concurring:
I concur in the result reached by the majority and agree that the judgment of the district court should be affirmed, however, I disagree with the reasoning of both the majority and the district judge in reaching that result. The right result was reached for the wrong reason. Kraemer v. Kraemer, 79 Nev. 287, 382 P.2d 394 (1963); Foster v. Lewis, 78 Nev. 330, 372 P.2d 679 (1962); Nelson v. Sierra Constr. Corp., 77 Nev. 334, 364 P.2d 402 (1961).
At trial the appellant faced a two phase problem. First it was required to show that the search warrant was wrongly issued and improperly served, and secondly it was required to convince the trial court that the evidence seized pursuant to the warrant should be suppressed. Cf. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
The trial court erred when it relied on NRS 179.085(3) as the basis to deny appellant’s offer to introduce into evidence copies of the search warrant and accompanying affidavit to show lack of probable cause for issuance of the warrant. Every *37avenue should have been open and available to the appellant to show invalidity in the warrant.
It is anomalous for the majority to assert that it is the obligation and burden of the appellant to prove the illegality of the search and seizure and yet to approve the denial by the trial court of appellant’s attempt to introduce evidence needed to carry its burden.
The majority supports its position by saying: “It is a well established principle that the party seeking to impeach a search warrant has the burden of establishing the matters complained of and that, if the warrant is regular on its face, it will be presumed that the magistrate properly discharged his duties in issuing it. United States v. Thompson, 421 F.2d 373 (5th Cir. 1970); State v. Yates, 449 P.2d 575 (Kan. 1969), cert. denied, 396 U.S. 996 (1969); State v. Kelly, 407 P.2d 95 (1965).” Yet it approves the trial court’s decision to exclude the search warrant and its supporting affidavit from evidence, thus making it impossible to examine the warrant to determine if it is “regular on its face.”
In spite of the error committed by the trial court. I believe it to be harmless. See NRS 178.598.1
Even if the appellant had been able to prove that the affidavit supporting the search warrant was insufficient, and as a consequence the search warrant was improperly issued, or that the search warrant was improperly served, it nevertheless had the obligation to move before trial to suppress the evidence. (NRS 179.085(3).) This the appellant failed to do. Therefore, it became discretionary with the trial court to refuse to hear appellant’s motion to suppress made at the time of trial. In this phase of the proceeding I see no such abuse of discretion as would require us to reverse.
NRS 178.598: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”