United States District Court, D. Arizona
G. CAMPBELL, UNITED STATES DISTRICT JUDGE.
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.
Testimony of Officer Sakalas.
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.
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
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).
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.
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.
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
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.
Rulings at the Hearing.
close of the evidentiary hearing, the Court made several
rulings on the record. Those rulings will be summarized
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.
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 ...