JIM (JAY) VS. STATE , 2021 NV 57 ( 2021 )

137 Nev., Advance Opinion 57
IN THE SUPREME COURT OF THE STATE OF NEVADA
JAY LESLIE JIM, A/K/A JAY LEE JIM, No. 81545
A/K/A LITTLE JAY, A/K/A LITTLE J.,
Appellant,
vs. F ro
THE STATE OF NEVADA,
Respondent.
ELr
CLE:
t, LEP DEPUTY CLERIC
Appeal from a judgment of conviction, pursuant to a guilty plea,
of trafficking a schedule I controlled substance under NRS 453.3385(1)(b)
and possession of a firearm by a prohibited person under NRS 202.360(1).
Fourth Judicial District Court, Elko County; Nancy L. Porter, Judge.
Affirmed.
Jeff Kump, PLLC, and Jeffrey J. Kump, Elko,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Tyler J. Ingram, District
Attorney, and Jeffrey C. Slade, Deputy District Attorney, Elko County,
for Respondent.
BEFORE THE SUPREME COURT, CADISH, PICKERING, and
HERNDON, JJ.
OPINION
By the Court, PICKERING, J.:
Following a lawful stop and arrest, an Elko Police Department
(EPD) officer found contraband in appellant Jay Jim's car. The officer
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observed the contraband during a warrantless inventory search that
produced no formal inventory. After the State brought criminal charges
against Jim, he filed a motion to suppress the evidence recovered from the
vehicle, alleging that the items were the products and fruits of an illegal
search. The district court denied the motion on the ground that the officer
validly discovered the evidence under the plain-view exception to the
warrant requirement of the United States and Nevada Constitutions. Jim
appeals from his subsequent judgment of conviction, arguing that the plain-
view exception does not apply because the officer did not complete the
inventory. But because the officer's presence in the vehicle was legally
justified at the time he observed the contraband, we hold that the plain-
view exception to the warrant requirement applies and therefore affirm.
I.
Officers Joshua Chandler and Jeremy Shelley of the EPD
responded to a report of suspicious activity at the Red Lion Hotel parking
lot in Elko. When the officers arrived, they encountered Jim attempting to
start a silver Chevrolet Impala that he did not own. After calling the car's
registered owners and confirming that Jim planned to purchase the Impala,
the officers told Jirn that they would take "enforcement action" if he drove
the car, because its registration was expired. But Jim did not heed this
warning—one day later, Chandler saw and stopped Jim driving the same
Impala in Elko's West Sage area, still with expired registration. Based on
Jim's past failures to appear in court, Chandler arrested Jim for failure to
produce valid registration, insurance, and a current driver's license, and for
failure to wear a seatbelt.
Shelley responded to the scene as back-up, and after Chandler
handcuffed Jim and placed him in the back of the patrol car, Shelley began
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an impound inventory of the Impala. Under EPD policy, if a car's driver is
arrested and is not its registered owner, then the car will be impounded and
"an impound inventory will be done and given to the tow truck driver." A
different EPD policy applies if the car has "evidentiary value": "When
impounding a vehicle of evidentiary value, the vehicle will be secured with
evidence tape and the officer will follow the vehicle . . . to the police garage
where it will be secured for processing." Shelley testified that he initially
entered the Impala under the policy for impounded vehicles without
evidentiary value, to either turn the car off or retrieve the keys, when he
saw the butt of a Glock handgun and two small bags of a crystalline-like
substance wedged between the driver's seat and center console. Shelley
immediately recognized these items as contraband. Shelley and Chandler
photographed the firearm and bags in place and on the front seat of the
Impala before Shelley removed the items and secured them in his patrol
car.
Shelley testified that upon finding the contraband items, he
determined that the Impala may have evidentiary value. So, in accordance
with the EPD policy for vehicles with evidentiary value, he seized the
Impala, followed the car to the police garage, and delivered the car to Officer
Jason Checketts, who placed evidence tape on its entry points. At the
station, Shelley determined that the Glock handgun had been reported
stolen, and the crystalline-like substance tested presumptively positive for
methamphetamine. With this evidence as grounds for probable cause,
Officer Matthew Miller applied for and received a warrant to search the
Impala. On executing the warrant, Miller recovered a blue Superior
Balance digital scale, a black Weighmax digital scale, and "a paper receipt
containing methamphetamine from the Impala. Miller listed these items
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on the warrant log, but at no point did Miller, Shelley, or any other EPD
officer complete an inventory of personal items in the Impala.
The State charged Jim with trafficking in a schedule I
controlled substance and possession of a firearm by a prohibited person and
sought punishment under the habitual criminal statute. Jim moved to
suppress all evidence recovered from the Impala, alleging that the items
were the products and fruits of an illegal search. But the district court
concluded that Shelley recovered the firearm and methamphetamine under
the plain-view exception to the Fourth Amendment's warrant requirement
and denied Jim's motion. Jim pleaded guilty to one count of trafficking a
controlled substance under NRS 453.3385(1)(b)1 and one count of possession
of a firearm by a prohibited person under NRS 202.360(1). As a term of his
plea agreement, Jim reserved the right to appeal the suppression decision
and now challenges the district court's denial of his motion to suppress and
the resulting judgment of conviction.
The United States and Nevada Constitutions both guarantee
[t]he right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures." U.S. Const. amend.
W; Nev. Const. art. 1, § 18; see also State v. Beckman, 129 Nev. 481, 486,
305 P.3d 912, 916 (2013). A warrantless search is per se unreasonable
unless an exception to the warrant requirement applies. State v. Lloyd, 129
Nev. 739, 743, 312 P.3d 467, 469 (2013). This court reviews de novo whether
'The parties stipulate to correct a clerical error in the judgment of
conviction indicating that Jim was convicted of trafficking in a schedule I
controlled substance under NRS 453.3385(1)(c) by conforming the judgment
to the court's sentencing minutes, which indicate that Jim was convicted of
trafficking in a schedule I controlled substance under NRS 453.3385(1)(b).
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a valid exception to the warrant requirement applies. See Beckman, 129
Nev. at 485-86, 305 P.3d at 916 (holding that this court reviews a district
coures denial of a motion to suppress de novo as to legal conclusions and
that the reasonableness of a search is a legal inquiry); Scott v. State, 110
Nev. 622, 628, 877 P.2d 503, 507 (1994) (noting that a non-owner driver has
a reasonable expectation of privacy in a vehicle that he or she lawfully
possesses).
The "plain-view" exception to the warrant requirement applies
when (1) an officer is lawfully present in a place where evidence can be
viewed, (2) the item is in plain view, and (3) the item's incriminating nature
is immediately apparent. Horton v. California, 496 U.S. 128, 136 (1990);
State v. Conners, 116 Nev. 184, 187 n.3, 994 P.2d 44, 46 n.3 (2000). Jim
does not contest that the items in question here were in plain view once
Shelley entered the Impala, that Shelley immediately recognized the
incriminating nature of the items, or that towing of the Impala was
reasonable. Accordingly, the narrow issue here is whether Shelley was
lawfully present in the Impala when he entered the car to conduct a
standard inventory search but never completed the inventory.
To be "lawfully presene under the plain-view exception, a
warrant or warrant exception must justify the officer's presence in the first
instance. See Horton, 496 U.S. at 136 (holding that the officer must not
have "violate[d] the Fourth Amendment in arriving at the place from which
the evidence could be plainly viewee). And an inventory search carried out
in good-faith compliance with "standardized official department
procedures" is a well-established exception to the Fourth Amendment's
warrant requirement. Weintraub v. State, 110 Nev. 287, 288, 871 P.2d 339,
340 (1994) (citing South Dakota v. Opperman, 428 U.S. 364 (1976)); see also
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Colorado v. Bertine, 479 U.S. 367, 374 (1987). An officer's compliance with
standard procedures ensures that an inventory search is truly "designed to
produce an inventory and is not just "a ruse for a general rummaging . . . to
discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990).
Applying this standard, this court has held that without a
sufficiently complete inventory of the subject vehicle or item searched, the
officer failed to comply with the applicable department inventory
procedures, rendering the inventory warrant exception inapplicable. State
v. Greenwald, 109 Nev. 808, 810-11, 858 P.2d 36, 38 (1993) ("Without an
inventory, we can have no inventory search."); see also State v. Nye, 136
Nev. 421, 423-24 468 P.3d 369, 371-72 (2020); Weintraub, 110 Nev. at 289,
871 P.2d at 340. To wit, in State v. Nye, this court held that the inventory
search was invalid because the officer only listed "bag" on the inventory log
instead of listing the items in the bag, as was required under the policy. Id.
at 424, 468 P.3d at 372-73. The booking officer further failed to comply with
department policy by not conducting the search in view of a camera, signing
the inventory receipt, or testifying as to how the search was conducted. Id.
at 424, 468 P.3d at 373.
While an officer's failure to complete an inventory per
department policy may foreclose the inventory warrant exception, such a
failure does not per se establish that an officer's motive for beginning an
inventory was a subterfuge. See Wells, 495 U.S. at 4 ("[A]n inventory search
must not be a ruse for a general rummaging in order to discover
incriminating evidence?), United States v. Garay, 938 F.3d 1108, 1111-12
(9th Cir. 2019) (noting that an inventory search is valid if the search motive
is administrative and holding that officers failure to create an inventory
sheet did not render the search motive as pretextual). And, unlike Nye
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where the searching officer strayed far afield from the applicable inventory
policy, Shelley complied with the EPD policy for impounded vehicles when
he entered the Impala to inventory its contents, which he had a legal right
and obligation to do. See Collins v. State, 113 Nev. 1177, 1181, 946 P.2d
1055, 1059 (1997) (holding that an officer has a "right and obligation" to
enter a vehicle to inventory its items for safekeeping). While lawfully
present in the vehicle to conduct a standard inventory—to that point
pursuant to and consistent with EPD policy—Shelley saw the firearm and
bags of a crystalline-like substance in plain view between the driver's side
seat and center console, and he immediately recognized those items as
contraband based on his law-enforcement training. Shelley then changed
course and followed the applicable EPD policy for vehicles with evidentiary
value by halting his search, following the Impala to the police garage,
directing Checketts to secure the vehicle with evidence tape, and seeking a
search warrant. Shelley very well could have continued and completed the
inventory search at that time, thus inevitably discovering all of the items
that EPD eventually recovered under the warrant. Instead, Shelley halted
the search and sought and obtained a search warrant, consistent with the
Fourth Amendment.
Jim further argues that Shelley failed to comply with EPD
policies by not having the Impala secured with evidence tape until after the
vehicle was towed to the police garage. But this is beside the point—
Shelley's alleged deviation from the policy was slight and does not show that
his search motive was pretextual because Shelley did not continue his
search at the scene. Indeed, EPD did not recover further incriminating
evidence before Checketts secured the vehicle with evidence tape and Miller
obtained and eventually executed a search warrant.
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111.
Shelley's close adherence to EPD policies, along with his
decision to terminate a legal inventory search to secure a warrant, show
that his motive was administrative and not an investigatory ruse. Shelley
was lawfully present in the Impala when he saw the firearm and bags of
methamphetamine in plain view. See Horton, 496 U.S. at 135 (holding that
the plain-view exception applies when "a police officer is not searching for
evidence against the accused, but nonetheless inadvertently comes across
an incriminating object") (citing Harris u. United States, 390 U.S. 234; 235-
36 (1968) (holding that an officer was lawfully present for purposes of the
plain-view exception when he entered a Car to roll up the windows pursuant
to a police department policy concerning impounding vehicles and found
incriminating evidence in plain view)). And the plain-view warrant
exception therefore applies to validate Shelley's seizure of the firearm and
bags of methamphetamine, along with the items recovered under the
warrant. See Collins, 113 Nev. at 1182, 946 P.2d at 1059 (holding that
warrant was valid when premised on iterns seized under valid warrant
exception). We accordingly affirm.
We concur:
J.
Cadish
J.
Herndon
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