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United States v. Shipley

United States District Court, D. Arizona

May 30, 2017

United States of America, Plaintiff,
v.
Marc Ryan Shipley, Defendant.

          ORDER

          Honorable Rosemary Marquez United States District Judge

         On March 3, 2017, Magistrate Judge Jacqueline M. Rateau-after conducting an evidentiary hearing on January 9 and 25, 2017-issued a Report and Recommendation (Doc. 142) recommending that this Court grant in part and deny in part Defendant's Motion to Suppress Evidence Seized as a Result of an Unlawful Search and Seizure Conducted 3/25/2016 (Doc. 47); deny Defendant's Motion to Suppress 618 North Camino Santiago (Doc. 48), and deny Defendant's Motions to Suppress Statements of 4/26/2016 and 4/27/2016 (Docs. 67, 101). Defendant filed Objections to the Report and Recommendation (Doc. 146).

         I. Standard of Review

         A district judge must “make a de novo determination of those portions” of a magistrate judge's “report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee's notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee's note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).

         II. Discussion

         A. Motion to Suppress Evidence Seized as a Result of an Unlawful Search and Seizure Conducted 3/25/2016 (Doc. 47)

         On March 25, 2016, Defendant was involved in a motor vehicle accident and called the Tucson Police Department. (Doc. 142 at 2.) Officer Stacey Rosado was dispatched to the accident scene and observed Defendant outside his vehicle exchanging words with the other driver, who shortly thereafter departed the scene. (Id. at 3.) Defendant had a pistol on his person[1] and Officer Rosado observed what appeared to be a semiautomatic rifle between the driver's seat and center console of Defendant's vehicle. (Id.) Officer Rosado took the guns and placed them in the trunk of her patrol car. (Id.) The guns were returned to Defendant after officers ran their serial numbers. (Id. at 4.)

         The two guns temporarily seized by Officer Rosado on March 25, 2016- a Glock .40 with the serial number XCV990 and a Sig Sauer 556 with the serial number TP003607-were identified in Support of Count 1 of the Indictment and listed as items sought pursuant to a search warrant executed on April 26, 2016 at 618 North Camino Santiago. (Id. at 8.) In his Motion to Suppress Evidence Seized as a Result of an Unlawful Search and Seizure Conducted 3/25/2016 (Doc. 47), Defendant argues that the seizure of the weapons and the subsequent search of the weapons for serial numbers was unlawful, and that evidence obtained as a result of the search and seizure must accordingly be suppressed.

         Judge Rateau found that, under the circumstances, it was reasonable for Officer Rosado to briefly seize the weapons to ensure officer safety, but that concern for officer safety did not support Officer Rosado's examination of the weapons' serial numbers. (Doc. 142 at 11-14.) Accordingly, Judge Rateau found that any investigation beyond briefly seizing the weapons for safety reasons violated the Fourth Amendment. (Id. at 15.) Judge Rateau recommended that Defendant's Motion to Suppress Evidence Seized as a Result of an Unlawful Search and Seizure Conducted 3/25/2016 (Doc. 47) be granted as to the serial numbers found on the temporarily seized weapons and denied in all other respects. (Doc. 142 at 15.)

         Defendant objects to Judge Rateau's finding that the weapons were seized for safety reasons, and he disputes Judge Rateau's holding that the seizure of the weapons was reasonable under the Fourth Amendment. (Doc. 146 at 1-4.) Defendant argues that the cases relied upon by Judge Rateau permit seizures only upon a reasonable suspicion of criminal activity or dangerousness, and that there is no evidence that Defendant's situation on March 25, 2016 involved dangerousness or criminal activity.

         In Terry v. Ohio, the Supreme Court held that, “where a police officer observes unusual conduct which leads him reasonably to conclude . . . that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” 392 U.S. 1, 30 (1968). Any weapons seized as a result of such a search “may properly be introduced in evidence against the person from whom they were taken.” Id. at 31. The Ninth Circuit has interpreted a Terry stop-and-frisk as constituting “two independent actions, each requiring separate justifications.” United States v. Flippin, 924 F.2d 163, 165 n.2 (9th Cir. 1991). “The stop must be based on a suspicion of criminal activity and the frisk on a reasonable suspicion that the person is armed.” Id. In situations involving a consensual encounter with law enforcement, only the frisk portion is at issue. See Id. In such situations, “a police officer may pat down a suspect for weapons when he has reasonable suspicion that the suspect is armed.” Id. at 165; see also United States v. Orman, 486 F.3d 1170, 1176-77 (9th Cir. 2007) (reasonable suspicion that a suspect is carrying a gun . . . “is all that is required for a protective search under Terry”). In Orman, the Ninth Circuit held that an officer lawfully seized a gun from a mall patron during a consensual encounter, even though the evidence indicated the patron's behavior was “perfectly-very cordial.” See 486 F.3d at 1176-77.

         Here, Defendant concedes that the initial stop of his vehicle on March 25, 2016 was lawful. (Doc. 47 at 3.) During the lawful stop, Officer Rosado observed weapons in plain view; thus, she had more than reasonable suspicion that Defendant was armed. Although the record does not indicate that Defendant was engaging in threatening behavior during the encounter, Orman supports the conclusion that it was reasonable for Officer Rosado to temporarily seize Defendant's firearms to ensure officer safety during the encounter. The Court agrees with Judge Rateau that Officer Rosado's temporary seizure of Defendant's firearms on March 25, 2016 did not violate the Fourth Amendment. Id. at 1176.[2]

         Defendant also argues that Judge Rateau's Report and Recommendation omits the fact that Defendant was detained at the scene for approximately 15 minutes while officers checked the serial numbers of his weapons. (Doc. 146 at 1.) Defendant argues that his prolonged detention violated Rodriguez v. United States, 135 S.Ct. 1609 (2015).[3] (Doc. 146 at 2.) Contrary to Defendants' assertion, Judge Rateau's Report and Recommendation specifies that officers' interaction with Defendant on March 25, 2016 lasted approximately 15 minutes. (Doc. 142 at 4.) While it's true that Judge Rateau did not address the issue of whether officers violated Rodriguez by prolonging the traffic stop in order to check the serial numbers of Defendant's weapons, she did not address this issue because Defendant did not raise the issue in his Motion to Suppress. (See Doc. 47.) Furthermore, even if it was unlawful to detain Defendant for the time required to run the serial numbers of his firearms, Defendant has not explained what evidence was obtained as a result of the prolonged detention, other than the firearms' serial numbers, which Judge Rateau held must be suppressed. Accordingly, Defendant's argument regarding Rodriguez does not alter Judge Rateau's recommended resolution of Defendant's Motion to Suppress (Doc. 47).

         B. Motion to Suppress 618 North Camino ...


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