by Anthony W. Accurso

The Supreme Court for the State of Nevada reversed a trial court’s order denying a defendant’s suppression motion, holding that the search warrant authorizing the search of the defendant’s home could not be expanded to his person outside the home simply because the affidavit supporting the warrant established probable cause to search there.

Deva One Smith came to the attention of authorities after they found another person, Brandon Navarette, was sharing images of child pornography via texts to other individuals, including Smith. After an investigation, law enforcement submitted a warrant application with an affidavit stating that “law enforcement had probable cause to believe Smith possessed child pornography on a phone or computer in his possession, vehicle, or apartment.” (emphasis supplied) A justice of the peace issued a warrant, which “incorporated the affidavit by reference” but only authorized the search of Smith’s apartment and any electronic devices inside, not his person or his vehicle.

Officers executing the warrant at Smith’s apartment found him outside and seized the cell phone on his person. They also searched inside his apartment. Finding no evidence of child pornography on devices collected from his apartment, investigators conducted a forensic examination of his phone the next day without obtaining an additional warrant to search that device. They found text messages between Navarette and Smith that included child pornography.

Smith was charged with two counts of possession of a visual presentation depicting sexual conduct of a person under 16 years of age. He moved to suppress the evidence derived from his cell phone, but the magistrate denied his motion, “ruling that the incorporated statement of probable cause in the declaration expanded the scope of the search authorized by the warrant and, alternatively, that the officers reasonably believed in good faith that their actions were consistent with the warrant.”

At trial, the texts and images recovered from Smith’s cell phone were the primary evidence in the State’s case, and Smith was convicted. He timely appealed.

The Nevada Supreme Court began its analysis by recounting that the Fourth Amendment to the U.S. Constitution and Article 1, § 18, of the Nevada Constitution both provide that a search is unreasonable unless conducted pursuant to a warrant or a recognized exception to the warrant requirement. State v. Lloyd, 312 P.3d 467 (Nev. 2013). And any evidence obtained in violation of the warrant requirement is subject to exclusion in a criminal trial. Segura v. United States, 468 U.S. 796 (1984).

The Court observed that both the U.S. and Nevada Constitutions require that a warrant “particularly describing the place to be searched, and the persons or things to be seized,” i.e., the particularity requirement. U.S. const. amend. IV; Nev. Const. art. 1, § 18 (substantially similar language). Additionally, a valid search warrant requires a showing of probable cause. State v. Allen, 69 P.3d 232 (Nev. 2003). Under Nevada law, statements in support of probable cause may be incorporated by reference into a warrant. NRS 179.045(6)(b).

The Court stated that “issue presented in this case is whether the incorporation of a probable cause affidavit may broaden what can be searched or seized beyond the four corners of the search warrant.”

To answer the question, the Court turned to the Ninth Circuit for guidance, which had already addressed this question and ruled that the scope of a search warrant cannot be broadened by the incorporation of a declaration or affidavit. United States v. Sedaghaty, 728 F.3d 885 (9th Cir. 2013). In Sedaghaty, federal agents obtained a warrant to search for and seize documents related to tax fraud, but during the course of their search, they also seized evidence related to alleged terrorist activity.

The Government argued that the evidence of terrorist activity was covered by the warrant because a probable cause affidavit that was incorporated by reference discussed the defendant’s alleged involvement with terrorism, and thus, the scope of the warrant was broadened to include evidence of such activity. The Sedaghaty Court flatly rejected that argument, reasoning that permitting the scope of a warrant to be broadened via supporting affidavits “would permit a kitchen sink probable cause affidavit to overrule the express scope limitations of the warrant itself.” If the Government wanted to seize the terrorism evidence, it should have sought another warrant for the material, the Sedaghaty Court instructed. 

The Court noted that several U.S. Courts of Appeals are in agreement with the Ninth Circuit’s position. See United States v. Kaye, 432 F.2d 647 (D.C. Cir. 1970); Doe v. Groody, 361 F.3d 232 (3d Cir. 2004); United States v. Angelos, 433 F.3d 738 (10th Cir. 2006).

Turning to the present case, the Court declared that it found the Ninth Circuit’s reasoning “persuasive” and, quoting Sedaghaty, stated, “We also cannot endorse an interpretation of the law that ‘would elevate the author of the incorporated probable cause affidavit over the judge issuing the warrant.’” The Court continued that “allow[ing] a probable cause affidavit to effectively control the scope of a warrant would render the particularity requirements meaningless.” Thus, the Court ruled that simply because the officer’s affidavit may have established probable cause that Smith’s phone potentially contained evidence of child pornography did not expand the scope of the warrant.

Turning to the issue of whether the good faith exception applies, the Court stated that, “good faith reliance does not apply when officers improperly exceed the scope of the warrant” because “an officer cannot … rely in good faith upon a valid warrant to save its invalid execution.” See United States v. Rowland, 145 F.3d 1194 (10th Cir. 1998). Thus, the Court ruled that the good faith exception does not apply because the “officers improperly executed a valid warrant by seizing an item from a person not particularly described in a valid warrant.”

Finally, the Court determined that the seizure of Smith’s cell phone was justified under the exigent circumstances exception because he could have destroyed any evidence it contained when he became aware that officers suspected him of a crime. See Riley v. California, 573 U.S. 373 (2014) (recognizing the “sensible concession” that officers could seize defendants’ cell phones to prevent the destruction of evidence while seeking a warrant); see also Byars v. State, 336 P.3d 939 (Nev. 2014). However, the Riley Court made it clear that the exigent circumstances exception applies only to the physical seizure of a suspect’s cell phone. Another warrant is required to search the contents of the cell phone in question. Riley. Thus, the Court ruled that search of Smith’s cell phone and admission of evidence found on it were not justified by the exigent circumstances exception to the warrant requirement.

Therefore, the Court held that search of Smith’s cell phone was “a per se unreasonable search and illegal,” and so, all evidence obtained from the cell phone must be suppressed.

Accordingly, the Court reversed Smith’s conviction and remanded for further proceedings consistent with its opinion. See: Smith v. State, 545 P.3d 716 (Nev. 2024).  

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