129 Nev., Advance Opinion I 02.
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 61262
Appellant,
vs.
MICHAEL ALAN KINCADE,
Respondent.
No. 61263
THE STATE OF NEVADA,
Appellant, FILED
vs.
MICHAEL ALAN KINCADE, DEC 2 6 2013
Respondent. LINDEMAN
CL
BY
CI-YEE-DEPUTY CLERK
Appeal from a district court order granting a motion to
suppress evidence. Seventh Judicial District Court, Lincoln County; Steve
L. Dobrescu, Judge.
Affirmed.
Catherine Cortez Masto, Attorney General, Carson City; Daniel M. Hooge,
District Attorney, Lincoln County,
for Appellant.
Dylan V. Frehner, Public Defender, Lincoln County,
for Respondent.
BEFORE THE COURT EN BANG.
SUPREME COURT
OF
NEVADA
(0) 1947A
/3- 39,70
OPINION
By the Court, PARRAGUIRRE, J.:
In this case, we consider whether the district court properly
excluded evidence seized pursuant to a search warrant where the warrant
did not comply with NRS 179.045(5)'s requirement that a warrant include
a statement of probable cause or have the affidavit upon which probable
cause was based attached. Recognizing that a state may provide broader
protections to its citizens than provided by the U.S. Constitution, we
reaffirm our decision in State v. Allen, 119 Nev. 166, 69 P.3d 232 (2003)
(Allen II), and conclude that failure to comply with NRS 179.045(5)
triggers exclusion despite the U.S. Supreme Court's contrary holding in
United States v. Grubbs, 547 U.S. 90, 97 (2006).
FACTS
The Lincoln County Sheriffs Department initiated an
investigation of respondent Michael Kincade following reports that he was
sexually abusing minor relatives. In the course of the investigation, a
detective filed an affidavit for a warrant to search Kincade's residence for
evidence related to the allegations. A justice of the peace issued a
warrant, but when it was served on Kincade, the warrant did not include a
statement of probable cause and the affidavit setting forth the basis for
probable cause was not attached to the warrant. The subsequent search
revealed images of child pornography on Kincade's computer and external
hard drive, The State pursued numerous charges against Kincade for
sexual assault and possession of child pornography.' Kincade moved to
'The sexual assault charges and child pornography charges were
bifurcated into separate cases.
SUPREME COURT
OF
NEVADA
2
(0) 1947A 440444
suppress the evidence found on his computer, which the district court
granted. The district court concluded that the affidavit did not support a
probable cause finding and that the execution of the warrant violated NRS
179.045(5), which requires a warrant to either include a statement of
probable cause or have the affidavit supporting the warrant attached. The
State now brings this appeal.
DISCUSSION
The State argues that the district court erred by excluding
evidence under NRS 179.045(5), which requires the warrant to include a
statement of probable cause or have the affidavit upon which it is based
attached, because the omission was merely a ministerial violation. The
State also argues that the district court erred in suppressing the evidence
because the detective relied in good faith on the validity of the warrant
issued by the justice of the peace.
The search warrant's failure to comply with NRS 179.045(5) mandates
exclusion of evidence seized pursuant to the warrant
NRS 179.045(5) provides that a warrant must either include a
statement of probable cause or have the affidavit upon which probable
cause is based attached. NRS 179.085 provides that a person may move to
suppress evidence on the grounds that "lit] he warrant is insufficient on its
face." NIBS 179.085(1)(b). In a case factually similar to this one, we held
that failure to include a statement of probable cause or to attach a valid
affidavit to a search warrant in violation of NRS 179.045 triggers
exclusion under NRS 179.085. State v. Allen, 119 Nev. 166, 168, 69 P.3d
232, 233 (2003) (Allen II), modifying State v. Allen, 118 Nev. 842, 60 P.3d
475 (2002) (Allen I). In Allen II, a deputy conducted a home search
pursuant to a warrant, but the warrant did not include a statement of
probable cause and the deputy did not leave a copy of the affidavit with
SUPREME COURT
OF
NEVADA
3
(0) 1947A
the warrant following the search as required by NRS 179.045. 119 Nev. at
168, 69 P.3d at 233-34. We held that exclusion is proper upon failure to
leave a copy of an affidavit with a warrant where the warrant does not
itself include a statement of probable cause, even if the affidavit is
incorporated by reference into the warrant. Id. at 171-72, 69 P.3d at 235-
36. 2
The State argues, however, that United States v. Grubbs, a
more recent U.S. Supreme Court case, abrogates Allen IL 547 U.S. 90, 97
(2006). In Grubbs, the Court considered the issue of whether a triggering
clause, which was part of the basis for the magistrate's probable cause
determination, was required in a warrant that anticipated the future
presence of contraband at a defendant's residence. Id. The Grubbs court
held that the Fourth Amendment does not require an anticipatory warrant
to include a triggering condition. Id. Instead, the Court narrowly
construed the Fourth Amendment to only require that a warrant state
with particularity the place to be searched and the items subject to
seizure. Id. Indeed, the Court confirmed that "the Fourth Amendment
does not require that the warrant set forth the magistrate's basis for
finding probable cause, even though probable cause is the quintessential
precondition to the valid exercise of executive power." Id. at 98 (internal
quotations omitted).
However, states are permitted to provide broader protections
and rights than provided by the U.S. Constitution. Virginia v. Moore, 553
The requirement that the affidavit must be attached does not apply
2
to sealed warrants or to telephonic warrants issued pursuant to NRS
179.045(2). See Allen II, 119 Nev. at 167-68, 69 P.3d at 233; State v.
Gameros-Perez, 119 Nev. 537, 541, 78 P.3d 511, 514 (2003).
SUPREME COURT
OF
NEVADA
4
(0) 1947A e
U.S. 164, 171 (2008); Osburn v. State, 118 Nev. 323, 326, 44 P.3d 523, 525
(2002). Thus, to the extent that Allen II promulgates a statutory rule of
criminal procedure, the more permissive standard of Grubbs does not
vitiate this court's holding in Allen II.
Regardless, the State argues that this court should adopt
Grubbs because Allen II was an application of the Fourth Amendment and
not of Nevada statutory or constitutional law. The State is incorrect. In
Allen II, we determined that NRS 179.045 is plain and unambiguous and
held that failure to comply with NRS 179.045 warrants exclusion. Id. at
168, 170, 69 P.3d at 233, 235. The Legislature established these
requirements for a valid warrant in Nevada and has provided for
suppression of evidence obtained based on a warrant that is insufficient on
its face. NRS 179.085(1)(b). Thus, the holding of Allen II need not
necessarily be affected by developments in federal Fourth Amendment
jurisprudence. Moore, 553 U.S. at 171; Osburn, 118 Nev. at 326, 44 P.3d
at 525. Accordingly, we decline to depart from Allen II's holding that
failure to comply with NRS 179.045 mandates exclusion.
Leon's good-faith exception does not apply
The State next argues that the district court excluded
evidence without first determining whether suppression would further the
purposes of the exclusionary rule under the balancing test of United States
v. Leon, 468 U.S. 897, 906 (1984).
The U.S. Constitution does not provide for exclusion of
evidence obtained in violation of the Fourth Amendment. Arizona v.
Evans, 514 U.S. 1, 10 (1995). Instead, the exclusionary rule is a judicial
remedy designed to deter law enforcement from future Fourth
Amendment violations. Leon, 468 U.S. at 906. Accordingly, "suppression
of evidence obtained pursuant to a warrant should be ordered only on a
SUPREME COURT
OF
NEVADA
5
(0) I947A
case-by-case basis and only in those unusual cases in which exclusion will
further the purposes of the exclusionary rule." Id. at 918. However,
exclusion is warranted without engaging in a case-by-case analysis where
(1) the probable cause determination is based on misleading information
in the affidavit that the affiant knew was false or would have known was
false absent a reckless disregard for the truth, (2) the magistrate wholly
abandoned a detached or neutral role, (3) the warrant is so facially
deficient that the officers executing it cannot reasonably presume its
validity, or (4) the supporting affidavits are so lacking in probable cause as
to render official belief in its existence entirely unreasonable. Id. at 923.
Outside of those four exceptions, a search based on a deficient warrant is
not unreasonable where the officer executing the warrant has an objective
good-faith belief that the warrant is valid.
In Allen II, this court held that failure of a police officer to
follow the requirements of NRS 179.045(5) rendered reliance on the
warrant unreasonable, thus the warrant in question did not trigger Leon's
good-faith exception. 119 Nev. at 172, 69 P.3d at 236. We see no reason to
disturb our holding in Allen II that exclusion is the appropriate remedy
when a warrant does not comply with the statute. Thus, as the instant
warrant similarly does not comply with NRS 179.045(5)'s requirements,
the Leon exception is inapplicable.
CONCLUSION
In conclusion, Allen II is still controlling law despite Grubbs
because this court may grant broader protections to its citizens than
required by the U.S. Constitution, and Leon's good-faith exception will not
apply where statutory requirements are not followed. Thus, failure to
SUPREME COURT
OF
NEVADA
6
(0) 1947A
comply with NRS 179.045 justifies the exclusion of evidence obtained in a
search pursuant to a defective warrant. See Allen II, 119 Nev. at 171-72,
69 P.3d at 235-36. 3
Accordingly, we affirm the district court's order.
J.
Parraguirre
We concur:
'Chit , C.J.
Pickering
J.
Hardesty
Saitta
3 Although we affirm the district court's order solely on the ground
that the warrant did not comply with NRS 179.045, we also note with
approval the district court's determination that the affidavit was "wholly
insufficient" and did not provide a substantial basis for the justice of the
peace to find probable cause that would justify issuing a search warrant.
SUPREME COURT
OF
NEVADA
7
(0) 1947A .7409D