454 F.3d 1030 (9th Cir. 2006), 05-10349, United States v. McWeeney

Docket Nº:05-10349.
Citation:454 F.3d 1030
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Nicholas J. McWEENEY, Defendant-Appellant.
Case Date:July 21, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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454 F.3d 1030 (9th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Nicholas J. McWEENEY, Defendant-Appellant.

No. 05-10349.

United States Court of Appeals, Ninth Circuit.

July 21, 2006

Argued and Submitted April 6, 2006.

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[Copyrighted Material Omitted]

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Jason Carr, Assistant Federal Public Defender, Las Vegas, Nevada, for the defendant-appellant.

Brian Quarles, Assistant United States Attorney, Las Vegas, Nevada, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada, D.C. No. CR-03-00195-PMP, Philip M. Pro, District Judge, Presiding.

Before: Alfred T. Goodwin, Betty B. Fletcher, and Raymond C. Fisher, Circuit Judges.


GOODWIN, Circuit Judge:

Nicholas J. McWeeney appeals his conviction for violating 18 U.S.C. §§ 922(g)(1), 924(a)(2) (being a felon in possession of a firearm). He assigns error to the denial of his motion to suppress. Because the district court did not make a finding with respect to coercion, we vacate the judgment of conviction and remand the case to the district court with instructions to conduct an evidentiary hearing consistent with this opinion.

I. Factual and Procedural Background

On December 2, 2002, Officer Andrew Walsh of the Las Vegas Metropolitan Police department noticed a white Pon-tiac Sunfire with no front license plate. Officer Walsh observed the rear license plate and checked it against the state computer, which indicated that the Sunfire had previously been stolen and returned to the owner. His suspicion aroused, Officer Walsh stopped the car, obtained identification from the occupants and determined that the driver was Jesus Lopez and the passenger was McWeeney.

The car was registered to McWeeney's mother. McWeeney told Officer Walsh that he was using the car with his mother's permission and that he allowed Lopez to drive because he was tired. Officer Walsh then asked McWeeney and Lopez if they were in possession of anything that "they were not supposed to have." McWeeney and Lopez responded in the negative. Officer Walsh also asked if they "mind[ed] if [he] looked" in the car. McWeeney and Lopez orally consented to Officer Walsh's request. The government does not dispute that this consent provided the sole authority for the government to search McWeeney's car.

Officer Walsh then returned to his patrol car and ran background checks on McWeeney and Lopez. The background checks revealed that McWeeney was a convicted felon and that Lopez had a previous weapons-related arrest. Officer Walsh called for backup and waited for it to arrive before proceeding. Seven minutes later, Officers Martin and Howard arrived on the scene.

Officer Walsh relayed all relevant information to Officers Martin and Howard, including that McWeeney and Lopez had consented to the search of the car. Officer Walsh then approached the Sunfire and reminded McWeeney that he was going to look in the car, stating "if you have nothing that you aren't supposed to have, I'm going to take a look." McWeeney and Lopez were asked to exit the Sunfire and

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stand facing the front of Officer Walsh's patrol car.

Officer Howard, relying on Officer Walsh's statement regarding McWeeney and Lopez's consent, searched the Sun-fire. After finding nothing in the passenger compartment, Officer Howard opened the trunk. Officer Howard noticed that the trunk's carpet lining was loose, pulled the carpet back, and found the handgun that is the subject of this case.

Neither McWeeney nor Lopez was allowed to observe the search. At one point during the search, Officer Howard noticed that either McWeeney or Lopez "was looking back" at him as he searched the Sunfire, and either he or Officer Martin instructed that person "to face forward and stop looking back." Officer Howard could not remember which of the two men he told to turn around. After the handgun was found, the officers handcuffed McWeeney and Lopez and placed them in separate patrol cars. Officer Walsh then called for the firearms unit. Approximately two hours after the stop, McWeeney was charged with being a felon in possession of a firearm.

Initially, McWeeney filed a motion to suppress the firearm as the fruit of an illegal search.1 united States Magistrate Judge Lawrence Leavitt held an evidentiary hearing to assess McWeeney's motion and recommended that McWeeney's suppression motion be denied. United States District Judge David W. Hagen adopted this recommendation and denied the motion. McWeeney then pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), but reserved the right to appeal the denial of his motion to suppress.

McWeeney, free on a personal recognizance bond until his sentencing scheduled for September 13, 2004, absconded and did not appear for sentencing. He did not appear again until his pretrial release violation hearing on April 11, 2005. McWeeney's sentencing was rescheduled for May 4, 2005. In the interval between McWeeney's suppression motion and his sentencing, Judge Hagen retired and McWeeney's case was reassigned to Chief United States District Judge Philip M. Pro. On May 11, 2005, Chief Judge Pro sentenced McWeeney to fifty-one months imprisonment and three years of supervised release. Shortly thereafter, McWeeney filed this appeal, arguing that his Fourth Amendment rights were violated by the search.

II. Standard of Review

We review de novo the district court's denial of McWeeney's motion to suppress. United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc). Factual findings underlying the denial of the motion are reviewed for clear error. United...

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