Category: Search and Seizure

When can one person consent to the search of another person’s living space?

Posted on by Jeff Jaeger

Picture of police officer speaking to two children inside a home

Lastine v. State (Nev. Ct. App. – Aug. 30, 2018)

The Fourth Amendment to the United States Constitution and Article 1, Section 18 of the Nevada Constitution provide that the people possess an inviolable right against unreasonable searches and seizures. Under both provisions, warrantless searches are per se unreasonable subject to a few specific exceptions. One such exception is the consent of a third party who has authority over the premises or effects to be searched. The issues are 1) how does a person’s living arrangement within a third party’s residence affect that third party’s legal authority to consent to a search of the other person’s living space, and 2) can law enforcement officers rely upon the consent of a third party to search a room within a residence without asking about the living arrangements within that residence.

On Wednesday, January 7, 2016, Green’s vehicle was rear-ended by a truck while waiting at a traffic light on her drive home from work, and she suffered a whiplash injury. The driver of the truck drove away after striking Green’s car. Green and one witness told first responders they believed the driver was a man.

In the debris field on the road, a Nevada Highway Patrol trooper found a license plate that did not belong to Green’s car. The trooper ran the plate through dispatch and discovered the plate belonged to a truck registered to Andrew Lastine. Due to concurrent jurisdiction in the area, Washoe County Sheriffs Deputy Gamboa headed to the address listed on the truck’s registration.

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Is a telephonic search warrant containing a false statement valid?

Posted on by Jeff Jaeger

Crime scene with detective on a ceellphone

State vs. Sample (Gregory) (Nev. Supreme Ct. – Apr. 5, 2018)

Sample was arrested for driving under the influence of alcohol after failing a preliminary breath test (PBT). The results of the PBT were subsequently used to obtain a search warrant for an evidentiary blood draw. The district court suppressed the PBT results, concluding that they were obtained in violation of Sample’s Fourth Amendment rights, and also suppressed the evidentiary blood draw as the fruit of an illegal search. The State argued on appeal that the district court erred because Sample was under arrest at the time the PBT was administered, the PBT was a legal search incident to the arrest, and the blood evidence was legally obtained pursuant to the search warrant.

While on patrol one night, Deputy Swanson noticed a northbound vehicle cross over fog lines and double yellow lines, accelerate rapidly, cross into a southbound turn lane, and veer back into the northbound travel lane. Deputy Swanson first activated his overhead lights, and then activated his siren in an attempt to initiate a traffic stop. The vehicle did not stop and continued driving to Sample’s residence where it pulled into the driveway.

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Does Nevada law prohibit an out of state party from secretly recording their telephone conversation with someone in Nevada?

Posted on by Jeff Jaeger

Recording Phone Calls

Ditech Financial, LLC vs. Buckles (Nev. Supreme Ct. – Sep. 14, 2017)

NRS 200.620 prohibits a person from recording a telephone call unless both parties participating in the call consent to the recording. In response to a certified question submitted by the United States District Court for the District of Nevada, the Supreme Court of Nevada considered whether NRS 200.620 applies to telephone recordings made by a party outside Nevada who uses equipment outside Nevada to record telephone conversations with a person in Nevada without that person’s consent.

The original proceeding arose out of a class action suit brought by Sanford Buckles against Ditech Financial LLC in the United States District Court for the District of Nevada. Ditech, a Delaware limited liability company, is a home mortgage servicer that was headquartered in Minnesota at the time Buckles initiated the underlying litigation. Although Ditech is now headquartered in Florida, it has customer call centers equipped to record telephone calls in Arizona and Minnesota. Buckles is a Nevada resident whose home mortgage is serviced by Ditech. In his complaint, Buckles alleged Ditech violated NRS 200.620 by unlawfully recording certain telephone conversations without Buckles’s consent.

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Is the identification of a suspect handcuffed in front of a police car unnecessarily suggestive?

Posted on by Jeff Jaeger

Johnson v. State (Nev. Ct. App. – July 30, 2015)

Johnson was convicted of various criminal offenses following a trial, during which the jury was permitted to hear testimony regarding an out-of-court “show-up” identification and the victims identified him in court as the perpetrator of the offenses. In the show-up, Johnson was handcuffed, placed in front of a police car, and illuminated with a spotlight to be viewed by witnesses who then identified him as the perpetrator of the crimes.

The issue is whether the show-up was improperly conducted in violation of Johnson’s constitutional due process rights.

One evening, Raebel and Valdez were walking to a bar in downtown Las Vegas when they noticed two men, later identified as Johnson and his brother, Humes, following them. Raebel viewed the two men directly as they approached for about a second and a half while Valdez saw them through his peripheral vision for one second. Suspicious, Raebel moved her purse from her hip to the front of her body with both hands.

Without warning, Humes punched Valdez in the head, causing him to fall to the ground. At the same time, Johnson grabbed Raebel from behind, covering her mouth with one hand and gesturing with the other to indicate he was carrying a firearm. Johnson removed Raebel’s purse from her shoulder and pushed her to the ground. Raebel screamed as she fell and Johnson responded by punching her in the face. While both Raebel and Valdez lay helpless on the sidewalk, Humes demanded that Valdez give him everything and in response Valdez emptied his pockets, throwing his wallet and cell phone on the sidewalk. Valdez’ wallet was unique and easily identifiable because it was constructed entirely out of duct tape. Johnson and Humes then tried to escape by running southbound. Raebel was bruised and Valdez was bleeding from a gash in his forehead. The entire incident lasted about thirty seconds.

Within minutes, police officers from the Las Vegas Metropolitan Police Department (LVMPD) arrived at the scene. Raebel and Valdez told the police they were attacked by two black males about six feet tall, with one slightly taller than the other, and described their clothing and the direction in which they fled. Based upon those descriptions, the police issued a radio broadcast to search for two black males about six feet tall wearing dark pants and hoodies who ran southbound from the scene, with the taller male wearing a black hooded sweatshirt and the shorter of the males wearing a brown sweatshirt. The broadcast also alerted officers to look for a stolen purse, wallet, and other property.

A few moments later, patrolling officers saw Johnson and his brother emerge from an alley two or three blocks south of the crime scene and jaywalk diagonally across an intersection. The other end of the alley was a dead end blocked by a chain-link fence and shrubbery. According to the officers, Johnson was wearing a dark black sweatshirt with a hood on it and dark jeans, while his brother was wearing a black sweatshirt, but it was faded so it actually looked brown in the light and he was also wearing jeans. Deciding that the duo matched the description to a tee and suspicious as to what the two had been doing in a dead-end alley, the officers detained the men for questioning When they looked in the alley, the officers saw Raebel’s purse, car keys, some makeup containers, and Valdez’ unique duct tape wallet scattered on the ground. The officers handcuffed the two men and issued Miranda warnings to them. Officers later found Valdez’ cell phone in Humes’ pocket.

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Must a non-native English speaker be assisted by an interpreter during a police interrogation?

Posted on by Jeff Jaeger

Gonzales v. State (Nev. Ct. App. – July 2, 2015)

The issue is whether the district court erred in ruling that a defendant’s confession was admissible even though English was not his native language and he was not provided with the assistance of an interpreter during his police interrogation.

Michelle was in the garage of her home vacuuming her car while her 22-month-old daughter Abigail napped inside the house. Three people, a woman and two men, entered through the open garage door and accosted Michelle. The shorter of the two men, later identified as Gonzales, was wearing a mask and had the hood of his sweatshirt pulled over his head so that Michelle could not immediately see his face. Gonzales pointed a gun at Michelle and told her, “we want your guns, we want your money.” The woman motioned for Michelle to go inside the house, and she complied.

At gunpoint, Michelle led the trio to the master bedroom, where they ransacked the room in search of valuables. The trio asked Michelle where any guns and money were kept, but Michelle answered that she did not know because her husband had recently moved his guns in order to prevent Abigail from accidentally finding them. The woman responded by calling Michelle stupid for not knowing where anything was. Eventually, after searching the entire room, the perpetrators found a safe and forced Michelle to open it. The perpetrators then forced Michelle to hold laundry baskets for them to fill with items from the safe.

Michelle asked if she could go get Abigail, but the perpetrators refused. Following repeated and increasingly insistent requests by Michelle, Gonzales eventually gave permission and Michelle retrieved her daughter. At some point Gonzales and the female perpetrator split up to search other rooms of the house while the taller man stayed in the master bedroom with Michelle and Abigail. The taller man continued searching the master bedroom and eventually discovered a hidden firearm owned by Michelle’s husband.

After a few minutes, the woman called Michelle to another room, where Michelle watched her go through the drawers of a desk. Michelle asked the taller man why they were there, and he replied that they had been hired to “come get your guns and money.” The trio then scattered throughout the house in search of more valuables, leaving Michelle and Abigail alone. Michelle ran to a side door that she had previously left unlocked, but apparently had been locked by the perpetrators during the crime, unlocked it, and fled the house with Abigail to a neighbor’s residence where she called 9-1-1. Police officers arrived moments later and quickly located the woman and the taller man who had accompanied Gonzales. They also found a car parked in Michelle’s driveway in which documents bearing Gonzales’ name were later discovered.

While police officers worked to establish a perimeter around the house, Gonzales voluntarily approached a police detective parked on the street and spontaneously uttered, in English, “I was involved. It was me. I was involved.” He was immediately arrested and searched, and property belonging to Michelle and her husband was found on his person. After the search, Gonzales asked, again in English, to be placed into the police car rather than be left standing in the street, and officers complied. Gonzales remained seated in the police car for approximately one hour with one back door open and the air conditioner turned on while the police continued to investigate the scene.

Gonzales was then transported to police headquarters and interrogated by Detective Flynn. Prior to the interrogation, Detective Flynn administered warnings, in English, pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). In English, Gonzales stated that he understood his rights and agreed to be questioned. Flynn repeated the warnings again, in slightly different and less formal language, later during the questioning Gonzales, whose native language is Tagalog, never requested the assistance of an interpreter, and none was provided. The entire interrogation was conducted in English and tape-recorded. Gonzales subsequently confessed to the offenses in detail in English.

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Does Nevada’s wiretap law permit interception of cellular phone calls and text messages?

Posted on by Jeff Jaeger

Sharpe v. State (Nev. Supreme Ct. – June 4, 2015)

The issue is whether Nevada wiretap law allows for the interception of cellular telephone calls and SMS text messages. More specifically, whether NRS 179.460(1)’s mention of “wire or oral communications” includes cellular telephone calls and SMS text messages, considering that similar federal statutes were updated to include “electronic communications,” while NRS 179.460(1) was not.

In 2010, officers began investigating Sharpe after receiving information that he distributed methamphetamines. Approximately four months into their investigation, officers obtained a warrant authorizing a wiretap to intercept communications on two different cellular telephone numbers attributed to Sharpe. The wiretap resulted in the interception of both telephone calls and text messages. After collecting sufficient intelligence, officers obtained a search and seizure warrant for Sharpe’s residence and vehicles.

Four days after obtaining the search and seizure warrant, due to intelligence gathered from physical surveillance and the wiretap, officers anticipated that Sharpe intended to purchase a large quantity of methamphetamines. After observing the presumed drug deal, officers pulled Sharpe over and arrested him. During the arrest, officers confiscated approximately 3.25 pounds of methamphetamines from Sharpe’s vehicle. Almost simultaneously, officers executed the search and seizure warrant at Sharpe’s residence and confiscated small amounts of various drugs and drug paraphernalia.

Sharpe was charged with four drug-trafficking-related felonies. After pleading not guilty on all four counts, Sharpe filed a motion to compel further discovery, two motions to suppress evidence obtained from the wiretap, a motion to suppress evidence obtained from the search of his vehicle, and a motion for a Franks hearing. The district court denied all five motions.

Subsequently, Sharpe pleaded guilty to trafficking in a controlled substance, level III, based upon the 3.25 pounds of methamphetamines confiscated from his vehicle. Sharpe, however, reserved his right to appeal the denial of the aforementioned five motions. On October 18, 2013, the district court sentenced Sharpe to life imprisonment with the possibility of parole after serving 10 years, $235 in fees, and a $50,000 fine.

Although Sharpe raised a multitude of issues on appeal, the Nevada Supreme Court considered a specific issue originating from his second motion to suppress the wiretap. In that motion, Sharpe argued that the fruits of the wiretap should be suppressed because Nevada law does not allow for the interception of cellular communications.

The Nevada Supreme Court explained that in response to the United States Supreme Court’s decisions in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), Congress undertook to draft comprehensive legislation both authorizing the use of evidence obtained by electronic surveillance on specified conditions, and prohibiting its use otherwise. This legislative effort resulted in the enactment of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Title III allowed for the interception of both wire communications and oral communications as long as certain requirements were met.

The 1968 Senate Report on Title III states that: “[t] he proposed provision envisions that States would be free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation.” Accordingly, states were allowed to adopt their own wiretap laws, as long as they were at least as restrictive as federal legislation.

In 1968, Nevada law was already more restrictive than federal law. Eleven years earlier, the Nevada Legislature had enacted what is now NRS 200.650. At the time, NRS 200.650 prohibited a person from “surreptitiously listening to, monitoring or recording, or attempting to listen to, monitor or record,” i.e., eavesdrop, a private conversation via a device, unless authorized to do so by one of the persons engaged in the private conversation.

In 1973, the Nevada Legislature passed Senate Bill 262, which proved for Nevada’s wiretap statutes and introduced the two statutes at issue in this appeal, what are today NRS 179.455 and NRS 179.460.

The relevant portions of these Nevada statutes have remained the same since 1973. But federal wiretap law kept developing.

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Can a state condition access to public education upon a student’s consent to searches?

Posted on by Jeff Jaeger

In re L.A.W. (Nev. Supreme Ct. – May 07, 2015)

The issue is whether the State can condition a prospective minor student’s access to public education on that student’s waiver of his right to be free from unreasonable search and seizure under the Fourth Amendment of the Federal Constitution and Article 1, § 18 of Nevada’s Constitution.

Due to previous behavioral problems, L.W., a minor, was told he was being given a last chance to enroll in Legacy High School (Legacy), but only on a trial basis and on the condition that he sign a Behavior Contract. Among other conditions, the Behavior Contract stipulated that:

The following information lists the terms and conditions upon which L.W.’s enrollment in Legacy High School is based:

…

7. I realize that I am subject to random searches by school administration.

Both L.W. and his father signed the document.

The school’s administration decided to conduct a search of all its trial enrollees. During the search of L.W., a Legacy teacher found $129 and a large plastic bag, containing two smaller bags with an eight-ball imprinted on them, each holding a green, leafy substance. At the administration’s direction, a campus police officer conducted a field test of the substance in one of the smaller bags, which came back positive for marijuana. The officer advised L.W. of his Miranda rights and, after questioning him, placed the boy under arrest.

The State charged L.W. with possession of a controlled substance with intent to sell. At a contested hearing on the charges against him, L.W. objected to the admission of evidence resulting from the search in question, specifically, testimony by the searching teacher and the campus police officer describing the fruits of the search, including statements that L.W. allegedly made explaining how he came to be holding the cash and baggies. The Hearing Master declined to suppress on the grounds that L.W. had consented to the search via the Behavior Contract. Ultimately, the Hearing Master found that the green leafy substance was marijuana, that L.W. carried it with the intent to sell, and judged him guilty of the State’s charge. The district court affirmed the Hearing Master’s findings of fact, conclusions of law, and recommendations, and formally adjudicated L.W. a delinquent. L.W. appealed.

The Nevada Supreme Court explained that in many ways, public schools act in loco parentis, and school administrations are therefore granted certain authority, which permits a degree of supervision and control that could not be exercised over free adults. However, this authority is not carte blanche, and it could hardly be argued that students shed their constitutional rights at the schoolhouse gate. Thus, a warrant and suspicion-less search of a student, of the sort that the Legacy administration conducted upon L.W., was presumptively unreasonable, absent that student’s consent or other applicable exception, of which the State conceded there was none.

Courts of other jurisdictions have held that the State cannot condition access to public education on a prospective student’s renunciation of his or her right to be free from otherwise unconstitutional searches and seizures because, in light of the draconian result of a student’s failure to give consent, such clauses amount to contracts of adhesion and therefore lack the requisite earmarks of intelligence and voluntariness. But this reasoning does not pertain where a student seeks to pursue special activities beyond education because by choosing to go out for the team or to engage in other voluntary, nonathletic activities, such students also voluntarily subject themselves to a degree of regulation, higher than that imposed on students generally.

According to the State, though L.W. may have faced a difficult choice about whether to enroll in school, he had other options and was not forced into signing a behavior contract.

In terms of the availability of the other options the State claimed were available to L.W., the Court noted that the record simply did not support their existence—the State did not proffer any such evidence before the juvenile Hearing Master or juvenile court, nor did the State make any argument on such grounds; the juvenile Hearing Master likewise made no mention of the availability of alternative schooling to L.W. in its discussion of the supposed voluntariness of the consent to search.

The Court reasoned that despite the State’s arguments to the contrary, nothing set L.W. apart from the public school student body as a whole. If the State may condition L.W.’s access to public education upon his waiver of his constitutional right to be free from unreasonable search and seizure, it could seemingly do the same for any prospective public school student.

Thus, the Court concluded that the State had failed to demonstrate that L.W.’s consent to search was voluntary; there was no record evidence that public education options beyond Legacy were available to him, and the State could not constitutionally condition L.W.’s access to a public education on his waiver of his right to be free from unreasonable search and seizure. The district court therefore should have suppressed the fruits of the administration’s search of L.W., including, specifically, the testimony of the searching teacher and campus police officer. Accordingly, the Court reversed and remanded to the district court.