spent those says in Vallejo. (Id. at 11:28-12:35.)

         Before leaving, Pittman told Defendant that he had some important questions to ask him, and that he wanted Defendant to think about what he wanted to share with him. (Id. at 30:33-32:14.) He reminded Defendant of his age and noted that he did not want what happened to affect the rest of Defendant's life and advised Defendant that he needed to tell the truth because he would be able to corroborate whatever Defendant said. (Id.) Pittman then stated that he would be back in “five minutes” and left the room. (Id. at 31:36- 32:23 (T05:34:32Z.)

         According to testimony at the Hearing, the interrogation resumed after 3 a.m., hours later. (ECF No. 35-5 at 09:20-09:44.) As he was entering the interrogation room, [4]Defendant looked sleepy and stated that he was cold. (Id. at 09:31-09:32.) This time, the interrogating officer was Detective Eron Hurley from the Sparks Police Department in Nevada. Hurley informed Defendant that they would be having a little conversation. (Id. at 09:32-09:45.) The detective pulled out a piece of paper and began by asking Defendant his name, while Defendant shivered and yawned. (Id. at 09:44-11:00.) After causally asking numerous questions and chatting with Defendant over an extended period of time, Hurley finally asked Defendant if he had ever been read his Miranda warnings. (Id. at 11:00-31:49.) Defendant explained that Pittman had read him the Miranda warnings. (Id. at 31:50-32:00.) Hurley read through the warnings again, asked the Defendant if he wanted to talk to him, and indicating he was just “still” having a conversation. (Id. at 32:00- 32:24.) Defendant affirmed that he wanted to talk to Hurley. (Id.) Defendant continued yawning and Hurley said: “you gotta quit yawning dude, you're gunna make me tired.” (Id. at 32:46-32:54.) Thereafter, Hurley continued his questioning, which, in its entirety, lasted about another three and a half hours, with the detective confronting Defendant with evidence, and Defendant making inculpatory statements. (Id. at 33:00-3:59:40.)

         Notably, during Hurley's questioning, Defendant expressed concerns about his epilepsy and yawned throughout. (Id.; see also ECF No. 35-3 at 43, 227.) For example, as Defendant was slurring over his words, Defendant stated that it was 3 a.m. and he “didn't know, ” while informing Hurley that he has epilepsy. (ECF No. 35-5 at 37:54-38:02.) Hurley responded: “That's not good. All right bud, I want you to sign on here if you're willing to talk to me.” (Id. at 38:02-38:12.) It appears at this time, Hurley obtained Defendant's written waiver. (Compare id. at 38:08-38:16 with ECF No. 35-4.) Defendant yawned. (ECF No. 35-5 at 38:16-38:27.) While Defendant yawned and was about to sign the paper, Hurley told him he could stop talking at any time, stating that they were just “documenting” and signing paperwork because they were having a “conversation.” (Id.) Hurley directed Defendant to sign right above his name, and it is not clear that Defendant even read the paper. (Id. at 38:27-38:37.) At this point, Hurley mentioned that it was now October 1st at 4:04 a.m. (Id. at 38:37-38:49.)

         Hurley started to get louder as the interview progressed, including a segment where he told Defendant he was already “screwed”, but hopefully things could go better for Defendant if he worked with them-the police. (See Id. at 1:39:49-1:45:08.) Over three hours into the interrogation, after Defendant had already made various inculpatory statements, including his role in the burglaries as a lookout, Hurley decided that they would take “like a five-minute break” and stated that Defendant could use the restroom during that time. (Id. at 3:00:00-3:00:32.) Several minutes later and Defendant reappearing looking sleepy with his left arm inside his jacket, Hurley is heard stating: “We'll make this quick. I know you've been up all night. Did you fall asleep for a second?” (Id. at 3:14:00- 3:14:38.) Defendant responded, “Every time (inaudible) and I got epilepsy so it's kind of like. . .” (Id. at 3:14:38-3:14:43.) Before Defendant could finish, Hurley interrupted him, stating: “Uh oh. Well I got diabetes so we both got issues.” (Id.) The interrogation resumed and went on for over another forty-four minutes, by which point Defendant's head and arms were on the interrogation table. (Id. at 3:59:24-3:59:34.)

         At the Hearing it was revealed that Defendant was allowed to call his mother only after the interrogations concluded.

         C. Cell Phone & Car Warrant

         Officers obtained a search warrant to search Defendant's Phone. (ECF Nos. 34-1, 34-2.) A magistrate judge issued the warrant for information on the Phone from September 25, 2018, onwards. (ECF No. 34-2 at 5.) It is undisputed that during the execution of the warrant, the executing officer went beyond the date parameters provided for in the warrant. (See, e.g., ECF No. 34 at 2; ECF No. 46 at 1, 3.)


         A. Search of Defendant

         In briefing, Defendant argues that the car keys, Phone, and cash that were initially found on him should be suppressed based on (1) an improper Terry stop and frisk, [5] (2) an unlawfully prolonged stop, and ultimately (3) that he was not subjected to lawful custodial arrest at the time he was searched. (ECF No. 38 at 4-13; ECF No. 52 at 3-12.) The government argues, inter alia, that a Terry analysis is improper and otherwise contends that Defendant was searched pursuant to a lawful arrest under either United States v. Robinson, 414 U.S. 218 (1973)[6] or United States v. Johnson, 913 F.3d 793 (9th Cir. 2019), vacated on other grounds. (ECF No. 48 at 4-7.) The Court agrees with the government.

         Under the search-incident-to-arrest doctrine, a search of a defendant does not violate the Fourth Amendment where the search is conducted upon a lawful arrest. E.g., Robinson, 414 U.S. at 234-35. Neither a defendant's nor the police's subjective view of the circumstances determine whether a suspect has been subjected to a formal custodial arrest. See Stansbury v. California, 511 U.S. 318, 323 (1994) (citation omitted). Further, "an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause." See, e.g., Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (citations omitted).

         As noted, the Officers decided to stop Defendant for operating an unregistered vehicle without his lights illuminated. Further, Jones testified that he decided to arrest Defendant after Defendant stated that he did not have identification on him.

         Defendant argues that Jones was correct when he articulated that he was “just” detaining Defendant[7] because officers had yet to confirm via an on-site database check that Defendant did not hold a valid driver license. (ECF No. 52 at 8.) Without citing to authority that an on-site database check is mandatory, Defendant contends that CVC § 12500 requires that type of verification, and thus probable cause was lacking at the time Jones handcuffed Defendant. (Id.)

         The Court is not persuaded. It appears to the Court that it would be duplicative to have officers also conduct an on-site database check for license/identification where the subject has informed that he did not have identification. Moreover, the government specifically argues, among other things, that probable cause to arrest existed because the Officers observed Defendant driving and he admitted that he did not have identification (ECF No. 48 at 5-6). At the Hearing, defense counsel pressed on with the contention that Officers could not arrest Defendant for simply not having identification on him. But that is not the facts here. As stated, Jones testified consistent with the government's argument that he arrested Defendant at the noted juncture because Jones and Pittman had observed Defendant driving without his lights illuminated, in an unregistered vehicle, and when asked if he had identification Defendant stated he did not.

         Nonetheless, defense counsel attempts to limit Defendant's affirmance that he did not have identification to simply being confirmation that he did not have identification on him, as opposed to not at all. (E.g., ECF No. 38 at 3, 11-12.) In fact, Defendant suggests that the Officers arrested him too hurriedly without giving him a full opportunity to identify himself-by for example, producing materials from his wallet. (ECF No. 52 at 9.) While the Court is concerned about the quickness in the Officers' decision to arrest Defendant, there is no evidence suggesting that Defendant had materials on him that could be used to immediately establish his identity. It is reasonable for the Officers to have concluded, before arresting Defendant, that he possessed no form of identification-including a license. This is because Defendant stated nothing beyond that he did not have identification on him. Surely, if Defendant had identification in the car he was driving or in his wallet, he would have simply said so.[8]

         Defendant additionally claims that an arrest was not compelled here, by either state law or Vallejo PD policy. (ECF No. 52 at 8-11.) The contention is unavailing. Whether an arrest is compelled misses the point. The issue is whether the arrest was authorized. In Atwater v. City of Lago Vista, the Supreme Court clarified that the requirement of probable cause is satisfied where a custodial arrest is authorized-not necessarily required. 532 U.S. 318, 534 (2001); see also Id. (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”).

         While CVC § 12500 does not expressly require arrest, California Penal Code § 853.5 permits it where, as here, the arrestee has no satisfactory identification. See Cal. Pen. Code § 853.5(a) (“Only if the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint may the arrestee be taken into custody.”); see also People v. Spence, 125 Cal.App.4th 710, 718-19 (Cal.App. Div. 2005) (noting that driving without a license can be charged as either an infraction or a misdemeanor). The Court therefore concludes that the Officers had probable cause to arrest Defendant.[9]

         The Court additionally finds that Defendant was in custody upon being placed in handcuffs by Jones and Pittman as it became apparent that Defendant was not free to leave at that moment. See, e.g., Stansbury, 511 U.S. at 322 (providing that an individual is considered in custody when there is a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest"); U.S. v. Crawford, 372 F.3d 1048, 1059 (9th Cir. 2019) (supporting that whether a defendant is free to leave without hindrance is a hallmark of whether he is under arrest); see also United States v. Bengivenga, 845 F.2d 593, 598 (5th Cir. 1988) (relying on the same premise and concluding that "[a] stop at a fixed checkpoint constitutes a Fourth Amendment seizure- a reasonable person would believe that she was not free to leave").

         Because the Court finds that the search of Defendant was a lawful search incident to arrest the Court will deny Defendant's motion to suppress the keys, the Phone, and the cash obtained from the initial search of Defendant's person.

         B. Search of the Car Defendant was Driving[10]

         Defendant next moves to suppress the firearms the Officers recovered from the trunk of the car and clothing found in a backpack in the car. (ECF No. 38 at 1, 13-20.) As to these items, Defendant argues: (1) no impound was necessary under a community caretaking rationale; (2) no valid inventory was ever conducted; and (3) the totality of the circumstances demonstrate that the vehicle impound was unreasonably pretextual. (Id.) The government contends that these items were lawfully recovered pursuant to a valid inventory search and that the execution of a valid search warrant on the car provides a separate basis allowing for the recovery of the clothes. (ECF No. 48 at 7-12.) As the government notes, Defendant does not challenge the latter basis concerning the clothes. (Id. at 13.)

         Warrantless searches are “per se unreasonable” under the Fourth Amendment and “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). The “community caretaking” doctrine is one such exception. United States v. Torres, 828 F.3d 1113, 1118 (9th Cir. 2016). Under this doctrine, “police may, without a warrant, impound and search a motor vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose, such as promoting public safety or the efficient flow of traffic.” Id. (citing United States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012)); see also United States v. Caseres, 533 F.3d 1064, 1074 (9th Cir. 2008) (“Such warrantless inventory searches of vehicles are lawful only if conducted pursuant to standard police procedures that are aimed at protecting the owner's property and at protecting the police from the owner charging them with having stolen, lost, or damaged his property.”) Even if an inventory search technically complies with the applicable policy, the Ninth Circuit has suggested that law enforcement officers should “sufficiently consider alternatives before impounding” a vehicle under the community caretaking doctrine. See United States v. Maddox, 614 F.3d 1046, 1050 (9th Cir. 2010) (applying the law of Washington State).

         But the inventory search exception to the warrant requirement is subject to an important limiting principle-it cannot be used as pretextual cover to conduct warrantless searches for evidence of criminal activity. See, e.g., United States v. Hellman, 556 F.2d 442, 443-44 (9th Cir. 1977). “The Supreme Court in allowing the impoundment and search of vehicles under the community caretaking doctrine has . . . allowed the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” Miranda v. City of Cornelius, 429 F.3d 858, 863 (9th Cir. 2005) (internal quotation marks and citations omitted). Said otherwise, to be a valid inventory search, “the purpose of the search must be non-investigative; it must be conducted on the basis of something other than suspicion of evidence of criminal activity.” U.S. v. Johnson, 889 F.3d 1120, 1125 (9th Cir. 2018) (citing Torres, 828 F.3d at 1118) (internal quotation marks omitted). An officer's subjective intent is relevant to this inquiry. See Id. at 1125-26.

         While the government bears the burden of showing that a warrantless search or seizure falls within an exception to the warrant requirement, see United States v. Huguez-Ibarra, 954 F.2d 546, 551 (9th Cir. 1992), the defendant bears the burden of showing that the inventory search was unreasonably pretextual, see Johnson, 889 F.3d at 1126. “The search cannot be a ruse for a general rummaging in order to discover incriminating evidence.” Johnson, 889 F.3d at 1126 (internal citation and quotation marks omitted).

         Here, the government argues that the search of the car was conducted pursuant to Vallejo PD policy and based on community caretaking concerns. (ECF No. 48 at 7-12.) Defendant relevantly argues that the search did not in fact comply with policy because the Officers did not document items found during the purported inventory and the documented record otherwise supports that the search was to find evidence of a crime. (E.g., ECF No. 52 at 13-16.) The Court agrees with Defendant.

         The government does not argue that the Officers did not document items during their search. Instead, the government argues that the search complied with policy where the officers ultimately documented only those items of “significant monetary value.” (ECF No. 48 at 10.)[11] Relying on United States v. Garay, the government claims that an incomplete inventory sheet on its own does not invalidate an inventory search (id.). 938 F.3d 1108, 1112 (9th Cir. 2019) (providing that failure to complete an “inventory list that ordinarily would be completed as part of department inventory search is not, on its own, a material deviation from policy”) (emphasis added). The government further points out that an officer's dual motive-one valid (e.g., community caretaking) and one impermissible (i.e., to find evidence of a crime)-does not render the inventory search merely pretextual (id. at 11). See, e.g., United States v. Orozco, 858 F.3d 1204, 1213 (9th Cir. 2017) (explaining that a dual motive does not establish pretext).

         In totality of the circumstances, the Court finds that Defendant has met his burden to establish that the search was unreasonably pretextual. Aside from Defendant's contention that an inventory search was premature (ECF No. 52 at 13), Defendant points out that Vallejo PD policy does not leave it to the discretion of officers to only document items that are of significant monetary value (id. at 14). To be sure, Vallejo PD policy requires that “[a]ll property . . . shall be inventoried and listed on the vehicle storage form.” (ECF No. 38-11 at 2 (§ 502.4).) Thus, the policy does not suggest leeway for officers to document only items that they believe to be of significant monetary value.

         Further, § 502.4 of that policy specifically notes that the purpose of the inventory procedures is to protect “an owner's property while in police custody, to provide for the safety of officers, and to protect the Department against fraudulent claims of lost, stolen, or damaged property.” (Id.) The testimony provided at the Hearing was that the car was inventoried to protect the department. However, the Court concludes that the Officers' search of the car did not comport with the noted policy because the search, by not meaningfully documenting the property in the car, undermines any aim in protecting the Vallejo PD against fraudulent claims of lost, stolen, or damaged property. The Court notes that during the search, Pittman-who purportedly conducted the inventory search based on testimony at the Hearing-merely ...

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