United States v. Dorsey

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 3, 2024
• Docket: 23-2714
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-2714 D.C. No. Plaintiff - Appellee, 3:22-cr-00129-CRB-1 v. MEMORANDUM* JUSTIN PROMETHEUS DORSEY,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted September 13, 2024 San Francisco, California

Before: BYBEE, BEA, and MENDOZA, Circuit Judges.

Defendant-Appellant Justin Prometheus Dorsey appeals the judgment entered

against him following his conditional guilty plea and an order of the U.S. District

Court for the Northern District of California that denied Dorsey’s motion to suppress

from admission in evidence a gun seized from his vehicle. Defendant challenged

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the district court’s decision to rule on the suppression motion without an evidentiary

hearing and the district court’s finding that the warrantless search of Defendant’s

vehicle was a valid parole search.

The parties are familiar with the facts, so we recount them only as necessary.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate and remand for an

evidentiary hearing.

This court reviews de novo the denial of a criminal defendant’s suppression

motion. See United States v. Korte, 918 F.3d 750, 753 (9th Cir. 2019). This court

“review[s] for an abuse of discretion a court’s decision whether to conduct an

evidentiary hearing on a motion to suppress.” United States v. Howell, 231 F.3d

615, 620 (9th Cir. 2000). “A district court abuses its discretion if it does not apply

the correct legal standard or if it rests its decision on a clearly erroneous finding of

fact.” United States v. Mark, 795 F.3d 1102, 1104 (9th Cir. 2015) (citing United

States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc)).

An evidentiary hearing on a motion to suppress must be held “when the

moving papers allege facts with sufficient definiteness, clarity, and specificity to

enable the trial court to conclude that contested issues of fact exist.” Howell, 231

F.3d at 620.

Officers of the San Francisco Police Department (“SFPD”) conducted a

prolonged stop and warrantless search of a Ford Explorer in which Defendant was a

2 23-2714 passenger. The parties do not dispute that a finding of probable cause to support the

prolonged stop and warrantless search hinges on the facts which surround the

observation of a supposed drug transaction observed by SFPD Officer Eduard

Ochoa, who had been surveilling the Explorer.

Officer Ochoa submitted a signed declaration describing his observations.

Defendant submitted the signed declaration of Deshawn Davis, another passenger in

the Explorer, which contradicted Officer Ochoa’s account of events. The district

court considered Officer Ochoa’s incident report, Officer Ochoa’s declaration, and

Davis’s declaration.

Officer Ochoa declared that from “about 20-30 yards away,” he “observed a

silver Ford Explorer” “which was doubled [sic] parked in the roadway on Quesada

Ave, facing westbound towards 3rd St.” 1 In his Incident Report, Officer Ochoa

stated that he saw “a front occupant conduct a hand-to-hand narcotic transaction.”

Ochoa stated that “[t]he passenger received US Currency from an unidentified

individual outside of the vehicle,” and that he “then could see that one of the front

occupants of the front seats of the [Explorer] hand a ‘pack’ back to the individual

that provided the US currency.”

1 The government moved for judicial notice of a map of the intersection. ECF 18. Defendant does not oppose this motion. Because this map is “not subject to reasonable dispute” and its “accuracy cannot reasonably be questioned,” the motion is GRANTED. See Fed. R. Evid. 201(b); United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012) (taking judicial notice of a Google map).

3 23-2714 Davis declared that he was parked at “3rd St. and Quesada Ave.,” when the

Ford Explorer drove up and parked next to him. Davis socialized at the Explorer

until he entered the Explorer as a passenger and drove away. Because Davis saw the

Explorer as soon as it was parked, and because the alleged transaction occurred

before the Explorer drove away, Davis was present at the Explorer for the entire

relevant time.

Davis declared that while he “was at or near the Explorer, [he] had a clear

view into the Explorer and clear view of anyone who would have approached the

Explorer.” He declared that “at no time did [he] or anyone in the Explorer hand

anyone outside of the vehicle a pack or baggie,” that he did not “receive a pack or

baggie from anyone inside the Explorer,” that “at no time did [he] or anyone in the

Explorer hand anyone outside of the vehicle marijuana or narcotics,” and that he did

not “receive marijuana or narcotics from anyone inside the Explorer.” Davis’s

declaration contradicts Officer Ochoa’s observations.

Despite Davis’s declaration that he had a clear view into the Explorer and a

clear view of anyone who would have approached the Explorer, the district court

speculated that “it is possible that Davis could have missed” the alleged transaction.

The district court thereby concluded that even if Davis’s declaration was true, it did

not provide evidence that Officer Ochoa’s reports were false, and an evidentiary

hearing was not required.

4 23-2714 The district court cited no evidence which suggested that Davis’s view into

the Explorer was obscured. The district court speculated that Davis “would only

have such a clear view if all of the windows were open,” but this notion is

unsupported by the record. The district court cited the body-worn camera footage

of a different officer who later conducted the stop of the Explorer for the proposition

that the Explorer’s windows were tinted. But the window tinting is inapposite, as it

is unknown which windows were up and to what degree the window tinting obscured

visibility into the Explorer. It is therefore unclear from the record that the window

tinting—or anything else—prevented Davis from witnessing any drug transaction.

The district court abused its discretion by resting its decision on a factual

finding that Davis’s view was obscured, despite a lack of clear evidence

demonstrating such obstruction and despite Davis’s declaration stating that he had a

clear view. The declarations of Davis and Officer Ochoa allege contested issues of

fact with sufficient definiteness, clarity, and specificity to require an evidentiary

hearing. See Howell, 231 F.3d at 620. We therefore vacate and remand for an

The parties do not dispute that the subsequent search of Dorsey’s vehicle was

based on the fruits of the search of the Explorer. Because we remand for an

evidentiary hearing regarding the legality of the search of the Explorer, we do not

reach the issue of the subsequent search of Dorsey’s vehicle. I.N.S. v. Bagamasbad,

5 23-2714 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to

make findings on issues the decision of which is unnecessary to the results they

reach.”).

VACATED AND REMANDED.

6 23-2714