Howe v. State

• Decision Date: 30 April 1996
• Docket Number: No. 24408,24408
• Citation: 112 Nev. 458,916 P.2d 153
• Parties: Mark Robert HOWE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 153

916 P.2d 153

112 Nev. 458

Mark Robert HOWE, Appellant, v. The STATE of Nevada, Respondent.

No. 24408.

Supreme Court of Nevada.

April 30, 1996.

James J. Jackson, State Public Defender and James P. Logan, Deputy Public Defender, Carson City, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City, John M. Hanford, District Attorney and Michael D. Jensen, Deputy District Attorney, White Pine County, for Respondent.

OPINION

SHEARING, Justice:

Mark Robert Howe appeals from a judgment of conviction, pursuant to a guilty plea, of one count of using or being under the influence of a controlled substance, a felony, in violation of NRS 453.411, and one count of possession of drug paraphernalia, a misdemeanor, in violation of NRS 453.566. The district court sentenced Howe to three years in the Nevada State Prison. The judge suspended Howe's sentence and placed him on probation for a period not to exceed three years. On appeal, Howe contends that the district court erred in denying his motion for suppression of the evidence because the evidence was obtained in violation of his right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution and Article 1, Section 18 of the Nevada Constitution. We agree.

FACTS

On February 21, 1992, Nevada Division of Investigations Officers John Cripps, James Mercado and Curtis Cooley went to Howe's home in Ely to investigate a report that Howe was in possession of a quarter pound of marijuana and might be selling it. Mercado and Cooley went to Howe's front door while Cripps took up a surveillance position approximately half a block from Howe's home. When Mercado and Cooley knocked on Howe's door, Cripps observed a man carrying a white garbage sack leave through the back door, pick up what appeared to be a garbage container, set it back down and re-enter the house. He communicated this information to the two officers at the door via a two-way transmitter radio.

Howe answered the front door, and Cooley and Mercado identified themselves as police officers. Cooley testified that Howe "appeared extremely nervous," was talking quickly and appeared to be perspiring even though it was cool outside. Cooley informed Howe that they had received complaints that Howe was possibly in possession of marijuana. He further told Howe that if he did not have any marijuana, the officers wanted to "clear that situation up."

According to Cooley, Howe stated that he was "not a dope dealer and that he does not do dope." When Cooley asked for permission to enter Howe's residence, Howe responded, "No, no, no." Mercado then informed Cooley that he detected the odor of burning marijuana. Cooley testified that he was initially not in a position to smell the marijuana smoke but that when he stepped a bit to his right, he too could smell the burning marijuana from inside the residence. Cooley further testified that Mercado "then again advised--then he asked--then we went into the residence."

Once inside the residence, Mercado and Cooley were joined by Cripps and a parole and probation officer. Cooley testified that at some point after their entrance, Howe said words to the effect of, "Yes, if you want to search, go ahead." Nonetheless, in order to "make sure that [Howe was] aware that the consent to search was completely voluntary," Cooley testified that he asked Howe if he would sign a written consent to search form.

                A tape-recording was made of the interaction, in which Cooley can be heard telling Howe, "[W]e have probable cause to come in this house right now with the smell.  Without a warrant, we can be in here.  Let me tell you something else:  Number one, if you want to cooperate, makes it lots easier.  One way or another, we're going to search this house."   Cooley testified that he then provided Howe with the consent form, which he read "word by word" to Howe.  Cripps testified that while Cooley was advising Howe of the contents of the consent form, Cripps told Howe that Howe had two choices:  either "go ahead and give the consent or refuse to consent.  If he refused, we would seek or obtain a warrant."   Howe signed the consent form
                

Mercado testified that the officers entered Howe's residence in order to prevent the destruction of critical evidence. He further testified that once they were inside the residence, Howe told him that he had smoked marijuana prior to the officers' arrival and that he had swallowed the "roach." During the search, Mercado found a cut straw with a powder-like substance residue. He also located a plastic baggie of marijuana under a board underneath the trash can in the back yard.

Mercado conducted a preliminary drug influence examination on Howe to determine whether Howe was under the influence of a controlled substance. This included some rapid-eye tests and a divided-attention test. He also examined the inside of Howe's mouth and found green leafy matter stuck between Howe's teeth. Based on these tests, Mercado arrested Howe for being under the influence of marijuana.

Howe was taken to the Public Safety Building in White Pine County. There, Mercado requested consent to conduct a urine test. Mercado testified that he informed Howe that there were two ways to obtain a urine sample: Howe could either voluntarily submit to a urine sample or Mercado would attempt to obtain a seizure order and "use accepted medical techniques to take the urine sample." Howe then asked him what the medical techniques consisted of and Mercado told him that they would insert a catheter into Howe's penis to extract the urine sample. Howe provided the urine sample, which revealed the presence of marijuana.

In addition to the two charges to which Howe pleaded guilty, Howe was also charged with possession of a controlled substance. After the district court denied his motion to suppress, Howe pleaded guilty to using or being under the influence of a controlled substance and possession of drug paraphernalia.

LEGAL DISCUSSION

The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures. U.S. Const. amend. IV. "Warrantless searches and seizures in a home are presumptively unreasonable." Doleman v. State, 107 Nev. 409, 413, 812 P.2d 1287, 1289 (1991) (citing Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980)). "However, warrantless searches are permitted if based upon both probable cause and exigent circumstances." Id. Consent also exempts a search from the probable cause and warrant requirements of the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Davis v. State, 99 Nev. 25, 656 P.2d 855 (1983). When considering our citizens' constitutional right to be secure in their homes and free from unreasonable searches and seizures, " 'this court, on review, must be careful not to permit the exception to swallow the rule.' " Phillips v. State, 106 Nev. 763, 765-66, 801 P.2d 1363, 1365 (1990) (quoting Nelson v. State, 96 Nev. 363, 365, 609 P.2d 717, 719 (1980)).

The district court found that Howe consented to the officers' entry. However, the officers based their warrantless entry into Howe's home on what they perceived as "exigent circumstances." We conclude that neither consent nor exigent circumstances were present in this case.

"The State bears the burden of proving consent by '[c]lear and persuasive evidence.' " McIntosh v. State, 86 Nev. 133, 136, 466 P.2d 656, 658 (1970) (quoting Thurlow v. State, 81 Nev. 510, 515, 406 P.2d 918 921 (1965)). The district court found that when the officers came to the residence, Howe clearly repeated "No" but that this response could be interpreted in two ways: as an answer to the questions regarding whether Howe was involved in drug dealing or in response to the questions regarding entry into the house. While stating that "this is a close, marginal type case," the district court found that Howe's act of stepping aside from the doorway evidenced his consent to the officers' entry. ²

Stepping away from the doorway, without more, is not clear and persuasive evidence of consent. See State v. Summers, 440 So.2d 911, 913 (La.Ct.App.1983) (defendant's act of leaving front door open and unattended while he retrieved requested driver's license did not demonstrate his consent to allow officers to enter his home). This is particularly true where the officers have manifested a definite intent to enter Howe's home. Mercado testified that "[a]s we entered the house, Mr. Howe stepped out of the way." Also, prior testimony was introduced wherein Mercado stated, "Mr. Howe stepped out of the way as soon as I indicated I smelled marijuana. Mr. Howe knew we were going to go into the house--could go into the house." The law does not require that the occupant of a home physically block the officers' entry in order to indicate lack of consent to their entrance.

Additionally, both Cooley and Mercado testified that Howe consented to the search only after the officers were over the threshold of the door. Moreover, Cooley clearly understood that Howe denied the officers permission to enter. During cross-examination, Cooley testified as follows:

[Defense Counsel]. [D]id he deny you permission to enter?

A. He said no. I took that as a no, yes.

Q. So that would be consistent then with the statement you gave in your affidavit, where you said again that the defendant--let's see, if I can--denied you permission, I think I have he denied you permission?

A. Yes.

It was only after prodding from the State on re-direct that Cooley testified that when Howe said, "no, no, no," he could have been responding to the accusation that he had been dealing narcotics. Furthermore, the issue is not what Howe could have meant, but what Cooley understood when he entered. Clearly, Cooley understood that he was entering Howe's home without Howe's consent.

During direct examination, Mercado was ambiguous as to...