USA v. Swain

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
DOMINIQUE KYLE JAMES SWAIN,
Defendant.
Case No. 3:19-cr-00088-SLG
ORDER REGARDING MOTION TO SUPPRESS
Before the Court at Docket 19 is defendant Dominique Kyle James Swain’s
Motion to Suppress. The government responded in opposition at Docket 30. The
motion was referred to the Honorable Magistrate Judge Deborah M. Smith, who
held an evidentiary hearing on the motion in October 2019.1 At Docket 41, Judge
Smith issued her Initial Report and Recommendation, in which she recommended
that the motion be denied. Both Mr. Swain and the government objected to the
Initial Report and Recommendation, at Dockets 42 and 44, respectively. Mr. Swain
replied to the government’s objection at Docket 45; the government replied to Mr.
Swain’s objection at Docket 46. Judge Smith issued her Final Report and
Recommendation at Docket 47, in which she recommended that the motion be
granted. This Court directed the parties to file additional briefing regarding a
1 Docket 40.
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 1 of 11

Case No. 3:19-cr-00088-SLG, United States v. Swain
Order Re: Motion to Suppress
Page 2 of 11
headlight-use violation as a basis for a traffic stop.2 Mr. Swain filed his
supplemental briefing at Docket 51; the government filed its supplemental briefing
at Docket 52.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.”3 A court is
to “make a de novo determination of those portions of the magistrate judge’s report
or specified proposed findings or recommendations to which objection is made.”4
But as to those topics on which no objections are filed, “[n]either the Constitution
nor [28 U.S.C. § 636(b)(1)] requires a district judge to review, de novo, findings
and recommendations that the parties themselves accept as correct.”5 However,
even if no party objects to a final report and recommendation, “a district court’s
authority to review a magistrate judge’s [findings and recommendations] is not
conditioned on a party’s making an objection” and “nothing in [28 U.S.C. § 636]
precludes the district court from reviewing other finding or recommendations de
novo if it chooses to do so.”6
2 Docket 48.
3 28 U.S.C. § 636(b)(1).
4 Id.
5 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v. Arn,
474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court
review of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.”).
6 Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017).
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 2 of 11

Case No. 3:19-cr-00088-SLG, United States v. Swain
Order Re: Motion to Suppress
Page 3 of 11
I. Factual background
This Court accepts and adopts the magistrate judge’s “Statement of Facts”
set forth at Part II of the Final Report and Recommendation to the extent it covers
the time between when Officer Palmatier first observed Mr. Swain’s vehicle until
Officer Palmatier first contacted Mr. Swain during the traffic stop. In summary,
those facts are that sometime around approximately 12:50 a.m. on December 28,
2018, Anchorage Police Officer Kevin Palmatier was on patrol and stopped at an
intersection of two public roads within the Municipality of Anchorage. He observed
a Chrysler passenger vehicle, driven by a man later identified as Mr. Swain,
traveling eastbound with its headlights off. Officer Palmatier recognized the non-
use of headlights as an indication that the driver may be impaired by drugs or
alcohol and proceeded to follow Mr. Swain’s vehicle. Almost immediately, an
oncoming vehicle flashed its headlights at Mr. Swain, and Mr. Swain responded by
immediately turning on the Chrysler’s headlights.
As Officer Palmatier continued following Mr. Swain, he observed Mr. Swain
twice weave within his lane of traffic but did not see Mr. Swain violate any traffic
laws. Due to Mr. Swain driving with his headlights off late at night and weaving
within his lane, Officer Palmatier planned to initiate a traffic stop based on his
suspicion of impaired driving. When he again observed Mr. Swain weave within
his lane for a third time, Officer Palmatier activated his lights and stopped Mr.
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 3 of 11

Case No. 3:19-cr-00088-SLG, United States v. Swain
Order Re: Motion to Suppress
Page 4 of 11
Swain.7 Upon first contacting Mr. Swain, Officer Palmatier’s suspicion of impaired
driving vanished.8
II. The Final Report and Recommendation’s conclusions regarding
weaving within a lane
The Final Report and Recommendation concluded that Mr. Swain’s weaving
within his lane three times did not create reasonable suspicion of impaired driving
to support the traffic stop.9 In reaching this conclusion, the magistrate judge relied
on Ninth Circuit precedent that held that unremarkable, temporary weaving within
a lane does not create a reasonable suspicion of impaired driving.10 The
magistrate judge concluded that Officer Palmatier’s observation of three instances
where Mr. Swain weaved within his lane but did not leave his lane during less than
a minute of observation was “insufficient to constitute ‘pronounced’ weaving such
as might create reasonable suspicion” of impaired driving.11 This Court agrees
with and adopts the magistrate judge’s Final Report and Recommendation on this
issue.
7 Officer Palmatier testified that even though snow cover made seeing the edges of the lanes
difficult, he did not believe Mr. Swain’s vehicle ever left its lane. Docket 47 at 8.
8 “This was because Swain did not have bloodshot, water eyes; did not smell of alcohol or
marijuana; and was able to articulate who he was.” Docket 47 at 6.
9 Docket 47 at 9–14.
10 Docket 47 at 9–10 (citing United States v. Colin, 314 F.3d 439 (9th Cir. 2002)). This may be
particularly applicable in Alaska during the winter, when road lanes are often indiscernible and
drivers follow the tracks of other vehicles regardless of whether they correspond to official lane
markers.
11 Docket 47 at 12.
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 4 of 11

Case No. 3:19-cr-00088-SLG, United States v. Swain
Order Re: Motion to Suppress
Page 5 of 11
III. The Final Report and Recommendation’s conclusions regarding
driving without headlights
The Final Report and Recommendation concluded that the stop was not
supported by reasonable suspicion of a traffic violation: “the fact that Palmatier
initially encountered Swain driving without his headlights is not sufficient enough,
when coupled with the weaving to create reasonable suspicion.”12 In reaching this
conclusion, the magistrate judge focused on the fact that “Officer Palmatier’s
testimony demonstrated that his traffic stop of Swain was not initiated to remedy
any traffic violation”13 and that as to the lack of headlights, Officer Palmatier “did
not consider this infraction significant enough to issue a citation” and that “the
headlights infraction was not the basis for his stop . . . .”14
The Court disagrees with the magistrate judge’s analysis of whether the lack
of headlights supports a constitutional traffic stop. Although Officer Palmatier
testified that the Chrysler’s headlights being off was not the basis for the stop, he
also testified that the headlights being off was a traffic infraction or violation and
that “[t]hat’s actually a citation that could have been issued that was not issued.”15
Both the Alaska Administrative Code and the Anchorage Municipal Code require
drivers to have their vehicle headlights on from half an hour after sunset to half an
12 Docket 47 at 12.
13 Docket 47 at 8.
14 Docket 47 at 13.
15 Docket 40 at 31–32, 48 (transcript of evidentiary hearing).
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 5 of 11

Case No. 3:19-cr-00088-SLG, United States v. Swain
Order Re: Motion to Suppress
Page 6 of 11
hour before sunrise.16 Officer Palmatier testified that at the time of the 12:50 a.m.
traffic stop, “it was nighttime, and it’s winter, so it’s extremely dark.”17 The
government contends that the sun was down from 3:47 p.m. on December 27,
2018, until 10:16 a.m. on December 28, 2018, and Mr. Swain has not disputed that
the traffic stop occurred at a time when headlights were required.18 Mr. Swain’s
driving without headlights constituted a traffic violation.
The fact that the headlights violation was not the subjective basis for Officer
Palmatier’s decision to stop Mr. Swain does not prevent it from justifying the traffic
stop. In Whren v. United States, the Supreme Court explained that “[s]ubjective
intentions play no role in ordinary, probable-cause Fourth Amendment analysis,”
and that it was “unwilling to entertain Fourth Amendment challenges based on the
actual motivations of individual officers.”19 In Devenpeck v. Alford, the Supreme
Court reaffirmed that
an arresting officer’s state of mind (except for the facts he knows) is
irrelevant to the existence of probable cause. That is to say, his
subjective reason for making an arrest need not be the criminal
offense as to which the known facts provide probable cause. As we
have repeatedly explained, the fact that the officer does not have the
state of mind which is hypothecated by the reasons which provide the
legal justification for the officer’s action does not invalidate the action
taken as long as the circumstances, viewed objectively, justify that
action.20
16 13 ACC 04.010(a)(1); Anchorage Mun. Code 9.36.290(A)(1).
17 Docket 40 at 10–11.
18 Docket 52 at 4, fn. 4 (citing https://www.suntoday.org/sunrise-sunset/2018/december.html).
19 517 U.S. 806, 816, 813 (1996).
20 543 U.S. 146, 153 (2004). Although Whren and Devenpeck discuss probable cause, in the
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 6 of 11

Case No. 3:19-cr-00088-SLG, United States v. Swain
Order Re: Motion to Suppress
Page 7 of 11
In his supplemental briefing, Mr. Swain asserts that because he immediately
corrected his headlight violation after being observed by Officer Palmatier, his
traffic violation cannot support a constitutional traffic stop.21 Mr. Swain does not
cite to any part of the relevant codes or to any caselaw supporting his argument
that a short-lived traffic violation does not constitute reasonable suspicion for a
traffic stop. Mr. Swain also points to no cases lending support to his argument that
subsequent corrective conduct alters or negates the ability of law enforcement to
initiate a traffic stop for offenses that were committed in the near past. Common
sense indicates that if a police officer observed a driver speeding or not wearing a
seatbelt, the officer would still have reasonable suspicion even if the driver had
slowed down or buckled their seatbelt soon after being noticed by the officer.22
Police may stop a vehicle if “they are aware of articulable facts leading to a
reasonable or founded suspicion that the person has been, is, or is about to be
engaged in criminal activity. Traffic violations constitute criminal conduct which
provide reasonable suspicion for a brief investigatory stop.”23
context of traffic stops, “the Fourth Amendment requires only reasonable suspicion.” United
States v. Lopez-Soto, 205 F.3d 1101, 1104–05 (9th Cir. 2000).
21 Docket 51 at 3–5.
22 Cf. United States v. McGehee, 672 F.3d 860, 867–68 (10th Cir. 2012) (finding no merit in
defense argument that “there was no legal basis to conduct a traffic stop on conduct which had
already been corrected”).
23 United States v. Martinez, 990 F.2d 1263 (9th Cir. 1993) (internal citations and alterations
omitted, emphasis added).
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 7 of 11

Case No. 3:19-cr-00088-SLG, United States v. Swain
Order Re: Motion to Suppress
Page 8 of 11
The magistrate judge correctly recognized that “[a] single traffic violation, no
matter how insignificant or even if merely pretextual, may create the reasonable
suspicion necessary to support an investigatory stop.”24 It does not matter whether
the traffic violation is civil or criminal in nature.25 Here, Officer Palmatier witnessed
Mr. Swain driving without his headlights on in violation of Alaska state and
municipal provisions and recognized that he could have issued Mr. Swain a citation
for this violation. Thus, the known facts provided reasonable suspicion that Mr.
Swain had committed a traffic violation, and that reasonable suspicion supported
the stop.
IV. Mr. Swain’s request for a continued evidentiary hearing
Mr. Swain requests a continued evidentiary hearing to address two factual
disputes. First, he contends that “Swain was not on notice regarding the
significance of the testimony regarding his headlights, and hence did not offer
evidence on the issue of whether his headlights were activated.”26 However, Mr.
Swain’s motion asserted that the Chrysler had its headlights activated, in contrast
to Officer Palmatier’s police report that stated he “observed a black Chrysler 300
with no license plate traveling eastbound on Duben without any headlights on.”27
24 Docket 47 at 7 (citing United States v. Choudhry, 461 F.3d 1097, 1100–02 (9th Cir. 2006) and
Whren v. United States, 517 U.S. 806, 810 (1996)).
25 United States v. Choudhry, 461 F.3d 1097, 1102 (9th Cir. 2006).
26 Docket 51 at 6.
27 Docket 19 at 4, Docket 30-1 at 3.
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 8 of 11

Case No. 3:19-cr-00088-SLG, United States v. Swain
Order Re: Motion to Suppress
Page 9 of 11
Thus, when he filed the motion, Mr. Swain was on notice of a potential factual
dispute as to his use of the headlights. Additionally, Mr. Swain’s motion to
suppress asserted that “Officer Palmatier lacked reasonable suspicion to initiate a
traffic stop”28 while it recognized that “[i]t is well settled that a traffic violation alone
is sufficient to establish reasonable suspicion.”29 Thus, whether any traffic violation
occurred was a key factual issue raised by the motion. Moreover, during the
evidentiary hearing, the government’s direct examination of Officer Palmatier
included a number of questions about the headlights, about which the defense
then cross-examined Officer Palmatier.30
The Court finds that Mr. Swain knew or should have known that the question
of whether his headlights were on would be raised by his motion. The Court has
reviewed the transcript of the evidentiary hearing, Officer Palmatier’s report, and
the in-dash video. The Court agrees with and adopts the magistrate judge’s finding
that the Chrysler’s headlights were off when first observed by Officer Palmatier.
No further evidentiary hearing is warranted on this issue.
Second, Mr. Swain asserts that an evidentiary hearing is warranted because
“a final decision on the issue of whether there was sufficient reasonable suspicion
to extend the stop has not been rendered . . . .”31 This issue revolves around
28 Docket 19 at 4.
29 Docket 19 at 6.
30 Docket 40 at 7, 9, 11, 13, 28, 30, 31, 46, 48.
31 Docket 51 at 6.
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 9 of 11

Case No. 3:19-cr-00088-SLG, United States v. Swain
Order Re: Motion to Suppress
Page 10 of 11
whether Mr. Swain had a suspended license at the time of the stop, or whether he
was simply driving without a license. Officer Palmatier reported that Mr. Swain told
him that he did not think he had a valid driver’s license, and that “[t]he computer
check revealed that Swain was revoked.”32 Mr. Swain’s defense counsel has
averred that, having reviewed the National Crime Information Center (NCIC) report
produced in discovery, he believes “that Mr. Swain simply was not licensed to drive
a motor vehicle, and that Officer Palmatier erred when he made the representation
in his report that Mr. Swain’s license was revoked.”33 The government’s position
is supported by Mr. Swain’s “Basic Person Record,” which—three days after when
Officer Palmatier ran a computer check—reflected that Mr. Swain’s driver’s license
status was “revoked.”34
An officer’s reasonable suspicion can be based on a good-faith mistake of
fact: “[A]n officer’s correct understanding of the law, together with a good-faith
error regarding the facts, can establish reasonable suspicion.”35 Here, Officer
Palmatier correctly understood that driving with a revoked license was a violation
of Mr. Swain’s probation.36 Even if Mr. Swain was actually unlicensed, any mistake
32 Docket 30-1 at 3.
33 Docket 43 at 1–2. Neither party has attached the NCIC report to its filings.
34 Docket 46 at 6. The parties have not indicated what program or database Officer Palmatier
utilized when he ran a “computer check” from his police vehicle.
35 United States v. King, 244 F.3d 736, 739 (9th Cir. 2001); see also Heien v. North Carolina, 574
U.S. 54, 61, 66–67 (2014) (reasonable suspicion can be based on reasonable mistakes of fact
or on reasonable mistakes of law)).
36 Indeed, it is likely that driving without being licensed to drive (Alaska Stat. § 28.15.001) is a
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 10 of 11

Case No. 3:19-cr-00088-SLG, United States v. Swain
Order Re: Motion to Suppress
Page 11 of 11
as to the status of his licensure was reasonable given the purported contradictions
between the Basic Person Record and the NCIC report. Assuming without finding
that Officer Palmatier made a mistake as to Mr. Swain’s license status, this mistake
was reasonable and does not undermine Officer Palmatier’s reasonable suspicion
to contact Mr. Swain’s probation officer. No further evidentiary hearing is
warranted on this issue.
The magistrate judge recommended that the Court grant the Motion to
Suppress. The Court has reviewed the Final Report and Recommendation and
disagrees with its analysis regarding the lack of headlights as a basis for a
constitutional traffic stop. The Court has also found that no further evidentiary
hearing is warranted. Accordingly, the Court rejects the Final Report and
Recommendation except as noted herein, and IT IS ORDERED that the Motion to
Suppress at Docket 19 is DENIED.
DATED this 17th day of January, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
violation of probation even though it is an infraction rather than an arrestable offense, because
the Alaska state conditions of probation require that the probationer “shall be required to obey
all state, federal, and local laws or ordinances” and is not limited to arrestable or criminal
offenses. Alaska Stat. § 12.55.100(a)(1).
Case 3:19-cr-00088-SLG-DMS Document 53 Filed 01/17/20 Page 11 of 11