*1 injury. The appeals officer did not err in determining that Hudson’s dismissal work justified; however, he erred in considering this determination to be dispositive of the case. We hold case, in an injury industrial any reasons an injured for employee’s discharge are which unrelated the injury —such misconduct, strike, or economic only condition—are relevant if the evidence shows they, rather the injury, than caused the employee’s inability to secure subsequent Even work. Hudson’s earlier misconduct was relevant provided Horseshoe with the right not to offer light duty Hudson employ- ment, Horseshoe that right by waived its conduct.
We reverse the district court’s order denying the petition for judicial review and remand case to the officer appeals instatement of appropriate vocational rehabilitation benefits. HOWE,
MARK Appellant, ROBERT v. THE Respondent. NEVADA, STATE OF
No. 24408 April P.2d Jackson, James J. State Public Defender and P. Logan, James Defender, Deputy Public City, Carson for Appellant. General, Frankie Sue Papa, Del Attorney Carson City; John M. Hanford, Jensen, District Attorney and Michael D. Deputy District Attorney, White Pine County, for Respondent.
OPINION Court, By Shearing, J.: Mark Robert Howe appeals conviction, from a judgment of
pursuant to guilty plea, of one count of using or being under the influence of a substance, controlled felony, violation of NRS 453.411, and one count possession of drug paraphernalia, a misdemeanor, in violation of NRS The 453.566. district court sentenced Howe to three years in the Nevada State Prison. The judge suspended Howe’s sentence and placed him on probation for a period not to exceed three years. On appeal, Howe contends court district erred in denying his motion for suppression of the evidence because the evidence was obtained in violation of his right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution and Article Section 18 of the Nevada Constitution. We agree.
FACTS On February 1992, Nevada Division of Investigations Officers John Cripps, James Mercado and Curtis Cooley went to in Ely home to investigate a report Howe was in possession of a quarter pound of marijuana and might selling it. Mercado and Cooley went to Howe’s front door while Cripps took aup surveillance position approximately half a block from Howe’s home. When Mercado and Cooley knocked on Howe’s door, Cripps observed a carrying man a white garbage sack leave through door, the back pick up what to be appeared a garbage container, set it back down and re-enter the house. He communi- cated this information to the two officers at the door avia two- way transmitter radio. door, answered the front and Cooley and Mercado identified themselves as police officers. Cooley testified that Howe “appeared nervous,” extremely talking quickly and *4 appeared to perspiring even it though cool outside. Cooley informed they Howe that had received complaints that Howe was possibly in possession of marijuana. He further told that if Howe he did not any have marijuana, the officers wanted to “clear that situation up.” According Cooley, Howe stated he was “not a dope dealer and that he does do dope.” When Cooley for asked
permission residence, to enter Howe’s “No, responded, Howe no, no.” Mercado then informed Cooley he detected the odor of burning marijuana. Cooley testified he that was not in initially but that when he position stepped smell the smoke a bit to right, burning marijuana his he too could smell “then Cooley inside the residence. further testified that Mercado again advised—then he asked—then we went into the residence.” residence, Cooley by
Once inside the Mercado and were joined Cooley and a officer. testified that at Cripps parole probation of, entrance, some point after their Howe said words to the effect “Yes, search, Nonetheless, you if go want to ahead.” in order to “make sure that aware that the search was consent to [Howe was] voluntary,” Cooley testified that he asked Howe if he completely sign would a written consent to search form. A tape-recording interaction, telling was made of the in which can be heard Howe, right cause to come in this house probable “[W]e warrant, now with the smell. Without a we can be in here. Let me one, you tell something you else: Number want to cooperate, another, makes it way going lots easier. One we’re to search this house.” Cooley testified that he then Howe with the provided form, consent he which read “word word” to Howe. Cripps testified that while Cooley advising Howe of the contents of form, the consent told Howe that Howe had two choices: Cripps either “go give ahead and the consent or refuse to consent. If he refused, we would seek or obtain a warrant.” Howe signed consent form.
Mercado testified that the officers entered Howe’s residence in order to prevent the destruction of critical further evidence. He residence, testified that once were inside the Howe told him that he had marijuana prior smoked to the officers’ arrival and search, that he had swallowed “roach.” Mercado During found a cut straw with a substance residue. He also powder-like located a plastic baggie marijuana under a board underneath the trash can in the yard. back
Mercado conducted a preliminary drug influence examination on Howe to determine whether Howe was under the influence of controlled substance. This included some rapid-eye tests and a divided-attention test. He examined the also inside of Howe’s mouth and green leafy found matter stuck between teeth. tests, Based on these Mercado arrested Howe under the being influence of marijuana. Safety was taken to the Public in White Pine Building There,
County. requested Mercado consent to conduct a urine test. Mercado testified that informed Howe that there were two ways to obtain a urine sample: voluntarily Howe could either submit to a urine or Mercado sample to obtain a attempt seizure order and accepted “use medical to take the techniques urine Howe then asked him sample.” what the medical tech- *5 ñiques consisted of and Mercado him that they told would insert a catheter into Howe’s the urine penis sample. extract Howe the urine provided which revealed the of mari- sample, presence juana.
In addition to the charges guilty, two to which Howe pleaded Howe was charged also with of a controlled sub- possession stance. After the district court denied his motion to suppress, Howe pleaded guilty to under the influence of a using being controlled substance and possession drug paraphernalia.
LEGAL DISCUSSION
The Fourth Amendment to the United States Constitution for
bids unreasonable searches and seizures. U.S. Const. amend. IV.
“Warrantless searches and seizures in a home are presumptively
State,
409, 413,
unreasonable.” Doleman v.
Nev.
107
812 P.2d
1287,
York,
(1991)
573,
(citing Payton
1289
v. New
445 U.S.
(1980)). “However,
587
warrantless searches are
permitted
based
both
upon
probable cause and
Id.
exigent circumstances.”
Consent also exempts a search from the
probable cause
warrant requirements of the Fourth Amendment. Schneckloth v.
Bustamonte,
State,
25,
(1973);
entry. the officers based their warrantless Howe’s home on what as circum- they perceived “exigent stances.” We conclude that neither consent nor circum- exigent stances were present this case. ‘[cjlear
“The State bears burden of consent proving State, 133, 136, persuasive evidence.’” McIntosh v. 86 Nev. 656, State, 510, P.2d (quoting Thurlow v. 81 Nev. (1965)). 406 P.2d The district court found that residence, when the officers came to the clearly repeated “No” but that this could be in two response interpreted ways: an to the questions regarding answer whether Howe was involved in drug dealing or in response questions regarding entry close, into the While stating marginal house. that “this is a type case,” the district court found that Howe’s act of stepping aside from the doorway evidenced his consent to the entry.2 officers’ *6 Stepping away from more, the doorway, without is not clear and persuasive evidence of Summers, consent. See State v. So. (La. 2d (defendant’s 1983) Ct. App. act of leaving front door open and unattended while he retrieved requested driver’s license did not demonstrate his consent to allow officers to home). enter his This is particularly true where the officers have manifested a intent to definite enter Howe’s home. Mercado “[ajs house, testified that we entered the Mr. Howe stepped out Also, of the way.” prior testimony was introduced wherein stated, Mercado “Mr. Howe stepped out of the way as soon as I indicated I smelled marijuana. Mr. Howe knew we were to going go into the go house—could into the house.” The law does not require that the occupant of home physically block the officers’ entry in order to indicate lack of to their consent entrance. Additionally, both Cooley and Mercado testified Howe consented to the search only after the officers were over the Moreover, of the threshold door. Cooley clearly understood that Howe denied the officers permission to enter. During cross- examination, Cooley testified as follows: Counsel], [Defense he deny you permission [D]id to
enter? A. He no, said no. I took that as a yes. Q. So that would be then consistent with the statement you gave affidavit, in your you where again said see, defendant —let’s if I can—denied you permission, I think I have he you denied permission? A. Yes.
It was only after prodding from the State on re-direct that Cooley said, testified “no, no, that when no,” Howe he have been could responding to the accusation that he had dealing narcotics. 2The district court stated: act, physical That very that’s a important physical act under these give special circumstances. I it close, attention because this is a marginal type case. There is evidence here that he stepped aside. He was not lifted aside pushed nor was he by anyone. aside moved aside voluntarily He got door, out of the go let them in. said, Then he “You’re free to I search.” think that position was his
throughout. The fact that Howe said ,“you’re words to the effect of free to search” once had entered should not have been considered determining whether the officers had they at the consent question time entered. The consent should be by analyzing determined whether the permis- officers had sion entered, at they the time by examining not which statements or actions subsequent to entry support theory could of consent. meant, but could Furthermore, issue is not what Clearly, Cooley under- he entered. understood when what consent. without Howe’s home Howe’s entering he was stood that examination, ambiguous Mercado direct During in response to be answer negative Howe’s he understood whether He drugs. that he sold or to accusation request door, officers informed answered that when Howe testified and asked narcotics selling he allegation him of the “No, no, stated, I’mno it. Howe talk about could come in to they living on retirement and I’m unemployed not even—I’m Mercado However, asked prosecutor when Post Office.” had the defendant “aware that if he was cross-examination during enter,” “Yes.” responded, given permission [him] their believed the officers Indeed, the indicates that record had Howe’s they believed not because justified, entry was evidence relevant consent, they thought ostensibly because but went the officers why When asked destroyed. “no,” Cooley responded: hearing residence after *7 exigent to the and due marijuana of strong the odor toDue the with being indicated we felt possibly that circumstances inside being marijuana more possibly of smell to do outside residence, somebody coming of action the the movement outside, rapid movement or the furtive something that forth, to house, up possibility all added in so destroyed. bemay or destroyed could have evidence marijuana, smelled that after the officers stated Mercado the reason that stated He further into residence. stepped destroyed. being critical evidence prevent was to did so was that there conceded appears prosecutor Even cross- counsel’s defense During entry. consent no stated, “I don’t examination, objection, an during the prosecutor, prior consent any that there any evidence think there’s Moreover, into the residence.” entrance Investigator Mercado’s after that stated the prosecutor closing argument, in not whether or point at [was] “the issue marijuana, [that] smelled the house without to enter circumstances had exigent the officer having a consent.” to the officers’ not did consent determined Having correct were the officers examine whether we now
entry,
entry
a warrantless
to permit
existed
circumstances
exigent
a
either
search
into a home
A
home. warrantless
is
a person
of
and seizure
or a search
of
property
seizure
New
Payton v.
circumstances.
exigent
the absence
in
unlawful
Court
Supreme
United States
York,
(1980). The
physical dimensions of an individual’s home-a zone that finds its roots in clear and specific constitutional terms: “The right of people to be secure . . . their houses . . . shall not be violated.” That language unequivocally estab- lishes the proposition that the very core “[a]t the Fourth [of stands the right Amendment] of a man to retreat into his own home and there be free from unreasonable governmental States, intrusion.” Silverman v. 505, United 365 U.S. 511. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent cir- cumstances, that threshold may reasonably be crossed without warrant. Exigent circumstances are ‘“those circumstances that would cause a reasonable person to believe (or that entry other relevant prompt action) necessary to prevent physical harm to the officers and other persons, the destruction evidence, of relevant the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.’” Doleman v. State, 409, 414, 107 Nev. 1287, 812 P.2d 1290 (quoting United States v. McConney, 1195, 728 (9th F.2d Cir.), cert. denied, U.S. (1984)). “[I]n absence of a showing, by State, necessity-that is, of a true an imminentand substantial life, health, property-theconstitutionally guaranteed threat to right privacy must prevail.” State, Nelson v. 363, 366, 96 Nev. P.2d (1980). The State bears the burden of showing that the exigencies of the situation required intrusion without warrant. Hardin, State v. 10, 13, 90 Nev. 518 P.2d (1974).
State argues that the exigency in the instant case was that
critical evidence would be destroyed.
fear
“Mere
or apprehen
sion alone that evidence will be destroyed will not justify a
warrantless entry
a private
of
home.”
Perez,
United States v.
1232,
F.2d
(8th
denied,
1983),
Cir.
cert.
In United States
determining
a test
(1973), the court formulated
(1) the of and the amount of time degree urgency involved warrant; (2) that the necessary to obtain reasonable belief removed; (3) of possibility contraband is about to be the contraband danger guarding officers the site of police (4) while a sought; indicating search warrant is information are of the contraband are aware that the possessors trail; destructibility on their and of the contra- ready band and the “that of narcotics knowledge dispose efforts and to are escape engaged characteristic behavior of persons in the narcotics traffic.”
Rubin, (citations omitted) United 474 F.2d at (quoting 268-69 (2d. 1971)). Manning, States v. 448 F.2d Cir. 998-99 The first and second Rubin factors are interrelated in the instant objec- case. There was no because the officers had no urgency about to tively actually reasonable belief that the destroyed. The officers’ “belief that the about to be contraband [was] removed,” testimony they was based their primarily on Rubin, smelled at We conclude that this marijuana. 474 F.2d 268. Cooley belief was not reasonable. that he and Mercado testified were minutes before outside Howe’s door three approximately burning marijuana, Cooley Mercado detected the odor of mentioned it and testified that he did not notice it until Mercado Therefore, to the the odor was not suffi- stepped right. create that Howe was in the ciently strong to a reasonable belief Rather, the reason- process burning marijuana. his of supply smoking able inference process is that Howe was in marijuana, which the evidence later obtained corroborated.
Moreover, the belief that Howe had set fire officers’ ostensible had to enter the residence marijuana and by the order to of this evidence is belied prevent destruction residence, they entered the did not officers’ actions. Once evidence. Mercado testified that burning to locate the attempt of this “most careful treatment this case the 3Wayne LaFave has deemed (3d 1996). 6.5(b), LaFave, ed. at 342 point.” Wayne § Search Seizure *9 468
first thing did when he entered towas try calm Howe. Cooley testified that upon entry, he attempted to procure Howe’s signature on the consent form and went over the form word for word. The facts demonstrate that the officers had no objectively reasonable belief that the marijuana was being destroyed because they failed to act quickly to locate the burning evidence. Regarding the factor, third Rubin there was no evidence that any of the officers would have in danger had they guarded the site of the contraband while a search warrant was sought. Finally, with respect to the fourth and fifth considerations, Rubin it is true that Howe knew that officers were “on his trail” after the officers knocked and that marijuana is readily destructible. Nevertheless, stated, as without a reasonable belief that the marijuana was being destroyed, a warrantless Howe’s home was unjustified. Moreover, might well have believed that he had successfully hidden his supply of marijuana in the yard back therefore, had less anof incentive to destroy it. If the truly believed information they had that led to the investigation and the action at the garbage can yard back amounted to probable cause, they should have sought a warrant and then no danger of destruction would existed, because Howe would have been unaware that he was under suspicion. Under the factors Rubin, articulated in we conclude that the
exigent circumstance of imminent destruction of evidence was not present and cannot justify violating Howe’s right to privacy in the sanctuary of his home guaranteed by the Fourth Amend- ment of the United States 1, Constitution and Article Section 18 of the Nevada Constitution.
We note that other courts addressing circumstances similar to the instant case have refused to find the presence of exigent circumstances where an officer smelled marijuana smoke emanat- ing from within a residence. See Johnson v. States, United 10, U.S. (“[Ojdors alone do not authorize a search without warrant.”); Dorson, State v. 740, 615 P.2d (Haw. 1980) (“[Wjhile the smell of marijuana may probable establish cause, it not is an exigent circumstance that will justify a warrant- less entry.”); People Cohen, v. 496 N.E.2d (Ill. Ct. 1986) App. probable (“[HJaving cause from the odor of burning cannabis will not alone justify an officer to enter and search a private residence.”); Schur, State v. 538 P.2d (Kan. 1975) (“Absent a showing of circumstances indicating likely destruction evidence, other than defendant’s refusal entry, the observation yellow, of a rolled cigarette in plain view and the detection of an odor similar to would not burning marijuana *10 authorize a search of the without a valid warrant or [apartment] Summers, Jones, consent.”); 440 So. 2d at State v. (quoting (La. 1978)) (warrantless 358 So. entry unjustified 2d “ where smelled from within a home since ‘[t]he sanctity govern- constitutional of a home unreasonable against ment intrusion should not on the unfounded depend imagination officers, of police thereby or the for fabrication that potential result’”). argued It has been that the officers properly arrested right Howe without a warrant and therefore had the to search incident to the arrest. Even if the officers had probable cause to Howe if he in had no public place, they arrest had been a justification to enter his home in order effect a warrantless to arrest. The very United States Court made it clear in Supreme York, Payton (1980), v. New that the home is a U.S. 573 which a war- sanctuary, government may the not invade without rant or exigent circumstances. The considerations that courts have recognized exigent entry for circumstances to a home justify a warrantless arrest are even more than for making rigid States, warrantless In Dorman v. 435 F.2d searches. United (D.C. 1970), Cir. the the material following 392-93 court cited entry considerations in was determining whether warrantless involved, (1) justified: a crime of grave particularly offense is violence; armed;” (2) “the believed to be suspect reasonably is (3) the the cause for the committed probable believing suspect clear, warrant; (4) crime is even more than to obtain a required there is a the is in the strong believing suspect prem- reason for ises; (5) there will if not suspect escape is a “likelihood that the quickly entry made apprehended;” peaceably possi- is Clearly ble. none of these considerations were in this case present peaceable in the and the except suspect’s presence premises entry. entry justified The into Howe’s home cannot be on basis of the arrest. on we circumstances did foregoing, exigent
Based
hold that
home.
entry
the warrantless
into Howe’s
support
we next
illegal,
determined that the initial
Having
consider whether Howe’s
on the consent
subsequent signature
search form
of the
taint of
sufficiently purged
primary
States,
United
Rose, J., concurs.
Steffen,
J.,C. with whom Springer, J., agrees, concurring:
I concur in the result reached by the majority but do not
subscribe to the view that police officers who are exposed to the
smell
drugs,
this case marijuana, do not have probable cause
*11
to make a warrantless arrest and then a search incident to the
arrest. See State Luchetti,
v.
87 Nev.
486 P.2d
1189
(citing Chimel v. California, 395 U.S.
(1969)).
Indeed,
officers who approach a suspect at the
house,
door of his
and are
able to smell the odor of an illegal
substance,
controlled
certainly
have probable cause to believe
a
that
felony is occurring in their
presence, such as to justify a
Id.;
warrantless arrest.
State v.
Pool, 652
(N.M.
P.2d 254
Ct. App. 1982) (holding warrantless
entry and subsequent arrest valid where officer smelled odor of
burning marijuana and thus had good faith belief
defendant,
that
who closed door upon
officer,
seeing
would immediately attempt
to dispose
the
of
contraband); see also United
Botero,
States v.
(9th
F.2d
Cir.) (where
officers followed recipient of bags
of cocaine to apartment
placed
and
him under warrantless arrest
in the doorway as he opened
door,
the
court held that arrest
would have been valid if made
after
entry into apartment
because justified by exigent circumstances, i.e.,
the imminent
prospect of contraband being removed or destroyed), cert.
denied,
Moreover, I disagree with the majority on the issue of exigent circumstances. Even under the five-factor test adopted in United Rubin, States v. (3d F.2d 262 Cir.), denied, cert. 414 U.S. 833 (1973), and applied the by majority, I believe that exigent circumstances are demonstrated here. light 4In decision, of this we need not consider Howe’s additional conten tions that the urine sample illegally obtained and that Howe’s incriminat ing statements were obtained in Arizona, violation of v. Miranda 384 U.S. (1966), and should have suppressed. been 5The Young, Justice, Honorable Cliff voluntarily recused himself from participation in the appeal. decision of this involved criminality the First, to minimize seems majority the declaring marijuana of quarter pound of a possession in the the officers itof while disposing Howe the possibility that course, Of “urgency.” not demonstrate warrant does sought a therefore It is felony. ais law, offense described Nevada under it. ignore not to duty a under were crime and the a serious officers’ as unreasonable Second, dismisses majority that suggest destroyed. I be would the evidence belief that When Howe extreme. optimistic is assessment majority’s themselves door, identified and Mercado Cooley front opened the they had that Howe informed officers also officers. The as police mari- possessing possibly Howe for against complaints received burning odor detected the that told Mercado juana. would circumstances, that it suggest I Under these marijuana. that assumed to have the officers for irresponsible have been available untouched have left Howe would warrant. a they obtained after seizure concerning belief logical most Moreover, I also believe been had that would have burning marijuana ash an material burning placed the substance smoking If front door. he went while receptacle other tray or some outside of them warrant, one posted had left for the officers warrant, to assume it is unreasonable for the other left while the the officers’ during contraband destroy would not that Howe absence. no have been would there Third, would appear it although residence remaining outside the officers one of danger to warrant, would there left to secure other officer while the the contraband danger and extreme obvious been an is however, arrest If, the warrantless wait.1 during the destroyed *12 would the arrest incident valid, search limited then a deemed safety. the officers’ assure justified to have been the and fifth Rubin
Finally, the concludes that fourth majority satisfied, the possible that factors are but nevertheless concludes more, does of without quantity marijuana, destruction of a small have a justify person’s great not a home.21 warrantless arrest Howe’s warrantless majority’s conclusion that the 1Given who that the officer conclude necessary to be unjustified, it would also enter right to either Howe’s no have had remained at the residence doorway while the other open the move not to or order Howe residence for a warrant. officer went recalled, opinion, 2It factors 4 majority will noted in the that and (4) are: indicating are aware possessors information the of the contraband trail; destructibility that ready are of on their knowledge dispose contraband and the of narcotics and efforts escape engaged the narcotics traffic. persons are characteristic of in behavior difficulty with this court undermining felony classifications deter- mined by the legislative branch of government. In the state Nevada, our citizen-representatives have determined that posses- sion of a small quantity of marijuana is a felony. It is not the prerogative of this court to countermand the public policy of this State and conclude that the crime implicated in this case is not sufficiently serious for officers to effectively deal with in the absence of a warrant. The fact of the matter is that if the officers had left Howe in order warrant, to obtain a all traces of the marijuana would have gone been when they Thus, returned. majority has effectively declared that despite the fact that the possession and use of marijuana in Nevada is felony, we as a court will not countenance warrantless arrest of persons who commit these crimes in the immediate presence of a police officer. Notwithstanding my concern that we not proceed too far in our rulings as to what may or may not be done under Fourth Amend- ment jurisprudence regarding the type situation that prompted the entry by the case, officers in the instant under the current state law, of the the officers could not conduct extensive search occurred here. A search incident to a lawful arrest could justified a warrantless beyond search the immediate vicinity of the arrest unless there was consent exigent The circumstances. majority is correct in concluding that neither existed in present case.3 With the exception of the points above, of concern noted I concur in the majority’s opinion.
DAVID BLUME, MICHAEL Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24671
April