Hayes v. State
| Decision Date | 21 August 1990 |
| Docket Number | No. 20036,20036 |
| Citation | 797 P.2d 962,106 Nev. 543 |
| Parties | Michael Jonathan HAYES and Dawn Kimberly Richmond, Appellants, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Martillaro & Martillaro, Carson City, for appellant Richmond.
Brian McKay, Atty. Gen., Noel S. Waters, Dist. Atty., and Keith Loomis, Deputy Dist. Atty., Carson City, for respondent.
After police arrested appellant Michael Jonathan Hayes (Hayes) outside of his residence for possession of stolen property, Hayes called to someone inside the residence. Police officers then entered the residence to conduct a protective sweep search for other persons who could pose a danger to the officers. During the course of the sweep, officers observed various narcotics and paraphernalia in plain view. Based on the plain view observations, the officers obtained a search warrant and seized the evidence underlying the narcotics convictions in this case. Hayes and Dawn Kimberly Richmond (Richmond) appeal their respective judgments of conviction, arguing that no emergency existed to justify the warrantless entry and plain view observations by police. We hold that, based on the circumstances in this case, the protective sweep search leading to the seizure of the evidence underlying these convictions violated appellants' constitutional rights to be free from unreasonable searches and seizures. Since the evidence seized based on the sweep search was necessary to appellants' convictions, the convictions must be reversed.
Detective William Kugler of the Carson City Sheriff's Department (CCSD) was investigating appellant Hayes for possession of stolen property, namely, an automobile. In January 1988, Detective Kugler, pursuant to a warrant, seized from Hayes an automobile which officials believed had been stolen. Hayes resisted the seizure by attempting to drive away from officers approaching Hayes' residence. Hayes himself was not arrested for possession of stolen property because police first needed, or wished, to obtain testimony against Hayes from Hayes' suspected accomplices. Soon thereafter, fearing he would be charged with felony possession of stolen property, Hayes contacted attorney James Wessel. Wessel testified that Hayes instructed him to inform the District Attorney and the CCSD that he wished to turn himself in. Hayes explained to Wessel that he feared losing his union standing if he was arrested at work. Wessel testified In February 1988, Detective Rod Cullen testified, he and Kugler interviewed one Don Cisco, who was a burglary suspect. Cullen suspected that Cisco was connected to Hayes. Kugler testified that Cisco admitted to being an ex-felon from Colorado with "a violent past," and that Cisco had an "extensive" rap sheet. According to Cullen, Cisco said that he and Hayes had had a falling out, culminating in Hayes' ordering Cisco to get off of Hayes' property at the point of a shotgun.
that he in fact informed both the District Attorney's office and Detective Kugler that "Hayes was willing to turn himself in."
May 6, 1988, was the day on which Hayes was arrested. Early that day, Kugler conducted drive-by observations of Hayes' residence. He observed "a number" of cars near the residence which he believed indicated the "possibility" there were "multiple subjects" in the residence. Kugler then had a meeting with several deputies to discuss how to serve an arrest warrant on Hayes. According to Kugler, officers did not discuss whether Hayes might have weapons and Kugler did not have any personal knowledge of any weapons at Hayes' residence, except for Cisco's story about the shotgun. At the meeting, one Officer Martino mentioned that, a few days before, Don Cisco had been released on bond from jail on a felony charge. Kugler stated that no one discussed the possibility that Cisco might be at Hayes' residence, however. Kugler also stated that he knew that Hayes' wife's name was Dawn Richmond.
Later that day, Kugler and five other armed members of the CCSD went to Hayes' mobile home at 1830 Brown Street in Carson City to arrest Hayes pursuant to an arrest warrant for possession of stolen property, a felony. It was afternoon and thus presumably light. Upon arriving, Kugler again observed "numerous vehicles" near the residence. The six officers approached the mobile home with guns drawn. Detective Kugler and Officers Johnson and Martino approached the front door of the mobile home. As they were walking toward the door, another officer radioed them that he had found a shotgun in the front yard. An officer knocked on the door and Hayes answered the door. Hayes initially attempted to shut the door and step back in, but when ordered to come out, Hayes complied and stepped out of the residence where officers handcuffed him. Hayes did not attempt to flee or offer any resistance and was, by all accounts, safely in the officers' custody.
After being cuffed, Hayes called out the name "Dawn" two or three times. The door of the trailer was open, but Hayes' wife was not visible. Both Kugler and Martino stated that they feared that Hayes might be calling to Don Cisco, who could pose a danger to the officers. Martino and another officer immediately moved to each side of the door and then entered the trailer where they conducted a "sweep search" for guns or persons who could pose a danger to the officers. Martino found Dawn Richmond in the back bedroom.
During the course of the sweep search, Martino observed in plain view small amounts of marijuana, a scale, a pile of powder next to a hypodermic needle, and a handgun in a holster, which Martino immediately unloaded. On the basis of these observations, officers secured the residence, obtained a search warrant, and conducted a more thorough search for narcotics. The narcotics seized included the marijuana and a bag containing about 85 grams of methamphetamine. The officers also seized several notebooks containing records of apparent drug sales and lists of police radio frequencies, as well as many other items indicative of drug dealing, such as police band radio scanners.
On the basis of the seized evidence, appellants were charged with the narcotics-related counts at issue in this appeal. The defense filed a motion to suppress the evidence on the ground that no exigency existed to justify the sweep search. The court concluded that the officers had reasonable grounds to believe that a potentially dangerous third party might be present on the premises and accordingly denied the motion.
Following the waiver of a jury trial by both defendants, the court conducted a bench trial and found the appellants guilty on all four charged counts. During trial, appellants were jointly represented by attorney Carl F. Martillaro. On appeal, appellant Richmond is still represented by Martillaro, but Hayes is represented by Laura Wightman Fitzsimmons.
As stated in Payton v. New York, 445 U.S. 573, 602-3, 100 S.Ct. 1371, 1388-9, 63 L.Ed.2d 639 (1980), police may enter a residence to execute an arrest warrant. Here, however, the arrest had already occurred before police entered the residence. Thus, the police officers needed a justification independent of the arrest warrant in order to enter the residence legally. As potential justifications for the entry, the parties refer both to the "protective sweep" doctrine and the "emergency," or exigent circumstances, doctrine. These doctrines are overlapping, but distinct. See generally 2 W. LaFave, Search and Seizure §§ 6.1(f); 6.4(c) (2d ed.1987). Generally, the emergency doctrine authorizes warrantless searches for particular items or particular suspects based on the existence of various exigent circumstances. See id. at § 6.1(f). Protective sweep searches, on the other hand, should be less particularized and probing, because their sole purpose is to protect police officers during the course of an arrest from potentially dangerous persons other than the arrestee who are believed to be on the premises. Unlike the somewhat broader emergency search doctrine, the sole exigent circumstance which is relevant to a protective sweep search is the existence of reasonable grounds to fear for the officers' safety. This case concerns the protective sweep doctrine.
In the present case, police officers obtained the search warrant for the narcotics and paraphernalia based on plain view observations made during the protective sweep search of Hayes' mobile home following Hayes' arrest for possession of a stolen vehicle. The issue here is whether the plain view observations supporting the search warrant were legally obtained. For plain view observations to be admissible, the plain view doctrine requires, among other things, that the officer be lawfully present at the point of observation. Johnson v. State, 97 Nev. 621, 624, 637 P.2d 1209, 1211 (1981). Whether the observing officer was lawfully present in Hayes' mobile home depends on whether the protective sweep search was justified.
Appellants do not seriously contend that the officers exceeded the proper scope of a protective sweep search, or that the incriminating items were not in plain view. Instead, appellants argue that no protective sweep search was justified because police officers had no reasonable grounds to fear for their safety. The constitution draws a line which limits police authority to conduct sweep searches. We conclude that this line has been crossed in the present case. Under the standards recently announced by the United States Supreme Court, the arresting officers here lacked sufficient grounds to fear for their safety to justify this protective sweep search. Therefore, the evidence seized pursuant to the warrant must be suppressed because it was a fruit of the previous unlawful protective sweep...
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