State v. Cantsee

• Decision Date: 03 April 2014
• Docket Number: No. 59121.,59121.
• Citation: 130 Nev. Adv. Op. 24,321 P.3d 888
• Parties: The STATE of Nevada, Appellant, v. Jarvis Deer CANTSEE, Respondent.
• Court: Nevada Supreme Court

321 P.3d 888
130 Nev. Adv. Op. 24

The STATE of Nevada, Appellant,
v.
Jarvis Deer CANTSEE, Respondent.

No. 59121.

Supreme Court of Nevada.

April 3, 2014.

[321 P.3d 889]

Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater, Chief Deputy District Attorney, Washoe County, for Appellant.

Jeremy T. Bosler, Public Defender, and Christopher P. Frey, Deputy Public Defender, Washoe County, for Respondent.

BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

OPINION
By the Court, HARDESTY, J.:

In this appeal, we must determine whether a police officer's citation to an incorrect statute is a mistake of law that invalidates an investigatory traffic stop under the Fourth Amendment to the United States Constitution. Respondent Jarvis Deer Cantsee was charged with a felony DUI after being pulled over for driving with a cracked windshield. Deputy Wendy Jason, the investigating officer, testified that she stopped Cantsee because his cracked windshield violated NRS 484D.435. However, NRS 484D.435 does not prohibit operating a vehicle with a cracked windshield.¹ Although the cracked windshield could violate another statute, the district court concluded that Deputy Jason's incorrect citation constituted a mistake of law that invalidated the investigatory stop under the Fourth Amendment and granted Cantsee's motion to suppress the evidence obtained from the traffic stop. We conclude that a police officer's citation to an incorrect statute is not a mistake of law that invalidates an investigatory traffic stop under the Fourth Amendment if another statute nonetheless

[321 P.3d 890]

prohibits the suspected conduct. Therefore, we reverse the district court's order.

FACTS

Deputy Jason pulled over Cantsee after she observed him driving past her in the opposite direction with a “crack across the windshield.” Upon pulling him over, Deputy Jason observed that Cantsee appeared to be intoxicated. Cantsee failed the field sobriety and breathalyzer tests, and a subsequent blood test revealed that his blood alcohol levels were above the legal limit. Although Deputy Jason arrested him for felony DUI, violating Nevada's open container law, failing to have car insurance, and driving with a cracked windshield, she confirmed at the preliminary hearing that her sole reason for stopping Cantsee was the cracked windshield.

Cantsee filed a motion to suppress on the ground that Deputy Jason's reason for pulling him over was a mistake of law that invalidated the investigatory traffic stop under the Fourth Amendment. He relied on Deputy Jason's citation to NRS 484D.435 that justified stopping him for driving with a cracked windshield because that statute does not prohibit that conduct. In opposition, the State initially argued that the stop was justified for either one of two reasons: first, that a windshield crack would satisfy the reasonable suspicion standard for a possible NRS 484D.435 violation or second, that the windshield crack constituted a safety hazard.

At the hearing on the motion to suppress, Deputy Jason testified that she thought Cantsee had violated NRS 484D.435 when she pulled him over. She also stated that she knew at the time of the hearing that NRS 484D.435 was not the correct statute, but that she was never trained to give specific NRS statute numbers whenever she stopped a vehicle. The State then argued for the first time that NRS 484B.163(3),² rather than NRS 484D.435, justified the traffic stop. Cantsee objected and argued that the State waived its right to argue NRS 484B.163(3) because this argument was not included in the State's opposition to the motion to suppress. Cantsee also objected to any testimony that the crack in the windshield provided a reasonable suspicion of a violation of NRS 484B.163(3). The court sustained Cantsee's objection and limited the scope of Deputy Jason's testimony to whether the crack in the windshield constituted a safety hazard.

The district court granted the motion to suppress, finding that the investigatory traffic stop based on NRS 484D.435 was not objectively reasonable because that statute does not prohibit driving with a cracked windshield. The court further concluded that the State's arguments as to NRS 484B.163 “unfairly surprised” Cantsee. Thus, the court deemed the State's argument waived because the State did not show good cause as to why it did not mention the statute in its opposition. The State appeals.

DISCUSSION

The State raises two arguments on appeal: (1) Deputy Jason's citation to the wrong statute is not a mistake of law that invalidates the investigatory traffic stop under the Fourth Amendment; and (2) the State did not waive its right to argue that NRS 484B.163(3) justified the traffic stop.

The traffic stop was valid under the Fourth Amendment

Whether an officer's citation to an incorrect statute is a mistake of law that invalidates an investigatory traffic stop under the Fourth Amendment is an issue of first impression in Nevada. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. Const. amend. IV. Whether an investigatory traffic stop violates the Fourth Amendment's prohibition against unreasonable searches and seizures is a mixed question of law and fact. Somee v. State, 124 Nev. 434, 441, 187 P.3d 152, 157 (2008). This court “review[s] the district court's findings of historical fact for clear error [and] the legal consequences of those factual findings de novo.” Id. at 441, 187 P.3d at 157–58.

[321 P.3d 891]

To justify an investigatory traffic stop under the Fourth Amendment, the State must show that the investigating officer had reasonable suspicion that the defendant was engaged in criminal activity. State v. Rincon, 122 Nev. 1170, 1173, 147 P.3d 233, 235 (2006). When the traffic stop is based on a mistake of law, there is generally no justification for the investigatory traffic stop regardless of the reasonableness of the mistake. See United States v. King, 244 F.3d 736, 739 (9th Cir.2001). A mistake of law occurs when an officer believes that the suspected conduct is illegal even though the law does not actually prohibit it. See United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir.2000).

But there is a difference between a mistake of law and a mistake as to which law applies. The incorrect application of a statute is not a mistake of law when the law prohibits the suspected conduct. An example of such a scenario is addressed in United States. v. Wallace, 213 F.3d 1216, 1220–21 (9th Cir.2000). In Wallace, the officer pulled the defendant over for having tinted front windows because the officer believed that California law prohibited all front window tints when in fact California law only prohibited window tints past a certain degree of light transmittance. Id. at 1220. The Ninth Circuit Court of Appeals held that the traffic stop was constitutionally valid even though the officer was mistaken about the law because the officer's observations about the heavy tint obstructing the view into the vehicle “correctly caused him to believe that Wallace's window tinting was illegal; he was just wrong about exactly why.” Id. The Ninth Circuit reasoned that police officers are not attorneys, and “[t]he issue is not how well [the officer] understood California's window tinting laws, but whether he had objective, probable cause to believe that these windows were, in fact, in violation.” Id, at 1220. The Ninth Circuit held that this was not a mistake of law which would invalidate the stop under the Fourth Amendment, stating that “[t]he circumstances here stand in sharp contrast to cases in which the defendant's conduct does not in any way, shape or form constitute a crime.” ³Id.

We agree with the reasoning of the Ninth Circuit. Deputy Jason initiated the traffic stop because of the cracked windshield. She cited Cantsee for violating NRS 484D.435(1), believing that it was the applicable statute. She was mistaken. NRS 484D.435(1) prohibits driving a vehicle “with any sign, poster or other nontransparent material upon the front windshield.” Although this statute does not prohibit Cantsee's conduct, a crack that obstructs the driver's vision through the windshield could be an infraction under NRS 484B.163(3). We conclude that this statute provides a lawful ground to justify the stop because the crack in the windshield might have obstructed Cantsee's view. Therefore, Deputy Jason's mistake was not a mistake of law, but a mistake as to which law applied. Accordingly, we conclude that the district court erred in finding that Deputy Jason's citation to the incorrect statute was a mistake of law that invalidated the traffic stop under the Fourth Amendment,⁴ However, a

[321 P.3d 892]

question remains as to whether the State waived its right to argue that NRS 484B.163(3) justifies the traffic stop because it failed to include the statute in its opposition to the motion to suppress and raised it for the first time during the suppression hearing.

The State did not waive its right to argue that NRS 484B.163(3) justified the investigatory traffic stop

Whether...