United States v. Eppenger

Decision Date24 July 2012
Docket NumberCase No. 2:11-cr-00412-LDG-CWH
CourtU.S. District Court — District of Nevada

Defendant's Motion to Suppress (# 18)

This matter is before the Court on Defendant's Motion to Suppress (#18), filed April 5, 2012; the Government's Response (#20), filed April 22, 2012; and Defendant's Reply (#21), filed April 25, 2012. The Court conducted an evidentiary hearing in this matter on April 25, 2012, and has also considered Supplemental briefs filed by the parties. In particular Defendant's Supplement to Motion to Suppress (#26), filed May 9, 2012; the Government's Response in Opposition to Defendant's Supplemental Brief (#28), filed May 23, 2012; and Defendant's Reply (#31), filed May 31, 2012. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 1-4 the undersigned issues the following Findings and Recommendation.

I. Background

Defendant Kevin Eppenger ("Defendant") is charged by criminal indictment filed November 29, 2011 with being a felon in unlawful possession of a firearm in violation of Title 18, United States Code 922(g)(1) and 924(a)(2). By way of this motion, Defendant moves to suppress all tangible and testimonial evidence seized during his arrest on September 2, 2011.

Defendant concedes that he does not have standing, for purposes of the Fourth Amendment, to request suppression of the firearms. Nevertheless, Defendant moves for suppression of thefingerprints taken as part of his arrest, the results of a buccal swab1 seized pursuant to a search warrant, and any statements made subsequent to his arrest.2 Defendant contends that his Fourth Amendment rights were violated because police lacked probable cause to detain and arrest him and, therefore, were not justified in taking his fingerprints. Defendant also asserts that the search warrant authorizing the buccal swab was defective. The Government argues that there was probable cause for both the arrest and the taking of fingerprints incident to the arrest. Also, the Government contends that the buccal swab of Defendant was conducted pursuant to a lawfully issued search warrant.

III. Evidence before the court

At about 11:00 a.m. on September 2, 2011, Las Vegas Metropolitan Police Department ("LVMPD") Detectives Moreno and Souder were on foot patrol in an apartment complex located at 1950 North Walnut Street in Las Vegas, Nevada. The detectives are members of the LVMPD Gang Crimes Unit. At the time of the patrol, both detectives were wearing green military fatigue style uniforms with black belts containing various weapons and equipment.

As part of their patrol, the detectives were talking to individuals in the apartment complex. The detectives saw Defendant walk in the complex carrying a green bag. After seeing the detectives, Defendant turned into an alcove where an outdoor stairwell was located, walked upstairs, and knocked on the door of apartment 262. The detectives temporarily lost sight of Defendant, but within a minute, noticed that he was at the top of the stairs no longer carrying the green bag. Consequently, the detectives asked Defendant to come down the stairs and talk with them. Defendant complied and, according to the detectives, maintained a cooperative and calm demeanor. Defendant provided his name and social security number. He also indicated that he had an arrest record, which the Detectives confirmed. When asked, Defendant acknowledged that hedid not live in apartment 262, but his girlfriend did.

Thereafter, Detective Moreno asked Defendant if he could look in the green bag that Defendant had been carrying. Defendant agreed. With Detective Moreno following, Defendant walked up the stairs, opened the door about six to twelve inches, and reached into the opening to retrieve the bag. The door was not locked and Defendant did not step into the apartment. Detective Moreno testified that he was able to see into the apartment through the partially opened door and noticed a dark blanket hanging in front of the entrance of the door, which obstructed his view into the apartment. Detective Moreno also testified that he noticed bright lights when Defendant pushed the blanket aside to retrieve the green bag. He also recognized a strong odor of marijuana from inside the apartment upon the door opening. After retrieving the bag, Defendant closed the door and returned to the bottom of the stairwell with Detective Moreno behind him. At the bottom of the stairwell, Detective Moreno inspected the contents of the bag, which contained an electronic game console.

After inspecting the bag, Detective Moreno asked Defendant whether the apartment was being used to grow marijuana. Detective Moreno testified that, after he asked this question, Defendant's demeanor changed. Defendant allegedly stopped answering questions and had what Detective Moreno described as blank or "1000-yard" stare. Detective Moreno also testified that throughout the encounter Defendant made no furtive movements and showed no signs of being under the influence of marijuana. Nevertheless, Detective Moreno testified that he became alarmed due to the alleged change in demeanor and placed Defendant in handcuffs for "officer safety." After he was handcuffed, Defendant was placed on the stairs and orally apprised of his Miranda rights. Thereafter, the detectives began their narcotics investigation.

At the outset of the investigation, Detective Moreno contacted the apartment complex manager and learned that the apartment was leased to Ms. Trelisa Clayborn. Detective Moreno left a telephonic message for Ms. Clayborn and she returned the call about 20 minutes later. She indicated that she sometimes lived at the apartment and Defendant is her boyfriend, but he did not live in the apartment. She refused to come to the apartment or to consent to its search. Detective Moreno did not recall whether he inquired of Ms. Clayborn whether Defendant had permission tobe in the apartment.

During his discussion with the apartment manager, Detective Moreno also learned that Defendant was listed as an emergency contact on the lease for the apartment. On cross-examination, Detective Moreno agreed that it was not a crime to enter the apartment where marijuana had been smoked. However, he testified that Defendant was arrested at about 11:50 a.m. for trespassing because he did not live in the apartment and he was not on the lease. Detective Moreno also testified that, in deciding to arrest Defendant, he considered Ms. Clayborn's statement that Defendant did not live there and there were "no trespassing" signs evident around the apartment complex. Subsequent to his arrest, Defendant was searched. No contraband was discovered. Immediately after his arrest, Defendant was placed in a patrol car in the vicinity of the apartment and formally booked into temporary police custody at 1:56 p.m.

At about the time Defendant was booked into temporary custody, Detective Moreno telephonically applied for a search warrant to search the apartment. The affidavit supporting this warrant generally contained the facts provided above in order to support the seizure of evidence related to illegal drug trafficking. The first search warrant was issued. As a result of the search, the detectives found small amounts of marijuana in the apartment. There was no evidence of marijuana having been used or of a marijuana growing operation. While conducting the initial search, detectives also noticed firearms and property they suspected was stolen in the apartment.

Because the initial search warrant related to marijuana and related evidence, Detective Moreno telephonically applied for a second search warrant. At about 1:43 p.m., Detective Moreno obtained a search warrant from a different judge than the one who authorized the first search. This second warrant authorized the detective to search for and seize the firearms and suspected stolen property in the apartment. It also authorized the taking of a buccal swab from Defendant. According to Detective Moreno, the purpose of the buccal swab was to prove that Defendant had possessed the firearms discovered in the apartment.3 Defendant's fingerprints were taken when he was booked into the county jail on the trespassing arrest. A buccal swab was taken at the jail.IV. Applicable Legal Authority & Analysis

The Fourth Amendment addresses "the 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 (1967). It protects "people not places." Id. Evidence obtained in violation of the Fourth Amendment and evidence derived from it may be suppressed as the "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471 (1963).

A. The Initial Encounter

The Supreme Court has long held that police may stop a citizen at any time, ask for identification and other information, and even request permission to search so long as a reasonable person in the citizen's position would recognize that he or she is free to leave or terminate the encounter. See Generally, Terry v. Ohio, 392 U.S. 1 (1968); Florida v. Royer, 460 U.S. 491 (1983); Florida v. Rodriguez, 469 U.S. 1(1984). Indeed, police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions because "mere police questioning does not constitute a seizure." Florida v. Bostick, 501 U.S. 429, 437 (1991).

Here, the Court finds that the initial encounter did not violate the Fourth Amendment. Defendant was not improperly seized when he voluntarily responded to Detective Moreno's initial questions regarding his criminal background or residence. Nor was Defendant improperly seized when he agreed to retrieve the green bag from his girlfriend's apartment and allowed the detectives to search the...

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