United States v. Phillips

• Decision Date: 29 April 2019
• Docket Number: 2:18-cr-00228-RCJ-VCF
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. GAVIN STEPHEN PHILLIPS, Defendant.
• Court: U.S. District Court — District of Nevada

UNITED STATES OF AMERICA, Plaintiff,
v.
GAVIN STEPHEN PHILLIPS, Defendant.

2:18-cr-00228-RCJ-VCF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

April 29, 2019

ORDER AND REPORT AND RECOMMENDATION

MOTION TO SUPPRESS [ECF NO. 25], MOTION TO FILE SURREPLY [ECF NO. 35]

Before the Court is Defendant Gavin Phillips' Motion to Suppress (ECF No. 25) and the Government's Motion to File Surreply to Defendant's Reply in Support of Motion to Suppress (ECF No. 35). For the reasons discussed below, the Government's motion to file a surreply is granted and Defendant's motion to suppress should be denied.

BACKGROUND

In this case, Defendant is charged with being a felon in possession of a firearm and ammunition. (ECF No. 1). The gun and ammunition were seized during a traffic stop. (ECF No. 25 at 8; ECF No. 29 at 5-6). Police obtained a search warrant for the gun and ammunition after Defendant told police that they were in the car and police saw the gun. (ECF No. 25 at 6-8; ECF No. 29 at 5-6). Defendant now moves to suppress all evidence obtained during the traffic stop: the gun, ammunition, and Defendant's statements. (ECF No. 25 at 8).

In determining the facts of the case, the Court has considered the motion's briefing, the testimony of officers Jason Marin and Peter Boffelli and arguments of counsel presented at an evidentiary hearing held on April 22, 2019, and the officers' bodycam footage. At the hearing, the Court stated that it would

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consider the Government's surreply addressing caselaw cited in Defendant's reply. (ECF No. 35). Therefore, the Government's motion to file surreply is granted.

The parties have substantially different interpretations of the facts in this case.

I. Gang Unit Policies and Defendants' Theory of the Case

Officers Marin and Boffelli, who conducted the traffic stop at issue in this case, are members of Las Vegas Metropolitan Police Department's gang unit. (ECF No. 29-2, bodycam footage admitted at the evidentiary hearing as Government Ex. 1-1). They are not typical traffic officers. Statements made during the traffic stop and at the hearing show that the routine practices taught to gang unit officers differ from the standard actions taken by traffic officers. (Id.; ECF No. 39¹). The officers' statements establish that, to at least some degree, their motivations differ from those of typical traffic officers. During the hearing, Officer Marin testified that they were engaged in "proactive enforcement" in a designated high-crime area on the night in question. (ECF No. 39). During the stop, Officer Marin commented to Defendant regarding how many guns the officers had taken off the street during traffic stops. (ECF No. 29-2).

Defendant's main argument presented throughout the briefing and at the evidentiary hearing is that this case is based on a pretextual stop. Defendant assert that the officers stopped Defendant, "an African-American individual[,] simply because he was driving an expensive car" in a high-crime part of town. (ECF No. 25 at 2). Defendants argues that all of the facts in this case should be viewed through a lens of "government abuse and harassment." (Id.).

While portions of Defendant's rhetoric seems unnecessarily inflammatory, the Court understands Defendant's position. As members of the gang unit, Officers Marin and Boffelli do not seem to be concerned solely with traffic violations. There is the potential for officers in similar situations to investigate what they consider to be suspicious circumstances through unconstitutional means, including over-zealous traffic enforcement. In addition, the routine used in traffic stops by officers Marin and

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Boffelli, such as asking all drivers about weapons and drugs, could be used to convert even reasonable traffic stops into unreasonable searches and seizures.

However, the Court must consider Defendant's case and motion to suppress on its own merits. The Court cannot find that the officers Marin and Boffelli acted improperly simply based on possible motives or the potential that a policy was improperly applied. The Court has carefully considered the credibility² of the officers regarding their observations and actions in this particular case. The Court verified the facts, as much as possible, through its own viewing of the bodycam footage taken by the officers.

II. Defendants' Alleged Traffic Violations

A. Prior to the Bodycam Footage

Officers Marin and Boffelli were patrolling in a car together on the night of May 21, 2018 near Flamingo and Swenson, a "crime hot spot." (ECF No. 39). The incidents that first drew the officers' attention to Defendant are not covered by the bodycam footage, though the officers' and Defendant's discussion of them during the traffic stop does appear on the footage. (ECF No. 29-2). officer Marin testified that officers are not required to turn on their bodycams until they decide to initiate a stop. (ECF No. 39). The Court finds this to be a reasonable policy, as it would be inefficient for bodycams to be turned on at all times.

The officers noticed a white Range Rover pull into a Siegel Suites parking lot and then quickly pull out. (ECF No. 29 at 2). Defendant had picked up a passenger, but the officers stated that they did not see the passenger get picked up. (ECF No. 29-2). They thought it was strange that Defendant would

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pull into and out of a parking lot so quickly with no apparent purpose, and speculated that the driver was nervous about seeing a patrol car. (Id.).

The Court does not find it material whether the officers actually saw Defendant pick up a passenger. It is sufficient for the Court to find that the officers were interested in Plaintiff's behavior. The officers testified that seeing a nice vehicle in a Siegel Suites parking lot was unusual, and that particular Siegel Suites was the location of "weekly" crimes. (ECF No. 39). Whether the officers' interest was initially raised based on a quick entrance and exit of the parking lot or picking up a passenger, this does not persuade the Court that the officers were seeking a pretext to stop Defendant's car.

According to the officers, Defendant pulled out of the parking lot into "the number two travel lane" of Swenson, then quickly got into the right turn lane to get onto Flamingo without properly signaling. (ECF No. 29-2). Pursuant to NRS 484B.413(2), "[a] signal of intention to turn right or left, or otherwise turn a vehicle from a direct course, shall be given continuously during not less than the last 100 feet traveled in a business or residential district." There was argument during the evidentiary hearing regarding whether Defendant traveled 100 feet on Swenson between pulling out of the Siegel Suites parking lot and turning onto Flamingo. (ECF No. 39). The parties and Court viewed the area on Google Maps. (Id.). Using Google Maps' distance measuring tool,³ the distance traveled was over 300 feet.

The Court finds the officers' testimony to be credible on this point. They testified that Defendant left the parking lot quickly (ECF No. 39), which could have led him to turn into a lane that he did not mean to turn into. Defendant did not deny or seem surprised by Officer Marin's account of the incident when they spoke during the traffic stop. (ECF No. 29-2).

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B. Seen on Bodycam Footage, But Without Sound

The bodycam footage picks up when the officers pulled up behind Defendant in the right turn lane of the Swenson and Flamingo intersection. (ECF No. 29-2). It appears that the officers are running Defendant's license plate as they get behind him. (Id.).

Defendant turned right onto Flamingo during a red light. (Id.). A car traveling straight through the intersection, which would have had a green light, had to quickly decelerate behind Defendant to avoid running into him. (Id.). There is no sound during this portion of the footage, so it is not clear if there was any honking or screeching tires. Pursuant to NRS 484B.307(8)(c), a vehicle in the right turn lane facing a red light, "[a]fter complying with the requirement to stop...may proceed into the intersection for a right turn...but must yield the right-of-way to pedestrians and other traffic proceeding as directed by the signal at the intersection."

The officers have described it as Defendant "almost causing a collision," (ECF No. 29-4 at 4, search warrant application admitted at the evidentiary hearing as Government Ex. 2), while Defendant asserts the other car was "speeding through the intersection," but "did [not] stop short or appear to have any difficulty safely maneuvering around the white Range Rover which was apparently going the speed limit" (ECF No. 25 at 4). Though it could be an exaggeration to say Defendant's actions "almost caus[ed] a collision," it does appear that Defendant failed to yield the right-of-way to the other car based on the Court's view of the bodycam footage. The other car coming up behind Defendant, after he turned, had to slow down very quickly to avoid rear-ending the Defendant. While it was going at a significant rate of speed, the other car had the green light and had the right to be going quickly. It does not appear that the other car was going so fast that Defendant would have been unaware of its presence or the need to yield.

III. Traffic Stop

After Defendant made the turn onto Flamingo, the officers turned on their lights to pull Defendant over. (ECF No. 29-2). Defendant did not pull over right away. (Id.). The officers stated that Defendant

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was "slow to stop." (Id.). However, there were traffic cones placed to the right of Defendant's lane of travel. (Id.). It appears that Defendant was searching for a safe gap in the cones before pulling over. (Id.). As it was dark and cones are typically used to mark areas of construction, there does not appear to be a significant delay in Defendant's actions in pulling over.

Officer Marin approached the car on the driver's side and Officer Boffelli approached on the passenger side. (Id.)...