State v. Parent

• Decision Date: 04 February 1994
• Docket Number: No. 24365,24365
• Citation: 867 P.2d 1143,110 Nev. 114
• Parties: The STATE of Nevada, Appellant, v. Craig S. PARENT, Respondent.
• Court: Nevada Supreme Court

Page 1143

867 P.2d 1143

110 Nev. 114

The STATE of Nevada, Appellant, v. Craig S. PARENT, Respondent.

No. 24365.

Supreme Court of Nevada.

Feb. 4, 1994.

Frankie Sue Del Papa, Atty. Gen., Carson City, Dorothy Nash Holmes, Dist. Atty., Washoe County, for appellant.

Craig S. Parent, in pro per.

OPINION

PER CURIAM:

This is an appeal, pursuant to NRS 177.015(2), from an order of the district court granting a pretrial motion to suppress evidence. The district court concluded that evidence gained through use of an allegedly unlawful anticipatory search warrant must be suppressed. This appeal by the state followed.

On July 1, 1992, an anonymous informant telephoned Detective Wygnanski of the Washoe County Consolidated Narcotics Unit. The informant told Wygnanski that respondent Parent would arrive, via Continental Airlines, at the Reno Cannon Airport, from New Orleans, on July 3, 1992. The informant stated that Parent would be with two women and he would have cocaine concealed inside a baby powder bottle in his baggage. The informant also provided Wygnanski with a physical description of Parent, his social security number, his FBI number, and his date of birth. Wygnanski confirmed the fact that Parent was scheduled to fly on Continental Airlines to Reno on July 3, 1992. On July 2, 1992, Wygnanski obtained a search warrant from a justice of the peace. Execution of the warrant was conditioned upon the arrival of Continental Air Lines flight number 781 from New Orleans on July 3, 1992.

On July 3, 1992, Parent and two women arrived at the Reno Cannon Airport. Police officers observed the threesome once the threesome exited the airplane. Parent played a slot machine and entered the airport bar before retrieving his luggage from the luggage carousel. The police officers arrested Parent shortly after he retrieved his luggage. A police officer found 3.7 grams of cocaine in a baby powder bottle which was located inside one of appellant's bags.

On August 17, 1992, the state filed an information charging Parent with one count of possession of a controlled substance (cocaine). On January 11, 1993, appellant filed in the district court a motion to suppress evidence gained through the use of the search warrant. The state opposed the motion. On May 13, 1993, the district court conducted a hearing on Parent's motion to suppress. The informant was not identified. On May 13, 1993, the district court entered an order granting Parent's motion to suppress evidence gained through the use of the search warrant. This appeal followed. This matter has been submitted on the record.

In his motion to suppress, Parent argued that the justice of the peace improperly issued the search warrant because NRS 179.035 requires that the offense for which the search was obtained be committed before the search warrant issues. ¹ In its order granting the motion to suppress, the district court reached the following conclusions: (1) "NRS 179.035 specifically says that the offense must have already been committed before the search warrant [may issue]"; (2) this court has not adopted the anticipatory search warrant rule; (3) the legislature has not adopted the anticipatory search warrant rule; (4) the search warrant should not have been issued until after Parent arrived in Nevada; and (5) Parent "could easily have been detained at the airport while a search warrant was sought. The warrant was not appropriately obtained, and, consequently, the evidence must be suppressed."

NRS 179.035 provides (emphasis added):

A warrant may be issued under NRS 179.015 to 179.115, inclusive, to search for and seize any property:

1. Stolen or embezzled in violation of the laws of the State of Nevada, or of any other state or of the United States;

2. Designed or intended for use or which is or has been used as the means of committing a criminal offense; or

3. When the property or things to be seized consist of any item or constitute any evidence which tends to show that a criminal offense has been committed, or tends to show that a particular person has committed a criminal offense.

During the hearing on the motion to suppress, Parent argued that the justice of the peace lacked jurisdiction to issue the search warrant because at the time the search warrant was issued a criminal offense had not been committed within this state. The district court agreed with Parent's argument.

At the time that the justice of the peace issued the search warrant, Parent had not yet entered the State of Nevada and had not yet committed a crime within the State of Nevada. The district court and the parties relied exclusively on NRS 179.035(3) in their analysis of this issue. Although NRS 179.035(3), at least arguably, contains language that might require that a crime actually have been committed at the time a warrant is issued, ² NRS 179.035(2), which clearly applies to the facts of this case, has no such language. Indeed, NRS 179.035(2) provides statutory authorization for an anticipatory search warrant: "A warrant may be issued ... to search for and seize any property ... intended for use ... as the means of committing a criminal offense[.]" The "intended for use" language of the statute indicates that it is not necessary that the crime be committed before the magistrate issues the search warrant.

Although the district court is correct in noting that this court has not expressly approved of anticipatory search warrants, the clear weight of authority holds that anticipatory search warrants are not unconstitutional per se. See e.g., United States v. Tagbering, 985 F.2d 946 (8th Cir.1993); Rivera v. United States, 928 F.2d 592, 602-03 (2nd Cir.1991); United States v. Wylie, 919 F.2d 969, 974 (5th Cir.1990); United States v. Garcia, 882 F.2d 699 (2nd Cir.), cert. denied sub nom. Grant v. United States, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989); United States v. Dornhofer, 859 F.2d 1195 (4th Cir.1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1639, 104 L.Ed.2d 155 (1989); Johnson v. State, 617 P.2d 1117 (Alaska 1980); State v. Cox, 110 Ariz. 603, 522 P.2d 29, 34 (1974); State v. Wright, 115 Idaho 1043, 772 P.2d 250, 256-60 (1989).

In addition, the United States Supreme Court implicitly approved of anticipatory search warrants in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). In those cases, the Court indicated that it was constitutionally possible to obtain a search warrant for the seizure of oral communications through the use of electronic surveillance. Of course, the oral communications to be intercepted would occur after the issuance of the search warrant.

"[T]he purposes of the fourth amendment are best served by permitting government agents to obtain warrants in advance if they can show probable cause to believe that the contraband will be located on the premises at the time that the search takes place.... Anticipatory search warrants ... in the proper circumstances, may be an effective tool,...