Campbell, Sr. (Jermaine) v. State

 circumstances and legal issues." McMorran v. State, 118 Nev. 379, 383, 46
P.3d 81, 84 (2002).
"The Fourth Amendment generally prohibits the warrantless
entry of a person's home, whether to make an arrest or to search for
specific objects." Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). One
established exception to the warrant requirement is voluntary consent
given by a person who has actual or apparent authority over the property
to be searched. Id. The police may enter and search a resident's home
with the voluntary consent of the resident or a third party who has
common authority over the area to be searched. United States v. Matlock,
415 U.S. 164, 171 (1974). However, the police cannot conduct a
warrantless search of a shared home on the basis of one resident's consent
if another physically present resident expressly denies that consent,
Georgia v. Randolph, 547 U.S. 103, 120 (2006), and any "evidence that the
police have removed [a] potentially objecting [resident] from the entrance
for the sake of avoiding a possible objection" will render the search invalid,
id. at 121. Although "the State has the burden of proving that the
necessary consent was obtained and that it was freely and voluntarily
given," Florida v. Royer, 460 U.S. 491, 497 (1983), the defendant has the
burden to present actual evidence that the police intentionally removed
him from the residence to avoid a possible objection to the search, see
United States v. Parker, 469 F.3d 1074, 1078 (7th Cir. 2006); United States
v. Alama, 486 F.3d 1062, 1066-67 (8th Cir. 2007); United States v. Brown,
563 F.3d 410, 417 (9th Cir. 2009); United States v. McKerrell, 491 F.3d
1221, 1228 (10th Cir. 2007).
SUPREME COURT
OF
NEVADA
2
(0) 1947A
Here, the record reveals that Detective Jennifer Garnett
interviewed Ashley Loftis at St. Mary's Hospital and learned that
Campbell and Loftis were in a dating relationship, the dating relationship
had become abusive, and Loftis had bruises where Campbell had struck
her. Campbell and Loftis shared an apartment; they were both listed on
the apartment lease; and the apartment contained heroin, cocaine,
methamphetamine, and a handgun. And Campbell had fortified the front
door with brackets, a cross bar, and a door wedge. Detective Garnett also
learned from another detective that Campbell was subject to arrest on an
outstanding warrant. Loftis gave Detective Garnett written consent to
search the apartment, stated that her keys were inside the apartment,
and agreed to lure Campbell outside of the apartment because the front
door was fortified.
Detective John Silver testified during the suppression hearing
that Campbell was lured outside so that he could be arrested on the
outstanding warrant and probable cause that he had committed domestic
battery. Campbell was arrested outside of his apartment. Detective
Silver conducted a search incident to the arrest, removed an apartment
key from around Campbell's neck, and told Campbell that it was standard
procedure to take property off of someone being arrested. The key was
subsequently used to enter the apartment. Detective Silver did not ask
Campbell for permission to search the apartment, and he did not inform
Campbell that his apartment was going to be searched. Detectives Silver
and Michael Stewart both testified that Campbell did not say anything to
indicate that he did not want his apartment searched. Campbell,
SUPREME COURT
OF
NEVADA
3
, (0) 1947A
however, testified that he asked the detectives why they were taking his
key, told them that they cannot search his house, and asked Detective
Stewart if he had a warrant. 2
There is no evidence in the record that Campbell was lured
from his apartment for any other purpose than to facilitate his arrest on
the outstanding warrant and probable cause that he had committed
domestic battery. See Brown, 563 F.3d at 417; McKerrell, 491 F.3d at
1228 (asking "only whether the evidence shows that the officers removed
[defendant] from the scene to avoid his possible objection"). That
Detective Silver took a key from around Campbell's neck and later used it
to enter the apartment does not change the fact that Campbell was not
physically present in the apartment to expressly deny Loftis's consent.
See Brown, 563 F.3d at 417-18. And the detectives did not have a duty to
ask Campbell whether he consented to the search. See id. at 418; see
generally Randolph, 547 U.S. at 122 (observing that "it would needlessly
limit the capacity of the police to respond to ostensibly legitimate
opportunities in the field if we were to hold that reasonableness required
the police to take affirmative steps to find a potentially objecting co-tenant
before acting on the permission they had already received"). We conclude
2 The district court found that Campbell did not expressly object to
the search of his apartment. This finding is not clearly erroneous "because
the testimony established two equally plausible versions of the events,"
Brown, 563 F.3d at 418 n.3, and "the district court [was] in the best
position to adjudge the credibility of the witnesses and the evidence," State
v. Rincon, 122 Nev. 1170, 1177, 147 P.3d 233, 238 (2006).
SUPREME COURT
OF
NEVADA
4
(0) 1947A
that the search was lawful and the district court did not err in denying
Campbell's suppression motion, and we
ORDER the judgment of conviction AFFIRMED. 3
Gibbons
r z_ fitg J. J.
Douglas Saitta
cc: Hon. Patrick Flanagan, District Judge
The Digesti Law Firm, Ltd.
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
3 Campbell has submitted a proper person letter in which he
expresses dissatisfaction with trial and appellate counsel. Campbell is
represented by counsel and has not been granted leave to file documents
in proper person, see NRAP 46(b); nonetheless, the clerk of the court shall
file the proper person letter received on March 25, 2013. We will not act
on the claims of ineffective assistance of counsel because they should be
raised in the district court through a post-conviction petition filed
pursuant to NRS Chapter 34. See Feazell v. State, 111 Nev. 1446, 1449,
906 P.2d 727, 729 (1995). And to the extent that he seeks substitution of
appellate counsel, the request is denied. See Thomas v. State, 94 Nev.
605, 607, 584 P.2d 674, 676 (1978).
SUPREME COURT
OF
NEVADA
5
(0) I947A