IN THE SUPREME COURT OF THE STATE OF NEVADA
TRAVIS DONALD MICKELSON, No. 78513
Appellant,
vs.
THE STATE OF NEVADA,
MED
Respondent. SEP 3 2020
EUZA
CLERK EME COURT
BY
EPUi CLPRK
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of attempted murder with the use of a deadly weapon
committed because of certain actual or perceived characteristics of the
victim, battery with the use of a deadly weapon committed because of
certain actual or perceived characteristics of the victim, assault with a
deadly weapon committed because of certain actual or perceived
characteristics of the victim, and discharging a firearm into an occupied
vehicle. First Judicial District Court, Carson City; James Todd Russell,
Judge.
After encountering a group of Sikh men at a gas station,
appellant Travis Mickelson discharged a firearm at the group's vehicle
while driving and hit one of the men. Mickelson fled the scene. Soon after,
the police arrested Mickelson at his home and seized his cell phone as
evidence. During the arrest, the police asked Mickelson to enter his
passcode into his cell phone so they could turn it on airplane mode to
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preserve the battery. They did not read him his Miranda rights before
making this request.
The State subsequently applied for and received a warrant to
search his cell phone. While executing the search warrant, the State
discovered that Mickelson stored recorded phone calls as files on his cell
phone. In those recordings, Mickelson expressly confessed to the crimes
alleged and made racial remarks about the group of men. Over Mickelson's
objection, the State introduced this evidence at trial and the jury found
Mickelson guilty of four felony offenses, determining that three of them
were committed because of the actual or perceived race, color, religion, or
national origin of the victims under NRS 193.1675. Mickelson appeals.
Motion to suppress
Before trial, Mickelson moved to suppress the recorded phone
calls on Fourth and Fifth Amendment grounds, but the district court denied
his motion. He argues that the district court erred because the officer's
request for his cell phone passcode constituted interrogation and therefore
triggered the required administration of Miranda warnings. We disagree.
The Fifth Amendment protects "compelled incriminating
communications . . . that are 'testimonial' in character." United States v.
Hubbell, 530 U.S. 27, 34 (2000). To protect a suspect's Fifth Amendment
right against self-incrimination, Miranda v. Arizona requires officers to
inform suspects of their constitutional rights before initiating custodial
interrogation.
384 U.S. 436, 444 (1966). "[T]he term 'interrogation' under
1Mickelson's phone was secured with a lock-screen pattern, so instead
of providing the officers with a numeric password, he unlocked it by drawing
a pattern on the phone's screen with his finger.
2
Miranda refers . . . to any words or actions on the part of the police . . . that
the police should know are reasonably likely to elicit an incriminating
response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980)
(footnote omitted).
A cell phone passcode is not inherently incriminating,
particularly where, as here, the phone was retrieved from the suspect's
pocket and he has never disputed that it was his phone. Further, the officer
here did not ask Mickelson for his passcode in order to search his phone for
incriminating evidence. He was merely trying to turn Mickelson's phone on
airplane mode to preserve its battery until the State received a valid search
warrant. The officer's request for Mickelson's passcode therefore does not
constitute an interrogation for Miranda purposes. Rather, providing a
passcode upon request is more analogous to providing consent to a search,
which is not testimonial in nature and therefore does not implicate the Fifth
Amendment.2 See United States v. Henley, 984 F.2d 1040, 1042 (9th Cir.
1993) ("The mere act of consenting to a search-1(es, you may search my
car'—does not incriminate a defendant . . . ."). The district court thus did
not err when it denied Mickelson's motion to suppress on Fifth Amendment
grounds. See State v. Beckman, 129 Nev. 481, 486,
305 P.3d 912, 916 (2013)
(observing that, in reviewing a district court's decision regarding a motion
to suppress, this court reviews findings of fact for clear error and the legal
consequences of those facts de novo).
2This is especially true where, as here, a suspect draws a pattern on
the phone screen instead of verbally providing a numerical password to
unlock it.
3
Mickelson also argues that the district court erred by denying
his motion to suppress because the search warrant was not sufficiently
particularized, rendering it an unlawful general warrant. See U.S. Const.
amend. IV (requiring a warrant to "particularly describ[e] the place to be
searched, and the persons or things to be seizecr); Nev. Const. art. 1, § 18
(mirroring the U.S. Constitution's requirement for particularity). We
review his claim de novo. See Awada v. Shuffle Master, Inc., 123 Nev. 613,
618,
173 P.3d 707, 711 (2007) (providing that constitutional issues are
reviewed de novo); see also United States v. Spilotro, 800 F.2d 959, 963 (9th
Cir. 1986) (providing that the court "review[s] de novo the district court's
finding that the warrants lack sufficient particularity"). Upon such review,
we conclude that the search warrant meets the Fourth Amendmenfs
particularity requirement. The warrant expressly limited the search and
seizure to communications and listed the specific crimes involved.3 The
attached affidavit, which was incorporated by reference in the warrant,
detailed the types of communications the officers expected to find on
Mickelson's cell phone and specified they were seeking evidence of phone
calls Mickelson had with certain individuals regarding the events at issue.
When viewed together, the warrant and supporting affidavit were
sufficiently precise. See In re Seizure of Prop. Belonging to Talk of the Town
Bookstore, Inc., 644 F.2d 1317, 1319 (9th Cir. 1981) (holding that a warrant
3That the warrant did not specifically authorize the search and
seizure of files containing recorded phone calls does not invalidate the
warrant. When the warrant was issued, the officers did not know that
Mickelson recorded his phone calls—an uncommon practice—and thus
could not reasonably be expected to include a more precise description in
the warrant. See Spilotro, 800 F.2d at 963 (requiring a more precise
description only when possible).
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may be construed with a supporting affidavit for purposes of the
particularity requirement if the affidavit is attached to the warrant and the
warrant incorporates it by reference). Further, Mickelson does not argue
that anything outside the scope of the communications forming the basis for
the warrant were found or seized. The district court thus did not err when
it denied Mickelson's motion to suppress on Fourth Amendment grounds.
Bifurcation
Before trial, Mickelson moved to bifurcate the hate-crime
enhancement from the guilt phase of the trial, arguing that bifurcation was
mandatory under Gonzalez v. State, 131 Nev. 991,
366 P.3d 680 (2015). In
Gonzalez, we held that although district courts generally have broad
discretion to bifurcate portions of a trial, bifurcation is mandatory where
failure to bifurcate compromises a defendant's right to a fair trial. Id. at
1002, 366 P.3d at 687. The district court denied Mickelson's motion, finding
that Gonzalez, which addressed bifurcation of a gang enhancement, was not
applicable.
In Gonzalez, the State introduced evidence that the defendant
was a member of a gang that regularly commits heinous crimes. Id. The
evidence, while statutorily admissible to prove a gang enhancement, was
not otherwise admissible at the guilt phase of trial. Id. Here, however, the
State introduced recorded phone calls that were admissible at the guilt
phase of the trial, so Gonzalez is distinguishable. Also, the Gonzalez court
was concerned that admitting evidence of gang membership during the guilt
phase of the trial "allowed the State to tie Gonzalez to unrelated crimes
committed by other members of the [gang]," making it unfairly prejudicial.
Id. at 1003, 366 P.3d at 688. But because the State would have introduced
the recorded phone calls, which relate to the crimes here charged,
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regardless of whether it sought a hate-crime enhancement, admission of
this evidence is not unfairly prejudicial. The district court thus did not err
when it declined to extend Gonzalez here and denied Mickelson's motion for
bifurcation.
Flight instruction
Finally, Mickelson argues that the district court improperly
gave a flight instruction to the jury over his objection. "[The] district court
may properly give a flight instruction if the State presents evidence of flight
and the record supports the conclusion that the defendant fled with
consciousness of guilt and to evade arrest." Rosky v. State, 121 Nev. 184,
199,
111 P.3d 690, 699-700 (2005). Because a flight instruction is
potentially prejudicial, "this court carefully scrutinizes the record to
determine if the evidence actually warranted the instruction." Weber v.
State, 121 Nev. 554, 582,
119 P.3d 107, 126 (2005), overruled on other
grounds by Farmer v. State, 133 Nev. 693,
405 P.3d 114 (2017). Here, the
State presented evidence that Mickelson fled the scene, went home
immediately after the shooting to "lay low," and did not immediately call
the police or go to the police station to report the incident. The State also
presented evidence that Mickelson was scared because the empty shell
casings had his fingerprints on them. And although he called the police at
one point before his arrest, he hung up without identifying himself once the
dispatcher revealed that they were not looking for anyone. Accordingly, we
conclude that sufficient evidence supported the instruction and the district
court did not abuse its discretion in giving it. Crawford v. State, 121 Nev.
744, 748,
121 P.3d 582, 585 (2005) (holding that district courts have broad
discretion in settling of jury instructions which will not be disturbed absent
an abuse of that discretion or judicial error).
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For the reasons set forth above, we
ORDER the judgment of the district court AFFIRMED.
Parraguirre
/ fin 17", , J.
Hardesty
Cadish
cc: Hon. James Todd Russell, District Judge
State Public Defender/Carson City
Attorney General/Carson City
Carson City District Attorney
Carson City Clerk
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