State v. McCall
| Citation | 138 Nev.Adv.Op. 64 |
| Decision Date | 22 September 2022 |
| Docket Number | 82640 |
| Parties | THE STATE OF NEVADA, Appellant, v. CHARLES WADE MCCALL, Respondent. |
| Court | Supreme Court of Nevada |
Appeal from a district court order granting a motion to suppress in a criminal prosecution. Eighth Judicial District Court, Clark County; Monica Trujillo, Judge.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson District Attorney, Alexander Chen and Jonathan E VanBoskerck, Chief Deputy District Attorneys, and Austin C Beaumont, Deputy District Attorney, Clark County, for Appellant.
Sanft Law and Michael W. Sanft, Las Vegas, for Respondent.
BEFORE THE SUPREME COURT, HARDESTY, STIGLICH, and HERNDON, JJ.
It is axiomatic that all persons shall be free from unreasonable, warrantless search and seizure. The United States Supreme Court has carved out an exception to this general rule, however, permitting officers to conduct warrantless protective sweeps of areas for which they can articulate-and only when they can articulate-specific facts that lead them to believe the area being swept harbors an individual posing a danger to those on scene. Here, the district court granted a motion to suppress the evidence found as a result of and during a protective sweep, determining that the officers did not have an appropriate basis for the protective sweep and that the protective sweep was per se unconstitutional because it was not preceded by an arrest.
While we hold that a protective sweep does not require a prior arrest, we conclude that the district court correctly concluded that the search performed here was not a lawful protective sweep because it was not based on articulable facts supporting a reasonable belief that the premises harbored a dangerous individual. The district court's order, however, did not indicate the specific evidence that was improperly seized as a result of the protective sweep or as its fruit. Accordingly, we affirm in part, vacate in part, and remand for the district court to clarify the evidence that falls within the purview of the suppression order and which items were permissibly seized by law enforcement.
Colette Winn resided in a home owned by respondent Charles Wade McCall. Winn was on probation and subject to a search clause that allowed officers to search her living quarters.[1] While McCall was an ex-felon, he was not on probation or parole.
Winn's probation officer received an anonymous letter that claimed Winn was violating her probation. The letter focused primarily on Winn, alleging that she was "engaged in criminal activity with all ex felons," and warned that "[w]e[a]pons might be found, so please be careful." The letter also contended that Winn was "slinging drugs out of the far back bedroom." The letter only tangentially referred to McCall as a "convicted felon" but did not otherwise allege that McCall was engaged in any illegal activity or was dangerous. As a result of the anonymous letter, Winn was arrested at the probation office and interviewed. Winn told the officers that she lived with two other roommates, McCall and Mahatuhi Santos.[2] The officers researched McCall and learned he was an ex-felon and not subject to supervision. A total of eight officers, with Winn in tow, headed to Winn's home to search her place of residence pursuant to the search clause of the probation agreement.
This search devolved into a raid. For purposes of "containment," three officers flanked the sides and rear of the home. Meanwhile, four other officers in tactical gear banged on the door, let themselves into the home using a key code provided by Winn, and made entry with their guns drawn. Upon entry, they encountered both McCall, who had come out of his bedroom in the far back of the home with his dog, and Santos. The officers instructed McCall to reenter his bedroom and place his dog in the bathroom located therein. Even though McCall readily complied with the officers' instruction, three officers followed McCall into his bedroom without his consent to sweep the room. Once inside McCall's room, one of the officers observed shotgun shells on McCall's dresser and detained McCall because they believed they would find guns as well. The officers read McCall his Miranda rights, after which McCall admitted to having firearms in the bedroom and identified them to the officers. The officers later admitted that they entered the home with the intention to search every room and that they conduct sweeps of the entirety of every home they enter as a matter of course even if they believe no one is present.
The officers contacted the Las Vegas Metropolitan Police Department, which obtained a search warrant to further search the house and McCall's vehicle. In McCall's bedroom and vehicle, officers found and seized three firearms, a credit card embosser, blank credit card stock, and several other items. McCall was charged with one count of establishing or possessing a financial forgery laboratory, three counts of ownership or possession of a firearm by a prohibited person, and five counts of possession of document or personal identifying information.
McCall filed a motion to suppress, arguing that the protective sweep violated the Fourth Amendment and that the derivative evidence seized was fruit of the poisonous tree. The State opposed, and the district court held an evidentiary hearing. At the hearing, the officers admitted that they went into the home with the intention of conducting a protective sweep of every room and that they would not have gone directly to Winn's room without conducting a full protective sweep of the house. One officer explained that
The district court determined that "[t]here was no lawful basis for the protective sweep" for two reasons. First, there was no arrest preceding the protective sweep. Second, the officers "failed to testify to a reasonable belief based on specific and articulable facts that the area to be swept harbored an individual posing a danger to those on the scene." The district court concluded that there were no exigent circumstances warranting the protective sweep and thus suppressed the items seized during the sweep and those seized thereafter pursuant to the search warrant as fruit of the poisonous tree. The State appeals.
A protective sweep does not require a prior arrest
The district court determined that a protective sweep requires a prior arrest. The State challenges this conclusion, arguing that law enforcement may conduct a protective sweep before an arrest and that the "reasonableness balancing required by the Fourth Amendment weighs towards allowing probation officers to conduct protective sweeps in non-arrest scenarios." We review this constitutional issue de novo. State v. Lloyd, 129 Nev. 739, 743, 312 P.3d 467, 469 (2013) ().
The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const, amend. IV; Nev. Const, art. 1, § 18; see also Lloyd, 129 Nev. at 743, 312 P.3d at 469. Warrantless searches are generally deemed unreasonable with a few well-established exceptions. Lloyd, 129 Nev. at 743, 312 P.3d at 469. One of these exceptions is a protective sweep. See Maryland v. Bute, 494 U.S. 325, 327 (1990). A protective sweep is generally described as "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Id. Such a sweep is permissible under the Fourth Amendment if the officer held "a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others." Id. (alteration, citation, and internal quotation marks omitted). The search is a cursory inspection of places where a person may be found and "lasts no longer than is necessary to dispel the reasonable suspicion of danger." Id. at 335-36.
The United States Supreme Court has not addressed whether a protective sweep requires a prior arrest. See Leslie A. O'Brien, Note, Finding a Reasonable Approach to the Extension of the Protective Sweep Doctrine in Non-Arrest Situations, 82 N.Y.U. L. Rev. 1139, 1140-41 (2007) ( that the Supreme Court has yet to address this issue). So too did this court remain silent on this issue in Hayes v. State, 106 Nev. 543, 797 P.2d 962 (1990) overruled on other grounds by Ryan v. Eighth Judicial Dist. Court, 123 Nev. 419, 168 P.3d 703 (2007), the one case in which this court has applied Buie.[[3]] Other courts that have considered this issue have largely, but not uniformly, determined that a protective sweep does not require a prior arrest. The New Jersey Supreme Court held that an arrest is not required to conduct a protective sweep where (1) the officers are lawfully on the premises, (2) the officers "have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger," (3) the sweep is conducted quickly, and (4) it is restricted to areas in which the person(s) posing a danger could hide. State v. Davila, 999 A.2d 1116,1119 (N.J. 2010). Further, "[t]he police cannot create the danger that becomes the basis for a protective sweep." Id. Similarly, the United States Court of Appeals for the Eleventh Circuit approved of a protective sweep that occurred before an arrest where the officers had a reasonable belief that there was another individual present who could do them harm. United...
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