United States v. Nicholas J. McWeeney

Nicholas J. McWeeney appeals his conviction for violating 18 U.S.C. §§ 922 (g)(1), 924(a)(2) (being a felon in possession of a firearm). He assigns error to the denial of his motion to suppress. Because the district court did not make a finding with respect to coercion, we vacate the judgment of conviction and remand the case to the district court with instructions to conduct an evidentiary hearing consistent with this opinion.

I. Factual and Procedural Background

On December 2, 2002, Officer Andrew Walsh of the Las Vegas Metropolitan Police department noticed a white Pontiac Sunfire with no front license plate. Officer Walsh observed the rear license plate and checked it against the state computer, which indicated that the Sunfire had previously been stolen and returned to the owner. His suspicion aroused, Officer Walsh stopped the car, obtained identification from the occupants and determined that the driver was Jesus Lopez and the passenger was McWeeney.

The car was registered to McWeeney’s mother. McWeeney told Officer Walsh that he was using the car with his mother’s permission and that he allowed Lopez to drive because he was tired. Officer Walsh then asked McWeeney and…

dissenting in part:

I concur in the majority opinion in all respects except I dissent from the need for remand to determine whether coercion prevented McWeeney from exercising his right to withdraw his consent. McWeeney *1038 and Lopez were told by uniformed officers to face away from the car so that they could not see the search. When one of them peeked over his shoulder he was told in no uncertain terms to turn back. What more “coercion” was needed to prevent them from determining what was going on? To require the district court to consider a laundry list of factors is nonsensical. Any reasonable person would recognize that two punk kids ordered out of their car, by police officers, told to turn their backs while their car is searched are afraid to disobey authority. Accordingly I dissent from the remand.

454 F.3d 1030 UNITED STATES of America, Plaintiff-Appellee, v. Nicholas J. McWEENEY, Defendant-Appellant. No. 05-10349. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 6, 2006. Filed July 21, 2006. COPYRIGHT MATERIAL OMITTED Jason Carr, Assistant Federal Public Defender, Las Vegas, NV, for the defendant-appellant. Brian Quarles, Assistant United States Attorney, Las Vegas, NV, for the plaintiff-appellee. Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CR-03-00195-PMP. Before: GOODWIN, B. FLETCHER, and FISHER, Circuit Judges. GOODWIN, Circuit Judge: 1 Nicholas J. McWeeney appeals his conviction for violating 18 U.S.C. §§ 922 (g)(1), 924(a)(2) (being a felon in possession of a firearm). He assigns error to the denial of his motion to suppress. Because the district court did not make a finding with respect to coercion, we vacate the judgment of conviction and remand the case to the district court with instructions to conduct an evidentiary hearing consistent with this opinion. I. Factual and Procedural Background 2 On December 2, 2002, Officer Andrew Walsh of the Las Vegas…