United States v. Fortenberry
| Decision Date | 10 July 2015 |
| Docket Number | Case No. 2:14-cr-00387-JAD-NJK |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ANTWAN FORTENBERRY, Defendant. |
| Court | U.S. District Court — District of Nevada |
This matter was referred to the undersigned Magistrate Judge on Defendant Antwan Fortenberry's Motion to Suppress Evidence. Docket No. 33. On May 6, 2015, and July 6, 2015, the Court held an evidentiary hearing on Defendant's motion. Docket Nos. 66, 94. The Court has considered Defendant's Motion, the United States' Response, the evidence adduced at the evidentiary hearing on this matter, and the parties' arguments. Docket Nos. 33, 37, 66, 94.1 No reply was filed. See Docket.
On October 6, 2014, Las Vegas Metropolitan Police Department (LVMPD) Vice Unit Detectives John Segura and Joseph Novotni conducted an investigation into an escort advertisement posted online at Backpage.com. Hearing Tr. (5/6/2015) at 1:55 p.m. The ad used the term "have fun," which Detective Segura testified, based on his training and experience, was code for sex. Hearing Tr. (5/6/2015) at 1:55 p.m. At approximately 1:00 a.m., Detective Segura responded to the advertisement in an undercover capacity, by calling the telephone number listed and arranging tomeet with a woman who was later identified as Dinah Villasana at the Gustav bar, located in the center of the Paris Hotel and Casino. Hearing Tr. (5/6/2015) at 1:55-1:56 p.m. Detective Segura assumed, based on the ad and its language, that Villasana was coming to meet him for the purpose of engaging in acts of prostitution, i.e., sex for money. Hearing Tr. (7/6/2015) at 10:27 a.m.
Prior to meeting Villasana, Detective Segura participated in a briefing that included Detective Novotni, LVMPD Vice Unit Sergeant Brian Hibbetts, and two United States Secret Service (USSS) agents from California. Hearing Tr. (7/6/2015) at 10:11-10:13 a.m. During the briefing, Detective Segura was given Villasana's Backpage ad and a picture of Defendant Antwan Fortenberry, whose name was mentioned as a target for whom they were looking during the undercover operation. Hearing Tr. (7/6/2015) at 10:15-10:16 a.m. After Detective Segura left the briefing, he went to his car and called Villasana to set up the meeting. Hearing Tr. (7/6/2015) at 10:16 a.m. He then gave the Backpage ad and the picture of Defendant to Sergeant Hibbetts before heading inside the hotel to meet Villasana. Hearing Tr. (7/6/2015) at 10:17 a.m.
When Villasana arrived at the bar, Detective Segura introduced himself as Steve from Chicago and told her he was in town to have some fun. He also told Villasana that he would like her to come up to his hotel room, and the two agreed upon a price of $600 for sex. Hearing Tr. (5/6/2015) at 1:56 p.m.2 They left the bar and headed toward the elevators, where Detective Segura identified himself as a police officer and, at approximately 1:35 a.m., took Villasana into custody for solicitation of prostitution. Hearing Tr. (5/6/2015) at 1:56-1:57 p.m.; Hearing Tr. (7/6/2015) at 10:16 a.m. Detective Segura arrested Villasana because, at the bar, she agreed to have sex with him for money. Hearing Tr. (7/6/2015) at 10:33 a.m. Detective Segura relayed this information to Detective Novotni and Sergeant Hibbetts. Hearing Tr. (5/6/2015) at 1:57 p.m.
Sergeant Hibbetts testified that he first became aware of Defendant approximately two months prior to the October 6, 2014, undercover operation, when a USSS agent informed him that Defendant may be involved in pimping. Hearing Tr. (7/6/2015) at 10:37-10:39 a.m.; 11:02 a.m. After the initial contact, Sergeant Hibbetts ran a Triple I check on Defendant and learned that he had a 2012 arrest in California for carrying a concealed weapon in a vehicle and possession of a weapon by a prohibited person.3 Hearing Tr. (7/6/2015) at 10:40 a.m. The USSS agent also supplied Sergeant Hibbetts with a photo of Defendant, a photo of the silver Infiniti4 he was known to drive, and the names of Dinah Villasana and Daejanique Benjamin as two prostitutes who worked for Defendant. Hearing Tr. (7/6/2015) at 10:45-10:48 a.m.; 10:50-10:51 a.m.; 11:17-11:18 a.m. Sergeant Hibbetts determined that his unit had arrested Villasana on the Tropicana track5 on August 19, 2014, for soliciting prostitution. Hearing Tr. (7/6/2015) at 10:47 a.m.; 11:17 a.m. Additionally, Benjamin was arrested by his unit for soliciting prostitution between August and October, 2014. Hearing Tr. (7/6/2015) at 10:48 a.m. Sergeant Hibbetts, along with USSS agents, viewed the MGM's surveillance video6 from the date that Benjamin was arrested for prostitution, which revealed a silver Infiniti SUV, whose driver he could not see in the video, dropping Benjamin off at the MGM.7 Hearing Tr. (7/6/2015) at 10:49-10:51 a.m.; 11:19 a.m.-11:20 a.m. Sergeant Hibbettstestified that he relayed all of this information to his team as part of the October 6, 2014 briefing at the Paris hotel. Hearing Tr. (7/6/2015) at 11:44 a.m.
Sergeant Hibbetts testified that USSS agents asked LVMPD to conduct the undercover investigation that occurred on October 6, 2014. Hearing Tr. (7/6/2015) at 11:07 a.m. USSS agents did not take any enforcement action in the operation but, rather, observed it. Hearing Tr. (7/6/2015) at 11:07 a.m. Prior to the operation, the USSS had informed Hibbetts that USSS agents saw Defendant drive two of his prostitute employees-Villasana and Benjamin-to Nevada from California. Hearing Tr. (7/6/2015) at 11:08 a.m. The USSS told Sergeant Hibbetts that, because of Defendant's actions in Nevada and California, they believed he may be involved in pimping. Hearing Tr. (7/6/2015) at 11:09 a.m. The USSS told Sergeant Hibbetts that its agents saw Villasana and Benjamin working on the track and that Defendant drove them to the track. Hearing Tr. (7/6/2015) at 11:09 a.m. Villasana and Benjamin were seen getting into random cars on the Tropicana track and going to hotels for short periods of time.8 Hearing Tr. (7/6/2015) at 11:10-11:11 a.m.
On October 6, 2014, after receiving information that Detective Segura had arrested Villasana for prostitution, Sergeant Hibbetts contacted Dispatch and asked it to send patrol officers to make contact with the driver of a silver Infiniti parked at the Gold Key shops, approximately a mile and a half from the Paris hotel, and said he had probable cause for arrest. Hearing Tr. (7/6/2015) at 10:53-10:54 a.m.; 11:26 a.m.; 11:44 a.m. Sergeant Hibbetts knew where the vehicle was parked because of Detective Novotni's surveillance of it. Hearing Tr. (7/6/2015) at 10:54 a.m.; 11:25 a.m. Sergeant Hibbetts knew, prior to October 6, 2014, that Defendant was an ex-felon. Hearing Tr. (7/6/2015) at 10:54 a.m. Sergeant Hibbetts also told Dispatch that Defendant had priors for weapons, it was unknown if he currently had any with him, and that none had been seen. WhenSergeant Hibbetts made this request,9 he based it on the totality of the information he had received from the USSS, Villasana's August 2014 prostitution arrest, the prior arrest of Benjamin, and the silver Infiniti dropping off Benjamin and Villasana. Sergeant Hibbetts had also received by that time and relied upon Villasana's post-arrest statement on October 6, 2014, wherein she admitted to soliciting prostitution but lied about how she got to the Paris hotel, and the fact that Defendant drove to the Gold Key shops nearby while Villasana was inside the hotel.10 Sergeant Hibbetts testified that all of this information constituted probable cause to arrest Defendant for the charge of aiding and abetting prostitution, a misdemeanor offense in Nevada. Hearing Tr. (7/6/2015) at 11:23 a.m.-11:24 a.m.; 11:32-11:33 a.m.; 11:39 a.m.-11:40 a.m.
Detective Novotni testified that he had seen a picture of Defendant prior to the operation on October 6, 2014. Hearing Tr. (7/6/2015) at 11:53 a.m. On October 6, 2014, during the operation, his job was to conduct surveillance. Hearing Tr. (7/6/2015) at 11:52 a.m. He observed the Infiniti vehicle, which appeared to be the same vehicle as the one identified in the picture provided to Sergeant Hibbetts by USSS, approach the Paris hotel. Hearing Tr. (7/6/2015) at 11:52 a.m. Villasana11 got out of the vehicle at the curbside, and the vehicle continued on to the Gold Key shops. Hearing Tr. (7/6/2015) at 11:53 a.m.; 12:00 p.m. Detective Novotni followed the vehicle down Las Vegas Boulevard to the Gold Key shops without losing sight of it. Hearing Tr. (7/6/2015) at 10:48 a.m. During this time, he visually determined that Defendant was the person driving the vehicle, and identified Defendant in court as the person that he observed driving the vehicle.Hearing Tr. (7/6/2015) at 11:54 a.m. Detective Novotni did not remain at the Gold Key shops very long. He returned to the Paris and, after Villasana's arrest, returned to the Gold Key shops after Sergeant Hibbetts directed him to do so. Hearing Tr. (7/6/2015) at 11:54 a.m.; 11:57 a.m. By the time he returned, Defendant was already outside his vehicle in custody. Hearing Tr. (7/6/2015) at 11:57 a.m.; 11:59 a.m. LMVPD Officer Cody Bunn told Detective Novotni that he had read Defendant his Miranda rights, and Detective Novotni and Officer Bunn spoke with Defendant at the Gold Key shops. Detective Novotni later spoke with Defendant at the jail. Hearing Tr. (7/6/2015) at 11:58 a.m.
Officer Bunn was on duty, in uniform on October 6, 2014, when he received a call over Dispatch that he and his partner, Officer Mark Bellinger, needed to make a stop on a vehicle on which Sergeant Hibbetts had probable cause on a subject for possibly aiding and abetting prostitution12 at the Gold Key shops. Hearing Tr. (7/6/2015) at 12:11 p.m.-12:12 p.m.; 12:15 p.m. Officer Bunn proceeded to the location, found the vehicle they had been told to find, and proceeded with a normal car...
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