State v. Cantsee

130 Nev., Advance Opinion 2.4
IN THE SUPREME COURT OF THE STATE OF NEVADA

THE STATE OF NEVADA, No. 59121
Appellant,
vs.
FILED
JARVIS DEER CANTSEE, APR 0 3 2014
Respondent.
TRACE K. LINDEMAN
CLE,RX OF SUPREME COUR
BY
CHIEF D TV CL

Appeal from a district court order granting a motihn to
suppress evidence in a criminal case. Second Judicial District Court,
Washoe County; David A. Hardy, Judge.
Reversed and remanded.

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

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 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, MRS 48411435 does not prohibit operating a vehicle with a
cracked windshield.' 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 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.

'MRS 484D.435(1) prohibits driving a vehicle "with any sign, poster
or other nontransparent material upon the front windshield."

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 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.

NRS 484B.163(3) states that "a vehicle must not be operated upon
2

any highway unless the driver's vision through any required glass
equipment is normal."

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 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.
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.
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 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 ix 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

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 defendant's conduct does not in any way, shape or form constitute a
crime."3 Id.
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 48413.163(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

3 Many jurisdictions have reached similar conclusions. See, e.g.,
United States v. Eckhart, 569 F.3d 1263, 1272 (10th Cir. 2009) (holding
that an investigating "officer need not be able to quote statutes" and that
Islome confusion about the details of the law may be excused so long as
there was . .. reasonable articulable suspicion that [an actual]
traffic . . . violation has occurred" (third alteration in original) (internal
quotations omitted)); In re Justin K, 120 Cal. Rptr. 2d 546, 550 (Ct. App.
2002) (holding that "an officer's reliance on the wrong statute does not
render his actions [constitutionally] unlawful if there is a right statute
that applies to the defendant's conduct"); State v. Munoz, 965 P.2d 349,
352 (N.M. Ct. App. 1998) (holding that a traffic stop was constitutional
despite the investigating officer's citation to the wrong statute because the
conduct observed actually violated a different statute); State v. Heien, 737
S.E.2d 351, 354-55 (N.C. 2012) (noting that North Carolina will uphold a
traffic stop based on an officer's mistake as to which law applies if "the
totality of the circumstances indicates that there is reasonable suspicion
that the person stopped is violating some other, actual law"); State v.
Higley, 237 P.3d 875, 878 (Or. Ct. App. 2010) (holding that "a stop is
lawful even if the officer who executes it does so under the mistaken belief
that the defendant has violated one law if the facts the officer perceives
amount to a violation of a different law").

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 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 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 the State waived its right to argue that NRS
4841B.163(3) justified the traffic stop is a question of law. See Nev. Gold &
Casinos, Inc. v. Am. Heritage, Inc., 121 Nev. 84, 89, 110 P.3d 481, 484
(2005). This court reviews the district court's legal conclusions de novo.
Sornee, 124 Nev. at 441, 187 P.3d at 157-58.
We are not aware of any authority stating that the failure to
include a statute in an opposition to a motion to suppress waives the right
to argue that statute at a subsequent hearing. Nevada does have statutes
and rules of local practice providing that the failure to file a motion to
suppress or an opposition to a motion to suppress waives argument. See
NRS 174.105(2) (failure to file a motion to suppress prior to trial waives
exclusionary rule argument); DCR 13(3) (failure to file an opposition to a
motion "may be construed as an admission that the motion is

4We do not address the State's argument that NRS 484D.570(1)(b)
also justifies the traffic stop because it was not raised before the district
court. See Walch v. State, 112 Nev. 25, 30, 909 P.2d 1184, 1187 (1996)
("[I]f a party fails to raise an issue below, this court need not consider it on
appeal.")

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 meritorious"). But, there is no rule, statute, or other authority providing
that failure to include an argument in a timely filed opposition is grounds
for finding a waiver of that argument. Further, although new arguments
may not be raised for the first time on appeal, see Walch v. State, 112 Nev.
25, 30, 909 P.2d 1184, 1187 (1996), we see no reason why an argument on
an issue may not be raised for the first time before the district court in a
hearing held prior to trial
The district court found that the State waived its right to
argue this statute because raising it for the first time at the hearing
unfairly surprised Cantsee. However, we are also unaware of any
authority providing that the State may not direct the district court to a
controlling statute solely because doing so will surprise the defendant. In
addition, although Cantsee stated that he was not prepared to argue NRS
484B.163, he did not indicate how the addition of this statute prejudiced
him. Given that the reason for justifying the traffic stop remained the
same, i.e., that the cracked windshield may have obstructed Cantsee's
view, it is unclear what prejudice could have resulted from arguing that
NRS 484B.163(3) rather than NRS 484D.435(1) justified the traffic stop
when both of these statutes involve obstruction of the driver's view. CI
Vi ray v. State, 121 Nev. 159, 162-63, 111 P.3d 1079, 1082 (2005) (holding
that "lain inaccurate information does not prejudice a defendant[ . if
the defendant had notice of the State's theory of prosecution").
And, even if Cantsee was unfairly surprised, "[ale remedy for
prejudicial surprise resulting in a defendant's inability to present his
defense adequately is a continuance." Zessman v. State, 94 Nev. 28, 32,
573 P.2d 1174, 1177 (1978) (determining that the district court violated
defendants' due process rights when it orally amended the information

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 immediately prior to trial but then denied defendants' motion to continue
the trial). Here, the district court did not continue the hearing or request
supplemental briefing. Therefore, even if the State unfairly surprised
Cantsee when it raised NRS 484B.163 for the first time at the hearing, we
conclude that the district court erred in concluding that the State waived
its right to argue this statute rather than continuing the hearing. 5
The district court did not decide whether Deputy Jason had reasonable
suspicion to stop Cantsee
The dissent argues that we should not remand this decision to
the district court, but rather grant deference to the district court's
determination that the crack in the windshield was not a violation of NRS
484.163(3). We disagree. Whether Deputy Jason had reasonable
suspicion to stop Cantsee for an NRS 484B.163(3) violation is a much
different question than whether she had reasonable suspicion to stop him
for a safety hazard or whether he actually violated NRS 484B.163(3). An
officer has reasonable articulable suspicion "if there are specific,
articulable facts supporting an inference of criminal activity." State v.
Rincon, 122 Nev. 1170, 1173, 147 P.3d 233, 235 (2006); Walker v. State,
113 Nev. 853, 865, 944 P.2d 762, 770 (1997) ("The officer must be able to
point to specific and articulable facts which, when taken together with
rational inferences from those facts, reasonably warrant intrusion."). To
determine whether an officer objectively had reasonable articulable
suspicion, "the evidence is viewed under the totality of the circumstances
and in the context of the law enforcement officer's training and

5 Given our conclusions in this opinion, we decline to address the
State's remaining arguments on appeal.

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 experience." Rincon, 122 Nev. at 1173-74, 147 P.3d at 235. Here, the
district court limited the scope of the evidentiary hearing on the motion to
suppress to the issue of whether a safety hazard justified the stop.
Further, the order did not analyze whether Deputy Jason had a
reasonable suspicion to stop Cantsee for a possible NRS 484B.163(3)
violation.
The district court specifically stated on the record that the
scope of Deputy Jason's testimony at the evidentiary hearing would be
limited to the issue of safety. As a result, neither attorney elicited
testimony from Deputy Jason about the circumstances surrounding
Cantsee's stop or any other facts about what she observed during her
initial contact with him. While some of these facts were addressed at the
preliminary hearing, the district court's decision to limit the scope of the
hearing foreclosed any consideration of Deputy Jason's testimony from the
preliminary hearing. The district court specifically noted at the end of its
order that after the suppression hearing, "the historical facts known to the
deputy at the time of the traffic stop [were] unclear[J" such that it
"prevent[ed] the [district court] from assessing whether the stop could
have been independently justified under NRS 484B.163" (emphasis
added). If the district court had held an evidentiary hearing on whether
Deputy Jason had reasonable suspicion that Cantsee violated NRS
484B.163(3), then the district court likely would have been able to make a
determination on this issue. Multiple courts have upheld stops premised
on an officer observing a windshield crack. See State v. Galvan, 37 P.3d
1197, 1201 (Utah Ct. App. 2001) (citing several courts that have upheld
traffic stops based on windshield cracks).

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 Accordingly, we reverse the district court's order, and we
remand this matter for further proceedings consistent with this opinion.

F--LA Lee-.1-1 \ , J.
Hardesty

I concur:

Parraguirre

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 CHERRY, J., dissenting:
I dissent from the majority's decision because I believe that
the district court, despite some errant legal analysis, explicitly found that
the facts did not support the State's argument. The district court rejected
the State's factual contention that Deputy Jason could have reasonably
suspected that Cantsee was violating NRS 484B.163 at the time of the
traffic stop. This court should defer to the district court's findings of fact.
Accordingly, I would affirm.
There are two issues in this appeal. The first is a legal issue
and is adequately addressed by the majority. It is undoubtedly correct
that a mistaken application of law does not make a traffic stop illegal,
where the conduct observed is actually prohibited by the law. See United
States v. Wallace, 213 F.3d 1216, 1220-21 (9th Cir. 2000). The second
issue is factual. Did the officer possess a reasonable suspicion, at the time
of the stop, that the conduct observed was actually prohibited by law? If
so, then the stop was justified. The majority ignores the district court's
findings on this second issue and remands the case for a repeat
consideration of it.
A district court's findings of fact in a suppression hearing are
reviewed for clear error. State v. Lisenbee, 116 Nev. 1124, 1127, 13 P.3d
947, 949 (2000). Under this standard of review, "factual
determinations ... are given deference on appeal if they are supported by
substantial evidence." Goudge v. State, 128 Nev. _ „ 287 P.3d 301,
304 (2012). This is a lenient standard: "Substantial evidence is 'evidence
that a reasonable mind might accept as adequate to support a conclusion."
Thompson v. State, 125 Nev. 807, 816, 221 P.3d 708,715 (2009) (quoting
Brust v. State, 108 Nev. 872, 874-75, 839 P.2d 1300, 1301 (1992)).

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 The district court apparently went on to decide the factual
issue, whether Deputy Jason possessed a reasonable suspicion that
Cantsee's conduct was illegal, even though its legal analysis obviated the
need to do so. The district court stated that "even if the court's legal
analysis were ignored, the State's "contention that NRS 484B.163
alternatively justifies the stop would be difficult to sustain on the record"
(emphasis added). The district court unequivocally found that Deputy
Jason did not suspect that Cantsee was violating NRS 484B.163:
"Although, at the hearing the State attempted to justify this traffic stop
under an alternative statute. . . this Court finds that the deputy did not
believe Mr. Cantsee had violated another applicable statute." The district
court found not only that Deputy Jason did not reasonably suspect that
Cantsee was committing a crime, but also that Deputy Jason could not
have reasonably suspected as much. The district court found that "there
was no evidence that the crack was positioned in Mr. Cantsee's field of
vision, or actually obstructed his 'normal' view of the road." This finding is
a death blow to the State's argument that Deputy Jason, at the time of the
stop, could have reasonably suspected that Cantsee was violating NRS
484B.163(3) (prohibiting the operation of a vehicle on a highway "unless
the driver's vision through any required glass equipment is normal"
(emphasis added)).
The district court also made a finding as to the credibility of
Deputy Jason's testimony. The district court found that "[wthile the
deputy claimed that the crack in the windshield went all the way across
and up on the passenger side. . . . the deputy acknowledged describing the
crack in the past as only six to eight inches." The court went on to say
that the lack of clarity resulting from Deputy Jason's contradictory

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 statements prevented the court from determining that the stop was
justified under MRS 484B.163. 1 Hence, the district court incorrectly
decided the legal issue, but then declared that even had it decided the
legal issue in favor of the State, the facts did not support the State's
ultimate position.
The State appears, at least to some extent, to be aware that
this court should defer to the district court's finding that the facts did not
justify a stop under NRS 484B.163(3). At oral argument, the State
proffered the extraordinary opinion that any crack in a windshield
justifies a reasonable suspicion that the driver is violating NRS
484B.163(3) and, therefore, that the district court legally erred by not
finding the cracked windshield to be sufficient to justify a stop. See Oral
Argument at 07:45, State v. Cantsee, Docket No. 59121 (Sept. 18, 2013),
available at http://goo.gl/wuT7qW ("Our position is [that] the field of vision
constitutes the entire windshield."). The State evidently believes that the

'The majority points out that the district court narrowed the scope
of the evidentiary hearing to the safety hazard issue. It goes on to say
that, had the district court held an evidentiary hearing on the NRS
484B.163 issue, the court might have been able to make a determination
as to whether the stop was justified. But the decision whether to hold an
evidentiary hearing is within the discretion of the district court; the State
does not have an a priori right to an evidentiary hearing on a motion to
suppress. See Cortes v. State, 127 Nev. „ 260 P.3d 184, 187 (2011).
Furthermore, the district court noted the contradictions in Deputy Jason's
testimony. I fail to see how remanding for another hearing with an
expanded scope might make her testimony more credible.

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 district court's factual determination, that there was a crack in the
windshield but that it did not obstruct Cantsee's normal vision, was legal
error because any crack in a windshield obstructs vision and thereby
violates NRS 484B.163(3). 2 In making this argument, the State implicitly
accepts the district court's findings and asks this court to evade them by
generously construing the statute in the State's favor.
The fact that the district court made a determination in the
alternative is nothing new. We regularly affirm district court decisions
that were decided on alternative grounds. See, e.g., Mason v. Mason, 115
Nev. 68,69-71, 975 P.2d 340, 341 (1999) (affirming on one of the alternate
grounds for the district court's ruling). This court reviews the district
court's judgment, not its opinion: "It is well settled that the opinion of the
trial judge is no part of the judgment roll, and that it can only be used to
aid this court in the proper determination of the appeal." Hunter v.
Sutton, 45 Nev. 430, 439, 205 P. 785, 787 (1922). We do not reverse a
correct judgment merely because the opinion contained some extraneous
errors.
The facts, as found by the district court, show that Deputy
Jason could not have formed an objectively reasonable suspicion that
Cantsee was violating the law at the time of the traffic stop. These
findings warrant deference. I would affirm the district court's order
suppressing the evidence acquired from the illegal stop.

2 0f course, this argument is troubling; its adoption would make any
citizen who was the victim of a pebble lodged in a windshield, a frequent
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