Barrios-Lomeli v. State

944 P.2d 791, 113 Nev. 952, 1997 Nev. LEXIS 120
Nevada Supreme Court·Decided August 28, 1997·No. 27484·Published·Cited by 13 cases

Opinions

OPINION

Per Curiam:

On March 21, 1995, Adrian Obeso-Hernandez (“Hernandez”) was arrested for the sale of a controlled substance. He subsequently agreed to cooperate with the Tri-Net Narcotics Task Force (“Tri-Net”)1 and provide “substantial assistance” in [954]*954arresting other narcotic traffickers. In exchange for his cooperation, Hernandez would receive favorable consideration at his sentencing hearing.

On March 23, 1995, at 1:30 p.m., Hernandez telephoned appellant Ruben Barrios-Lomeli (“Lomeli”) at his home in Stockton, California. Hernandez requested that Lomeli deliver four ounces of methamphetamine to him in Carson City.2 Lomeli agreed and informed Hernandez that he would drive to Carson City that day and telephone him when he arrived in the WalMart parking lot around 7:30 p.m. Lomeli further informed Hernandez that he would be driving a red sedan with California license plates. Hernandez described Lomeli as a short, heavy-set, five-foot-tall, 160-pound Hispanic male with short dark hair in his early to mid-twenties.

At 6:30 p.m. on March 23, 1995, Tri-Net forces staked out the WalMart parking lot. After waiting an hour and one-half, Lomeli had not yet arrived. At 8 p.m., Hernandez received a phone call at his home from Lomeli who explained that he could not cross the Sierras because of inclement weather. Hernandez then relayed this message to the police and the surveillance was canceled.

The next day, March 24, 1995, at 10:30 a.m., Hernandez advised the police that Lomeli had just called him at home and stated that he would be arriving in the Carson City area within a few hours. Approximately ten officers were dispatched to the WalMart parking lot where they awaited Lomeli’s arrival.

At 12:30 p.m., a red Monte Carlo sedan with California license plates pulled into the WalMart parking lot. Tri-Net agents immediately ran a check of the vehicle and discovered it was registered to Sylvia Catalan of Stockton, California. The driver of the vehicle matched the description of Lomeli. Hernandez was then brought to WalMart for identification purposes.

While the police waited for Hernandez to arrive, the driver of the red sedan entered WalMart with a female passenger and infant. Once inside, the driver immediately used the telephone. The driver then ordered lunch at the McDonald’s restaurant located inside WalMart.

The driver had been sitting in the McDonald’s eating area with his female companion and the infant for fifteen minutes when four police officers approached and requested identification. The driver produced a California identification card with the name “Ruben Barrios-Lomeli.” The officers then requested that Lomeli exit the store with them to discuss the possible delivery of methamphetamine. At that point, the officers were detaining Lomeli “for further felony investigation.”

[955]*955Accordingly, Lomeli left WalMart with the officers. By that time, Hernandez had arrived at the WalMart parking lot in an undercover police vehicle with tinted windows. As Lomeli walked outside, Hernandez positively identified Lomeli as his source for methamphetamines. Police then conducted a pat-down search of Lomeli but found nothing. Although Tri-Net agents told Lomeli to identify his vehicle, he did not give consent for its search. Furthermore, the police had no search warrant nor was there any contraband in plain view. However, the police thoroughly searched the vehicle and discovered four ounces of methamphetamine behind the dashboard and removable stereo. Thereafter, Lomeli was arrested for trafficking in a controlled substance.

Following a preliminary hearing, Lomeli filed a written motion to suppress all evidence seized from the warrantless search of his vehicle. Lomeli argued that the police should have obtained an anticipatory search warrant. Additionally, Lomeli contended that the search was unconstitutional because no exigency existed which justified circumventing the judicial mechanisms for obtaining a warrant. Respondent State of Nevada (“State”) argued that the warrantless search was lawful under United States Supreme Court case law and it was not reasonably practicable to obtain an anticipatory warrant.

On June 8, 1995, the district court conducted a hearing on the motion to suppress and denied the motion. The basis of the lower court’s ruling was that probable cause existed to search the vehicle. However, the trial court expressed no opinion about facts giving rise to exigent circumstances.

Lomeli then entered into a plea bargain, whereby he pleaded guilty to the felony charge, but reserved his right to appeal the lower court’s ruling on the motion to suppress. In exchange, the State recommended the minimum sentence of ten years.

Whether the State should have obtained an anticipatory search warrant

In Derouen v. State, 85 Nev. 637, 640 n.3, 461 P.2d 865, 867 n.3 (1969), this court recognized the well-settled principle that search warrants for automobiles should be obtained whenever reasonably practicable. In State v. Parent, 110 Nev. 114, 867 P.2d 1143 (1994), this court, for the first and only time to date, expressly approved the concept of anticipatory search warrants. In doing so, this court stated:

“[T]he purposes of the fourth amendment are best served by permitting government agents to obtain warrants in advance if they can show probable cause to believe that the contraband will be located on the premises at the time that the [956]*956search takes place. . . . Anticipatory search warrants ... in the proper circumstances, may be an effective tool, both to fight criminal activity, and to protect individual fourth amendment rights.”

Parent, 110 Nev. at 117, 867 P.2d at 1145 (quoting United States v. Garcia, 882 F.2d 699, 703 (2nd Cir.), cert. denied sub nom., Grant v. United States, 493 U.S. 943 (1989)).

Taking the “warrants-when-practicable” policy in conjunction with this court’s approved practice of anticipatory warrants, Lomeli argues that the Tri-Net officers should have obtained an anticipatory search warrant prior to searching his car. The State responds that (1) an anticipatory search warrant never would have issued in this matter because probable cause could not be supported solely by an informant’s testimony, and (2) federal and state law simply does not require obtaining an anticipatory search warrant.

We conclude that the State’s first counter-argument, that probable cause did not exist to support an anticipatory warrant, is without merit. In Parent, the police received an anonymous call that Parent would be arriving at the airport with cocaine concealed in a baby powder bottle in his luggage. Parent, 110 Nev. at 115, 867 P.2d at 1143-44. The anonymous informant gave the police a physical description of Parent, the date and airline upon which Parent would arrive, his social security number, FBI number, and date of birth. Based on this information, a detective was able to confirm Parent’s arrival on the date and airline. A search warrant was issued.

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Barrios-Lomeli v. State, 944 P.2d 791, 113 Nev. 952, 1997 Nev. LEXIS 120 (Neb. 1997).

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