2 13 12 0204 063341 2025 Motion to Suppress

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II JEREMY T. BOSLERBarNo. 4925One California AveReno, NV 89509(775) 337-4800Attorney for Defendant

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IN THE JUSTICE COURT OF RENO TOWNSHIPIN AND FOR THE COUNTY OF WASHOE, STATE OF NEVADA

II THE STATE OF NEVADA,Plaintiff, Case No. RCRll-063341v Dept. No.2

ZACHARY BARKER COUGHLIN,Defendant.

~ /MOTION TO SUPPR SS

COMES NOW, the Defendant, ZACHARY BARKER COUGHLIN, by and through hisattorney of record, Joseph Goodnight, Deputy Public Defender, and hereby moves to suppressall evidence obtained as a result of his detention and arrest on August 20, 2011.

This motion is based upon the attached points and authorities and any testimony,documentary, and real evidence as may be presented at the hearing on this matter.

I FactsOn August 20, 2011, Mr Coughlin was detained under suspicion of his involvement in

a report of a larceny. This detention occurred on the Center Street Bridge in downtown Reno.

These f ac t s a r e taken from the po l i ce r epor t of RPD Off ice r Nick Duralde,II case number 11-16399, witness s ta tements , audio recordings and a n t i c i p a t e dtes t imony to be presented a t t he hea r ing regarding t h i s matter .1

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Mr Coughlin was found near his bicycle and accompanied by a small Pekinese dog. He wassurrounded by numerous young adults when the police arrived. According to the police report,witness Nathaniel Zarate alleged to have seen Mr Coughlin pick up an iPhone belonging toCory Goble, place it in his pocket, and then refuse to give it back when asked to? Mr. Gobleindicated that he called the phone and saw it light up in Mr. Coughlin's left front pocket. Mr.Coughlin was wearing shorts and a T-shirt at the time of his detention. Upon contacting Mr.Coughlin, Reno Police Department officers Nick Duralde and Ron Rosa immediately placedhim in handcuffs and began questioning him regarding his alleged possession of the missingiPhone. Mr. Coughlin was told by the officer that Mr. Goble would probably be fme [he]g[a]ve him the phone back. But continued, if not, we're gonna get it out of your pocket andyou're gonna go to jail. Mr. Coughlin is an attorney licensed to practice law in Nevada andwhen he asked the officers a question they told him just don't talk anymore. Mr. Coughlinprovided the officers with his name and Nevada Bar number as requested. During the initialinterview by the police, Mr. Coughlin asked if he could tie his dog to something, as it likes torun away. Officer Duralde, pursuant to his 'training and experience' and the fact that Mr.Coughlin was wearing baggy clothing, performed a pat-down search of Mr. Coughlin to 'checkfor weapons. The pat-down revealed to the officer's touch objects resembling a cellular phonein each of Mr. Coughlin's front pockets.

Officer Duralde next obtained the phone number of the alleged missing iPhone fromGoble and called the number. Officer Duralde did not see any phone screens light up butalleged he could hear a vibrating noise coming from the left front pocket of Mr. Coughlin. Heplaced his hand on Mr. Coughlin's pocket where he had previously felt the object resembling aphone. During this second search he felt a vibration coming from the pocket. The vibrations

2 Gross inconsistencies exist between the pol ice report and witness Zara te sIlwitness statement regarding whether witness Zarate saw Mr. Coughlin pick upthe phone. According to witness Zarate 's wri t ten statement, another mani n i t i a l ly picked up the phone, not Mr. Coughlin.2


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stopped when he ended the call. At this point Mr.Coughlin was placed under arrest for FelonyGrand Larceny and an iPhone was removed from his left front pocket pursuant to a searchincident to arrest.

II ArgumentMr.Coughlin asks this court to suppress the evidence retrieved from his front pocket

based on a violation of his Fourth Amendment right to be free from unreasonable search andseizure. The initial pat-down check for weapons was unjustified under Th IY and NevadaRevised Statute 171.1232 as Officer Duralde did not have a reasonable belief that Mr.Coughlin was armed with a dangerous weapon or may have posed a danger to police or others.A search of such nature requires a warrant and without such the search is illegal. Theexclusionary rule and NRS 171.1232 call for the suppression of the evidence found in Mr.Coughlin's pocket as its presence was unlawfully obtained.

a. Officer Duralde did not have a reasonable belief that Mr. Coughlin was armedwith a dangerous weapon or posed a threat to the safety of the officers orothers and thus the pat-down he performed was not justified resulting in anunlawful search and the seizure of inadmissible evidence.

The Fourth Amendment of the U.S. Constitution protects people from unreasonablesearches and seizures. It provides that "the right of the people to be secure in their persons,houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."US CONST. Am. IV. ''This inestimable right of personal security belongs as much to thecitizen on the streets of our cities as to the homeowner closeted in his study to dispose of hissecret affairs." Terry v Ohio, 392 U.S. 1 8-9 (1968). When a police officer accosts anindividual and restrains his freedom to walk away, he is "seized" within the meaning of theFourth Amendment Id. at 16. Likewise, even a stop-and-frisk "pat-down" of a person'sclothing is a "search," governed by the framework of the Constitution. Id.

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II

Nevada has codified the boundaries an officer must observe before making aninvestigative stop and detention of a person. A peace officer is authorized to detain anyperson whom the officer encounters under circumstances which reasonably indicate that theperson has committed or is about to commit a crime. NRS 171.123(1). The Nevada SupremeCourt has further clarified the statutory standard, saying:

Pursuant to this standard, in order to justify a stop and detention, the policeofficer must be able to point to specific and articulable facts which, taken togetherwith rational inferences from those facts, lead the officer reasonably to conclude,in light of his experience, that criminal activity may be afoot. Stuart v. State, 94Nev. 721, 722 (1978).Further, [a] lawful frisk does not always flow from a justified stop and detention for

questioning. Rice v. State, 113 Nev. 425, 429 (1997), quoting United States v. Thomas, 863F.2d 622, 628 (9th Cir.1988). The Nevada Legislature has likewise limited the scope of a stopand frisk or pat-down search:

1 f any peace officer reasonably believes that any person whom he has detained or isabout to detain pursuant to NRS 171.123 is armed with a dangerous weapon nd is athreat to the safety of the peace officer or another, the peace officer may search suchperson to the extent reasonably necessary to ascertain the presence of such weapon. fthe search discloses a weapon or any evidence of a crime, such weapon or evidence maybe seized.2. Nothing seized by a peace officer in any such search is admissible in any proceedingunless the search which disclosed the existence of such evidence is authorized by andconducted in compliance with this section.

NRS 171.1232 (emphasis added).Reasonable bel ief for both the detention nd the pat-down search for dangerous weapons mustbe based on specific articulable facts that warrant the search and seizure. Somee v. State. 124Nev. 434, 187 P.3d 152 (2008). Finally, all evidence obtained by searches and seizures inviolation of the Constitution is, by that same authority, inadmissible in a state court. Mapp v.Ohio, 367 U.S. 643,655 (1961). Nevada Revised Statute 171.1232(2), quoted above,codifies this Constitutional requirement in Nevada


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In this case, Officer Duralde did not have a reasonable belief that would justify a patdown search for weapons. Mr Coughlin was detained due to suspicion of larceny, i.e., heallegedly picked up the iPhone of another. The nature of the alleged offense was in no way aviolent act nor did it indicate in any way that Mr Coughlin was armed with a dangerousweapon or a threat to anyone's safety. In fact, Mr Coughlin was accompanied by a Pekinesewhich he begged the officer to let him tie up prior to being hand-cuffed so that it would not runaway. This act indicates that Mr Coughlin had no intention of leaving the scene without hisdog. He was not presenting any "fight or flight" behavior that would indicate the need for apat-down search. See Rice v. State, 113 Nev. 425 (1997) (court found situation wheredefendant remained on his bicycle, showed signs he had been drinking, refused to identifyhimself, and raised his voice, presented sufficient evidence that defendant may be dangerous ormay try to escape and substantiated the officer's reasonable belief that a pat-down wasnecessary). Mr Coughlin provided the officers with his name and even offered his Nevada Barnumber. When attempting to speak to the officers, he was told to "just don t talk anymore." .He did not raise his voice and presented no indication that he was dangerous or attempting toflee. A licensed attorney in Nevada has been screened for moral character and fitness by thelicensing board and he identified himself as such to the officers. He was polite with the officersand he showed no signs of intoxication.

Officer Duralde relies on his 'training and experience' that baggy clothing may containa dangerous weapon to form the reasonable belief that Mr Coughlin's clothing may havecontained the same. Though valuable to every officer in the field, ' training and experience' iswoefully insufficient to establish the specific articulable facts necessary to justify a reasonablebelief that a person is armed with a dangerous weapon. Law enforcement does not have leaveto pat-down every person they detain that happens to be wearing cargo-pocketed pants, ahooded-sweatshirt, a fanny pack, a sport coat, or a top hat, all of which could conceal adangerous weapon. In this case, Mr Coughlin was wearing shorts (without cargo pockets) and

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a T-shirt. Again, the officer must be able to point to specific articulable facts that Mr. Coughlinwas anned with a dangerous weapon and was a threat to the safety of the officer or others. Heis unable to do so as there are no facts that would indicate any such weapon and danger. Infact, the officer reveals his true disregard for the Fourth Amendment when he tells Mr.Coughlin that he is going to get it out of his pocket prior to having any valid and particularizedbasis for a legal search. Thus, the pat-down search of Mr. Coughlin was unlawful and theinformation gained from it, i.e., the presence of the iPhone, must be suppressed pursuant toNRS 171.1232(2) and the exclusionary rule.

b. Officer Duralde's subsequent touching o Mr Coughlin's left front pocketconstitutes a search and without a legitimate warrant exception it was unlawfuland ny evidence obtained from said search must be suppressed.The Terry Court stated, "it is nothing less than sheer torture of the English language to

suggest that a careful exploration of the outer surfaces of a person's clothing in an attempt tofmd weapons is not a 'search.'" Terry v. Ohio, 392 U.S. 1 16 (1968). As such, the subsequenttouching of Mr. Coughlin's pockets requires a warrant or an exception to the warrantrequirement under the Fourth Amendment "Time and again, [the Supreme Court of the UnitedStates] has observed that searches and seizures "'conducted outside the judicial process,without prior approval by judge or magistrate, are per se unreasonable under the FourthAmendment - subject only to a few specifically established and well delineated exceptions. ,,",Minnesota v. Dickerson, 508 U.S. 366 372 (1993) (quoting Thompson v. Louisiana, 469 U.S.17, 19-20 (1984) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)(footnotesomitted).

Here, Officer Duralde placed his hand on the outside of Mr. Coughlin's shorts pocket tofeel for the missing iPhone. This search occurred post pat-down and without a warrant or1

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legitimate exception to the warrant requirement. Thus, the evidence gained from this unlawfulsearch must be suppressed.

c. The Plain Feel Doctrine sanitizes neither the pat-down search nor thesubsequent search of Mr. Coughlin's pocket.

The Supreme Court of the United States in Minnesota v. Dickerson recognized thecorollary to the plain view doctrine when analyzing a ThrrY pat-down and the subsequentsuppression of contraband that the search revealed. 508 U.S. 366 (1993). n setting out therequirements for the plain feel doctrine, the Dickerson Court made clear that the initial pat-down must be lawful under ThrrY Id. at 375. Further, the search must not go "beyond what isnecessary to determine the suspect is armed, [.. .]" and i f it does so, "it is no longer validunder Terry and its fruits will be suppressed." Id. at 373. By analogy to the plain viewdoctrine, [i]f a police officer lawfully pats down a suspect's outer clothing and feels an objectwhose contour or mass makes its identity immediately apparent there has been no invasion ofthe suspect's privacy beyond that already authorized by the officer's search for weapons; [and]

the object is contraband, its warrantless seizure would be justified [ .. ]." Id. at 375-376(emphasis added). However, the object's incriminating character must be immediatelyapparent and not, its seizure is not justified by the plain view nor the plain feel doctrine. Id.at 375. Further, the officer must have probable cause to believe that the item is contraband andthis probable cause may not be generated through an unlawful ThIry pat-down. Id. at 376-377(footnote 4 citing Ybarra v. lllinois, 444 U.S. 85 (1979. (See also Arizona v. Hicks, 480 U.S.321 (1987) holding that seizure of stolen stereo equipment found during a valid search for otherevidence was invalid because incriminating character of stereo equipment was not immediatelyapparent; i.e., probable cause to believe that the equipment was stolen arose only as a result of afurther search - moving the equipment to read its serial numbers).

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In Mr. Coughlin's case, as argued above, Officer Duralde did not have a lawfuljustification for a Th n: pat-down. Assuming arguendo that the Court finds the pat-downlawful, the plain feel doctrine does not pennit the seizure of the iPhone by the officer. OfficerDuralde reports that he felt two objects; one in each of Mr. Coughlin's front pockets that hedetennined to feel like phones. However, he in no way can detennine these objects'incriminating character or whether they are contraband by this initial pat-down. Indeed,Officer Duralde had to come back to Mr. Coughlin's pocket a second time. He had to searchMr. Coughlin again to detennine whether one of the items was possibly contraband. Thisconduct is clearly unrelated to "the sole justification of the search [under ThIrY:] .. . theprotection of the police officer and others nearby." Dickerson at 378 (citing Terr:y v. Ohio, 392U.S. 1 26 (1984. Similar to the facts in Arizona v. Hicks cited above, Officer Duralde'sprobable cause to believe the object in Mr. Coughlin's pocket was the missing iPhone onlyarose as a result of a further search that was not authorized by a search warrant or by anyexception to the warrant requirement and the evidence thus gained must be suppressed.

ill onclusionBased on the above, Mr. Coughlin respectfully requests that this court grant his motion

to suppress the evidence and the fruits thereof obtained via violations of his Fourth mendmentrights through illegal searches of his person./ I I

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AFFIRMATION PURSUANT TO NRS 239B.030The undersigned does hereby affmn that the preceding document does not contain the

social security number of any person.DATED this 12- Day of E ~ t A A / : 1 2012.

JEREMY T. BOSLERWashoe County Public Defender

UwM t- ----yJOSEPH W G )ODJ1iGJI1NDeputy Public Defender

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CERTIFIC TE OF SERVICEI JOSEPH W GOODNIGHT, hereby certify that I am an employee of the Washoe

County Public Defender's Office, Reno, Washoe County, Nevada, and that on this date Iforwarded a true copy of the foregoing document through inter-office mail to:

ZACH YOUNG, Deputy District AttorneyDistrict Attorney's Office

DATED this I Day of 2012.

J ~ ~fOSEPH W GOODIGifl

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2 13 12 0204 063341 2025 Motion to Suppress