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State v. Allen Sample

Supreme Court of Nevada

April 5, 2018


          Appeal from a district court order granting respondent's motion to suppress. Second Judicial District Court, Washoe County; Lynne K. Simons, Judge.

          Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks, District Attorney, and Jennifer P. Noble and Stephan J. Hollandsworth, Deputy District Attorneys, Washoe County, for Appellant.

          Larry K. Dunn & Associates and Karena K. Dunn and Larry K. Dunn, Reno, for Respondent.



          HARDESTY, J.

         Respondent 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 PBT evidence.


         While 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.

         Deputy 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.

         Deputy 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.

         While 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.

         Because 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.

         Sample 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.

         The 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 ...

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