from a district court order granting respondent's motion
to suppress. Second Judicial District Court, Washoe County;
Lynne K. Simons, Judge.
Paul Laxalt, Attorney General, Carson City; Christopher J.
Hicks, District Attorney, and Jennifer P. Noble and Stephan
J. Hollandsworth, Deputy District Attorneys, Washoe County,
K. Dunn & Associates and Karena K. Dunn and Larry K.
Dunn, Reno, for Respondent.
HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
Gregory Frank Allen Sample was arrested for driving under the
influence of alcohol after failing a preliminary breath test
(PBT). The results of the PBT were subsequently used to
obtain a search warrant for an evidentiary blood draw. The
district court suppressed the PBT results, concluding that
they were obtained in violation of Sample's Fourth
Amendment rights, and also suppressed the evidentiary blood
draw as the fruit of an illegal search. The State argues on
appeal that the district court erred because Sample was under
arrest at the time the PBT was administered, the PBT was a
legal search incident to the arrest, and the blood evidence
was legally obtained pursuant to the search warrant. Although
the State fails to demonstrate that the suppression of the
PBT evidence was erroneous, we hold that the district court
erred in invalidating the telephonic search warrant and
suppressing the blood draw evidence because there was
probable cause to support the search warrant even without the
AND PROCEDURAL HISTORY
on patrol one night, Deputy Swanson noticed a northbound
vehicle cross over fog lines and double yellow lines,
accelerate rapidly, cross into a southbound turn lane, and
veer back into the northbound travel lane. Deputy Swanson
first activated his overhead lights, and then activated his
siren in an attempt to initiate a traffic stop. The vehicle
did not stop and continued driving to Sample's residence
where it pulled into the driveway.
Swanson also pulled into the driveway and approached the
vehicle where he observed the driver, later identified as
Sample, with red, watery eyes and the smell of alcohol coming
from inside the vehicle. Sample drank a clear liquid from a
plastic bottle despite Deputy Swanson's repeated demands
to stop. Based on these observations, Deputy Swanson asked
Sample how much he had to drink, and Sample admitted to
drinking "[a] couple of beers." Deputy Swanson
further observed that Sample's "speech was slow and
slurred, " and that Sample repeatedly refused to comply
with commands to stop drinking out of the plastic bottle or
to roll his window down further.
Swanson's partner arrived on the scene, and the deputies
asked Sample to exit the vehicle. Sample refused, and the
officers had to reach through the window and open the
vehicle's door before Sample exited, "unsteady on
his feet." Sample was directed to remain at the front of
the patrol vehicle but, instead, he attempted to walk toward
the front door of his residence while the deputies gathered
field sobriety test paperwork from their patrol vehicle. The
deputies then put Sample in a wristlock and escorted him to
the front of the patrol car where they placed him in
handcuffs. Deputy Swanson felt that Sample "was
absolutely under the influence of an alcoholic substance,
" and he decided not to conduct the field sobriety test
because of Sample's uncooperative behavior including his
attempt to walk toward the entrance of the residence. Sample
was then placed in the back of the patrol car.
Sample was handcuffed in the back of the patrol car, a third
officer arrived on the scene and Deputy Swanson utilized that
officer's equipment to administer the PBT on Sample.
Sample failed the PBT, blowing a 0.172 blood-alcohol
concentration. Deputy Swanson placed Sample under arrest for
driving under the influence.
Sample would not give consent for blood testing, Deputy
Swanson obtained a telephonic search warrant for three
descending blood draws for evidentiary testing and analysis.
As probable cause for the warrant, Deputy Swanson told the
magistrate judge his observations of Sample's intoxicated
state and the fact that Sample had a prior DUI conviction.
Deputy Swanson also told the judge the results of the PBT and
that Sample had consented to the PBT. The judge granted the
warrant and three blood samples were taken and analyzed.
waived a preliminary hearing and the State filed an
information charging him with driving under the influence
pursuant to NRS 484C.110, which is punishable as a felony
under NRS 484C.410 due to Sample's previous felony DUI
conviction in 2009. Sample moved to suppress the PBT on the
grounds that it was a nonconsensual search in violation of
the Fourth Amendment and that without the improperly obtained
PBT results, there was no probable cause to support his
arrest. At the suppression hearing, Deputy Swanson testified
that "I used the PBT only to confirm my observations. I
don't use it as a probable cause arrest." Although
he had testified at an earlier administrative hearing that he
obtained Sample's consent to administer the PBT, Deputy
Swanson conceded at the suppression hearing that he did not
obtain Sample's consent and merely directed him to blow.
district court granted Sample's motion to suppress.
Because Deputy Swanson had testified inconsistently regarding
whether Sample had consented to the PBT, the district court
found that no consent was given and therefore the PBT was a
warrantless search in violation of the holding in
Birchfield v. North Dakota, 579 U.S. ___, 136 S.Ct.
2160 (2016). The district court further found that without
the PBT results, no probable cause existed for Sample's
arrest and that the good faith exception to the warrant
requirement did not apply to Deputy Swanson's execution
of the telephonic search warrant. The effect of the