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United States v. Elenes

United States District Court, D. Arizona

December 20, 2017

United States of America, Plaintiff,
Mario Lamberto Elenes, Defendant.



         Defendant is charged with being a felon in possession of ammunition. He has filed a motion to suppress evidence seized during a Terry stop. Doc. 26; see Terry v. Ohio, 392 U.S. 1 (1968). The motion is fully briefed, and the Court held an evidentiary hearing on December 19, 2017. For reasons set forth below and stated on the record at the close of the hearing, the Court will deny the motion.

         A. Testimony of Officer Sakalas.

         Phoenix police officer Kevin Sakalas testified at the evidentiary hearing. He has been a member of the Phoenix police department for 14 years and has been assigned to a neighborhood enforcement team in central Phoenix since 2010. On February 24, 2017, Officer Sakalas was conducting plain-clothes surveillance at a motel in his squad's assigned area. The motel is near a freeway in southern Phoenix and has a high rate of crime. While seated in an unmarked pickup truck in the parking lot of the motel, Officer Sakalas saw a vehicle drive into the parking lot and stop. Defendant Mario Elenes exited the passenger side of the vehicle and walked to the door of a motel room located about 20 to 35 feet away from the officer's location. Defendant knocked on the door and a woman answered. Officer Sakalas testified that Defendant and the woman appeared to engage in a verbal altercation.

         Several minutes into the altercation, two men walked by the door of the room and, a short distance beyond where Defendant was standing, turned and appeared to engage in a verbal confrontation with Defendant. Defendant raised an object that Officer Sakalas believed to be a small rifle or a long handgun and pointed it at the men. It was shaped like a firearm and had a flashlight attached to the top. When Defendant raised the object, the men raised their hands, backed away, and left the vicinity. A few minutes later, the woman in the room slammed the door, Defendant returned to the vehicle in which he had arrived, and the vehicle left the premises.

         The parties now agree that the object Defendant was holding at the motel was not a firearm. It was a thick, carved, wooden stick, approximately 20 inches long, with one end curved like the handle of a firearm. It had a flashlight taped to the end opposite from the handle, similar to flashlights Officer Sakalas has seen mounted on firearms. Officer Sakalas thought the object was a firearm and believed a crime had been committed. Pointing a weapon at another in a threatening manner is aggravated assault under A.R.S. §§ 13-1203(a)(2) and 13-1204(a)(2).

         Officer Sakalas radioed other members of his squad and asked that a marked police vehicle conduct a traffic stop on Defendant's car. Officer Sakalas followed Defendant's vehicle and saw it make an excessively wide turn from Mohave Street onto North 7th Street. Such a turn is a traffic violation under A.R.S. § 28-751(2). A short distance later, the marked patrol car pulled over the vehicle in which Defendant was riding.

         Officer Sakalas and a few other officers from his squad approached the driver's side of the vehicle. The officer asked Defendant for identification, but he was unable to produce it. Officer Sakalas testified that Defendant “appeared to be agitated, upset. [It] [d]id not appear that he wanted to answer questions while I was speaking with him.” See Court's Livenote Transcript at 17. Officer Sakalas further testified that Defendant “was loud and had an attitude where he didn't want to fully answer questions with me. It seemed like he was visibly upset.” Id. Defendant eventually provided his name and date of birth.

         Officer Sakalas asked Defendant to exit the vehicle, and he complied. Believing Defendant was still armed and dangerous, Officer Sakalas conducted a pat-down. Defendant was wearing a leather pouch or bag on his belt. The officer testified: “Upon patting down the pouch I could tell that there was an object or objects inside and upon moving the bag, it made a sound consistent with what I believed to be loose ammunition or bullets inside of the bag.” Id. at 21-22. Officer Sakalas asked Defendant what was in the bag, and Defendant said it contained ammunition. The officer then asked Defendant if he was a convicted felon, and Defendant said yes and that his rights had not been restored. On this basis, Defendant was arrested for being a felon in possession of ammunition.

         The defense called Defendant's cousin, Rita Zamudio, to testify at the hearing. She testified that she was the woman in the motel room and that she did not have a verbal altercation with Defendant. She confirmed that he was holding the wooden object with the flashlight attached, but testified that he never pointed it at the two men who passed her room. The Court found Ms. Zamudio to be less credible than Officer Sakalas. In addition to her general demeanor, Ms. Zamudio testified that she was engaged in a normal conversation with Defendant at the motel room door, and yet also stated that the two men who passed her room stopped to ask if she was alright, a question not likely to have been asked if she was simply engaged in a normal conversation. Defendant's mother also testified at the hearing and stated that she saw the two men and they appeared to be agitated.

         B. Rulings at the Hearing.

         At the close of the evidentiary hearing, the Court made several rulings on the record. Those rulings will be summarized briefly here.

         First, the Court ruled that the stop of Defendant's vehicle was proper. The Court found that the officers had reasonable suspicion, supported by articulable facts, to believe that a crime had occurred. United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011). Based on the totality of the circumstances, the Court found that Officer Sakalas had a reasonable suspicion that Defendant had committed aggravated assault under A.R.S. §§ 13-1203(a)(2) and 13-1204(a)(2) when he pointed a firearm at the two men.

         The Court found that the officers had a second valid basis for stopping the vehicle - the traffic violation. See Whren v. United States, 517 U.S. 806, 810 (1996) (“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred”). The vehicle's wide turn onto 7th Street constituted a traffic violation under A.R.S. § 28-751(2), and the Court was not persuaded ...

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