Cortes v. State

• Decision Date: 30 September 2011
• Docket Number: No. 54747.,54747.
• Citation: 260 P.3d 184
• Parties: Arturo Torres CORTES, Appellant,v.The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

260 P.3d 184

Arturo Torres CORTES, Appellant,

v.The STATE of Nevada, Respondent.

No. 54747.

Supreme Court of Nevada.

July 21, 2011.Rehearing Denied Sept. 30, 2011.

Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Carrie Morton, Deputy District Attorney, Clark County, for Respondent.BEFORE DOUGLAS, C.J., PICKERING and HARDESTY, JJ.

OPINION

By the Court, PICKERING, J.:

During a routine traffic stop, the police developed what the district court found was a reasonable suspicion that the car's passenger, appellant Arturo Torres Cortes, was armed and dangerous. The police ordered Cortes out of the car and subjected him to a patdown search, which produced the evidence underlying the conviction for possession of a controlled substance (methamphetamine) he now appeals. Under Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), if the finding of reasonable suspicion is sound, no Fourth Amendment violation occurred. On appeal, Cortes urges us to reject the district court's finding of reasonable suspicion or to interpret the Nevada constitutional guarantee against unreasonable searches and seizures more strictly than the Supreme Court interpreted the Fourth Amendment in Johnson. Finding no basis for doing so, we affirm.

I.

Cortes was riding in the front passenger seat of a car that North Las Vegas Patrol Officer Arrendale stopped for not having a license plate or temporary tag. It was dark and Arrendale was alone. As Arrendale approached, he shone his flashlight into the car and saw two occupants, the driver and Cortes, neither of whom was wearing a seatbelt.

Officer Kimberly Wadsworth arrived as back-up shortly after Arrendale initiated the traffic stop. When she arrived, she walked to the passenger side of the car while Arrendale addressed the driver. Both the driver and Cortes seemed agitated to Wadsworth, and she saw a tool-knife on Cortes's lap, ¹ which she told him to put out of reach on the floor. Although Wadsworth asked Cortes to keep his hands visible, he did not comply.

Arrendale asked the driver for her license and the car's registration and insurance; he asked Cortes for identification so he could issue him a citation for the seatbelt violation. Cortes first said that he had identification, then said he didn't. The driver produced her driver's license and temporary registration for the car. The temporary registration was in a third person's name and the driver had no proof of insurance.

Wadsworth alerted Arrendale to the tool-knife on the floor. Arrendale asked the driver to get out of the car, separating her from Cortes. The officers switched places so that Wadsworth, a female, could address the female driver. When Arrendale crossed to the passenger side, he saw Cortes reach toward a blue denim bag on the floor. By then, Cortes had been told several times to keep his hands in his lap where they could be seen. Cortes's conflicting answers about his identification concerned Arrendale because he “didn't know who Mr. [Cortes] was [or] what he was capable of.” He also “didn't know what was in the [denim] bag or if he was trying to retrieve a weapon out of the bag.” These facts, combined with the pair's unusual agitation, led Arrendale to order Cortes out of the car. Cortes protested, demanding to know “Why?” and “What for?”

To Arrendale's mind, when Cortes got out of the car, he did so furtively, pressing his back against the doorjamb and keeping his hands behind him. After several requests from Arrendale, Cortes turned and faced the vehicle. He resisted Arrendale's attempts to conduct a patdown search, so Arrendale handcuffed him. With Cortes fighting him and yelling, Arrendale forced Cortes away from Wadsworth and the driver to the rear of his patrol car. On reaching the patrol car, Arrendale resumed his patdown search of Cortes and felt what he recognized as a methamphetamine pipe. Cortes continued to struggle, shoving Arrendale. Arrendale took him down to the ground and called for Wadsworth's help. Together, they placed Cortes under arrest for obstructing an officer. In the search incident to arrest that followed, the officers discovered, in addition to the pipe, four bags containing what proved to be 3.3 grams of methamphetamine and $528 in cash.

Eight days before trial, Cortes filed a motion to suppress the pipe and drug evidence as the fruits of an illegal search and seizure. He based the motion on the transcript of the preliminary hearing, where Arrendale testified and was cross-examined about the stop and frisk and Cortes's arrest. The motion was argued on the opening day of trial. Denying the motion, the district court made findings that both prongs of the test in Arizona v. Johnson were met, to wit: “the first prong ... was met when the officer conducted [a] legitimate traffic stop because there was no license plate on the car”; and “the second prong was met based on Mr. Cortes' behavior in reaching into the bag, his general demeanor, as well as the fact I think most significantly that he had a knife, so the police already knew that he was in possession of a weapon.” Based on this, “it was certainly reasonable for the police to be concerned that there may be additional weapons.”

The jury convicted Cortes of possession of a controlled substance with intent to sell. He was sentenced to a suspended prison term of 18 to 48 months and placed on 5 years' probation.

II.

Cortes contends that the district court should have granted his motion to suppress because the officers violated his right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and its Nevada counterpart, Nev. Const. art. 1, § 18. The district court correctly rejected Cortes's federal constitutional claim under Arizona v. Johnson. We also reject Cortes's argument that the Nevada Constitution grants broader protections against unreasonable searches and seizures in this context than does the Fourth Amendment.

A.

We review de novo the district court's legal determination of the constitutionality of a frisk but review its findings of fact for clear error. Somee v. State, 124 Nev. 434, 441, 187 P.3d 152, 157–58 (2008). Cortes did not request an evidentiary hearing on his motion to suppress, which he filed just days before trial. Nonetheless, Cortes faults the district court for not sua sponte ordering an evidentiary hearing, citing State v. Ruscetta, 123 Nev. 299, 304, 163 P.3d 451, 455 (2007), and Somee, 124 Nev. at 441–42, 187 P.3d at 157–58; for reasons not broached in the district court, he urges us to discredit Arrendale's and Wadsworth's testimony. But Cortes did not contest the evidence below that supports the district court's findings, and we cannot say they were clearly erroneous or plainly wrong. Cortes did not have a right to an evidentiary hearing based solely on filing a motion to suppress, and the district court did not abuse its discretion in failing sua sponte to order one, especially since the motion to suppress was filed fewer than 15 days before trial, see NRS 174.125(3)(a), (b); EDCR 3.20(a); United States v. Wilson, 895 F.2d 168, 173 (4th Cir.1990) (focusing on untimeliness of request for voluntariness hearing in upholding trial court's refusal to hold a hearing), and neither asked for an evidentiary hearing nor identified the disputed issues of material fact that merited one, United States v. Curlin, 638 F.3d 562, 564 (7th Cir.2011) (“District courts are required to conduct evidentiary hearings only when a substantial claim is presented and there are disputed issues of material fact that will affect the outcome of the motion [to suppress].”).

We turn then to the legal question: the constitutionality of the stop and frisk. As the district court correctly held, Arizona v. Johnson controls the Fourth Amendment analysis. In Johnson, “officers pulled over an automobile after a license plate check revealed that the vehicle's registration had been suspended for an insurance-related violation[,] a civil infraction warranting a citation.” 555 U.S. at 327, 129 S.Ct. at 784. “While other officers dealt with the driver and front-seat passenger, Officer Trevizo put some questions to Johnson, [a passenger] in the back seat, then asked him to exit the vehicle and, when he did, Trevizo frisked Johnson because his appearance and comments suggested he might be armed, which proved to be the case.” 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 9.3, at 117 (4th ed. Supp. 2010). Assuming as the state court had that “Trevizo had reasonable suspicion that Johnson was armed and dangerous,” a unanimous Supreme Court held that the traffic stop and Johnson's frisk did not offend the Fourth Amendment: “Officer Trevizo surely was not constitutionally required to give Johnson an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.” Johnson, 555 U.S. at 334 & n. 2, 129 S.Ct. at 788 & n. 2; id. at 330, 129 S.Ct. at 786 (stressing that “traffic stops are ‘especially fraught with danger to police officers' ” (quoting Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983))).

Johnson applies the two-pronged stop and frisk test in Terry v. Ohio, 392 U.S. 1, 9, 22–23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to passengers detained, along with the driver, in a traffic-stop setting. The first prong of the Johnson/Terry test requires a lawful traffic stop:

[I]n a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to...