Catherine Cortez Masto, Attorney General, Carson City; Daniel M. Hooge, District Attorney, Lincoln County, for Appellant.
Dylan V. Frehner, Public Defender, Lincoln County, for Respondent.
BEFORE THE COURT EN BANC.
In this case, we consider whether the district court properly excluded evidence seized pursuant to a search warrant where the warrant did not comply with NRS 179.045(5)'s requirement that a warrant include a statement of probable cause or have the affidavit upon which probable cause was based attached. Recognizing that a state may provide broader protections to its citizens than provided by the U.S. Constitution, we reaffirm our decision in State v. Allen, 119 Nev. 166, 69 P.3d 232 (2003)( Allen II ), and conclude that failure to comply with NRS 179.045(5) triggers exclusion despite the U.S. Supreme Court's contrary holding in United States v. Grubbs, 547 U.S. 90, 97, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006).
The Lincoln County Sheriffs Department initiated an investigation of respondent Michael Kincade following reports that he was sexually abusing minor relatives. In the course of the investigation, a detective filed an affidavit for a warrant to search Kincade's residence for evidence related to the allegations. A justice of the peace issued a warrant, but when it was served on Kincade, the warrant did not include a statement of probable cause and the affidavit setting forth the basis for probable cause was not attached to the warrant. The subsequent search revealed images of child pornography on Kincade's computer and external hard drive. The State pursued numerous charges against Kincade for sexual assault and possession of child pornography.  Kincade moved to suppress the evidence found on his computer, which the district court granted. The district court concluded that the affidavit did not support a probable cause finding and that the execution of the warrant violated NRS 179.045(5), which requires a warrant to either include a statement of probable cause or have the affidavit supporting the warrant attached. The State now brings this appeal.
The State argues that the district court erred by excluding evidence under NRS 179.045(5), which requires the warrant to include a statement of probable cause or have the affidavit upon which it is based attached, because the omission was merely a ministerial violation. The State also argues that the district court erred in suppressing the evidence because the detective relied in good faith on the validity of the warrant issued by the justice of the peace.
The search warrant's failure to comply with NRS 179.045(5) mandates exclusion of evidence seized pursuant to the warrant
NRS 179.045(5) provides that a warrant must either include a statement of probable cause or have the affidavit upon which probable cause is based attached. NRS 179.085 provides that a person may move to suppress evidence on the grounds that " [t]he warrant is insufficient on its face." NRS 179.085(1)(b). In a case factually similar to this one, we held that failure to include a statement of probable cause or to attach a valid affidavit to a search warrant in violation of NRS 179.045 triggers exclusion under NRS 179.085. State v. Allen, 119 Nev. 166, 168, 69 P.3d 232, 233 (2003) ( Allen II ), modifying State v. Allen, 118 Nev. 842, 60 P.3d 475 (2002)( Allen I ). In Allen II, a deputy conducted a home search pursuant to a warrant, but the warrant did not include a statement of probable cause and the deputy did not leave a copy of the affidavit with the warrant following the search as required by NRS 179.045. 119 Nev. at 168, 69 P.3d at 233-34. We held that exclusion is proper upon failure to leave a copy of an affidavit with a warrant where the warrant does not itself include a statement of probable cause,
even if the affidavit is incorporated by reference into the warrant. Id. at 171-72, ...