134 Nev., Advance Opinion 25
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 71208
Appellant,
vs. FILED
GREGORY FRANK ALLEN SAMPLE,
APR 0 5 2018
A/K/A GREGORY F.A. SAMPLE,
* i're 0
Er BROWN
Respondent. I,
I. RI
BY w• j _ }.4
4 TY C
Appeal from a district court order granting respondent's motion
to suppress. Second Judicial District Court, Washoe County; Lynne K.
Simons, Judge.
Affirmed in part, reversed in part, and remanded.
Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Jennifer P. Noble and Stephan J. Hollandsworth,
Deputy District Attorneys, Washoe County,
for Appellant.
Larry K. Dunn & Associates and Karena K. Dunn and Larry K. Dunn, Reno,
for Respondent.
BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
OPINION
By the Court, HARDESTY, J.:
Respondent Gregory Frank Allen Sample was arrested for
driving under the influence of alcohol after failing a preliminary breath test
(PBT). The results of the PBT were subsequently used to obtain a search
warrant for an evidentiary blood draw. The district court suppressed the
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PBT results, concluding that they were obtained in violation of Sample's
Fourth Amendment rights, and also suppressed the evidentiary blood draw
as the fruit of an illegal search. The State argues on appeal that the district
court erred because Sample was under arrest at the time the PBT was
administered, the PBT was a legal search incident to the arrest, and the
blood evidence was legally obtained pursuant to the search warrant.
Although the State fails to demonstrate that the suppression of the PBT
evidence was erroneous, we hold that the district court erred in invalidating
the telephonic search warrant and suppressing the blood draw evidence
because there was probable cause to support the search warrant even
without the PBT evidence.
FACTS AND PROCEDURAL HISTORY
While on patrol one night, Deputy Swanson noticed a
northbound vehicle cross over fog lines and double yellow lines, accelerate
rapidly, cross into a southbound turn lane, and veer back into the
northbound travel lane. Deputy Swanson first activated his overhead
lights, and then activated his siren in an attempt to initiate a traffic stop.
The vehicle did not stop and continued driving to Sample's residence where
it pulled into the driveway.
Deputy Swanson also pulled into the driveway and approached
the vehicle where he observed the driver, later identified as Sample, with
red, watery eyes and the smell of alcohol coming from inside the vehicle.
Sample drank a clear liquid from a plastic bottle despite Deputy Swanson's
repeated demands to stop. Based on these observations, Deputy Swanson
asked Sample how much he had to drink, and Sample admitted to drinking
"[a] couple of beers." Deputy Swanson further observed that Sample's
"speech was slow and slurred," and that Sample repeatedly refused to
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comply with commands to stop drinking out of the plastic bottleS or to roll
his window down further.
Deputy Swanson's partner arrived on the scene, and the
deputies asked Sample to exit the vehicle. Sample refused, and the officers
had to reach through the window and open the vehicle's door before Sample
exited, "unsteady on his feet." Sample was directed to remain at the front
of the patrol vehicle but, instead, he attempted to walk toward the front
door of his residence while the deputies gathered field sobriety test
paperwork from their patrol vehicle. The deputies then put Sample in a
wristlock and escorted him to the front of the patrol car where they placed
him in handcuffs. Deputy Swanson felt that Sample "was absolutely under
the influence of an alcoholic substance," and he decided not to conduct the
field sobriety test because of Sample's uncooperative behavior including his
attempt to walk toward the entrance of the residence. Sample was then
placed in the back of the patrol car.
While Sample was handcuffed in the back of the patrol car, a
third officer arrived on the scene and Deputy Swanson utilized that officer's
equipment to administer the PBT on Sample. Sample failed the PBT,
blowing a 0.172 blood-alcohol concentration. Deputy Swanson placed
Sample under arrest for driving under the influence.
Because Sample would not give consent for blood testing,
Deputy Swanson obtained a telephonic search warrant for three descending
blood draws for evidentiary testing and analysis. As probable cause for the
warrant, Deputy Swanson told the magistrate judge his observations of
Sample's intoxicated state and the fact that Sample had a prior DUI
conviction. Deputy Swanson also told the judge the results of the PBT and
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that Sample had consented to the PBT. The judge granted the warrant and
three blood samples were taken and analyzed.
Sample waived a preliminary hearing and the State filed an
information charging him with driving under the influence pursuant to
NRS 484C.110, which is punishable as a felony under NRS 484C.410 due to
Sample's previous felony DUI conviction in 2009. Sample moved to
suppress the PBT on the grounds that it was a nonconsensual search in
violation of the Fourth Amendment and that without the improperly
obtained PBT results, there was no probable cause to support his arrest. At
the suppression hearing, Deputy Swanson testified that "I used the PBT
only to confirm my observations. I don't use it as a probable cause arrest."
Although he had testified at an earlier administrative hearing that he
obtained Sample's consent to administer the PBT, Deputy Swanson
conceded at the suppression hearing that he did not obtain Sample's consent
and merely directed him to blow.
The district court granted Sample's motion to suppress.
Because Deputy Swanson had testified inconsistently regarding whether
Sample had consented to the PBT, the district court found that no consent
was given and therefore the PBT was a warrantless search in violation of
the holding in Birchfield v. North Dakota, 579 U.S. , 136 S. Ct. 2160
(2016). The district court further found that without the PBT results, no
probable cause existed for Sample's arrest and that the good faith exception
to the warrant requirement did not apply to Deputy Swanson's execution of
the telephonic search warrant. The effect of the suppression order was not
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only to suppress the PBT, 1 but also to invalidate the telephonic search
warrant and suppress the evidentiary blood draw evidence. The State
appeals.
DISCUSSION
In reviewing a district court's resolution of a motion to
suppress, we review its factual findings for clear error and its legal
conclusions de novo. State v. Beckman, 129 Nev. 481, 486,
305 P.3d 912,
916 (2013).
The district court did not err in finding that the PBT results were obtained
in violation of Sample's Fourth Amendment rights
The district court found that a warrant was required for the
administration of the PBT and that the PBT was unlawfully administered
without Sample's consent. The State concedes that Sample did not consent
to the PBT, but argues that a warrant was not required because the
placement of Sample in handcuffs in the patrol vehicle constituted an arrest
at the time the PBT was administered; thus, the PBT was a valid search
incident to arrest. See Birchfield, 579 U.S. at 136 S. Ct. at 2184 (holding
that the Fourth Amendment permits a warrantless breath test
administered as a search incident to an arrest for drunk driving). However,
the State makes this argument for the first time on appeal and it was not
considered by the district court. Accordingly, we decline to consider it. See
McKenna v. State, 114 Nev. 1044, 1054,
968 P.2d 739, 746 (1998) ("Where a
defendant fails to present an argument below and the district court has not
considered its merit, we will not consider it on appeal."). Because the PBT
1 Pursuant to NRS 484C.150(3), PBT results are not admissible "in
any criminal action, except to show there were reasonable grounds to make
an arrest."
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was not administered pursuant to a warrant or an exception to the warrant
requirement, we conclude that the district court properly suppressed the
PBT evidence as an unconstitutional search. See Byars v. State, 130 Nev.
848, 854,
336 P.3d 939, 943 (2014) (stating that "[a] warrantless search is
reasonable only where it falls within a recognized exception" to the warrant
requirement).
The district court erroneously invalidated the telephonic search warrant
used to obtain the evidentiary blood draw
The district court invalidated the search warrant and
suppressed the subsequent blood draw evidence "as fruit of the poisonous
tree" stemming from Deputy Swanson's violation of Sample's rights when
he administered the PBT without Sample's consent. The State argues that
this was error. We agree and hold that this suppression was error because
even though the telephonic search warrant contained a false statement by
Deputy Swanson regarding the improperly obtained PBT, it was,
nevertheless, supported by other facts showing probable cause.
"This court will not overturn a magistrate's finding of probable
cause for a search warrant unless the evidence in its entirety provides no
substantial basis for the magistrate's finding." Garrettson v. State, 114 Nev.
1064, 1068-69,
967 P.2d 428, 431 (1998). "A defendant is not entitled to
suppression of the fruits of a search warrant, even based on intentional
falsehoods or omissions, unless probable cause is lacking once the false
information is purged and any omitted information is considered." Doyle v.
State, 116 Nev. 148, 159,
995 P.2d 465, 472 (2000). Probable cause requires
"trustworthy facts and circumstances which would cause a person of
reasonable caution to believe that it is more likely than not that the specific
items to be searched for are: seizable and will be found in the place to be
searched." Keesee v. State, 110 Nev. 997, 1002,
879 P.2d 63, 66 (1994).
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Further, Iwthether probable cause is present to support a search warrant
is determined by a totality of the circumstances," and "the issuing judge's
determination of probable cause should be given great deference by a
reviewing court." Doyle, 116 Nev. at 158, 995 P.2d at 471.
When Deputy Swanson called the magistrate judge to obtain
the telephonic search warrant, he told the judge that Sample had been
driving erratically and speeding, would not obey orders, had glassy, red, and
watery eyes, had slow and slurred speech, had an odor of alcohol, was
unsteady on his feet, attempted to enter his home while the deputies
prepared the field sobriety test paperwork, and had at least one prior felony
DUI conviction. Deputy Swanson's observations of Sample's intoxicated
state were included in the district court's findings of fact. This court has
found probable cause under similar circumstances. See Dixon v. State, 103
Nev. 272, 273-74,
737 P.2d 1162, 1163-64 (1987) (holding that probable
cause for arrest existed where defendant was driving erratically, smelled of
alcohol, had slurred speech, had an inability to stand straight, had
bloodshot, watery eyes, and failed a field sobriety test).
Deputy Swanson also told the magistrate judge that Sample
consented to a PBT and registered a 0.172 blood-alcohol concentration.
Conducting our own analysis of the facts as found by the district court, and
ignoring the PBT evidence, we conclude that Deputy Swanson's remaining
observations still support the magistrate judge's finding of probable cause.
Those remaining facts "cause a person of reasonable caution to believe that
it is more likely than not that" an evidentiary draw of Sample's blood would
contain evidence of his driving while under the influence of alcohol. Keesee,
110 Nev. at 1002,
879 P.2d at 66.
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CONCLUSION
We conclude that the district court properly suppressed the
PBT evidence, but erred in invalidating the telephonic search warrant and
suppressing the evidentiary blood draw. Without considering the PBT, the
search warrant was still supported by probable cause, and the evidentiary
blood draw was a valid search and seizure pursuant to that warrant.
Accordingly, we affirm in part the district court's order granting Sample's
motion to suppress as to the PBT evidence but reverse and remand as to the
suppression of the search warrant and evidentiary blood draw.
Parraguirre
,sksis ts4-0 J.
Stiglich
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