dissenting:
*156Respectfully, I dissent.
In Payton v. New York, 445 U.S. 573 (1980), the United States Supreme Court held that the Fourth Amendment of the United States Constitution prohibits the police from effecting a warrant-less and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Accordingly, since the police officers in Payton entered a private residence without a warrant to make their routine arrest, the evidence seized in the premises was suppressed. Id. at 603. The majority applies Payton to the facts of appellant Edwards’ case and concludes that his conviction for illegal drug use cannot stand. However, Payton is not applicable to the analysis because of the unique facts of the case before us, and because of the rulings found in United States v. Santana, 427 U.S. 38 (1976), and New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640 (1990).
PROBABLE CAUSE
The threshold issue in this case asks whether there was probable cause to arrest Edwards for indecent exposure. Edwards’ arrest in his motel room was clearly based upon probable cause: moments prior to the arrest, an unidentified woman entered the lobby of the motel and explained that a “gentleman was dressed in woman’s clothing and [was] exposing himself to her and her children.” The police officers then went towards the room and saw appellant Edwards through a window; he was wearing women’s undergarments and was stooped over with his hand over his crotch. The police knocked on Edwards’ door and Edwards opened the door, exposing his penis through a hole in the front of the undergarments. This constitutes probable cause to believe Edwards was guilty of indecent exposure, a gross misdemeanor, and we have previously so ruled on facts indistinguishable from the facts of this case. See Grover v. County of Clark, 97 Nev. 104, 625 P.2d 85 (1981). The next question asks whether the police violated Edwards’ Fourth Amendment rights when they entered the motel room without Edwards’ permission.
UNITED STATES v. SANTANA
The United States Supreme Court, in United States v. Santana, 427 U.S. 38 (1976), has ruled that a “suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place.” Id. at 43. In United States v. Santana, police went to a suspect’s home in order to make a warrantless felony arrest. Upon their arrival, the police located the suspect standing in the doorway of her home: officers testified that had the suspect taken one step forward she would *157have been outside the doorway, and had she taken one step back she would have been in the vestibule. Id. at 40. The officers left their vehicle and approached the suspect, displaying their badges and shouting “police.” The suspect retreated into her home where the police followed to make a warrantless arrest. In a search incident to the arrest, the police seized narcotics and marked money. Id. at 40-41.
The district court in United States v. Santana suppressed the evidence seized in the suspect’s home, concluding that even though there was probable cause to arrest the suspect, the police were not justified in making a warrantless entry into her home to consummate the arrest. Id. The United States Supreme Court disagreed with the district court’s conclusion.
First, the United States Supreme Court cited United States v. Watson, 423 U.S. 411 (1976), for the proposition that a warrant-less arrest of an individual in a public place upon probable cause does not violate the Fourth Amendment. United States v. Santana, 427 U.S. at 42. The Court then concluded that the suspect in United States v. Santana was in a public place as she stood at the threshold of her door because she was not in an area where she had any expectation of privacy; the Court reasoned that “ ‘[w]hat a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.’ Katz v. United States, 389 U.S. 347, 351 (1967).” Id. at 42. Next, the Court asked whether the suspect’s act of retreating from a public place into a private place — her home, could thwart an otherwise proper arrest. The Court ruled it could not under the “hot pursuit” doctrine.1 Id. Finally the Court concluded that once the suspect had been legally arrested in her home, the search that exposed the money and drugs was justified as a search incident to the arrest. Id. at 43.
Similarly the arrest of appellant Edwards in this case was based upon probable cause, as has already been discussed. Further, Edwards was in a public place at the time the police were about to arrest him: he could not harbor an expectation of privacy as he exposed his genitals in the threshold of the open doorway to his room. Id. at 42. Finally, once the police decided to arrest Edwards, he could not evade the arrest by retreating into a private place. The police, therefore, did not violate the strictures of the *158Fourth Amendment by following Edwards into his room to consummate the arrest. Id.
After the officers entered the room, they placed Edwards under arrest and charged him with indecent exposure. During the handcuffing procedure, both officers noticed that Edwards’ eyes were watery and his pupils were dilated. Edwards was asked if he had used “anything” and he responded that he had. Thereafter the police properly conducted a search incident to the arrest in the motel room, netting a bag of unused hypodermic needles and one used needle with blood on the tip. After he was taken to the station house, Edwards again admitted to using drugs.
The facts of Edwards’ case, and the rule established in United States v. Santana make it clear that Edwards’ arrest was not improper, nor was it inappropriate for the police to seize evidence in his room incident to the arrest. Likewise, Edwards’ admissions subsequent to the arrest should not be suppressed because his arrest and the entry into his home was legal and appropriate under the strictures of the Fourth Amendment. Accordingly, Payton has absolutely no application to this case. The district court properly admitted the items seized in Edwards’ room, as well as his admissions and drug tests.
NEW YORK v. HARRIS
Even if the rule of United States v. Santana is ignored, Edwards’ arrest was still appropriate, and his station house admission to drug use, as well as the drug test subsequent to that admission, were properly admitted into evidence by the district court.
The Payton ruling was clarified in New York v. Harris, where the United States Supreme Court distinguished between an illegal search of a suspect’s home, and the illegal detention of the suspect. In New York v. Harris, the United States Supreme Court stated:
Nothing in the reasoning of [.Payton] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house. There could be no valid claim here that [the defendant] was immune from prosecution because his person was the fruit of an illegal arrest. United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 63 L.Ed. 2d 537 (1980). Nor is there any claim that the warrantless arrest required the police to release [the defendant] or that [the defendant] could not be immediately rearrested if momentarily released. Because the officers had probable cause to arrest [the defendant] for a crime, [he] was *159not unlawfully in custody when he was removed to the station house, given Miranda warnings and allowed to talk. For Fourth Amendment purposes, the legal issue is the same as it would be had the police arrested [the defendant] on his door step, illegally entered his home to search for evidence, and later interrogated [the defendant] at the station house. Similarly, if the police had made a warrantless entry into [the defendant’s] home, not found him there, but arrested him on the street when he returned, a later statement made by him after proper warnings would no doubt be admissible.
New York v. Harris, 495 U.S. at 18, 110 S.Ct. at 1643. Under the preceding analysis, the Court held, that “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of [Payton].” New York v. Harris, 495 U.S. at 21, 110 S.Ct. at 1644.
After he was arrested in his motel room, and after his admission, a search of Edwards’ room netted a bag of hypodermic needles.2 Under the rationale of Payton, and assuming arguendo that United States v. Santana is not controlling, the district court admittedly should have excluded the hypodermic needle evidence.
However, it is not clear whether Edwards’ admission to drug use in the motel room should have been excluded by the district court. New York v. Harris did not reach this issue. Logically, however, applying the exclusionary rule to the first admission would make no sense. Under the rationale used in New York v. Harris, the confession in the room would not be the product of an illegal search of the room, but would be the result of the physical state and appearance of Edwards’ person and an arrest based upon probable cause.3
*160Regardless, it is clear that Edwards’ second admission to drug use and the drug test he received at the station house should not be excluded from evidence. At the time of his second admission and drug test, there is no question that Edwards was legally detained “[b]ecause the officers had probable cause to arrest [him] for a crime. . . .” New York v. Harris, 495 U.S. at 18, 110 S.Ct. at 1643. (Emphasis added.) This second admission was not the result of an illegal search of Edwards’ hotel room; rather, the facts clearly indicate that it was the result of Edwards’ physical state and police questioning related thereto. Assuming the police at the station house were not inept, they would have questioned Edwards about drug use (as did the two officers who first confronted Edwards in his room) because of his appearance and actions, and regardless of any prior admission or the hypodermic needles seized in his room.
Nonetheless, the majority argues that New York v. Harris is inapplicable to this case because Edwards was arrested for indecent exposure rather than illegal drug use. Therefore, the majority reasons the police discovered his illegal drug use “solely through an illegal arrest.” The majority then concludes that “any assertion that police received no advantage through the illegality becomes untenable.” Respectfully, I disagree with this reasoning.
The facts of this case indicate that the station house admission and the discovery of Edwards’ illegal drug use did not arise from an illegal intrusion into Edwards’ motel room; rather, the drug use was discovered because of Edwards’ appearance and actions. Edwards’ arrest for indecent exposure was likewise the result of his physical appearance. Thus, whether prior to the arrest or at the station house, the police had every right to question him about his behavior, appearance and attire, and in fact, it would have been inappropriate for the police not to do so.
Questions regarding his physical state, appearance and behavior led to an admission of illegal drug use while he was at the station house. Once Edwards made this admission, there was no reason to exclude the admission from the trier of fact simply because he was initially arrested for indecent exposure: to conclude otherwise implies that Edwards’ admission of drug use is the fruit of an illegal detention of his person at the station house; however, under New York v. Harris, since Edwards’ arrest was based upon probable cause, “[t]here could be no valid claim here that [the defendant] was immune from prosecution because his person was the fruit of an illegal arrest.” New York v. Harris, 495 U.S. at 18, 110 S.Ct. at 1643. (Emphasis added.)
I likewise reject any contention that the police gained an advantage because the arrest was made in Edwards’ room in violation of Payton. As the New York v. Harris court reasoned, *161the legal issue in this case “is the same as it would be had the police arrested [the defendant] on his door step, illegally entered his home to search for evidence, and later interrogated [the defendant] at the station house.” New York v. Harris, 495 U.S. at 18, 110 S.Ct. at 1643. Had Edwards walked into the hallway upon the initial confrontation with police, and had they arrested him there, the result in this case would not change: Edwards’ face would have indicated drug use in the hallway as it did in the hotel room; his eyes would be no less glazed; his behavior would be just as strange; he would still be exposing his genitals; his attire would be the same; there would still be an oily substance on his arms. Thus, the police would have questioned Edwards about his appearance regardless of where he was arrested, and accordingly, there was no advantage gained by arresting Edwards in his room.
The weight of nonexcludable evidence produced at Edwards’ trial overwhelmingly supports a finding of guilt: any error that may be found in the district court’s decision to admit the hypodermic needles into evidence, or Edwards’ first admission at the motel room, under a New York v. Harris analysis, is harmless error in light of the substantial evidence supporting his conviction. Weakland v. State, 96 Nev. 699, 615 P.2d 252 (1980).
CONCLUSION
In sum, I am convinced that the United States Supreme Court’s ruling in Payton has no application here: the police officers had probable cause to arrest Edwards, and Edwards had no legitimate expectation of privacy when he exposed himself in the doorway of his room; accordingly, he could not evade a legal arrest by retreating into his room under the rule set forth in United States v. Santana. Any evidence seized after Edwards’ arrest in his motel room was properly seized incident to his arrest.
Second, even if the majority does not apply United States v. Santana to this case, the Payton rule should not be used to exclude the bulk of the evidence submitted at Edwards’ trial because of the rationale in New York v. Harris.
Accordingly, I must dissent.
However, the Court noted that “hot pursuit” should not be interpreted to mean a “hue and cry ‘in and about [the] public streets.’ ” United States v. Santana, 427 U.S. 38, 43 (1976). The Court concluded that “[t]he fact that the pursuit. . . ended almost as soon as it began did not render it any the less a ‘hot pursuit’ sufficient to justify the warrantless entry into [the suspect’s] house.” Id. The same reasoning would apply to the warrantless arrest of appellant Edwards.
The sequence of these facts show that Edwards’ physical condition — not the retrieval of the hypodermic needles — caused the police to question Edwards about his drug use.
It is difficult to understand why this first confession would only be valid outside the room. This leads to the untenable result that shrewd police officers who violate the strictures of Payton, can legally obtain a confession from the suspect simply by waiting until the suspect is removed from the residence; nonetheless, dicta in New York v. Harris would indicate that the United States Supreme Court intends the suppression of in home interrogations in these cases. In New York v. Harris, the Court said, “[e]ven though we decline to suppress statements made outside the home following a Payton violation, the principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found or statements taken inside the home.” New York v. Harris, 495 U.S. at 20, 110 S.Ct. at 1644.