138 Nev., Advance Opinion 1,4
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 82640
Appellant,
vs.
CHARLES WADE MCCALL,
FiLED --
Respondent. SEP 22 2022
EL
CLE
BY
HIEF DEPUTY CLERK
Appeal from a district court order granting a motion to suppress
in a criminal prosecution. Eighth Judicial District Court, Clark County;
Monica Trujillo, Judge.
Affirmed in part, vacated in part, and remanded.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, Alexander Chen and Jonathan E. VanBoskerck, Chief Deputy
District Attorneys, and Austin C. Beaumont, Deputy District Attorney,
Clark County,
for Appellant.
Sanft Law and Michael W. Sanft, Las Vegas,
for Respondent.
BEFORE THE SUPREME COURT, HARDESTY, STIGLICH, and
HERNDON, JJ.
OPINION
By the Court, STIGLICH, J.:
It is axiomatic that all persons shall be free from unreasonable,
warrantless search and seizure. The United States Supreme Court has
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carved out an exception to this general rule, however, permitting officers to
conduct warrantless protective sweeps of areas for which they can
articulate—and only when they can articulate—specific facts that lead them
to believe the area being swept harbors an individual posing a danger to
those on scene. Here, the district court granted a motion to suppress the
evidence found as a result of and during a protective sweep, determining
that the officers did not have an appropriate basis for the protective sweep
and that the protective sweep was per se unconstitutional because it was
not preceded by an arrest.
While we hold that a protective sweep does not require a prior
arrest, we conclude that the district court correctly concluded that the
search performed here was not a lawful protective sweep because it was not
based on articulable facts supporting a reasonable belief that the premises
harbored a dangerous individual. The district court's order, however, did
not indicate the specific evidence that was improperly seized as a result of
the protective sweep or as its fruit. Accordingly, we affirm in part, vacate
in part, and remand for the district court to clarify the evidence that falls
within the purview of the suppression order and which items were
permissibly seized by law enforcement.
BACKGROUND
Colette Winn resided in a home owned by respondent Charles
Wade McCall. Winn was on probation and subject to a search clause that
allowed officers to search her living quarters.1 While McCall was an ex-felon, he was not on probation or parole.
1The search clause reads as follows: "You shall submit your person,
place of residence, vehicle or areas under your control to search including
electronic surveillance or monitoring of your location, at any time, with or
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Winn's probation officer received an anonymous letter that
claimed Winn was violating her probation. The letter focused primarily on
Winn, alleging that she was "engaged in criminal activity with all ex felons,"
and warned that "[w]e[a]pons might be found, so please be careful." The
letter also contended that Winn was "slinging drugs out of the far back
bedroom." The letter only tangentially referred to McCall as a "convicted
felon" but did not otherwise allege that McCall was engaged in any illegal
activity or was dangerous. As a result of the anonymous letter, Winn was
arrested at the probation office and interviewed. Winn told the officers that
she lived with two other roommates, McCall and Mahatuhi Santos.2 The
officers researched McCall and learned he was an ex-felon and not subject
to supervision. A total of eight officers, with Winn in tow, headed to Winn's
home to search her place of residence pursuant to the search clause of the
probation agreement.
This search devolved into a raid. For purposes of
"containment," three officers flanked the sides and rear of the home.
Meanwhile, four other officers in tactical gear banged on the door, let
themselves into the home using a key code provided by Winn, and made
entry with their guns drawn. Upon entry, they encountered both McCall,
who had come out of his bedroom in the far back of the home with his dog,
and Santos. The officers instructed McCall to reenter his bedroom and place
his dog in the bathroom located therein. Even though McCall readily
without a search warrant or warrant of arrest, for evidence of a crime or
violation of probation by the Division of Parole and Probation or its agent."
2The officers did not ask Winn about the letter's contents, and the
record does not indicate that Winn corroborated any of the letter's
allegations beyond that she did not live alone.
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complied with the officers' instruction, three officers followed McCall into
his bedroom without his consent to sweep the room. Once inside McCall's
room, one of the officers observed shotgun shells on McCall's dresser and
detained McCall because they believed they would find guns as well. The
officers read McCall his Miranda rights, after which McCall admitted to
having firearms in the bedroom and identified them to the officers. The
officers later admitted that they entered the home with the intention to
search every room and that they conduct sweeps of the entirety of every
home they enter as a matter of course even if they believe no one is present.
The officers contacted the Las Vegas Metropolitan Police
Department, which obtained a search warrant to further search the house
and McCall's vehicle. In McCall's bedroom and vehicle, officers found and
seized three firearms, a credit card embosser, blank credit card stock, and
several other items. McCall was charged with one count of establishing or
possessing a financial forgery laboratory, three counts of ownership or
possession of a firearm by a prohibited person, and five counts of possession
of document or personal identifying information.
McCall filed a motion to suppress, arguing that the protective
sweep violated the Fourth Amendment and that the derivative evidence
seized was fruit of the poisonous tree. The State opposed, and the district
court held an evidentiary hearing. At the hearing, the officers admitted
that they went into the home with the intention of conducting a protective
sweep of every room and that they would not have gone directly to Winn's
room without conducting a full protective sweep of the house. One officer
explained that "whenever we go into a residence, we clear the residence, we
make sure that there are no other people there every time. . . . We do that
every time."
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The district court determined that "Where was no lawful basis
for the protective sweep" for two reasons. First, there was no arrest
preceding the protective sweep. Second, the officers "failed to testify to a
reasonable belief based on specific and articulable facts that the area to be
swept harbored an individual posing a danger to those on the scene." The
district court concluded that there were no exigent circumstances
warranting the protective sweep and thus suppressed the items seized
during the sweep and those seized thereafter pursuant to the search
warrant as fruit of the poisonous tree. The State appeals.
DISCUSSION
A protective sweep does not require a prior arrest
The district court determined that a protective sweep requires
a prior arrest. The State challenges this conclusion, arguing that law
enforcement may conduct a protective sweep before an arrest and that the
"reasonableness balancing required by the Fourth Amendment weighs
towards allowing probation officers to conduct protective sweeps in non-arrest scenarios." We review this constitutional issue de novo. State v.
Lloyd, 129 Nev. 739, 743,
312 P.3d 467, 469 (2013) ("A district court's legal
conclusion regarding the constitutionality of a challenged search receives
de novo review.").
The Fourth Amendment protects against unreasonable
searches and seizures. U.S. Const. amend. IV; Nev. Const. art. 1, § 18; see
also Lloyd, 129 Nev. at 743,
312 P.3d at 469. Warrantless searches are
generally deemed unreasonable, with a few well-established exceptions.
Lloyd, 129 Nev. at 743,
312 P.3d at 469. One of these exceptions is a
protective sweep. See Maryland v. Buie, 494 U.S. 325, 327 (1990). A
protective sweep is generally described as "a quick and limited search of
premises, incident to an arrest and conducted to protect the safety of police
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officers or others." Id. Such a sweep is permissible under the Fourth
Amendment if the officer held "a reasonable belief based on specific and
articulable facts which, taken together with the rational inferences from
those facts, reasonably warranted the officer in believing that the area
swept harbored an individual posing a danger to the officer or others." Id.
(alteration, citation, and internal quotation marks omitted). The search is
a cursory inspection of places where a person may be found and "lasts no
longer than is necessary to dispel the reasonable suspicion of danger." Id.
at 335-36.
The United States Supreme Court has not addressed whether
a protective sweep requires a prior arrest. See Leslie A. O'Brien, Note,
Finding a Reasonable Approach to the Extension of the Protective Sweep
Doctrine in Non-Arrest Situations, 82 N.Y.U. L. Rev. 1139, 1140-41 (2007)
(noting that the Suprerne Court has yet to address this issue). So too did
this court remain silent on this issue in Hayes v. State, 106 Nev. 543,
797
P.2d 962 (1990), overruled on other grounds by Ryan v. Eighth Judicial Dist.
Court, 123 Nev. 419,
168 P.3d 703 (2007), the one case in which this court
has applied Buie.3
3Likewise, when this court addressed protective sweeps before Buie,
it did not settle whether a prior arrest was required. When this court
considered a protective sweep in Koza v. State, the search was conducted
after appellant had been arrested, and the court upheld the
constitutionality of a protective sweep where the circumstances presented
reasonable grounds by which officers could conclude that a search was
necessary to prevent an urgent risk to their or others' lives. 100 Nev. 245,
250, 252-53,
681 P.2d 44, 46, 48-49 (1984) (interpreting the protective sweep
under the emergency exception to the Fourth Amendment warrant
requirement). Koza did not consider whether the search would be
permissible absent a prior arrest. And in Gagliano v. State, the court held
a warrantless protective sweep unconstitutional where the circumstances
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Other courts that have considered this issue have largely, but
not uniformly, determined that a protective sweep does not require a prior
arrest. The New Jersey Supreme Court held that an arrest is not required
to conduct a protective sweep where (1) the officers are lawfully on the
premises, (2) the officers "have a reasonable articulable suspicion that the
area to be swept harbors an individual posing a danger," (3) the sweep is
conducted quickly, and (4) it is restricted to areas in which the person(s)
posing a danger could hide. State v. Davila, 999 A.2d 1116, 1119 (N.J. 2010).
Further, "Mhe police cannot create the danger that becomes the basis for a
protective sweep." Id. Similarly, the United States Court of Appeals for the
Eleventh Circuit approved of a protective sweep that occurred before an
arrest where the officers had a reasonable belief that there was another
individual present who could do them harm. United States v. Caraballo,
595 F.3d 1214, 1224-25 (11th Cir. 2010). So too has the First Circuit held
"that police who have lawfully entered a residence possess the same right
to conduct a protective sweep whether an arrest warrant, a search warrant,
or the existence of exigent circumstances prompts their entry." United
States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005), abrogated on other
presented no basis to conclude that rooms of the apartment other than that
permissibly searched contained anyone or thing threatening officer
security. 97 Nev. 297, 298-99,
629 P.2d 781, 782-83 (1981). To the extent
that Gagliano cites a United States Supreme Court decision considering
searches incident to arrest to suggest that a protective sweep requires a
prior arrest, see id. at 298,
629 P.2d at 782 (quoting Chimel v. California,
395 U.S. 752, 762-63 (1969), overruled in part by Arizona v. Grant,
556 U.S.
332 (2009)), Gagliano did not rely on arrest status, and the suggestion is
thus dicta.
We accordingly disavow Gagliano to the extent that it suggests a
protective sweep requires a prior arrest.
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grounds by Hill v. Walsh, 884 F.3d 16 (1st Cir. 2018). The Second, Fifth,
Sixth, and D.C. Circuits are in accord. See United States v. Miller, 430 F.3d
93, 99 (2d Cir. 2005); United States v. Gould,
364 F.3d 578, 586 (5th Cir.
2004), abrogated on other grounds by Kentucky v. King, 563 U.S. 452 (2011);
United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001); United States v.
Patrick, 959 F.2d 991, 996-97 (D.C. Cir. 1992), abrogated on other grounds
by United States v. Webb, 255 F.3d 890 (D.C. Cir. 2001).
The Tenth Circuit veered slightly off the path trod by the other
circuits. In United States v. Torres-Castro, the Tenth Circuit concluded
"that a protective sweep is only valid when performed incident to an arrest."
470 F.3d 992, 997 (10th Cir. 2006). However, this difference may be only a
matter of degrees, as the court noted that a protective sweep "may precede
an arrest, and still be incident to that arrest, so long as the arrest follows
quickly thereafter." Id. at 998.4
The Ninth Circuit's caselaw is inconsistent on this issue. See
Mendez v. County of Los Angeles, 815 F.3d 1178, 1191 (9th Cir. 2016) (noting
the intracircuit split), vacated, 581 U.S. , 137 S. Ct. 1539 (2017). In
United States v. Garcia, the Ninth Circuit upheld a protective sweep
conducted before the defendant's arrest. 997 F.2d 1273, 1282 (9th Cir.
1993). Conversely, the Ninth Circuit determined in United States v. Reid
that officers were not entitled to conduct a protective sweep where the
defendant was not already under arrest. 226 F.3d 1020, 1027 (9th Cir.
2000). However, it is unclear whether the lack of a prior arrest was the
dispositive issue in Reid, because the government's lack of articulable facts
4The Tenth Circuit noted that "quickly" might be satisfied when "the
search and arrest were separated by times ranging from five to sixty
minutes." Id.
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"that the apartment harbor[ed] an individual posing a danger" also
prompted the Ninth Circuit's decision. Id. (alteration in original) (internal
quotation marks omitted).
We agree with the majority approach, as it appropriately
balances the rights of an individual to be free from an unreasonable search
and the safety of the officers and other people on the scene. See Buie, 494
U.S. at 327 (recognizing a concern for the officer's safety as well as that of
other people on scene). Officers may be lawfully in an individual's home
under nonarrest situations (for example, by consent) where they have
articulable, legitimate safety concerns justifying a protective sweep. See
Davila, 999 A.2d at 1118-19. Accordingly, we conclude that a protective
sweep is permissible where there are articulable facts that would cause a
reasonably prudent officer to believe that the area to be swept harbors an
individual who poses a danger to those at the scene. We decline to adopt a
per se rule requiring an arrest before a protective sweep.
The district court correctly concluded that the protective sweep was unlawful
The district court found that officers did not testify to a
reasonable belief that the premises harbored a dangerous individual
compelling a protective sweep and concluded that the search was
accordingly unlawful. The State argues that articulable facts support the
officers' decision to conduct a protective sweep of McCall's bedroom. McCall
counters that no facts justified a protective sweep of his room and that the
officers were limited to searching areas within Winn's control. We review
the district court's factual findings for clear error and analyze the legal
consequences of those findings de novo. State v. Beckman, 129 Nev. 481,
486,
305 P.3d 912, 916 (2013).
As discussed above, before conducting a protective sweep, an
officer needs articulable facts that would warrant a reasonably prudent
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officer to believe that the area to be swept harbors an individual who poses
a danger to those at the scene. See Buie, 494 U.S. at 327; Hayes,
106 Nev.
at 550,
797 P.2d at 966. In applying this test in Hayes, we noted that it was
insufficient to simply point to a possibility that an individual could be there,
because "[i]f any possibility of danger were sufficient to create a reasonable
belief of a danger, the police would have carte blanche power to conduct
sweep searches of citizens' homes incident to virtually any arrest for a
felony." 106 Nev. at 551,
797 P.2d at 967. Otherwise, "by means of post-hoc rationalizations, the police could justify virtually any sweep search."
Id.
Thus, we strongly disapproved of the police conducting protective sweeps as
"standard operating procedure," calling it a "patently unconstitutional"
practice. Id. at 552,
797 P.2d at 967.
We conclude that the district court did not clearly err in finding
that the officers did not testify as to a reasonable belief that the area to be
swept harbored a dangerous individual and that the district court correctly
held the search to be unlawful. Our disposition here rests on the officers'
troubling admission that they conduct a protective sweep of an entire
residence as a matter of course. This search was conducted without
considering whether the circumstances presented articulable facts
supporting a reasonable belief that the premises harbored a dangerous
person. Rather, the search was carried out regardless of what the
circumstances presented. The bare possibility that a dangerous person
might be present and hiding in a given location does not justify a protective
sweep. The search here demonstrates a practice of warrantless searches
unbound by the guidelines stated in Buie, Hayes, and elsewhere indicating
when such searches may be constitutional. This practice cannot continue.
We conclude that the protective sweep was unconstitutional where the
officers' testimony established that the search was not based on articulable
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facts supporting a reasonable belief that the area harbored a dangerous
individual. The search here paid no heed to what the articulable facts might
have been.
In light of the officers' admissions that they did not predicate
the search on articulable indicia that a dangerous person was present, the
State's arguments for conducting the sweep strike us as post-hoc
rationalizations that cannot retroactively cure the unconstitutionality of the
search.5 See Brumley v. Commonwealth, 413 S.W.3d 280, 287 (Ky. 2013)
("The absence of information cannot be an articulable basis for a protective
sweep that requires information to justify it in the first place."); see also
Hayes, 106 Nev. at 551,
797 P.2d at 967 (disapproving of "post-hoc
rationalizations"). The argument that the officers needed to engage in the
sweep because they did not know if the room was safe has the inquiry
backwards. A protective sweep is constitutionally permissible only where
officers have a reasonable belief of danger, not when they are merely unsure
if an area is safe. This limitation is critical to ensure that officers may not
5The State makes the following arguments: (1) the anonymous letter
informed the officers that drugs were sold out of the far back bedroom
(McCall's bedroom); (2) the letter informed them that there may be weapons
in the house and warned them to be careful; (3) an officer believed Winn
was attempting to alert residents in the house by telling the officers she did
not remember her keypad code for the front door and by offering them two
different codes; (4) during his surveillance before entering the residence, an
officer saw an unidentified person coming and going from the residence and
did not know, when entering the premises, whether this man was inside the
house; (5) officers did not know how many people were inside the house or
whether the house was safe inside; and (6) the officers engaged in rnerely a
cursory search of the area and only to prevent danger to themselves. We
need not resolve whether these bases might justify a protective sweep, as
the officers' admissions here make evident that these are post-hoc
rationalizations that cannot support a protective sweep.
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conduct warrantless sweeps as a matter of course, but only where justified
by particular, exigent circumstances. See Hayes, 106 Nev. at 551,
797 P.2d
at 967.
While we agree with the district court's order that the search
was unconstitutional, we are concerned about its scope. The order opaquely
mentions that "the evidence seized pursuant to the search warrant must
also be suppressed" but does not specify which pieces of evidence were so
seized. The parties at oral argument before this court were unable to clarify
the scope of the suppression order as well. As a result, we vacate in part
and remand for the district court to enter findings regarding the specific
evidence that was obtained through the improper protective sweep or as its
fruit and that which was obtained permissibly. Cf. United States v.
Finucan, 708 F.2d 838, 844-45 (1st Cir. 1983) (vacating blanket suppression
order and remanding with instructions for the district court to specify which
items should be suppressed as unlawfully seized and as tainted by the
unlawful seizure).6
CONCLUSION
Protective sweeps are permissible to ensure officer safety, not
as an end-run around obtaining a search warrant. In this opinion, we hold
that a protective sweep does not require a prior arrest. We affirm the
6McCall also argues that his possession of a shotgun shell was not a
state crime and thus his arrest violated his Fourth Amendment rights.
However, we decline to consider this issue in light of our decision and
because the district court did not discuss this issue in its suppression order.
See Davis v. State, 107 Nev. 600, 606,
817 P.2d 1169, 1173 (1991)
(determining that this court need not consider a claim that was not
addressed by the district court), overruled on other grounds by Means v.
State, 120 Nev. 1001,
103 P.3d 25 (2004).
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district court's suppression order in part because it did not err in concluding
that the warrantless protective sweep here violated McCall's Fourth
Amendment rights. We vacate in part and remand, however, for the district
court to clarify the scope of the suppression order.
Al4C1.1—° j.
Stiglich
We concur:
/
Hardesty
Herndon
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