United States of America v. DOMINIQUE KYLE JAMES SWAIN, AKA Dominique Swain

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOMINIQUE KYLE JAMES SWAIN,
AKA Dominique Swain,
Defendant-Appellant.
No. 20-30098
D.C. No.
3:19-cr-00088-SLG-DMS-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted August 3, 2021**
Anchorage, Alaska
Before: WARDLAW, MILLER, and BADE, Circuit Judges.
Dominique James Swain appeals the district court’s denial of his motion to
suppress evidence following his conditional guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Swain also appeals the district court’s denial of his request for an additional
evidentiary hearing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
1. The district court properly concluded that Officer Palmatier had
reasonable suspicion to initiate a traffic stop. “[T]he decision to stop an
automobile is reasonable where the police have probable cause to believe that a
traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996);
see also United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006) (“A
traffic violation alone is sufficient to establish reasonable suspicion.”). The district
court found that Officer Palmatier observed Swain driving with unlit headlights at
12:50 A.M.—a violation of local traffic laws that require the use of headlights
from a half-hour after sunset until a half-hour before sunrise. See Alaska Admin.
Code tit. 13 § 04.010(a)(1); Anchorage Mun. Code § 9.36.290.
Moreover, Officer Palmatier formed independent reasonable suspicion to
extend the stop to conduct a probation search. See United States v. Gorman, 859
F.3d 706, 715 (9th Cir. 2017) (“Police simply may not perform unrelated
investigations that prolong a stop unless they have ‘independent reasonable
suspicion justifying [the] prolongation.’” (alteration in original) (quoting United
States v. Evans, 786 F.3d 779, 787 (9th Cir. 2015))). When Officer Palmatier
asked Swain for his driver’s license, Swain represented that he did not have it with

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him, and he was unsure whether it was valid. Officer Palmatier returned to his
patrol car and ran a computer check that revealed Swain was driving with a
revoked license and that he was on probation. At this point, any extension of the
stop was justified because Officer Palmatier developed independent reasonable
suspicion of a probation violation due to Swain driving with a revoked license.
Even if Swain did not in fact have a revoked license, Officer Palmatier’s reliance
on the computer check’s results was reasonable, and suppression would not be
warranted. See Heien v. North Carolina, 574 U.S. 54, 61 (2014).
2. The district court did not abuse its discretion when it denied Swain’s
request for further evidentiary hearings. See United States v. McTiernan, 695 F.3d
882, 891 (9th Cir. 2012). Officer Palmatier’s observation that Swain’s headlights
were off was included in his police report. He also testified to that fact at the
evidentiary hearing. Swain even cross-examined Officer Palmatier on the issue.
Similarly, Swain had the opportunity to address the status of his license at the
evidentiary hearing but failed to do so. See United States v. Kimball, 975 F.2d
563, 568 (9th Cir. 1992) (stating that “where a defendant ‘fail[s] to present any
facts in rebuttal’ to the government’s evidence, there need be no new evidentiary
hearing” (alteration in original) (quoting United States v. Monaco, 852 F.2d 1143,
1149 (9th Cir. 1988))).
AFFIRMED.

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