Smith v. State

• Court: Nevada Supreme Court
• Writing for the Court: By the Court, BELL, J.
• Citation: Smith v. State, 545 P.3d 716 (Nev. 2024)
• Docket Number: 86156
• Decision Date: 28 March 2024
• Parties: Deva One SMITH, Appellant, v. The STATE of Nevada, Respondent.

545 P.3d 716

Deva One SMITH, Appellant,

v.The STATE of Nevada, Respondent.

No. 86156

Supreme Court of Nevada.

Filed March 28, 2024

Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of possession of a visual presentation depicting sexual conduct of a person under sixteen years of age. Second Judicial District Court, Washoe County; Barry L. Breslow, Judge.

Evelyn Grosenick, Public Defender, and Kathryn Reynolds, Chief Deputy Public Defender, Washoe County, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks, District Attorney, and Jennifer P. Noble, Chief Appellate Deputy District Attorney, Washoe County, for Respondent.

BEFORE THE SUPREME COURT, HERNDON, LEE, and BELL, JJ.

OPINION

By the Court, BELL, J.:

[1–3] This appeal raises issues regarding the scope of a valid search warrant. Under Nevada law, an affidavit may be incorporated into a warrant to establish probable cause, but that affidavit cannot expand the scope of the search and seizure permitted under the warrant’s specific language. Absent an exception, officers must search only the places authorized on the face of the warrant. Further, if exigent circumstances allow the warrantless seizure of a cell phone, police may not search the data on that cell phone unless a new warrant is obtained or exigent circumstances independently justify the search of the data.

Here, officers had a valid warrant for Appellant Deva One Smith’s residence only; however, officers seized Smith’s cell phone from his person while outside the residence. Under the circumstances, the imminent destruction of evidence exigency justified the seizure. Yet no other exigent circumstance allowed for the subsequent forensic search of the cell phone. Because officers failed to obtain a warrant to search the cell phone, the search of that device violated Smith’s Fourth Amendment rights. Therefore, we conclude that the district court erred in denying Smith’s motion to suppress the evidence found on the phone. As a result, we reverse the judgment of conviction,

FACTS AND PROCEDURAL HISTORY

Law enforcement first became aware that Deva Smith might possess child pornography during an investigation of another individual, Brandon Navarrete. Law enforcement dis- covered Navarrete was sharing images of child sex abuse with others through text messages. One number Navarrete messaged belonged to Smith. Based on subsequent investigation of Smith, officers sought a search warrant for Smith’s electronic devices.

The detective seeking the warrant authored a declaration supporting probable cause. The declaration explained the investigation of Smith, including how officers had matched the number from the Navarrete investigation to Smith and what images the officers believed Smith possessed. The declaration submitted by the detective asserted law enforcement had probable cause to believe Smith possessed child pornography on a phone or computer in his possession, vehicle, or apartment.

The warrant signed by the justice of the peace incorporated the declaration of probable cause by reference. The warrant permitted officers to search Smith’s apartment and seize any evidence of child pornography and electronic devices that could contain child pornography. The warrant also authorized the forensic search of any "of the above-mentioned devices" to determine if the devices contained child pornography. The warrant provided a detailed description of Smith’s apartment. The warrant did not authorize a search of Smith’s person or his vehicle.

When officers arrived at Smith’s apartment building to execute the warrant, they encountered Smith outside the building. Officers informed Smith of the warrant, asked Smith to open the door to avoid damage from breaking it down, and told Smith he was not under arrest. Officers also seized Smith’s cell phone from his person while Smith remained outside the apartment. The next day, a detective conducted a forensic search of the phone. The detective found text exchanges between Navarrete and Smith, including child pornography. Officers did not seek a warrant authorizing the forensic, search prior to conducting the search of Smith’s phone.

Before trial, Smith challenged the admissibility of the texts and pictures from his phone, arguing officers had obtained them in violation of his constitutional rights. The district court found the photos admissible, ruling that the incorporated statement of probable cause in the declaration expanded the scope of the search authorized by the warrant and, alternatively, that the officers reasonably believed in good faith that their actions were consistent with the warrant.

At trial, the texts and photos comprised the bulk of the State’s case against Smith. The jury convicted Smith of two counts of possession of a visual presentation depicting sexual conduct of a person under sixteen years of age. Smith now appeals his conviction.

DISCUSSION

Smith challenges the admissibility of the texts and photos recovered from his cell phone, arguing that the evidence was obtained in violation of his constitutional rights and must therefore be suppressed. Because we agree with Smith and reverse on the search and seizure issue, we need not reach the other issues Smith raises.

[4, 5] A motion to suppress presents mixed questions of law and fact. State v. Beckman, 129 Nev. 481, 485, 305 P.3d 912, 916 (2013). We review the district court’s findings of fact for clear error, but we review application of the law de novo. Somee v. State, 124 Nev. 434, 441, 187 P.3d 152, 157-58 (2008).

[6, 7] Both the United States and the Nevada Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. amend. IV; Nev. Const. art. 1, § 18. A search is per se unreasonable unless performed pursuant to a valid warrant or subject to an exception to the warrant requirement. State v. Lloyd, 129 Nev. 739, 743, 312 P.3d. 467, 469 (2013). The government may not use evidence procured by an illegal search against a defendant, and courts accordingly may suppress illegally obtained evidence. Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

In determining whether suppression is appropriate, we consider the State’s three arguments as to why the evidence was properly obtained. First, the State asserts that the probable cause affidavit addressed a search of Smith’s person, and the affidavit was incorporated into the warrant, so the incorporated affidavit expanded the warrant to cover the search and seizure of Smith’s cell phone.¹ Second, the State contends that the officers were relying in good faith on the warrant when they seized the cell phone from Smith’s person and then searched it. Third, the State argues that exigent circumstances justified the seizure and subsequent search of Smith’s cell phone. We disagree with the State’s arguments, except to conclude that exigent circumstances warranted the initial seizure of the phone, though not the subsequent forensic search.

A probable cause affidavit cannot expand the scope of the warrant to authorize the seizure of Smith’s cell phone found on his person outside his apartment

[8] To be valid, a warrant must contain a statement "particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV; Nev. Const. art, 1, § 18 (substantially similar language), A valid search warrant may only be issued on a showing of probable cause. State v. Allen, 119 Nev. 166, 170, 69 P.3d 232, 234 (2003). When a magistrate issues a warrant, Nevada law permits the statements in support of probable cause to be incorporated by reference. NRS 179.045(6)(b). The issue presented in this case is whether the incorporation of a probable cause affidavit may broaden what can be searched or seized beyond the four comers of the search warrant. We conclude it cannot.

The United States Court of Appeals for the Ninth Circuit has concluded that incorporation of a declaration or affidavit cannot broaden the scope of a search warrant, In United States v. Sedaghaty, 728 F.3d 885, 895 (9th Cir. 2013), federal agents obtained a warrant to search for and seize documents related to a single incident of tax fraud, Officers searched Sedaghaty’s home and seized materials related to alleged terrorist activity in addition to tax documents. Id. The Ninth Circuit rejected the government’s argument that an incorporated probable cause affidavit discussing Sedaghaty’s alleged terrorist involvement expanded the scope of the warrant. Id. at 914-15. The court held that the warrant clearly contemplated only tax documents and officers should have sought another warrant for material related to terrorist activity. Id. Because seizure of the materials related to terrorism was beyond the scope of the warrant, officers violated the Fourth ’Amendment. Id. at 915. The court warned that allowing an affidavit to expand the scope of a warrant "would permit a kitchen sink probable cause affidavit to overrule the express scope limitations of the warrant itself." Id. at 913. In reaching such a conclusion, the Ninth Circuit aligned with other federal circuit courts that also disapproved of allowing probable cause affidavits to expand the scope of warrants. See United States v. Kaye, 432 F.2d 647, 649 (D.C. Cir. 1970); Doe v. Groody, 361 F.3d 232, 241 (3d Cir. 2004); United States v. Angelos, 433 F.3d 738, 746 (10th Cir. 2006).

[9] The Ninth Circuit’s reasoning is persuasive. The United States and Nevada Constitutions require that warrants state with particularity the place, person, and thing to be searched or seized. To allow a probable cause affidavit to effectively control the scope of a warrant would render the particularity requirements meaningless. We also cannot endorse an interpretation of the law that "would elevate the author of the incorporated probable cause affidavit over the judge issuing the warrant." Sedaghaty, 728 F.3d at 914. Thus, we conclude that an...