McMorran v. State

• Decision Date: 17 May 2002
• Docket Number: No. 36618.,36618.
• Citation: 46 P.3d 81,118 Nev. 379
• Parties: Ruth Anne McMORRAN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

46 P.3d 81

118 Nev. 379

Ruth Anne McMORRAN, Appellant, v. The STATE of Nevada, Respondent.

No. 36618.

Supreme Court of Nevada.

May 17, 2002.

Steven G. McGuire, State Public Defender, James P. Logan, Chief Deputy Public Defender, Carson City, for appellant.

Frankie Sue Del Papa, Attorney General, Carson City, Richard W. Sears, District Attorney, Rusty D. Jardine, Deputy District Attorney, White Pine County, for respondent.

BEFORE: SHEARING, ROSE and BECKER, JJ.

OPINION

PER CURIAM.

Appellant Ruth Anne McMorran contends that the search of her motel room by state law enforcement officers violated the Fourth Amendment to the United States Constitution. The question presented is one of first impression in Nevada: is a person's consent to search voluntary when it is given in response to a threat by the police to seize the person and the property while a search warrant is sought but there are no grounds for such a seizure? We conclude that such consent is not voluntary, reverse McMorran's judgment of conviction, and remand.

FACTS

On October 27, 1999, the White Pine County Sheriff's Department received an anonymous telephone call that drugs were being sold at Room 114 in the Great Basin Inn in Ely. The male caller also said that the occupants of the room were armed with weapons of unknown type and drove a red Pontiac Sunbird with California plates. This information was dispatched to Officer E.G. Carlton of the Nevada Division of Investigations. Officer Carlton contacted Officers Gabor Visnovits and Matt Hibbs and met them at the motel. A red Pontiac Sunbird with California plates was parked in front of Room 114. Carlton learned that the room was rented to McMorran and that there was also a male occupant. The officers donned garb identifying them as police and went to the room.

Officer Visnovits knocked at the room door, which was answered by Kane Searcy. Searcy was 17 years old, but had a large build and appeared older. Visnovits asked permission to enter, and Searcy gave it. Officer Carlton asked if any weapons were present, and Searcy said no. Carlton asked permission to search the room. The officers were armed, and at least one had his weapon visible. Carlton also testified that he "was probably invading [Searcy's] body space ... standing very close to him ... until the situation was totally under control." Searcy gave his consent. The officers then heard someone in the bathroom. Searcy said it was his girlfriend, the officers asked her to exit, and McMorran came out of the bathroom. Carlton then advised Searcy that he did not have to permit the search, and Searcy rescinded his consent. The officers stopped searching.

According to Carlton, he directed Officer Hibbs to contact the district attorney and apply for a search warrant. Carlton also testified that he told McMorran and Searcy that the officers would remain in the room until a search warrant was either approved or not. At this point, the only basis the officers had to suspect any criminal activity was the anonymous tip received by the sheriff's department. The officers had not perceived any evidence of wrongdoing in the room. After a few minutes and after Carlton told Searcy that it would take a while before there was a determination on the warrant, Searcy again gave permission to search. The officers then found marijuana and drug paraphernalia.

Officers Carlton and Visnovits later testified that none of the officers drew or brandished their weapons, raised their voices, or either threatened or made promises to Searcy or McMorran on the night of the search. Carlton testified that the two occupants appeared frightened. He answered no when asked if any officer "engaged in conduct calculated to trick" Searcy into providing consent.

In March 2000, McMorran pleaded guilty to aiding and abetting the possession of a controlled substance for the purpose of sale, a category D felony. The plea was conditioned on her right to file a motion to suppress evidence and to appeal the suppression issue if the motion was denied. The district court held an evidentiary hearing on the motion in July 2000 and denied the motion with little explanation. The court then entered judgment, sentenced McMorran to a prison term of 14 to 36 months, suspended the sentence, and placed her on probation for a term of not more than three years.

DISCUSSION

McMorran contends that the district court erred in denying, her motion to suppress because the search of her motel room violated the Fourth Amendment. She contends that consent to search the room was not voluntarily given.

The Fourth Amendment to the United States Constitution and the Nevada Constitution proscribe all unreasonable searches and seizures.¹ The Fourth Amendment protection against unreasonable searches applies to persons in hotel rooms as well as at home.² Subject only to a few specific exceptions, searches conducted without prior approval by a judge or magistrate are per se unreasonable.³

As a preliminary point, McMorran has not argued that Searcy lacked the authority to consent to a search of the room, nor would such an argument appear to have merit.⁴ A search pursuant to consent is constitutionally permissible if the State demonstrates that

the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.⁵

Acquiescence that is "the product of official intimidation or harassment is not consent."⁶ Courts must distinguish between the peaceful submission to the authority of a law enforcement officer and an intelligent and intentional waiver of a constitutional right.⁷

Although this court treats the district court's findings of fact deferentially, it reviews the lawfulness of a search de novo because such a review requires consideration of both factual circumstances and legal issues.⁸ The State must prove the voluntariness of a consent by clear and convincing evidence.⁹

"Police may not threaten to obtain a search warrant when there are no grounds for a valid warrant, but `[w]hen the expressed intention to obtain a warrant is genuine... and not merely a pretext to induce submission, it does not vitiate consent.'"¹⁰ However, intimating that a search warrant will automatically issue is inherently coercive.¹¹ Here, although Officer Carlton testified that he said only that the officers would seek a search warrant, other evidence in the record suggests that the officers indicated that a warrant would automatically issue. Officer Visnovits stated in his investigative report that after Searcy revoked permission to search the room, Carlton advised Searcy and McMorran "that the investigators would obtain a search warrant and that the investigators would stay in the room to prevent destruction of evidence." The report was reviewed and approved by Carlton. The words "would obtain," if accurate, improperly implied that a search warrant would automatically issue, and Carlton's statement that investigators would stay in the room in the meantime reinforced any such implication. The district court did not address this factual question in making its ruling. But even assuming that Carlton's testimony was accurate, the totality of the circumstances do not support a finding that the consent was voluntary.

Various factors weigh against voluntariness: Searcy was only seventeen and McMorran only twenty, three armed officers were in their motel room, Officer Carlton invaded Searcy's body space to control the situation, and Searcy revoked permission for the search when he first learned that he could. There is also indication of possible trickery on the part of the officers. The officer ostensibly sent to apply for the warrant had not left to contact the District Attorney when Searcy again consented to a search a few minutes later. Although Searcy was informed of his right to refuse permission and the officers testified without contradiction that they did not raise their voices or make any threats or promises, under the totality of the circumstances we conclude that the evidence is not clear and convincing that the consent was voluntary.

The most important circumstance that vitiates consent here is the officers' declaration that they would remain in the motel room while another officer sought a warrant. When the officers made this declaration, they had not uncovered any evidence of wrongdoing by McMorran or Searcy. The only basis they had to suspect the existence of criminal activity was the anonymous tip received by the sheriff's department. As discussed below, this tip did not provide probable cause for securing the room and detaining its occupants. Therefore, the seizure of the room and its occupants was unlawful and rendered the consent obtained from Searcy involuntary.

In his treatise on searches and seizures, Professor LaFave states that "even if the threat is only to seek a search warrant, the consent given in response thereto is invalid if the circumstances are such that the threat carried with it an assertion that the defendant or the property would be seized in the interim, but there were not in fact grounds for such a seizure."¹² Case law supports this statement of the law.

In a case decided by the Ninth Circuit Court of Appeals, the appellant purchased a flight ticket at an airport, checked his suitcase, and then was stopped by a federal drug enforcement agent.¹³ The agent asked permission to search the appellant's briefcase, told the appellant he need not consent, but stated that if permission were denied the agent would seek a search warrant. The appellant consented to the search.¹⁴ The court concluded that

the consent to search the briefcase ... was not voluntary. When the agent informed app

...