State v. Henderson (Joseph) ( 2014 )

 At a suppression hearing for that evidence, Monroe testified
that he could not identify which pieces of luggage were outside the vehicle
at the crash scene. Thus, he could not specify what evidence was found
within the outside luggage as distinguished from the inside luggage.'
Based on this testimony, as well as the failure of Monroe's affidavit and
the warrant to describe the origins of the outside luggage, the district
court suppressed all evidence derived from the search. We review de novo,
Somee v. State, 124 Nev. 434, 441, 187 P.3d 152, 157-58 (2008), and
reverse.
Absent an exception, an officer must obtain a warrant that
particularly describes items to be searched or seized prior to executing a
search or seizure. 2 Weber v. State, 121 Nev. 554, 583, 119 P.3d 107, 126-27
(2005). Monroe had no warrant to seize the items in question. But
inasmuch as his movement of the outside luggage from the highway
median was based on the threat of destruction of evidence, it was
constitutionally justified. See State v. Lloyd, 129 Nev. „ 312 P.3d
467, 470 (2013).
After this seizure Monroe obtained a warrant. Concerns over
the affidavit and warrant's failure to discuss the geneses of the outside
luggage are beside the point: the warrant authorized Monroe to search the
vehicle and "all . .. containers . therein," and when the warrant issued
1 Monroealso testified, contradictorily, that most of the evidence he
discovered was not from the outside luggage. This is not pertinent to our
analysis.
2 Searchesand seizures must also be supported by probable cause.
Weber, 121 Nev. at 583, 119 P.3d at 126-27. Henderson does not dispute
on appeal that Monroe had probable cause for the search.
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the pieces of outside luggage were containers within the vehicle. So the
warrant identified, particularly, that luggage for search. See Coolidge v.
New Hampshire, 403 U.S. 443, 471 (1971). Because Monroe's search of the
outside luggage was covered by a valid warrant, it too was constitutionally
reasonable. Henderson's suggestion that the outside luggage may not
have been his but just happened to be found at the scene does not
implicate his Fourth Amendment rights or change the analysis above.
We therefore ORDER the judgment of the district court
REVERSED AND REMAND this matter to the district court for
proceedings consistent with this order.
J.
Pickering
J.
Parraguirre
cc: Hon. Nancy L. Porter, District Judge
Attorney General/Carson City
Elko County District Attorney
Elko County Public Defender
Elko County Clerk
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SAITTA, J., dissenting:
This matter presents an unusual situation in that it involves a
vehicle' accident where a narcotics detection canine alerted on luggage
inside the vehicle involved in the accident and on luggage strewn about
the highway. While on the scene of the accident, but before an application
for a warrant had been executed, Trooper Monroe gathered luggage from
the highway and put it into the vehicle. The warrant, obtained after the
seizure, authorized a search of the vehicle's contents, but it was based on
an affidavit by Monroe that did not mention that some of the luggage was
picked up from the highway and placed into the vehicle.
I agree, as the majority acknowledges, that the warrant
authorized Monroe to search the vehicle and all the containers therein and
that, when the warrant issued, all of the luggage, including the luggage
that was taken from the highway, were containers in the vehicle.
However, at the suppression hearing, Monroe candidly acknowledged (a)
that he could not identify which pieces of luggage were outside the vehicle
at the scene and (b) that the warrant application failed to point out that
some of the luggage was placed into the vehicle upon seizure. Thus,
although the warrant authorized Monroe to perform the search, I disagree
with the majority's characterization of the warrant as "valid."
The warrant was issued on Monroe's affidavit, wherein he did
not mention the material facts about which pieces of luggage were taken
from the highway median and placed in the vehicle, despite his knowledge
of those facts. Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (providing
that a warrant may be invalidated where the affiant omitted a material
fact deliberately or with reckless disregard for the truth and the fact was
essential to a probable-cause determination); Rivera v. United States, 928
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F.2d 592, 604 (2d Cir. 1991) (providing that recklessness can be "inferred"
where the omission was obviously critical to a probable-cause
determination). Thus, the information that Monroe gave to gain a
warrant to search the vehicle was inappropriately used to search luggage
that may not have originated in the vehicle but was placed in the vehicle
by him Accordingly, I would affirm the district court's suppression of
evidence.
, J.
Saitta
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