United States v. Shelton

1

UNITED STATES OF AMERICA, Plaintiff, v. ELIJAH SYLEE SHELTON, Defendant.

No. 2:24-cr-00001-JCM-BNW

United States District Court, D. Nevada

August 15, 2024

AMENDED REPORT AND RECOMMENDATION

BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE

On August 14, 2024, the Court issued a Report and Recommendation regarding Elijah Shelton's Motion to Suppress along with ancillary motions that may be rendered moot by its resolution. ECF No. 57. The Court enters this Amended Report and Recommendation to correct a clerical error (ECF No. 57 at 14:25) that referred to Det. Diaz rather than Det. Perez. The error does not affect the Court's findings. The Amended Report and Recommendation follows:

Before the Court is Elijah Shelton's Motion to Suppress, which seeks to exclude evidence uncovered by searches of his apartment and his girlfriend's car. ECF No. 29. Because officers did not reasonably identify Shelton as the passenger before stopping the car, they lacked reasonable suspicion for the stop, which amounted to an unconstitutional seizure. Based on the illegal stop, Shelton has standing to seek suppression of evidence found during the car's search as fruit of the poisonous tree. And given the close causal connection between the illegal stop and later search of the car, coupled with the Government's failure to assert an applicable exception, the Court recommends granting Shelton's Motion in part, excluding evidence seized from the car as “fruit” of the unlawful stop.

But because evidence establishes that officers merely committed typos on documentation and did not search the apartment until after the search warrant issued, the Court recommends denying the Motion with respect to the evidence discovered in Shelton's apartment.

The Court also recommends denying Shelton's Motion to Dismiss (ECF No. 28) and the Government's Motion to Hold in Abeyance (ECF No. 32) as moot based on the Court's recommendation that the gun found during the car's search be suppressed.

I. BACKGROUND

On January 3, 2024, Shelton was charged with two counts of possession with intent to distribute a controlled substance along with possession of a firearm by a prohibited person. See generally ECF No. 1. After the Ninth Circuit found the felon-in-possession statute-18 U.S.C. § 922(g)-unconstitutional in United States v. Duarte 101 F.4th 657 (9th Cir. 2024), Shelton moved to dismiss his gun charge. ECF No. 28. In response, the Government moved to hold the motion in abeyance in light of the Ninth Circuit's grant of a rehearing en banc. ECF No. 32.

Around the same time, Shelton also moved to suppress drugs found in his apartment as well as a gun found in his girlfriend's car. ECF No. 29. Because Shelton seeks suppression of the gun, the Motion to Suppress, Motion to Dismiss, and Motion to Hold in Abeyance are related insofar as resolution of one may moot the others. The parties fully briefed the issues, and the Court held an evidentiary hearing. ECF Nos. 29; 40; 44 48. At the Court's direction, the parties submitted supplemental briefing following the hearing. ECF Nos. 53; 55; 56. Trial is presently set for October 7, 2024. ECF No. 50.

II. EVIDENTIARY HEARING TESTIMONY

The Court held an evidentiary hearing on July 9, 2024. ECF No. 44. The Court heard argument from both parties and each presented evidence. See id. The Court summarizes the pertinent evidence and, where relevant, makes credibility determinations below.

A. The Investigation

Det. Nicholas Perez was the primary case agent on Shelton's case. ECF No. 52 at 16:20-21. He was assigned, at the time, to the Vice Section's Southern Nevada Human Trafficking Task Force, which investigates matters related to sex trafficking and pandering. Id. at 16:4-19.

In June 2023, Det. Perez was put in touch with Victim 1,^[1] a Fremont Street showgirl, after his sergeant received information from an advocacy group called “Hookers for Jesus.” Id. at 16:2317:10. During her interview, she told Det. Perez that, after watching an online video describing the signs of sex trafficking, she believed she was being solicited by Shelton. Id. at 17:20-23. She explained that she started a romantic relationship with Shelton after meeting in passing on Fremont Street where they both worked. Id. at 17:24-18:7. Soon after entering the relationship, Shelton asked her to engage in prostitution. Id. at 18:8-10. But after declining Shelton's proposition, he told her that she would instead have to pay him the money that she earned as a showgirl. Id. at 18:1113. Sometime later, Shelton again asked her to engage in prostitution, but she declined. Id. at 18:14-15.

Victim 1 believed that Shelton's girlfriend, an Asian woman who went by “Diane” or “Ling Ling,” worked for him as a prostitute. Id. at 26:3-9, 27:11-12. She also alleged that Shelton attempted to traffic a fellow showgirl, Victim 2. Id. at 28:3-17. She showed Det. Perez photos of Shelton, provided his address, and stated that he was on federal probation. Id. at 25:4-17, 32:3-7. Aside from the prostitution allegations, Victim 1 told Det. Perez that she lent Shelton $15,000- which she believed he used to purchase drugs to sell-and showed him a picture of the promissory note. Id. at 18:16-23, 22:9-18; Gov't Ex. B.^[2] She then provided Det. Perez with screenshots of messages between her and Shelton where he was offering to sell her drugs.^[3] ECF No. 52 at 19:1012, 21:9-25; Gov't Ex. A. Finally, she noted that Shelton stashed his drugs in a cream-colored Cadillac when he knew that his probation officer was coming for a home visit. ECF No. 52 at 36:19-20:5.

After the interview, Victim 1 reached out to Det. Perez again because she said that Shelton threatened to hurt her if she contacted law enforcement or his probation officer. Id. at 23:10-25:1, 82:8-11, 86:21-23. In a screenshot, she claimed that Shelton told her, “No face no case,” and that he could send his friend “Ace,” who lived with him, after her. Gov't Ex. C. She also believed that his girlfriend, Diane, had a registered gun that Shelton could use. Id.

Prompted by the information Victim 1 shared, Det. Perez set up an interview with Victim 2 a few days later. ECF No. 52 at 28:17-20. This time, he was accompanied by Det. Daniel Diaz. Id. at 28:23-24. Victim 2 described Shelton as a tall black man with a darker complexion, dreads, and a thinner build. Gov't Ex. P at 9. She recounted visiting Shelton's apartment with Victim 1. ECF No. 52 at 29:15-16. She stated that they went to the apartment to buy drugs, and that Victim 1 warned her in advance that Shelton would try to solicit her. Id. at 29:16-20. Victim 2 claimed that while Victim 1 went to a back room to grab drugs, she sat in the living room with Shelton, an Asian woman named “Ling Ling,” and a few others. Id. at 29:22-25, 31:24-25. She alleged that Shelton asked her to work for him as a prostitute, offered her financial assistance, and threw a large wad of cash on the table. Id. at 30:1-11. She explained that “Ling Ling,” while rubbing Shelton's feet, then asked her if she wanted to perform oral sex on Shelton, who she referred to as “Daddy.” Id. at 30:13-16. Throughout this interaction, many people briefly stopped by the apartment for what Victim 2 believed to be drug deals. Id. at 30:23-31:8.

Following the interviews, Det. Perez verified Shelton's name and probation status through the SCOPE database system, which also provided a photo. Id. at 25:18-24. He then reached out to U.S. Probation Officer Brianna King to corroborate Shelton's address and confirm that his phone number matched Victim 1's texts. Id. at 32:15-33:3. P.O. King confirmed that the information matched with what she had on file and shared that Shelton's girlfriend, Diane Bouatay, lived with him. Id. at 33:4-16. After speaking to P.O. King, Det. Perez believed the Asian woman described by both victims as “Diane” or “Ling Ling” to be Bouatay. Id. at 35:18-36:7.

Once Det. Perez believed he had probable cause to arrest Shelton, he enlisted Det. Diaz to help conduct surveillance at his apartment. Id. at 33:22-34:2. On the morning of surveillance, Det. Perez briefed Det. Diaz about Shelton's criminal history and other details of the investigation, including Shelton's association with the cream-colored Cadillac. Id. at 36:11-18. He showed Det. Diaz Bouatay's DMV photo along with pictures of Shelton. Id. at 35:11-18. Det. Perez did not testify which photos of Shelton, or how many, he included in the safety brief. See id. at 35:11-14.

And Det. Diaz could not recall the nature of the photos or how many he had seen-he just remembered that Det. Perez showed him a “workup” of sorts that would have included a photo. Id. at 129:10-23, 133:7-15.

B. Surveillance

On June 29, 2023, Dets. Perez and Diaz stationed themselves in unmarked cars outside Shelton's apartment to conduct surveillance.^[4] ECF No. 52 at 43:10-11. Det. Perez testified that he developed probable cause to arrest Shelton for two counts of pandering. Id. at 33:23-24. The plan was to do a “knock and talk,” in which they would ask Shelton to leave his apartment, and once outside they would arrest him. Id. at 34:10-20. The officers split up, with Det. Perez parking his car at the “front” of Shelton's apartment within a cul-de-sac, and Det. Diaz stationing himself in the rear alleyway. Id. at 38:17-39:2, 105:18-25. While driving down the alleyway, Det. Diaz noticed a cream-colored Cadillac parked outside the apartment, which he recalled from the safety brief. Id. at 106:1-5. Next to the cream-colored Cadillac was a red BMW,^[5] which Det. Diaz drove slowly past before looping back around and parking a few spots away. Id. at 106:5-12. Det Diaz parked with the back of his car facing the apartment and the front facing the alleyway. Id. at 109:1-3. He...