State v. Lloyd

Cherry, J., with whom Saitta, J., agrees,

dissenting:

I respectfully disagree with my colleagues in the majority. The majority holds that in order to have a warrantless search of an automobile, the police need only probable cause and need not show exigent circumstances. Their decision to reverse the trial court is not supported by our own stare decisis, State v. Harnisch, 114 Nev. 225, 228-29, 954 P.2d 1180, 1183 (1998), and is not consistent with but is in fact violative of Article 1, Section 18 of our Nevada Constitution, which prohibits unreasonable searches. In this day of modern technology and the allowance of telephonic search warrants, NRS 179.045(2), there is no plausible reason why an officer, after bringing a drug dog to establish probable cause, should fail to attempt to obtain a telephonic search warrant. More importantly, if the officer had attempted to obtain a telephonic search warrant, he would have been put under oath as to Lloyd’s alleged traffic violation. The majority infers that the officer did not attempt to get a warrant because it was a Sunday morning, the courts were closed, and a telephonic warrant was not available. As a former district court judge who served in that capacity for eight years, I cannot accept that argument. There were many occasions when officers came to my home on a Saturday or Sunday to obtain *752a search warrant, and even more on point are the numerous telephonic warrants that I granted in the middle of the night and at other “inconvenient” times. It is not out of the ordinary for police officers throughout our state to have the home phone numbers and cellular numbers of members of the judiciary.

I do not see the “confusion” that the majority alleges in Nevada’s automobile exception caselaw, which requires probable cause and exigent circumstances for a warrantless search. I see no reason not to give the people of our state more protection from warrantless searches of automobiles than is afforded by the United States Constitution and existing federal caselaw.

In the instant case, the officer sees the respondent run a red light. The officer follows the respondent into a shopping center parking lot to issue him a ticket. The respondent is out of his car, and while the ticket is being processed, a drug dog is summoned in accordance with State v. Beckman, 129 Nev 481, 305 P.3d 912 (2013), and establishes probable cause. There is no sound reason at this stage that the officer could not telephone a judicial officer, be put under oath, and obtain a search warrant. This makes sense to me and should be the correct constitutional procedure in our state.

For the above reasons, I would affirm the trial court’s grant of the motion to suppress evidence.