United States v. Dominique James Swain

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 5, 2021
• Docket: 20-30098
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30098

Plaintiff-Appellee, D.C. No. 3:19-cr-00088-SLG-DMS-1 v.

DOMINIQUE KYLE JAMES SWAIN, MEMORANDUM* AKA Dominique Swain,

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding

Submitted August 3, 2021** Anchorage, Alaska

Before: WARDLAW, MILLER, and BADE, Circuit Judges.

Dominique James Swain appeals the district court’s denial of his motion to

suppress evidence following his conditional guilty plea to being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Swain also appeals the district court’s denial of his request for an additional

evidentiary hearing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

1. The district court properly concluded that Officer Palmatier had

reasonable suspicion to initiate a traffic stop. “[T]he decision to stop an

automobile is reasonable where the police have probable cause to believe that a

traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996);

see also United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006) (“A

traffic violation alone is sufficient to establish reasonable suspicion.”). The district

court found that Officer Palmatier observed Swain driving with unlit headlights at

12:50 A.M.—a violation of local traffic laws that require the use of headlights

from a half-hour after sunset until a half-hour before sunrise. See Alaska Admin.

Code tit. 13 § 04.010(a)(1); Anchorage Mun. Code § 9.36.290.

Moreover, Officer Palmatier formed independent reasonable suspicion to

extend the stop to conduct a probation search. See United States v. Gorman, 859

F.3d 706, 715 (9th Cir. 2017) (“Police simply may not perform unrelated

investigations that prolong a stop unless they have ‘independent reasonable

suspicion justifying [the] prolongation.’” (alteration in original) (quoting United

States v. Evans, 786 F.3d 779, 787 (9th Cir. 2015))). When Officer Palmatier

asked Swain for his driver’s license, Swain represented that he did not have it with

2 him, and he was unsure whether it was valid. Officer Palmatier returned to his

patrol car and ran a computer check that revealed Swain was driving with a

revoked license and that he was on probation. At this point, any extension of the

stop was justified because Officer Palmatier developed independent reasonable

suspicion of a probation violation due to Swain driving with a revoked license.

Even if Swain did not in fact have a revoked license, Officer Palmatier’s reliance

on the computer check’s results was reasonable, and suppression would not be

warranted. See Heien v. North Carolina, 574 U.S. 54, 61 (2014).

2. The district court did not abuse its discretion when it denied Swain’s

request for further evidentiary hearings. See United States v. McTiernan, 695 F.3d

882, 891 (9th Cir. 2012). Officer Palmatier’s observation that Swain’s headlights

were off was included in his police report. He also testified to that fact at the

evidentiary hearing. Swain even cross-examined Officer Palmatier on the issue.

Similarly, Swain had the opportunity to address the status of his license at the

evidentiary hearing but failed to do so. See United States v. Kimball, 975 F.2d

563, 568 (9th Cir. 1992) (stating that “where a defendant ‘fail[s] to present any

facts in rebuttal’ to the government’s evidence, there need be no new evidentiary

hearing” (alteration in original) (quoting United States v. Monaco, 852 F.2d 1143,

1149 (9th Cir. 1988))).

AFFIRMED.