State v. Lisenbee

13 P.3d 947, 116 Nev. 1124, 116 Nev. Adv. Rep. 117, 2000 Nev. LEXIS 132
CourtNevada Supreme Court
DecidedDecember 5, 2000
Docket32635
StatusPublished
Cited by31 cases

This text of 13 P.3d 947 (State v. Lisenbee) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lisenbee, 13 P.3d 947, 116 Nev. 1124, 116 Nev. Adv. Rep. 117, 2000 Nev. LEXIS 132 (Neb. 2000).

Opinions

OPINION

By the Court,

Leavitt, J.:

The district court granted a motion to dismiss the State’s case against respondent upon finding that two sheriff’s deputies illegally seized respondent after he had produced proof of his identity.

The district court ruled the deputies did not have reasonable suspicion to detain respondent after he produced his identification, and all evidence subsequently discovered was illegally obtained and inadmissible. The State filed this timely appeal claiming the deputies were justified in detaining respondent and searching him for dangerous weapons. We reverse the district court’s order dismissing the case, and remand for further proceedings.

FACTS

At two o’clock in the afternoon, two deputies from the Humboldt County Sheriff’s office were searching for a particularly named burglary suspect. They observed respondent, Robert Henry Lisenbee, who resembled the description of the burglary suspect. They watched Lisenbee knock on a door of a home and look into the window of the residence. (It was later determined that the residents knew Lisenbee.) The deputies approached Lisenbee and asked for identification. Lisenbee produced a Colorado prison identification card, and then voluntarily pulled up his tee shirt to reveal a small Spyderco knife (a lightweight legal knife) and a cellular phone that were both clipped to his belt.

One of the deputies reached over to grab the knife and attempted to hold Lisenbee’s arm in order to perform a pat down search. A fight ensued. Lisenbee broke free and ran from the officers. He was tackled and brought to the ground by both officers, but he again escaped and continued in his attempt to flee. The deputies lost sight of him for a brief period of time. Eventually, Lisenbee was found lying on the ground with his arms outstretched, and then voluntarily submitted to police custody. Following Lisenbee’s apprehension, the deputies retraced the path taken during the pursuit and discovered a large clear plastic baggie containing five smaller baggies of methamphetamine with a total weight of 21.7 grams.

Lisenbee was bound over to district court on a charge of trafficking in a controlled substance. However, Lisenbee’s motion to [1127]*1127dismiss was granted by the district court on the grounds that the deputies’ actions in detaining Lisenbee, and grabbing for Lisenbee’s knife, constituted an illegal seizure. Thus, the district court held that the controlled substance discovered after the seizure was illegally obtained and was therefore inadmissible. The State appeals.

DISCUSSION

This case involves an appeal from a district court’s ruling on a motion to dismiss based on an illegal seizure. Fourth Amendment seizure issues, such as the one presented in this instance, often involve mixed questions of law and fact. See United States v. Stephens, 206 F.3d 914, 917 (9th Cir. 2000). This court reviews findings of historical facts under the clearly erroneous standard, but the legal consequences of those facts are questions of law which we review de novo. See Hayes v. State, 106 Nev. 543, 550 n.1, 797 P.2d 962, 966 n.1 (1990).

In this instance, the district court found that the deputies were seeking a “consensual encounter” with Lisenbee, and once Lisenbee presented his identification card, the deputies had reason to know that he was not the suspected burglar. Therefore, the district court concluded that the detention should have ended at that instant, and any evidence found at a later point was illegally obtained and in violation of the Fourth Amendment.

The Fourth Amendment requires that the government respect “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. This restraint on conduct generally prohibits government officials from undertaking searches and seizures absent some individualized suspicion. See Chandler v. Miller, 520 U.S. 305, 308 (1997). However, the United States Supreme Court has stated that “mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434 (1991). Similarly, this court has held that “[t]he police may randomly — without probable cause or a reasonable suspicion — approach people in public places and ask for leave to search.” State v. Burkholder, 112 Nev. 535, 538, 915 P.2d 886, 888 (1996).

In support of investigatory conduct by police officers, the United States Supreme Court held in Terry v. Ohio, 392 U.S. 1 (1968), that a police officer may stop a person and conduct a brief investigation when the officer has a reasonable, articulable suspicion that criminal activity is taking place or is about to take place. [1128]*1128The “reasonable, articulable suspicion” necessary for a Terry stop is more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Id. at 27. Rather, there must be some objective justification for detaining a person. Thus, “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id. at 22.

“[N]ot all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id. at 19 n.16.

The Nevada codification of Terry is found in NRS 171.123(1). The statute allows a police officer to “detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.” Secondarily, NRS 171.1232 permits the police to engage in a pat down of a suspect if there is reasonable suspicion to believe that the suspect is armed and dangerous. However, NRS 171.123(4) limits the detention of citizens to the amount of time that is reasonably necessary to effect the purpose of ascertaining the citizen’s identity. If a stop is predicated on NRS 171.123, an officer may only perform the pat down for weapons if there is an underlying reasonable belief that the suspect possesses dangerous weapons and is a threat to safety. NRS 171.1232.

In reviewing police action in seizure cases such as this one, the touchstone of the Fourth Amendment analysis must always be that of reasonableness. See Florida v. Jimeno, 500 U.S. 248, 250 (1991). Reasonableness must be determined with an objective eye in light of the totality of the circumstances. See

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Cite This Page — Counsel Stack

Bluebook (online)
13 P.3d 947, 116 Nev. 1124, 116 Nev. Adv. Rep. 117, 2000 Nev. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lisenbee-nev-2000.