United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING THE
GOVERNMENT'S MOTION FOR RECONSIDERATION
N. PARRISH, UNITED STATES DISTRICT COURT JUDGE.
the court is the Government's motion to reconsider the
court's order to suppress evidence. [Docket 47]. The
court GRANTS the motion to reconsider and VACATES its prior
order suppressing evidence.
January 25, 2019, at approximately 1:00 a.m., Tafuna was
sitting in the passenger seat of a vehicle parked in the back
corner of a large apartment complex. Tafuna's friend, who
owned the vehicle, was seated in the driver's seat. Two
other individuals were siting in the back seat. The vehicle
was backed into the parking space.
Jeffery Nelson pulled into the apartment complex and observed
the vehicle and its occupants. Officer Nelson was suspicious
of the individuals sitting in the parked vehicle because, in
his experience, this indicated drug use or a stolen vehicle.
But he believed that he did not have the amount of reasonable
suspicion required to detain the occupants of the vehicle.
Officer Nelson pulled up to the vehicle at an angle with the
front of his car pointed toward the driver's side door.
His “takedown” lights-bright overhead lights
across the top of his vehicle-were activated. The vehicle
occupied by Tafuna was not blocked in by Officer Nelson's
Nelson approached the vehicle, inquired what the occupants
were doing, and asked for their names and birth dates. He
noticed an open beer can in the center console at that time.
Tafuna identified himself, admitted that he was on parole,
and stated that he had a knife with him. Officer Nelson told
the occupants of the parked vehicle he was going to run their
names and returned to his vehicle. Officer Nelson did not
tell the vehicle occupants that they were detained, nor did
he tell them that they were free to leave.
Nelson accessed Tafuna's records and discovered that he
was listed as having a gang affiliation and potentially being
armed and violent. Officer Nelson requested backup, which
took 10 or 15 minutes to arrive. Officer Austin Schmidt was
one of the officers responding to the request for back up.
When he arrived, he looked up Tafuna's parole agreement,
which has a “section G” clause. That clause
G - Pursuant to state law [Utah Code §77-23-301], while
I am on parole I am subject to search and seizure of my
person, property, place of temporary or permanent residence,
vehicle, or personal effects by a parole officer or by any
other law enforcement officer at any time (with or without a
search warrant, and with or without cause); however a law
enforcement officer who is not my parole officer must either
have prior approval from a parole officer or have a warrant
for a search of, or seizure from, my residence.
parole agreement also contained a standard weapons clause,
stating: “I will not purchase, possess, own, use, or
have under my control, any explosive, firearm, ammunition, or
dangerous weapon, including archery or crossbows.”
Finally, the parole agreement contains a nonstandard special
condition prohibiting alcohol. It states: “Do not use,
possess, consume, or have access to alcoholic
Nelson returned to the parked vehicle and asked Tafuna to
exit. Officer Nelson conducted a pat down and discovered a
pocketknife. Tafuna stated that he used the pocketknife to
open boxes at his job. Officer Nelson then searched the
vehicle and discovered a firearm underneath the passenger
seat. At that point, the officers arrested all of the
occupants of the vehicle. Officer Nelson notified Tafuna of
his Miranda rights and interviewed him at the scene.
Tafuna admitted to possession of the firearm.
STANDING TO CHALLENGE THE VEHICLE SEARCH
originally moved to suppress the firearm and his confession
on two grounds. First, he argued that Officer Nelson violated
his Fourth Amendment rights by detaining him without
reasonable suspicion of criminal activity by shining his
takedown lights at the vehicle he occupied and then
approaching on foot. Second, he asserted that Officer Nelson
violated his Fourth Amendment rights by searching the vehicle
without probable cause. The court did not address
Tafuna's first argument because it determined that
Tafuna's parole agreement did not authorize the search of
his friend's vehicle without probable cause. The court,
therefore, issued an order to exclude the firearm and the
confession. [Docket 44].
Government then moved for reconsideration, raising for the
first time the issue of Tafuna's standing to challenge
the vehicle search. [Docket 47]. The Government waived the
issue of standing in the original motion to suppress by not
raising it. See United States v. Dewitt, 946 F.2d
1497, 1499 (10th Cir. 1991) (holding that the
Government waived the issue of standing by failing to raise
it before the district court). But because the court has
agreed to hear the Government's motion for
reconsideration, the court now addresses the issue of
standing. See United States v. Huff, 782 F.3d 1221,
1222 (10th Cir. 2015) (“[D]istrict court[s]
may reconsider a motion to suppress without requiring the
government to justify why it initially failed to set forth
that legal basis for the seizure of evidence.”).
Government now argues that Tafuna lacks standing to challenge
the vehicle search because he did not own or have a
possessory interest in the vehicle. “Fourth Amendment
rights are personal, and, therefore, ‘a defendant
cannot claim a violation of his Fourth Amendment rights based
only on the introduction of evidence procured through an
illegal search and seizure of a third person's property
or premises.'” United States v. Mosley,
743 F.3d 1317, 1322 (10th Cir. 2014) (citation
omitted). “As such, ‘without a possessory or
property interest in the vehicle searched, “passengers
lack standing to challenge vehicle
searches.”'” Id. (citation omitted).
A person who lacks standing to challenge a vehicle search,
however, “may nonetheless contest the lawfulness of his
own detention and seek to suppress evidence found in the
vehicle as the fruit of the defendant's illegal
detention.” Id. at 1322-23 (citation omitted).
“To suppress evidence as the fruit of his unlawful
detention, a defendant must show, first, that he was seized
in violation of his Fourth Amendment rights and, second, that
‘a factual nexus' exists between his unlawful
seizure and detention and the challenged evidence.”
Id. at 1323 (citation omitted).
concedes that he did not have a possessory interest in the
vehicle and that he does not have standing to challenge the
search. Thus, the firearm and confession evidence cannot be
suppressed based upon the unconstitutional search. Tafuna
argues instead that he was unconstitutionally detained by
officer Nelson and that his detention led to the discovery of
the firearm and his confession. The Government argues that
Tafuna was not detained until the firearm was ...