8 29 12 0204 063341 2025 201 Page With Index Partial Transcript of Proceedings (1118 a.M.) - 180288bgb-Full

7/28/2019 8 29 12 0204 063341 2025 201 Page With Index Partial Transcript of Proceedings (1118 a.M.) - 180288bgb-Full

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I N THE SECOND J UDI CI AL DI STRI CT COURT OF THE STATE OF

NEVADA

I N AND FOR THE COUNTY OF WASHOE

- oOo-

THE STATE OF NEVADA, : : Pl ai nt i f f , : Case No. CR12- 2025

: Dept No. 10 vs. : : ZACHARY COUGHLI N, : : Def endant . :======================================================

PARTI AL TRANSCRI PT OF PROCEEDI NGS

SUPPRESSI ON HEARI NG

August 29, 2012

Reno, Nevada

SUNSHI NE REPORTI NG SERVI CES ( 775) 883- 7950 or ( 775) 323- 3411


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SUNSHI NE REPORTI NG - ( 775) 323- 3411

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5 . ^

6 A P P E A R A N C E S

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8 FOR THE PLAI NTI FF:

9 MR. YOUNG, ESQ.

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13 FOR THE DEFENDANT:

14 MR. LESLI E, ESQ.

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1

2 I NDEX OF EXAMI NATI ON

3

4

5 EXAMI NATI ON BY PAGE #

6 1st Wi t ness NI CHOLAS DURALDEDi r ect Exami nat i on by Mr . Young 7

7 Cr oss- Exami nat i on by Mr . Lesl i e 34Redi r ect Exami nat i on by Mr . Young 50

8 Recr oss- Exami nat i on by Mr . Lesl i e 53Redi r ect Exami nat i on by Mr . Young 56

9

10 2nd Wi t ness NATHANI EL ZARATEDi r ect Exami nat i on by Mr . Young 99

11 Cr oss- Exami nat i on by Mr . Lesl i e 113Redi r ect Exami nat i on by Mr . Young 137

12 Recr oss- Exami nat i on by Mr . Lesl i e 138

133r d Wi t ness CORY GOBLE

14 Di r ect Exami nat i on by Mr . Young 142Cr oss- Exami nat i on by Mr . Lesl i e 155

15 Redi r ect Exami nat i on by Mr . Young 16516

17 I NDEX OF EXHI BI TS

18 None mar ked

19

20

2122

23

24


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1 ** . **

2 RENO, NEVADA, WEDNESDAY, AUGUST 29, 2012, 11: 18 A. M.

3 ** . **

4

5 THE COURT: Fi r st of al l , I am goi ng t o r ul e

6 based on t he i n- camer a hear i ng t hat I do not f i nd t hat

7 conf l i ct of i nt er est t hat woul d be subst ant i al as t o

8 deny t he def endant hi s 6t h Amendment r i ght t o counsel

9 i n t hi s case.

10 Wi t h r espect t o t he canvas, si r , I bel i eve

11 you ar e a br i l l i ant per son, and I ' m r ef er r i ng t o Mr .

12 Coughl i n but your anal ysi s of t he mi nut i a of t he case

13 i s wi t hout equal . However , I bel i eve you do have a

14 pr obl em seei ng t he f or est t hr ough t he t r ees. Two days

15 ago I spent an i nor di nat e amount of t i me on t hi s ver y

16 same i ssue, and your i nabi l i t y t o make a si mpl e

17 deci si on, at t hat t i me, r esul t ed i n us comi ng agai n t o

18 t hi s i ssue t oday.

19 Al t hough, I bel i eve i t pr obabl y i s unt i mel y,

20 I am goi ng t o r ul e on your r i ght and I ' m goi ng t o deny

21 you sel f - r epr esent at i on at t hi s t i me because I don' t

22 bel i eve you are compet ent based on your answers t o t he

23 quest i ons as wel l as t he pr evi ous document s you f i l ed

24 i n t hi s case, based upon t he f act t hat you have i n


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1 f act been suspended by t he St ate Bar t hat you' ve

2 demonst r at ed l ack of knowl edge of at l east some of t he

3 i mpor t ant cr i mi nal l aw, your l ack of knowl edge of

4 pr ocedur e i n cr i mi nal cases and i n par t i cul ar , t he

5 f act t hat you f i l ed a mot i on f or summary j udgment i n

6 t hi s case. You' ve f i l ed ot her document s whi ch woul d

7 demonst r at e t hat you' r e conf usi ng ci vi l wi t h cr i mi nal

8 pr ocedur e and I ' m concer ned t hat i f you r epr esent ed

9 your sel f i n t hi s case, t hat i t woul d not be i n your

10 best i nt er est s and t her ef or e, I am goi ng t o cont i nue

11 t he wr i t of counsel t hat has been appoi nt ed and we

12 wi l l go f or war d wi t h t he t r i al at t hi s t i me.

13 So Mr . Young, di d you want t o cal l your f i r st

14 wi t ness?

15 THE DEFENDANT: I ' m sor r y, your Honor , woul d

16 i t be mor e cor r ect t o say we' l l cont i nue wi t h t he

17 hear i ng on the mot i on to suppr ess?

18 MR. YOUNG: Ver y br i ef l y, your Honor , i t was

19 par t and par cel wi t h t he mot i on or t he opposi t i on f or

20 co- counsel - -

21 THE COURT: I ' m goi ng t o - - I ' m goi ng t o

22 gr ant t he mot i on t o st r i ke al l document s t hat wer e

23 f i l ed by Mr . Coughl i n unl ess t hey wer e j oi ned i n by

24 t he publ i c def ender , and I don' t know i f t he publ i c


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1 def ender j oi ned i n, but I have t hi s packet t hat was - -

2 MR. LESLI E: Your Honor , we' r e not j oi ni ng i n

3 t hose mot i ons.

4 Wi t h r egar d t o t he addi t i onal i ssue of hi s

5 pr et r i al br i ef ; Mot i on For Summar y J udgment f i l ed at

6 appr oxi mat el y 5: 14 t hi s mor ni ng, as I under st and i t ,

7 or at l east e- mai l ed at t hat t i me, what I woul d

8 suggest i s we pr oceed wi t h the Mot i on to Suppr ess.

9 Dependi ng on the out come, we may or may not have a

10 br i ef t r i al and some t est i mony and then t here may come

11 a poi nt wher e I ask l eave t o f i l e a post t r i al br i ef

12 i f I bel i eve any i ssues need t o be comment ed on i n

13 wr i t i ng t o suppor t maki ng a deci si on but I ' m not

14 j oi ni ng i n t he f ugi t i ve document .

15 THE COURT: Al l r i ght .

16 So I am goi ng t o gr ant t he mot i on t o st r i ke

17 al l document s t hat wer e f i l ed sol el y by Mr . Coughl i n.

18 However , we do have t he Mot i on t o Suppress whi ch I

19 bel i eve was pr oper l y f i l ed - - i naudi bl e.

20 MR. YOUNG: Yes, your Honor , and I ' m pr epared

21 t o go f or war d wi t h t he Mot i on t o Suppr ess. The St at e

22 wi l l cal l Of f i cer Dur al de.

23 MR. LESLI E: Your Honor , I woul d ask t hat t he

24 r ul e of excl usi on appl y.


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1 THE COURT: Okay. I ' m goi ng t o ask t hat

2 anyone who i s a wi t ness i n t hi s case, i f you' l l wai t

3 out si de and not di scuss t he case among your sel ves

4 unt i l cal l ed by t he cour t t o t est i f y. So I t hi nk

5 t her e were t wo ot hers.

6 Al l r i ght . Woul d you pl ease come f or war d and

7 woul d you r ai se your r i ght hand?

8 ( The wi t ness was sworn. )

9 THE COURT: Pl ease be seat ed.

10 MR. YOUNG: And, your Honor , l i kewi se wi t hout

11 any di sr espect t o t he cour t , may I si t down dur i ng

12 t hese pr oceedi ngs?

13 THE COURT: That ' s f i ne.

14

15 NI CHOLAS DURALDE

16 EXAMI NATI ON

17 BY MR. YOUNG:

18 Q Sir, good morning. Could you state your

19 first and last name and spell both of them?

20 A Ni chol as Dur al de, f i r st name N I C H O L A S,

21 and l ast name i s D U R A L D E.

22 Q And, your Honor just to confirm, these

23 proceedings are still being recorded, yes?

24 THE COURT: Yes.


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1 I wi l l i ndi cat e t hat t he i n- camer a

2 pr oceedi ngs were r ecor ded as wel l but t hey were

3 pr eser ved and seal ed. So t hey are separ ate.

4 BY MR. YOUNG:

5 Q Thank you.

6 Sir, with whom are you currently employed?

7 A The Reno Pol i ce Depar t ment .

8 Q How long have you been so employed?

9 A Appr oxi mat el y a f i ve and a hal f year s.

10 Q And could you tell the court your training on

11 the front end to become a police officer with the Reno

12 Police?

13 A We st ar t ed wi t h 19 weeks of a POST cer t i f i ed

14 academy and f ol l owed t hat up wi t h 16 weeks of f i el d

15 t r ai ni ng.

16 Q Okay.

17 And have you had training throughout, as time

18 goes on, through your five and a half years?

19 A Yes.

20 Q And have you passed both POST and all

21 subsequent trainings?

22 A Yes.

23 Q And your current assignment is what?

24 A Pat r ol .


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1 Q Okay.

2 Were you assigned to patrol back on

3 August 20th of 2011?

4 A Yes.

5 Q And again, passed all trainings and F T O

6 programs and the like to become on patrol?

7 A Yes.

8 Q And very briefly, when I say F T O, what is

9 that?

10 A I t ' s a Fi el d Tr ai ni ng Of f i cer pr ogr am. Our s

11 i s sl i ght l y di f f er ent but i t compl et es t he same - -

12 does t he same general - -

13 Q Why don't you tell the court what you had to

14 go through before going out as a patrol officer?

15 A The Reno Pol i ce Depar t ment uses a P T O

16 pr ogr am wher e you r i de wi t h t wo ot her of f i cer s as t hey

17 basi cal l y t r ansi t i on you f r om t he t r ai ni ng of f i cer

18 doi ng al l of t he wor k to at t he end of t he t r ai ni ng

19 pr ogr am, maki ng sur e t hat t he t r ai ni ng of f i cer can

20 compl et e al l t he t asks t hat t hey' r e r equi r ed t o do.

21 Q And did you go through that program, sir?

22 A Yes.

23 Q And did you pass that program?

24 A Yes.


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1 Q Okay.

2 And again, directing your attention to

3 August 20th of 2011 so last year, you stated you were

4 assigned as a patrol officer that day?

5 A Yes.

6 Q Did something occur shortly before midnight

7 which brings you here to court?

8 A Yes.

9 Q Okay.

10 Could you tell the judge what that was,

11 please?

12 A I was di spat ched t o a cal l at t he - - I can' t

13 r emember what t he di spat ch l ocat i on was exact l y but i t

14 was t he Pl aza t hat ' s at 1st and Vi r gi ni a acr oss f r om

15 Ci t y Hal l on a r epor t of - - at f i r st , di spat ch sai d i t

16 was a di st ur bance I bel i eve, possi bl y a f i ght . Then

17 as we were on our way t her e, t hey updat ed us sayi ng

18 t hat i t was a l ar ceny t hat had occur r ed.

19 Q And this is -- the location you're referring

20 to, is that at or near 10 North Virginia Street or One

21 North Center Street in that general area?

22 A Yes.

23 Q Is that in Reno?

24 A Yes.


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1 Q Washoe County, Nevada?

2 A Yes.

3 Q Okay.

4 When you arrived, what occurred?

5 A When I ar r i ved, t her e was a l ar ge gr oup of

6 peopl e on Cent er St r eet near t he r i ver . I can' t

7 r ecal l t he descr i pt i on t hat we wer e gi ven of t he

8 suspect i n t he l ar ceny but di spat ch di d gi ve us a

9 descr i pt i on.

10 When I ar r i ved, t her e was a l ar ge gr oup of

11 younger adul t s possi bl y some i n t hei r l i ke mi d- t eens

12 al so si t t i ng down and st andi ng near t he def endant , Mr .

13 Coughl i n, who was si t t i ng down i n t he mi ddl e of t hem.

14 Mr . Coughl i n was wear i ng cl ot hi ng descr i bed t o us by

15 di spat ch.

16 Q Okay.

17 MR. LESLI E: I ' m goi ng t o obj ect , your Honor .

18 My obj ect i on i s t hat he can' t t est i f y t o whet her t he

19 cl ot hes Mr . Coughl i n was al l egedl y wear i ng ar e

20 consi st ent wi t h what di spat ch t ol d hi m because he

21 doesn' t even r emember what t he descr i pt i on of t he

22 suspect was t hat di spat ch had gi ven hi m i n t he f i r st

23 pl ace.

24 So I woul d move t hat t he t est i mony t hat hi s


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1 observat i on was - -

2 THE COURT: Let me hear - -

3 MR. YOUNG: That ' s f i ne, your Honor .

4 THE COURT: Okay, t hen a mot i on - - i naudi bl e.

5 MR. YOUNG: Thank you.

6 THE COURT: The t est i mony wi t h r espect t o t he

7 cl ot hi ng mat chi ng t he descr i pt i on anyway di spat ch.

8 BY MR. YOUNG:

9 Q Thank you.

10 Officer, did you write a report in this case?

11 A Yes.

12 Q And did you write this report soon after or

13 sometime after your involvement with this case?

14 A Yes.

15 Q Do you recall approximately how long?

16 A Depar t ment pol i cy r equi r es us t o wr i t e a

17 r epor t wi t hi n 48 hour s of when t he ar r est i s made.

18 Q So pretty soon after your involvement?

19 A Yes.

20 Q Okay. If I could approach, your Honor?

21 Showing you what appears to be your report;

22 is that correct?

23 A Yes.

24 Q And this is a four page -- it has some other


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1 things but this is a four-page report; correct?

2 A Yes.

3 Q Okay.

4 I'm directing your attention to page 3, the

5 second paragraph. Don't answer out loud but just

6 review that report, sir, your report. Let me know if

7 that refreshes your recollection as to clothing and

8 descriptors as related to you by dispatch.

9 MR. LESLI E: Your Honor ? I ' l l addr ess i t

10 l at er , your Honor , never mi nd.

11 BY MR. YOUNG:

12 Q After reviewing that report, does it refresh

13 your recollection?

14 A Yes.

15 Q And I'll get this report back from you.

16 What was it that -- as far as particulars

17 regarding a potential suspect dispatch advised you of?

18 THE COURT: Bef ore you answer t hat , di d you

19 have an obj ect i on?

20 MR. LESLI E: I di dn' t have an obj ect i on. I

21 was l ooki ng at Mr . Coughl i n' s copy on hi s comput er of

22 t he pol i ce r epor t and by doi ng so, I was abl e t o f i nd

23 t he i nf or mat i on t hat I t hought I needed.

24 THE COURT: Okay.


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1 BY MR. YOUNG:

2 Q Okay. Go ahead, sir.

3 A The suspect descr i bed was descr i bed as a

4 whi t e mal e appr oxi mat el y 6 f oot 2, 210 pounds wear i ng

5 a r ed Chi cago hat , a mar oon or l i ght col or ed shi r t and

6 pl ai d shor t s.

7 Q Okay.

8 Now, fast forward to when you arrived on

9 scene, did you see an individual who matched this

10 description?

11 A Yes.

12 Q Okay, is the person who was consistent with

13 that description, is that person in the courtroom

14 today?

15 A Yes, he i s.

16 Q Would you point that person out to the judge?

17 THE COURT: The r ecor d wi l l r ef l ect t he

18 i dent i f i cat i on of t he def endant .

19 BY MR. YOUNG:

20 Q Okay.

21 Did you make verbal contact with Mr.

22 Coughlin, at that point?

23 A Yes.

24 Q And could you tell the court what happened?


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1 A The f i r st t hi ng t hat I r ecal l sayi ng t o Mr .

2 Coughl i n was t hat i f he had someone' s phone i f he gave

3 i t back t o t hem, t hat t he whol e i ssue woul d pr obabl y

4 be t aken car e of at t hat poi nt .

5 Q Do you recall what Mr. Coughlin's response

6 was, if anything?

7 A Mr . Coughl i n asked me i f t hi s was a Ter r y

8 st op and i f I had aut hor i t y t o do t hat .

9 Q So did he answer your question or inquiry

10 about whether he had a phone?

11 A No. He di d not .

12 Q Okay.

13 What was Mr. Coughlin's general demeanor or

14 level of cooperativeness with you during this

15 investigation?

16 A He was conf r ont at i onal .

17 Q Okay.

18 Did you advise Mr. Coughlin that you were

19 conducting an investigation into a possible theft of a

20 phone?

21 A Yes.

22 Q Okay.

23 At any time, did he relay to you or tell you

24 that he did in fact have somebody else's phone?


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1 A No.

2 Q Okay.

3 What happened at that point?

4 A Mr . Coughl i n, r ef er r i ng t o my t r ai ni ng and

5 exper i ence, when someone i s uncooperat i ve and

6 conf r ont at i onal when we' r e speaki ng wi t h t hem, t her e' s

7 a possi bi l i t y t hat t hei r ver bal uncooper at i veness

8 coul d t ur n i nt o a physi cal al t er cat i on or j ust

9 physi cal - -

10 MR. LESLI E: I ' m goi ng t o obj ect , l ack of

11 f oundat i on.

12 MR. YOUNG: He sai d based on hi s t r ai ni ng and

13 exper i ence. I t hi nk t hat ' s al l t he f oundat i on he

14 needs.

15 MR. LESLI E: That ' s a concl usory st at ement ,

16 i t ' s not t he el i ci t i ng of f oundat i onal t est i mony f r om

17 t he wi t ness. I don' t t hi nk a f oundat i on has been

18 l ai d.

19 THE COURT: Foundat i on, you mean

20 speci f i cal l y?

21 MR. LESLI E: Al l he sai d i s based on my

22 t r ai ni ng peopl e t hat don' t cooper at e or answer my

23 quest i ons coul d be danger ous. Ther e' s no f oundat i on

24 f or t hat concl usi on.


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1 He sai d i t but t hat doesn' t mean t hat t her e' s

2 any f oundat i on f or t hat concl usi on.

3 THE COURT: Wel l , I wi l l sust ai n i t - - I mean

4 what speci f i c t r ai ni ng was i t - -

5 BY MR. YOUNG:

6 Q Sure. Sir, I'd ask you in addition to

7 answering what training you learned, if there's also

8 been prior instances in your experience where

9 noncooperation and confrontation on the front end has

10 turned into physical violence and/or use of weapons?

11 MR. LESLI E: I ' m goi ng t o obj ect r el evance.

12 MR. YOUNG: Wel l , Mr . Lesl i e want s t o know

13 f oundat i on, t hat cer t ai nl y goes t o f oundat i on.

14 MR. LESLI E: That ' s a di f f er ent quest i on.

15 THE COURT: As I underst and t he obj ect i on - -

16 I ' l l sust ai n t he second obj ect i on but I do t hi nk i t ' s

17 i r r el evant but as to t he f i r st obj ect i on, I t hi nk i f

18 t her e was some speci f i c t r ai ni ng he had t hat di d say

19 t hat , t hen I t hi nk t hat woul d be a pr oper f oundat i on.

20 BY MR. YOUNG:

21 Q Okay. Officer, if there is anything

22 specific?

23 A No speci f i c cl ass but i t woul d have been

24 t hr ough t he t i me I spent wi t h t he t r ai ni ng of f i cer


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1 wher e t hey have t o t ake someone who basi cal l y has gone

2 t hr ough l i f e want i ng t o t r ust peopl e and l ear ned i t

3 t eaches us how t o be more skept i cal t o keep us and

4 ot her s saf e.

5 Q Okay.

6 THE COURT: I wi l l al l ow t he t est i mony t hat

7 was pr evi ousl y obj ect ed t o.

8 MR. YOUNG: Thank you.

9 BY MR. YOUNG:

10 Q So in addition to saying you were saying

11 based on your training and experience, could you go

12 ahead and finish your previous testimony.

13 A Wel l , based on Mr . Coughl i n' s demeanor , he

14 was al so wear i ng cl ot hes whi ch were l oose enough t o

15 conceal a weapon. I compl et ed a pat - down search f or

16 weapons on Mr . Coughl i n.

17 Q Okay.

18 This was again just shy of midnight; correct?

19 A Yes.

20 Q Can you explain, in this specific location,

21 what the lighting was like?

22 A The l i ght i ng - - t her e' s a l ot of l i ght i ng

23 r i ght t her e. Ther e' s st r eet l i ght s.

24 Q Okay.


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1 And how many people were on scene when you

2 arrived ballpark?

3 A I ' d say bet ween 8 and 12.

4 Q Okay.

5 And that includes Mr. Coughlin?

6 A Yes.

7 Q And specifically, you were talking about what

8 dispatch advised. I may have missed it but why were

9 you responding out to this area for dispatch?

10 A At f i r st , t hey sai d i t was a di st ur bance,

11 possi bl y a f i ght and t hen gave us updat ed i nf or mat i on

12 t hat a l ar ceny had possi bl y occur r ed.

13 Q Okay.

14 And the first call that came in advised that

15 there was a possible fight?

16 A Yes.

17 Q Okay.

18 And then you stated that you did a pat-down

19 search, could you describe what that is specific to

20 Mr. Coughlin, how you conducted that?

21 A For a pat - down sear ch, we' r e basi cal l y

22 checki ng someone' s person t o make sur e t here' s no

23 weapons t hat are conceal ed i n t hei r cl ot hes. I don' t

24 r ecal l how exact l y I went t hr ough t he whol e sear ch,


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1 but t hey t each us t o met hodi cal l y check over l appi ng

2 ar eas so you don' t mi ss anyt hi ng.

3 I r ecal l when I checked Mr . Coughl i n' s r i ght

4 si de, he had a phone i n hi s f r ont shor t s pocket .

5 MR. LESLI E: I ' m goi ng t o obj ect t o t he

6 t est i mony t hat he had a phone. I t hi nk t he of f i cer i s

7 dr awi ng an i mpr oper concl usi on.

8 THE COURT: Okay. I wi l l sust ai n t hat

9 obj ect i on. Maybe you can descr i be what you saw.

10 THE WI TNESS: I f el t an obj ect t hat I

11 bel i eved t o be a phone.

12 MR. LESLI E: I obj ect . He can descr i be what

13 he f el t but not hi s concl usi ons.

14 THE COURT: I wi l l sust ai n t he obj ect i on.

15 Agai n si r , you can descr i be t he shape of i t and

16 not hi ng el se - - i naudi bl e.

17 THE WI TNESS: I don' t r ecal l mi nut e det ai l

18 out si de of my concl usi on.

19 MR. YOUNG: Okay, t hat ' s okay.

20 THE WI TNESS: I can' t say t hat I di d.

21 BY MR. YOUNG:

22 Q Okay.

23 Do you recall why you were conducting that

24 pat-down, what if anything Mr. Coughlin said or


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1 yelled?

2 A As I was cont i nui ng wi t h t he pat - down and I

3 got t o Mr . Coughl i n' s l ef t f r ont shor t s pocket , he

4 began yel l i ng somet hi ng al ong t he l i nes of I was

5 i nappr opr i at el y t ouchi ng hi s peni s.

6 Q Okay.

7 Were you?

8 A No.

9 Q All right.

10 At this time up to the point that you've

11 testified now, at any time, did you reach your hands

12 into any pockets of Mr. Coughlin?

13 A No.

14 Q And I should ask this, did his shorts have

15 pockets?

16 A Yes.

17 Q And you were describing kind of a search for

18 weapons?

19 A Yes.

20 Q You're familiar with the search incident to

21 arrest?

22 A Yes.

23 Q Which is a thorough search?

24 A Yes.


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1 Q Your pat-down search as you described it, how

2 intrusive is that as compared as to a search incident

3 to arrest?

4 A I n a sear ch i nci dent t o ar r est , we woul d put

5 our hands i n someone' s pocket s, t ake al l t he i t ems

6 out . Basi cal l y, we' r e l ooki ng f or any cont r aband or

7 i l l egal i t ems down t o - - i n t he past , I ' ve had

8 sear ches where I l ocat ed a gr ai n of met hamphet ami ne

9 t hat wei ghed one hundredt h of a gr am.

10 Q Okay.

11 And that's what you're talking about in a

12 search incident to arrest?

13 A Yes.

14 Q What I'm curious then is how intrusive as

15 compared to that search was your pat-down search of

16 Mr. Coughlin?

17 A I woul d say not i nt r usi ve.

18 Q And why? Could you explain exactly what it

19 is. I know you said you're searching for weapons but

20 what are you specifically doing?

21 A We t ouch t he out si de of t he cl ot hi ng.

22 Q Okay.

23 During this search, did you feel any weapons?

24 A No.


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1 Q Okay.

2 So did you reach into Mr. Coughlin's pockets

3 at any time at this point?

4 A No.

5 Q Okay.

6 What happened after your pat-down search?

7 A Mr . Coughl i n began t o yel l t hat I was

8 i nappr opr i atel y t ouchi ng hi m. As he was becomi ng more

9 uncooper at i ve, I pl aced hi m i nt o handcuf f s.

10 Q And then what happened?

11 A From t her e, ot her of f i cer s had ar r i ved. Mr .

12 Coughl i n was l ef t wi t h - - when I get t o hi s l ef t f r ont

13 pocket , I st epped back. I f el t an obj ect

14 appr oxi mat el y f our i nches l ong, t hr ee i nches wi de and

15 pr obabl y about a hal f i nch t hi ck that was consi st ent

16 wi t h a phone.

17 Q Okay.

18 And that was when you got to his left front

19 pocket of his shorts?

20 A Yes.

21 Q Okay.

22 Go on.

23 A So t hen Mr . Coughl i n was l ef t wi t h t he ot her

24 of f i cers who wer e on scene. I made cont act wi t h t he


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1 vi ct i m.

2 Q Do you recall the victim's name?

3 A I r ecal l hi s l ast name.

4 Q What was that?

5 A Zarat e.

6 Q Okay.

7 A I asked hi m what occur r ed. I n summar y, he

8 t ol d me t hat hi s phone had been taken.

9 MR. LESLI E: Obj ect i on, hear say.

10 MR. YOUNG: I t ' s not hear say because i t goes

11 t o t he ef f ect wi t h r espect t o t hi s mot i on t o suppr ess.

12 THE COURT: I ' l l over r ul e t hi s obj ect i on,

13 i t ' s not admi t t ed f or t he pur poses of t he t r ut h of t he

14 mat t er .

15 MR. LESLI E: Wel l , your Honor , I woul d al so

16 obj ect based on r el evance. We' r e at t acki ng t he

17 pat - down. Thi s i s not ger mane t o t he pat - down. Thi s

18 i s i nvest i gat i on so i t ' s not r el evant .

19 THE COURT: So you' r e obj ect i ng t hat t here

20 was a pat - down?

21 MR. LESLI E: We' r e at t acki ng, i n our Mot i on

22 t o Suppr ess, t he val i di t y of t he pat - down sear ch.

23 Thi s t est i mony now about hi s di scussi ons wi t h

24 wi t nesses i s par t of hi s br oader i nvest i gat i on whi ch


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1 i s not r el evant t o whet her or not he was j ust i f i ed i n

2 pat t i ng down Mr . Coughl i n at an ear l i er st age.

3 THE COURT: Wel l , I agr ee wi t h t hat . So a

4 pat - down - - i naudi bl e, i f I under st and t hi s cor r ect l y.

5 MR. LESLI E: I ' ve st at ed my obj ect i on.

6 MR. YOUNG: Your Honor t he mot i on t o suppress

7 al so at t acks t he pl ai n f i el d doct r i ne t al ki ng about

8 t hi s r eachi ng i nt o t he phone. Thi s goes di r ect l y t o

9 t hat par t of t he mot i on t o suppr ess.

10 THE COURT: Reachi ng i n f or t he phone, I mean

11 i t wasn' t par t of t he pat - down, wasn' t i t ?

12 MR. YOUNG: Wel l , t hat ' s what I ' m at t empt i ng

13 t o show t o the cour t t hr ough t est i mony.

14 THE COURT: I ' m goi ng t o over r ul e t he

15 obj ect i on because I ' m not cl ear I under st and t he f act s

16 of t hi s case.

17 MR. YOUNG: Sur e.

18 BY MR. YOUNG:

19 Q You mentioned, sir, that you recall the

20 victim's last name, I should say alleged victim at

21 this juncture, the alleged victim's last name as

22 Zarate; correct?

23 A Yes.

24 Q Okay.


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1 You put in your report a different name for

2 the victim. Are you -- I just want to make sure that

3 the record is clear as far as who the alleged victim

4 is at this point. Do you recall, as you sit here

5 right now, the actual full first and last name of the

6 alleged victim?

7 A No.

8 Q Okay. If I could approach, your Honor,

9 again.

10 And again, let me show you again this is Page

11 4 of the same report you were referring earlier to.

12 A Yes.

13 Q Okay, does reviewing this report help refresh

14 your recollection?

15 A Yes.

16 Q There were actually two individuals that you

17 spoke with, yes?

18 A Yes.

19 Q Okay.

20 Again, at this juncture, the alleged victim,

21 who was that?

22 A Cory Gobl e.

23 Q Okay.

24 And there was another individual you spoke


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1 with, who was that?

2 A Hi s l ast name was Zarat e.

3 Q Okay.

4 When speaking with Mr. Goble, what was it

5 that Mr. Goble advised you?

6 A He advi sed me t hat hi s phone had been t aken.

7 A f r i end had seen i t be t aken and poi nt ed t he per son

8 out who had t he phone t o hi m.

9 Q All right.

10 A He had conf r ont ed t he subj ect t hat he

11 i dent i f i ed as Mr . Coughl i n and asked f or hi s phone

12 back. He was t ol d by Mr . Coughl i n t hat he di dn' t have

13 a phone. So he cal l ed t he phone and when he di al ed

14 hi s phone number , he saw t he phone scr een - -

15 MR. LESLI E: I agai n obj ect on hear say.

16 THE COURT: I t ' s over r ul ed agai n.

17 MR. LESLI E: I won' t keep doi ng i t ever y

18 t i me, but I j ust want t o be cl ear .

19 THE COURT: I t hi nk i t goes t o t he of f i cer ' s

20 P C possi bl y f or t he ar r est or what ever happened.

21 MR. YOUNG: Yes, si r .

22 MR. LESLI E: Why don' t I st at e i t t hi s way,

23 may I have a cont i nui ng obj ect i on i n t he Mot i on t o

24 Suppr ess t o t he of f i cer t est i f yi ng t o what wi t nesses


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1 t ol d hi m?

2 MR. YOUNG: That ' s f i ne.

3 THE COURT: Absol ut el y.

4 MR. LESLI E: Thank you, your Honor , t hen I

5 don' t have t o i nt er r upt ever y t i me.

6 THE COURT: Maybe at some poi nt , t he

7 obj ect i on woul d be sust ai ned so t hat ' s my onl y concer n

8 but at t hi s poi nt , I ' m goi ng t o over r ul e t he obj ect i on

9 because I don' t bel i eve i t ' s of f er ed f or t he t r ut h of

10 t he t est i mony.

11 BY MR. YOUNG:

12 Q Officer, you were stating that Mr. Goble

13 advised you that from someone's phone, his number was

14 called and I believe where your testimony ended before

15 the objection was that he told you he saw a screen

16 light up; is that correct?

17 A Yes.

18 Q Did he tell you where he saw that screen

19 light up?

20 A He sai d he saw t he scr een l i ght up i n Mr .

21 Coughl i n' s l ef t shor t s pocket .

22 Q Okay.

23 At that point, as part of your investigation,

24 I'm not going to have you get into details but did you


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1 also speak with Mr. Zarate?

2 A Yes.

3 Q Did you obtain -- after speaking with Mr.

4 Goble, did you obtain Mr. Goble's cell phone number?

5 A Yes.

6 Q And did you then call that number?

7 A Yes.

8 Q Okay.

9 Could you tell the court what happened?

10 A I moved next t o Mr . Coughl i n. I di al ed Mr .

11 Gobl e' s cel l phone number . I coul d hear a vi br at i ng

12 noi se consi st ent wi t h a vi br at i ng cel l phone when i t ' s

13 cal l ed. I t hen pl aced t he back of my hand t o t he

14 out si de of Mr . Coughl i n' s l ef t f r ont shor t s pocket and

15 f el t pr esumabl y Mr . Gobl e' s phone t hat I was cal l i ng

16 vi br at i ng i n Mr . Coughl i n' s l ef t f r ont shor t s pocket .

17 Q Okay.

18 And did you ultimately terminate that call or

19 hang up that call?

20 A Yes.

21 Q And what happened with respect to the

22 vibration that you felt and heard?

23 A When I ended t he cal l f r om my phone, t he

24 vi br at i on st opped.


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1 Q Okay.

2 And were you able to feel that?

3 A Yes.

4 Q Were you likewise able to hear that?

5 A Yes.

6 Q Okay.

7 And at that point, what did you do?

8 A At t hat poi nt , I f el t t hat I had pr obabl e

9 cause t o t hat Mr . Coughl i n was i n possessi on of Mr .

10 Gobl e' s phone and Mr . Coughl i n was pl aced i n handcuf f s

11 and sear ched i nci dent t o ar r est .

12 Q Well, I mean you placed him in handcuffs, did

13 you arrest Mr. Coughlin at that time?

14 A He was al r eady i n handcuf f s at t hat t i me. He

15 was ar r est ed.

16 Q Okay. I guess that was a better question.

17 So you arrested him at that point?

18 A Yes.

19 Q At what point was he placed in handcuffs?

20 A He was pl aced i n handcuf f s shor t l y af t er he

21 st ar t ed t o yel l t hat I was i nappr opr i at el y t ouchi ng

22 hi m.

23 Q Okay.

24 Now, by -- at the point that you placed Mr.


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1 Q And how did you do that?

2 A I r ecal l Mr . Gobl e descr i bi ng - -

3 MR. LESLI E: I ' m goi ng t o obj ect agai n

4 because t he cour t i ndi cat ed t hat some obj ect i ons may

5 be val i d. At t hi s poi nt , t he t est i mony i s t hat t he

6 def endant has been pl aced under ar r est and searched

7 i nci dent t o ar r est . I obj ect t o any f ur t her hear say

8 t est i mony.

9 MR. YOUNG: That ' s f i ne.

10 THE COURT: I wi l l sust ai n t hat obj ect i on.

11 MR. YOUNG: Thank you. Cour t ' s i ndul gence,

12 your Honor .

13 BY MR. YOUNG:

14 Q Just a final question, officer.

15 When you stated that when you were dialing

16 Mr. Goble's numbers someone provided to you and you

17 said that you touched Mr. Coughlin in the left front

18 shorts pocket area; do you recall that testimony?

19 A Yes.

20 Q Could you describe how it was that you

21 touched him?

22 A I t was wi t h t he back of my hand agai nst t he

23 out si de of hi s shor t s.

24 Q Okay.


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1 I have no further questions, your Honor.

2 Thank you, officer.

3 THE COURT: Okay. How l ong i s your cr oss?

4 The probl em i s normal l y we t ake a break r i ght now.

5 MR. LESLI E: You know, I ant i ci pat e t hat I

6 woul d not i nvade t he l unch hour by ver y much.

7 THE COURT: Wel l , you can' t i nvade t he l unch

8 hour at al l because I have a pr i or appoi nt ment . The

9 quest i on i s do you want t o go f or f i ve mi nut es and

10 t hen st op?

11 MR. LESLI E: I ' d l i ke t o go as f ar as we can

12 bef ore we br eak.

13 THE COURT: Okay. Go ahead.

14 CROSS- EXAMI NATI ON

15 BY MR. LESLI E:

16 Q Officer, you originally -- dispatch

17 originally informed you that there was a disturbance

18 or possible fight; is that correct?

19 A Yes.

20 Q But then after that, you were updated by

21 dispatch with the information that it was a larceny?

22 A Yes.

23 Q Okay.

24 Generally speaking, a report over dispatch of


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1 a larceny does not always mean that violence or threat

2 is involved; is that correct?

3 A That coul d be t he case, yes.

4 Q So then you arrived and you saw what appeared

5 to be a large group of people somewhere between 8 to

6 12 people?

7 A Yes.

8 Q And most of them were young or mid-teen in

9 age?

10 A Yes.

11 Q And they were grouped around the man you

12 identified as Mr. Coughlin?

13 A Yes.

14 Q And Mr. Coughlin was seated on the ground?

15 A He was seated on - - al ong t he Cent er St r eet

16 Br i dge over t he Tr uckee Ri ver , t her e ar e r ai l s t hat

17 ar e about a f oot and a hal f , t wo f eet hi gh. He was

18 si t t i ng on one of t he r ai l s.

19 Q And how close to him was the group of youths?

20 A Si t t i ng next t o hi m. Some wer e si t t i ng next

21 t o hi m on t he r ai l . Ot her s wer e st andi ng i n a hal f

22 ci r cl e on t he si dewal k.

23 Q They were standing in a half circle around

24 him?


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1 A Yes.

2 Q So he was surrounded by approximately 8 to 12

3 mid-teen or young adults?

4 A Yes.

5 Q And when you arrived there, was yelling going

6 on?

7 A I don' t r ecal l .

8 Q Did the youths appear agitated?

9 In fact, at one point, you had to tell them

10 to back off, didn't you?

11 A Yes.

12 Q They were upset?

13 A Yes.

14 Q At the man you identified as Mr. Coughlin?

15 A Yes.

16 Q And they were surrounding him?

17 A Yes.

18 Q And he was in a seated position and many of

19 them were in a standing position?

20 A I r ecal l mor e bei ng seat ed near hi m t han wer e

21 st andi ng but t here were some subj ect s st andi ng, yes.

22 Q All right.

23 And how close in proximity were these youths

24 or young adults to Mr. Coughlin; how many feet from


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1 him, how many inches?

2 A The subj ect s t hat wer e si t t i ng next t o hi m

3 were I woul dn' t say more than si x t o 10 i nches away

4 f r om hi m. They wer e si t t i ng r i ght next t o hi m.

5 Q Are we going to break?

6 THE COURT: Yes.

7 So t hi s wi l l be cont i nued unt i l 1: 30 and

8 we' l l go t o appr oxi matel y 4: 30. Do you have any

9 pr obl em wi t h bei ng her e at 1: 30?

10 MR. YOUNG: No, si r .

11 ( A l unch r ecess was t aken. )

12 THE COURT: We wi l l cont i nue t hen.

13 Mr . Dur al de, i f you' l l j ust have a seat .

14 You' r e st i l l under oat h. Mr . Lesl i e?

15 MR. LESLI E: Thank you, your Honor .

16 CROSS- EXAMI NATI ON

17 ( Resumed)

18 BY MR. LESLI E:

19 Q And is it Officer Duralde or Duralde?

20 A Dur al de.

21 Q Okay. I apologize.

22 Officer, during the lunch break, did you have

23 any communication about the substance of the facts of

24 this case and your testimony with anyone?


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1 A No.

2 Q Okay.

3 And you did not do that with any witnesses?

4 A No.

5 Q And you did not do that with the D A?

6 A No.

7 Q Okay.

8 So I think when we broke for lunch, I

9 believed we had established that when you arrived on

10 scene, you saw the man that you have identified as Mr.

11 Coughlin sitting on a railing in a seated position

12 surrounded by several young people, some standing,

13 some sitting, some as close or six to 10 inches and

14 that they were visibly upset with him; is that a fair

15 summary of the setting as you arrived on scene?

16 A Yes.

17 Q And so as you arrived there, is it fair to

18 say that you concluded, upon seeing what you've

19 described, that whatever exchange had been going on

20 between the youths and Mr. Coughlin had been going on

21 for sometime prior to your arrival?

22 A Yes.

23 Q You don't know how long but for some period

24 before your arrival, this situation you've described


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1 had been going on?

2 A Yes.

3 Q Okay.

4 Of the 8 to 10 youths or young persons that

5 you've described, can you approximate how many were

6 male and how many were female?

7 A I woul d guess, f r om my r ecol l ect i on, t her e

8 wer e at l east t hr ee f emal es t her e, t hat ' s t he best

9 guess I can gi ve.

10 Q Okay.

11 And I did ask for an estimate. So the

12 remainder of the 8 to 12 individuals were male?

13 A Yes.

14 Q Mr. Coughlin -- when you first arrived and

15 saw this scene that we're talking about, Mr. Coughlin

16 was wearing shorts?

17 A Yes.

18 Q Not long pants; correct?

19 A Yes, cor r ect .

20 Q He had with him -- did he have with him any

21 animals?

22 A Yes, I r ecal l a dog.

23 Q A small dog?

24 A Yes.


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1 Q On a leash?

2 A I don' t r ecal l i f i t was on a l eash or not .

3 Q Was the dog displaying any viciousness

4 towards any of the individuals that were surrounding

5 Mr. Coughlin?

6 A Not t hat I r ecal l .

7 Q And Mr. Coughlin was wearing a shirt?

8 A Yes.

9 Q Was it a long-sleeve shirt or short-sleeve?


11 Q Was it a collared shirt or more of a T-shirt

12 style shirt?

13 A T- shi r t .

14 Q Okay.

15 Pockets on the shirt?


17 Q Did Mr. Coughlin visibly have in his hands

18 any kind of weapon?

19 A No.

20 Q Did he visibly have in his hands any item or

21 article which you believed could be used as a weapon?

22 A The onl y i t em I r emember t hat Mr . Coughl i n

23 had was a bi ke whi ch coul d be used as a weapon but

24 t hat ' s a st r et ch.


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1 Q And can we agree that that would be a stretch

2 in this case? You don't seriously testify here today

3 that that bike was being used as a weapon?

4 A No.

5 Q And you didn't -- back at the time of your

6 contact with him on the night in question, you did not

7 really think that you were at risk of being attacked

8 by the bicycle?

9 A No.

10 Q Okay.

11 So excluding the bicycle then, he did not

12 have visibly in his possession, as you arrived on

13 scene, any article or weapon that could be used

14 against you?

15 A No.

16 Q If I heard you correctly on your direct

17 testimony, you testified that there were a number of

18 streetlights in the area?

19 A Yes.

20 Q And so the lighting was reasonably good?

21 A Yes.

22 Q Okay.

23 When you first had contact with Mr. Coughlin,

24 can you point to any specific facts, not just your


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1 experience, but specific facts about the scene there

2 when you first had contact with him that made you

3 think that he was going to flea?

4 A No.

5 Q Okay.

6 And in fact, if he had fled and if he wanted

7 to retain his bicycle and his dog, he would have fled

8 with them presumably?

9 A I have no i dea.

10 Q I guess the point I'm trying to make is he

11 had with him a dog and a bicycle, when you first had

12 contact with him?

13 A Yes.

14 Q Okay.

15 Now, you've been trained in temporary

16 detention of individuals?

17 A Yes.

18 Q Would it be fair to say that once you put

19 your hands on a citizen, when you as an officer put

20 your hands on a citizen to conduct a pat-down, you are

21 detaining them?

22 A Yes.

23 Q Now, that evening as you had contact with Mr.

24 Coughlin, you were in uniform?


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1 A Yes.

2 Q And did you have a weapons belt?

3 A Yes.

4 Q And you had a sidearm on your weapon belt?

5 A Yes.

6 Q And was that in plain view?

7 A Yes.

8 Q And did you arrive in a police car?

9 A Yes.

10 Q And was that police car parked within visible

11 distance from where Mr. Coughlin was, when he was

12 sitting on the rail with the youths?

13 A Yes.

14 Q And during your contact with Mr. Coughlin,

15 did additional officers arrive?

16 A Yes.

17 Q And were you the first on-site?

18 A Yes.

19 Q And then how many additional officers

20 arrived?

21 A Two.

22 Q Did they arrive by separate vehicle?

23 A Yes.

24 Q And did they arrive in the same vehicle or


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1 two additional vehicles?

2 A Two addi t i onal vehi cl es.

3 Q And had all three officers with all three

4 police vehicles arrived, as of the time that you

5 patted Mr. Coughlin down?

6 A I onl y r ecal l one ot her of f i cer bei ng t her e

7 at t he t i me t hat I conduct ed t he pat - down.

8 Q So there were at least two officers and two

9 police cars on scene at the time you patted him down?

10 A Yes.

11 Q And he was certainly, in your mind, detained

12 at that point?

13 A Yes.

14 Q Was he, in your mind, detained prior to you

15 actually patting him for weapons?

16 A I f he had t r i ed t o l eave, I woul d say he

17 wasn' t f r ee t o.

18 Q Okay.

19 Now, if I heard you correctly and I want to

20 go through this. From the direct examination, I

21 understood that the basis or the reason for the

22 pat-down was a few things. He had on loose clothing;

23 is that correct?

24 A Yes.


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1 Q His demeanor?

2 A Yes.

3 Q And his lack of cooperation in answering some

4 questions?

5 A Yes.

6 Q Okay.

7 His demeanor -- by demeanor, you mean that he

8 was uncooperative and I think you used the word

9 "confrontational?"

10 A Yes.

11 Q Was he annoying you?

12 MR. LESLI E: Your Honor , I ' d l i ke t he r ecor d

13 t o r ef l ect i t ' s been pr obabl y a mi nut e si nce I asked

14 t he quest i on of whet her Mr . Coughl i n was annoyi ng.

15 The of f i cer hasn' t answer ed.

16 THE COURT: I wi l l st i l l al l ow hi m because

17 t her e was a di st r act i on i n t he cour t r oom dur i ng t hat

18 t i me.

19 THE WI TNESS: I apol ogi ze, your Honor .

20 BY MR. LESLI E:

21 Q And officer, I'm not asking you to think as

22 much as I'm asking do you recall whether or not he was

23 annoying?

24 A Annoyi ng i s not t he wor d t hat I woul d use


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1 commonl y.

2 Q What word would you use?

3 A I r ecal l bei ng f r ust r at ed.

4 Q And maybe that's a better way of putting it.

5 THE COURT: Wai t , wai t , who was f r ust r at ed,

6 you?

7 THE WI TNESS: I was f r ust r ated.

8 THE COURT: Okay.

9 BY MR. LESLI E:

10 Q Maybe that's a better way to ask instead of

11 asking you to characterize him.

12 Let's talk about your feelings about the

13 encounter, what was frustrating?

14 A When I woul d ask - -

15 MR. YOUNG: You honor , I ' m goi ng t o obj ect as

16 f ar as r el evance. I ' m not sur e whet her or not Of f i cer

17 Dur al de i s f r ust r at ed or what hi s f eel i ngs ar e have

18 any bear i ng on t he r easonabl eness of t he pat - down

19 whi ch i s at i ssue her e. The st op i t sel f i s not

20 chal l enged by t he def ense, i t ' s si mpl y t he pat - down of

21 t he subsequent sear ch. So I ' m not sur e how t hat has

22 any bear i ng.

23 THE COURT: Wel l , I t hi nk t he of f i cer ' s

24 per cept i on t hat l ed t o t he pat - down i s cl ear l y


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1 before you conducted the pat-down?

2 A Yes.

3 Q Court's indulgence.

4 At one point, do you recall saying that you

5 were busy or that it was a busy night? In your

6 exchange with Mr. Coughlin, you said something to the

7 effect of, "We're busy, answer the question." Do you

8 recall that?

9 A I don' t r ecal l t hat .

10 Q Do you dispute that?


12 Q Were you busy that night?


14 Q With regard to once you put your hands on Mr.

15 Coughlin, I heard you say on direct testimony that you

16 felt no weapons; is that an accurate statement?

17 A Yes.

18 Q Now, at some point during the encounter, you

19 indicated that you spoke to two other individuals

20 named Mr. Goble and Mr. Zarate?

21 A Yes.

22 Q And is that after the initial pat-down?

23 A Yes.

24 Q Why did you ask them for their input?


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1 A Because I ' m not sur e who cal l ed, but Mr .

2 Gobl e was i dent i f i ed t o me as t he vi ct i m.

3 Q And do you recall that one of those two

4 gentlemen told you that Mr. Coughlin had allegedly

5 taken the phone but one -- but that the other

6 gentleman told you that some other third party had

7 taken the phone and threatened or said that he was

8 going to throw it in the river?

9 A I don' t r ecal l t hat .

10 Q Do you recall that from your investigation in

11 this case?

12 A No.

13 Q Other than what you've testified to here

14 today, back at the time did you have any reason to

15 believe that Mr. Coughlin was actually armed with a

16 dangerous weapon?

17 A No.

18 Q Other than what you've testified to here

19 today, back at the time of the contact, did you have

20 any other reason to believe that he was a threat to

21 the safety of you as an officer or any other officer,

22 up to and including the time that you patted him down

23 for weapons?

24 A No.


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1 Q During your encounter with Mr. Coughlin at

2 the initial stages, did he in fact identify himself by

3 name? In fact, at one point, he even gave his Bar

4 number?

5 A I r ecal l hi m sayi ng he was a l awyer and

6 gi vi ng hi s Bar number .

7 Q Okay.

8 And was that before or after the time that

9 you patted him down for weapons?

10 A I coul dn' t say f or sur e but I bel i eve i t was

11 bef or e.

12 Q Okay.

13 That would be your best recollection?

14 A Yes.

15 Q Nothing further.

16 MR. YOUNG: I have a f ew quest i ons, your

17 Honor .

18 THE COURT: Yes.

19 REDI RECT EXAMI NATI ON

20 BY MR. YOUNG:

21 Q Mr. Leslie asked you or do you recall Mr.

22 Leslie asking you that once dispatch advised of an

23 update that it was a potential larceny, he asked

24 something along the lines of would that alleviate any


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1 concern for threats or violence or weapons? I know

2 I'm misstating his exact words but something along

3 those lines; do you recall that question?

4 A Yes.

5 Q And do you recall your response was and I

6 wrote this down quote-unquote "could be." Do you

7 recall that response?

8 A I don' t r ecal l t he r esponse exact l y.

9 Q Okay.

10 A Many t i mes we' l l get i nf or mat i on f r om

11 di spat ch t hat ' s i naccur at e or mi xed. As pol i ce

12 of f i cer s, we have t o keep our guard up or what ever

13 l i ke.

14 Q Okay.

15 And in this case, you had been receiving --

16 the larceny was an additional information that you

17 received from the first report?

18 A Yes.

19 Q Okay.

20 This group of I'll call them youths because

21 that's what Mr. Leslie uses and I think that's

22 accurate, you testified that they were more or less

23 surrounding Mr. Coughlin and at some point at least

24 some of them appeared to be agitated?


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1 A Yes.

2 Q And that -- were they pointing out to the

3 defendant and saying he was the subject of the call or

4 how did you determine that -- to focus your inquiry on

5 Mr. Coughlin?

6 A At f i r st , I not i ced hi s cl ot hi ng mat ched t he

7 descr i pt i on gi ven ear l i er by di spat ch. I r ecal l

8 someone poi nt i ng hi m out al so.

9 Q Okay.

10 Can you estimate -- and I know it was

11 sometime ago but can you estimate how much time passed

12 from the point that you arrived on scene until the

13 point you did the pat-down?

14 A I woul d say appr oxi mat el y t wo mi nut es.

15 Q Okay.

16 And had you had -- you hadn't had any prior

17 dealings with any of the individuals on scene before,

18 had you?

19 A No.

20 Q And you testified that you were in police

21 uniform?

22 A Yes.

23 Q Did that consist of either badge or the words

24 "Police" written out in some fashion?


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1 or short and that's not the kind of pocket that we

2 have here; is that correct?

3 A That ' s cor r ect .

4 Q These were the kind where you -- I guess

5 maybe for demonstrative purposes, the pants I'm

6 wearing do not have cargo pants on the pants, do they?

7 A No, t hey don' t .

8 Q They have the kind where it's just a slit and

9 then the bag of the pant or the bag of the pocket

10 itself is on the inside of the pant leg?

11 A Yes.

12 Q Okay.

13 And that's the kind of pocket that Mr.

14 Coughlin had on his shorts that time?

15 A Yes.

16 Q Okay. Thank you. May I just have a moment

17 more?

18 The alleged offense of allegedly taking the

19 phone in question was not committed within your

20 presence, was it?

21 A No.

22 Q You were not a direct witness to that?

23 A No.

24 Q Okay.


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1 And the hour of the day that you arrived on

2 scene again was what, approximately?

3 A I r ecal l i t bei ng bet ween - - anywher e bet ween

4 11: 00 and 12: 00 P. M. at ni ght .

5 Q Okay.

6 So certainly after the hour of 7:00 P.M.?

7 A Yes.

8 Q Very well.

9 Thank you, your Honor. I have no further

10 questions.

11 MR. YOUNG: I do have t wo, your Honor .

12 REDI RECT EXAMI NATI ON

13 BY MR. YOUNG:

14 Q The baggie clothes or well, the loose

15 fitting, I can't remember the exact words but the

16 shorts?

17 A Yes.

18 Q Were they such that a weapon could be

19 concealed?

20 A Yes.

21 Q Okay.

22 They weren't so skin tight that you could

23 take a look and obviously know there's nothing in the

24 pockets?


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1 A No.

2 Q Okay.

3 MR. LESLI E: I have a f ol l ow up t o t hat .

4 MR. YOUNG: I have one mor e quest i on.

5 MR. LESLI E: Oh, I ' m sor r y.

6 BY MR. YOUNG:

7 Q Mr. Leslie was just asking you the alleged

8 taking of the phone was not done in your presence; do

9 you recall that question just a couple of questions

10 ago and you said "No?"

11 A Yes.

12 Q Mr. Did Mr. Coughlin hand you, on his own

13 volition, the phone that was taken from his left front

14 shorts pocket?

15 A No.

16 Q You took that from his pocket after you

17 arrested him and were conducting a search incident to

18 arrest?

19 A Yes.

20 Q So while you were present, he was still in

21 possession of this phone in his left front pocket?

22 A Yes.

23 MR. LESLI E: Obj ect i on.

24 THE COURT: Obj ect i on t o what ?


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1 MR. LESLI E: An i mpr oper concl usi on.

2 THE COURT: What ' s t he obj ect i on t o t he

3 quest i on?

4 MR. LESLI E: Wel l , he r an t he wi t ness t hr ough

5 a ser i es of quest i ons and t hen asked t he wor ds at t he

6 end so and asked t he wi t ness t o concl ude and I t hi nk

7 t hat was an i mpr oper concl usi on under t he

8 ci r cumst ances.

9 MR. YOUNG: I ' m not aski ng anythi ng wi t h

10 r espect t o t he st ol en nat ur e. I ' m j ust aski ng i f - -

11 al l I ' m aski ng i s whi l e Of f i cer Dur al de was on scene

12 deal i ng di r ect l y wi t h Mr . Coughl i n, was t hi s phone

13 t hat he ul t i mat el y r ecover ed f r om hi s pocket st i l l i n

14 Mr . Coughl i n' s pocket , t hat ' s al l I ' m aski ng?

15 MR. LESLI E: You sai d whi l e he was on scene,

16 t hat ' s aski ng f or a concl usi on as t o an i ndef i ni t e

17 dur at i on of t i me per i od and aski ng hi m t o concl ude

18 t hat Mr . Coughl i n had possessi on of somet hi ng t hat was

19 di sput ed.

20 THE COURT: Coul d you narr ow i t down?

21 MR. YOUNG: Maybe I coul d r ephrase t he

22 quest i on.

23 BY MR. YOUNG:

24 Q But from the point that you arrived on scene


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1 and made contact with Mr. Coughlin, did you see

2 anybody place that phone or Mr. Coughlin place that

3 phone into his pocket?

4 A No.

5 Q Okay.

6 And you've already testified that upon your

7 arrest of Mr. Coughlin, you removed a phone which is

8 the subject of this Suppression Hearing from his

9 pocket?

10 A Yes.

11 Q Okay, good enough?

12 THE COURT: That ' s f i ne.

13 MR. LESLI E: I have no f ur t her quest i ons.

14 MR. YOUNG: I have no f ur t her quest i ons.

15 THE COURT: You may st ep down. Do you have

16 any ot her wi t nesses?

17 MR. YOUNG: Your Honor , f or t he Mot i on t o

18 Suppr ess, no, t he St at e has no f ur t her evi dence.


20 I s t her e any obj ect i on t o t he of f i cer

21 l eavi ng - -

22 MR. LESLI E: I ' d l i ke t o consul t wi t h my

23 cl i ent f or j ust a moment , your Honor .

24 THE COURT: Why don' t you have a seat unt i l


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1 we f i nd out .

2 MR. LESLI E: Your Honor , I ' ve t aken t he

3 oppor t uni t y over t he l ast f ew mi nut es, I apol ogi ze f or

4 t he del ay. I was consul t i ng wi t h Mr . Coughl i n. We

5 don' t have any wi t nesses, and he i s not el ect i ng t o

6 t est i f y at t he Suppr essi on Hear i ng at t hi s t i me.


8 Let ' s see, si nce i t ' s your mot i on, do you

9 wi sh t o go f i r st ?

10 MR. YOUNG: Your Honor , i n r esponse t o your

11 ear l i er quest i on, I cer t ai nl y have no pr obl em wi t h

12 Of f i cer Dur al de bei ng i n here dur i ng argument s but

13 I ' l l def er t o Mr . Lesl i e.

14 MR. LESLI E: You know, i t ' s not t est i moni al

15 i n nat ur e, i t i s ar gument . I honest l y can' t t hi nk of

16 a reason t o bar hi m but I don' t know why he needs t o

17 be pr esent so I ' l l def er t o t he cour t ' s best j udgment .


19 Wel l , si nce t her e i s a r ul e of excl usi on i n

20 ef f ect , I wi l l ask hi m t o wai t out s i de unt i l t hi s i s

21 compl et e because t here may be some ar gument t hat i s

22 made i f I r ul e agai nst t he mot i on t hat coul d i mpact

23 your t est i mony at t r i al .

24 MR. LESLI E: Wel l , your Honor , I t hi nk t hat


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1 Mr . Goodni ght act ual l y di d a good j ob of set t i ng f or t h

2 t he appl i cabl e l aw and f r ami ng t he i ssues i n t he

3 wr i t t en Mot i on t o Suppr ess and t he f act s t hat wer e set

4 f or t h i n t her e. I know you deci de t he f act s based on

5 t he hear i ng her e. I t appear s t her e' s a pr et t y hi gh

6 degr ee of consi st ency bet ween what he wr ot e i n t he

7 mot i on and what we' ve heard t oday.

8 I f I may summar i ze, I t hi nk t he i mpor t ant

9 f act s ar e as f ol l ows: The of f i cer i s di spat ched t o

10 somet hi ng t hat by hi s t est i mony i ni t i al l y i s descr i bed

11 by di spat ch as a di st ur bance or possi bl e f i ght but

12 bef or e t he of f i cer ar r i ves, he' s updat ed by di spat ch

13 and i t ' s i ndi cat ed t hat i t ' s a l ar ceny. Now, I ' m not

14 ar gui ng some ki nd of suppl ant i ng of t he i nf or mat i on

15 but I am poi nt i ng t o t he f act t hat t hat cl ar i f i cat i on

16 changes i t f r om a f i ght i ssue t o a l ar ceny i ssue.

17 When t he of f i cer ar r i ves on scene, he sees

18 what he descr i bes as a l ar ge of gr oup of peopl e and

19 i t ' s t hese yout hs or young adul t s t hat we' ve t al ked

20 about and some mi d- t eens. I t hi nk we' ve descr i bed

21 t hem i n var i ous t er ms. They ar e si t t i ng i n cl ose

22 pr oxi mi t y to and st andi ng i n cl ose pr oxi mi t y t o and

23 accor di ng t o t he of f i cer , sur r oundi ng and emot i onal l y

24 agi t at ed or upset wi t h Mr . Coughl i n who i s i n a seat ed


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1 by demeanor , what he' s r eal l y t al ki ng about i s t he

2 of f i cer became f r ust r at ed t hat Mr . Coughl i n was f i r i ng

3 back wi t h some r het or i cal quest i ons or wi t h - - t hat ' s

4 pr obabl y not a r i ght phr aseol ogy. He was aski ng i f

5 t he of f i cer had aut hor i t y t o ask t hose quest i ons and

6 because Mr . Coughl i n had l oose cl ot hes, t hat ' s i t .

7 We' ve ci t ed t he st at ut e and some case l aw i n

8 t he mot i on, i t says t hat an of f i cer , under 172. 1232,

9 can' t conduct such a search, cannot put hi s hands on a

10 ci t i zen and f eel t hei r body f or any pur pose ot her t han

11 he r easonabl y bel i eves t hat t wo t hi ngs are occur r i ng.

12 Number one, t hat Mr . Coughl i n was ar med wi t h a

13 dangerous weapon and number t wo, t hat Mr . Coughl i n i s

14 a t hr eat t o t he saf et y of t he of f i cer or anot her

15 of f i cer .

16 The of f i cer t est i f i ed t hat i n addi t i on t o

17 what he' s t est i f i ed her e t oday, t her e' s no ot her

18 evi dence t hat he had i n hi s mi nd back at t he t i me to

19 t hi nk Mr . Coughl i n ei t her had a dangerous weapon or

20 was some ki nd of t hr eat t o t he saf et y of t he of f i cer s.

21 Mr . Coughl i n coul dn' t have f l ed, and t he of f i cer

22 di dn' t t hi nk t hat he was a f l i ght r i sk.

23 Al l we have i n t hi s case i s r espondi ng t o an

24 of f i cer ' s quest i on wi t h a quest i on but r emember t hat


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1 Subsect i on 3 of 171. 123 wi t h r egar d t o detent i on and

2 t hat ' s a separ at e i ssue t han t he pat - down of t he

3 det ai nee but under t he - -

4 THE COURT: Let me get t o t he second par t

5 t hough because I underst and your argument t hat he had

6 no r i ght t o pat hi m down. The second par t says

7 not hi ng sei zed by t he of f i cer i n any such sear ch i s

8 admi ssi bl e i n any pr oceedi ng unl ess t he sear ch was

9 di scl osed - - i naudi bl e. What i s i t t hat i s ceased as

10 a resul t of a pat down?

11 As I under st ood t he t est i mony, sei zur e was as

12 a r esul t of t he sear ch i nci dent ar r est ?

13 MR. LESLI E: No, I don' t vi ew i t t hat way

14 because t he way I vi ew i t , t he way we vi ew i t i s t hat

15 you have r eal l y at l east t hr ee st ages, t he i ni t i al

16 detent i on, t he pat - down f or weapons and t hen t he

17 sear ch i nci dent t o ar r est .

18 Was t he i ni t i al det ent i on r easonabl e such

19 t hat t he of f i cer coul d quest i on Mr . Coughl i n, obt ai n

20 hi s i dent i f i cat i on and ask hi m quest i ons, and Mr .

21 Coughl i n coul d choose t o answer or not , t hat i s under

22 NRS- 171. 123. Mr . Coughl i n had ever y r i ght t o not

23 answer t he quest i ons of t he of f i cer - -

24 THE COURT: Wel l , I don' t t hi nk he di d answer


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1 t hem.

2 MR. LESLI E: Okay but not answer i ng a

3 quest i on and t her eby emot i onal l y f r ust r at i ng t he

4 of f i cer , does not j ust i f y a subsequent Ter r y sear ch

5 pat - down f or weapons. Any pat - down f or weapons has to

6 be i ndependent l y j ust i f i ed by a r easonabl e bel i ef by

7 t he of f i cer t hat t he subj ect i s armed wi t h a danger ous

8 weapon and i s a thr eat t o t he of f i cer .

9 Thi s of f i cer cannot poi nt t o a si ngl e f act

10 t hat j ust i f i es t hat pat - down. We' r e seeki ng t o

11 suppr ess at t hat poi nt of t he pat - down t he i Phone and

12 al l t est i mony r el at ed t o t he i Phone. The f act t hat

13 subsequent l y pur suant t o a sear ch i nci dent t o ar r est ,

14 t he phone was t aken out of Mr . Coughl i n' s pocket i s

15 i r r el evant . I f we wi n on t he pat - down, you never get

16 t o t he sear ch i nci dent . The phone st ays out . The

17 t est i mony of t he ar r est and t he pul l i ng t he phone out

18 of t he - -

19 THE COURT: That ' s why I ' m aski ng because

20 l et ' s say you wi pe out t he pat - down, you' r e sayi ng

21 t hat t he ar r est was based on t he pat - down?

22 I mean, someone had al r eady t ol d t he of f i cer

23 t hat t he def endant had hi s phone?

24 MR. LESLI E: No. As I under st and i t , t hat


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1 happened af t er t he pat - down. I asked t he of f i cer on

2 cr oss- exami nat i on, "You i ndi cat ed you spoke t o Mr .

3 Gobl e and Mr . Zar at e and got t hei r i nput , t hat was

4 af t er t he pat - down. I t hi nk t hat ' s i mpor t ant .

5 So t he of f i cer t hen - - r emember he sai d he

6 f el t no weapons but we had t o cor r ect hi m. He want ed

7 t o say or i gi nal l y, "I f el t a phone. " You pr oper l y

8 sust ai ned t he obj ect i on but i t was because of t hat

9 knowl edge, now i t ' s excl udabl e i n cour t but t he

10 of f i cer t est i f i ed he t hought i t was a phone. So he

11 pat s hi m down, t hi nks he f eel s a phone. Doesn' t f i nd

12 any weapons. Can' t poi nt t o a si ngl e ar t i cul abl e

13 fact .

14 THE COURT: Wel l , I know you obj ect ed about

15 hi m f eel i ng a phone but t hen on t he second pocket , you

16 di dn' t obj ect when he t est i f i ed - - ( i naudi bl e) whi ch

17 was appr oxi matel y a quar t er i nch t hi ck and whatever i t

18 was whi ch he bel i eved to be a phone.

19 MR. LESLI E: I bel i eve I obj ect ed as t o any

20 concl usi on as t o what he f el t was a phone.

21 THE COURT: Wel l , I t hi nk t here was t est i mony

22 t wo di f f er ent t i mes; di d I mi sunder st and t hat because

23 you obj ect ed st r enuousl y?

24 MR. LESLI E: I don' t t hi nk t hat I ' ve ever


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1 obj ect ed st r enuousl y, but I cer t ai nl y t r y not t o

2 st r oke mysel f out .

3 THE COURT: You obj ect ed.

4 MR. LESLI E: Thank you.

5 THE COURT: And I sust ai ned your obj ect i on

6 whi ch I t hought was done at t he r i ght pocket and t hen

7 t hat was subsequent t o pat - down on t he l ef t si de and

8 t hat ' s wher e he f ound t he - - ( i naudi bl e. ) When I

9 asked hi m t o descr i be what he f el t i n t he r i ght

10 pocket , he sai d he di dn' t r emember . He coul dn' t

11 descr i be i t .

12 MR. LESLI E: Wel l , I had t wo r esponses.

13 Number one, I bel i eve I obj ect ed t o any i mpr oper

14 concl usi ons about what he f el t . He coul d onl y

15 descr i be t he - -

16 THE COURT: Wel l , i t di d come i n on t he

17 r ect angul ar - shaped obj ect , al t hough I don' t r ecal l an

18 obj ect i on at t hat t i me t hat he bel i eved i t t o be a

19 phone.

20 But i n any event , you' r e ar gui ng r i ght now

21 t hat he di d poi nt ?

22 MR. LESLI E: I ' m ar gui ng t hat t he of f i cer had

23 no j ust i f i cat i on under f eder al t er r y l aw or under

24 speci f i cal l y NRS 171. 1232 t o put hi s hands on Mr .


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1 Coughl i n t o ascer t ai n whet her Mr . Coughl i n had a

2 weapon because t he of f i cer cannot ar t i cul at e a

3 r easonabl e basi s t o bel i eve, at t he t i me, t hat Mr .

4 Coughl i n was ar med wi t h a danger ous weapon and a

5 t hr eat t o t he saf et y of t he of f i cer .

6 THE COURT: And t hat ' s 171. 1232?

7 MR. LESLI E: Yes and i t ' s Subsect i on 1 of

8 t hat . Then as you cor r ect l y poi nt ed out under

9 Subsect i on 2, an unl awf ul sei zur e of t he phone

10 excl udes t hat phone and by t he doct r i ne of t he f r ui t

11 of t he poi sonous t r ee, we can' t hear t est i mony about

12 t he phone.

13 THE COURT: Okay. Anyt hi ng el se?

14 MR. LESLI E: Wel l , your Honor , t her e ar e a

15 number of ot her ar gument s cont ai ned i n t he wr i t t en

16 mot i on. I t hi nk - - i f I may sor t of move backwar ds

17 and ar gue t hose addi t i onal poi nt s, f or exampl e - -

18 cour t ' s i ndul gence.

19 I t hi nk most of t he argument we' ve addr essed

20 so f ar has been wi t h regar d to t he ar gument begi nni ng

21 on page 3 of our wr i t t en mot i on wi t h r egar d t o t he

22 ar med and danger ous pat - down. Addi t i onal l y - - cour t ' s

23 i ndul gence. Addi t i onal l y, your Honor , we' ve submi t t ed

24 some poi nt s and aut hor i t i es begi nni ng at page 6 wi t h


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1 r egar d t o t he t ouchi ng of t he phone f r om t he out si de.

2 We' ve al so ar gued at page 7 wi t h r egar d t o t he pl ai n

3 f i el d doct r i ne and wi t h r egar d i n our r epl y br i ef . I

4 t hi nk t hat t hose i ssues have been adequat el y pr eser ved

5 i n t he mot i on and r epl y.

6 The mai n i mport of our mot i on here t oday i s

7 t hat t he of f i cer was unj ust i f i ed i n pat t i ng Mr .

8 Coughl i n down f or weapons under ei t her Ter r y versus

9 Ohi o or t he mor e speci f i c Nevada st at ut es we' ve ci t ed

10 and t al ked about . The ot her i ssues ar e moot ed i f you

11 r ul e i n our f avor on t he mai n argument because

12 ever yt hi ng el se f ol l ows subsequent l y t o t hat .

13 Ther e' s no - - t her e' s r eal l y no f aul t of

14 anyone her e, i t ' s j ust t hat t he St at e hasn' t

15 necessar i l y done anyt hi ng wr ong. The of f i cer di dn' t

16 do anyt hi ng wr ong, i t ' s j ust t hat t he St at e cannot

17 show you t hr ough t he t est i mony of t he ver y of f i cer

18 t hat conduct ed t he pat - down sear ch, cannot show you

19 t he f act s and t he r easonabl eness of t hat pat - down, of

20 t hat ar med of f i cer put t i ng hi s hands on t he ci t i zen

21 when al l t he of f i cer can r eal l y poi nt t o i s t hat t he

22 def endant f r ust r at ed t he of f i cer , woul dn' t answer

23 quest i ons t hat t he def endant has no l egal obl i gat i on

24 t o answer and happened t o be wear i ng l oose cl ot hi ng.


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1 t est i f i ed t o, t hat he cuf f ed hi m i n r esponse t o Mr .

2 Coughl i n cl ai mi ng or asser t i ng t hat t he of f i cer had

3 t ouched hi m i n a way t hat was obj ect i onabl e by Mr .

4 Coughl i n.

5 THE COURT: But i f he act ual l y has t o see i t

6 or say I actual l y f ound a weapon.

7 MR. LESLI E: I ' m not sayi ng ei t her of t hose.

8 What I ' m sayi ng i s t hat i n t hi s case, we don' t have an

9 of f i cer sayi ng he saw a weapon or any i ndi cat i on of

10 weapon. Ther e' s no decl ar at i on by t he def endant t hat

11 woul d i ndi cat e he mi ght have a weapon. I ' m sayi ng

12 t hat you don' t have t hose f act s i n t hi s case. I ' m not

13 sayi ng t hat t he of f i cer s ar e const r ai ned and f or bi dden

14 f r om doi ng a pat - down, t hat t hey ar e al l owed t o do

15 t hat onl y i f t hey can act ual l y see a weapon. That ' s

16 not t he l aw.

17 But t her e' s not hi ng about any of t he f act s

18 t hat t he of f i cer t est i f i ed t o t hat speci f i cal l y gi ves

19 hi m cause t o put hi s hands on Mr . Coughl i n and pat hi m

20 down f or weapons. The onl y t hi ng an of f i cer can say

21 i s, "He woul dn' t answer my quest i ons. I was

22 f r ust r at ed. He had pant s t hat wer e not ski n t i ght , "

23 t hat ' s i t , r eal l y, t hat ' s not suf f i ci ent cause f or an

24 of f i cer t o put hi s hands on a ci t i zen.


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2 MR. YOUNG: Your Honor , I ' l l be br i ef .

3 The def endant i n hi s Mot i on f or Suppr essi on,

4 set s f or t h t hr ee ar gument s, t hat ' s what t he St at e

5 r esponded t o and t hat ' s what t he scope of t hi s hear i ng

6 i s about . You wer e aski ng about t he St ewar t case on

7 Page 4 of t he def endant ' s mot i on. The r eason t hat i s

8 di f f er ent t han t he basi s t o do a pat - down sear ch i s

9 because t hose are t wo separ at e st andar ds addr essi ng

10 t wo di f f er ent t hi ngs.

11 Ter r y and t hen t he accompanyi ng Nevada

12 st at ut es whi ch essent i al l y codi f y Ter r y 171. 123 and

13 171. 1232 addr ess two separ ate concerns. The f i r st

14 par t of t he Ter r y i s i s t her e a basi s t o even st op a

15 per son, det ai n a per son. The second - -

16 THE COURT: I don' t need t o wast e t i me on

17 that.

18 MR. YOUNG: Wel l , t hey don' t even address

19 t hat i n t hei r mot i on, and I put t hat i n a f oot not e i n

20 my opposi t i on, f oot not e thr ee sayi ng, "The def endant

21 does not cl ai m t hat hi s det ent i on i t sel f was i mpr oper

22 and as such, t he St at e does not addr ess such, " and

23 t her e' s no r esponse t o t hat i n t he r epl y.

24 So t her e i s - - t her e' s no i ssue wi t h t he

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8 29 12 0204 063341 2025 201 Page With Index Partial Transcript of Proceedings (1118 a.M.) - 180288bgb-Full