                                                    130 Nev., Advance Opinion 30
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                MICHAEL CHARLES MEISLER,                             No. 63034
                Appellant,
                vs.                                                           FILED
                THE STATE OF NEVADA,
                Respondent.                                                    APR 0 3 2014
                                                                                   E K. LINDEMAN
                                                                        CL   OA Qr.414PRafra..BOOR
                                                                        BY
                                                                               IEE DE9? CIERK

                            Appeal from a judgment of conviction, pursuant tjo a jury
                verdict, of aggravated stalking. Ninth Judicial District Court, Douglas
                County; Michael P. Gibbons, Judge.
                           Affirmed.


                Kristine L. Brown, Gardnerville,
                for Appellant.

                Catherine Cortez Masto, Attorney General, Carson City; Mark B. Jackson,
                District Attorney, and Thomas W. Gregory, Chief Deputy District
                Attorney, Douglas County,
                for Respondent.




                BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.


                                                   OPINION

                By the Court, CHERRY, J.:
                            In this case, we are asked to decide whether law enforcement's
                efforts to locate appellant Michael Meisler by retrieving his cell phone's
                Global Positioning System (GPS) coordinates from his cell phone service
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                  provider constituted an illegal search. We conclude that Meisler's Fourth
                  Amendment rights were not violated because law enforcement procured a
                  valid arrest warrant before requesting his phone's GPS coordinates. In
                  addition, we hold that the district court did not abuse its discretion in
                  denying Meisler's request to withdraw from self-representation where his
                  request was made with an intent to delay proceedings.
                                                   FACTS
                              Meisler was in a romantic relationship with Janice Tebo.
                  After the relationship ended, Meisler repeatedly sent Tebo emails, text
                  messages, and letters. The communications from Meisler included
                  references to the movie Fatal Attraction, statements that she had made a
                  "fatal decision," allusions to the ancient Greek legend of the Sword of
                  Damocles,' and threats to sue her for lying to him. One of the
                  communications stated: "JFK died on this day 48 years ago. Today is also
                  a day u will also not eva forget befitting an Irishpolak lying SLUT. Have a
                  nice day :)." After investigating various reports made by Tebo, the
                  Douglas County Sheriff obtained a warrant for Meisler's arrest. Seeking
                  Meisler's location in order to make the arrest, a sheriffs investigator
                  requested that Meisler's cell phone service provider retrieve his GPS
                  coordinates. The service provider complied, and Meisler was arrested in a
                  public parking lot.



                         "The legend recounts a king hanging a sword above Damocles, held
                  to the ceiling by a single horse hair. See Marcus Tullius Cicero, Tuscu/an
                  Disputations bk. V, § 21, at 185 (C.D. Yonge trans., New York, Harper &
                  Brothers 1877) (c. 45 B.C.), available at http://goo.g1/9cVN57 . The king
                  intended that Damocles understand the "constant apprehension[ ]" under
                  which a wealthy ruler must live. Id. at 185-86.

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                               During the arrest, Meisler's cell phone was retrieved from his
                  vehicle at his request. The cell phone was kept with his belongings while
                  he was in custody. A valid search warrant was procured before the
                  contents of the cell phone were searched. The search of the cell phone
                  revealed numerous text messages, some of which were eventually used to
                  support Meisler's conviction.
                               Meisler was charged by information with aggravated stalking,
                  a felony under NRS 200.575(2). On his request, Meisler was canvassed
                  and found competent to represent himself. The court appointed standby
                  counsel. The district court further denied Meisler's request to suppress
                  text messages retrieved from his cell phone as a result of his arrest. The
                  court held that law enforcement did not need to obtain a warrant before
                  using Meisler's phone GPS coordinates to locate him.
                               On the day before trial, at 4:23 p.m., Meisler filed a motion to
                  withdraw from self-representation. The court denied the motion after
                  argument on the morning of trial because the motion was untimely and
                  filed with the intent to delay the trial.
                               Following trial, Meisler was convicted by jury verdict of
                  aggravated stalking Standby counsel was appointed as counsel of record
                  for sentencing. Meisler was sentenced to prison for a maximum of 12
                  years with parole eligibility after 2 years. The court also issued an
                  extended protective order of 20 years. Meisler appealed.
                                                  DISCUSSION
                  Fourth Amendment and GPS data
                               Meisler argues that his Fourth Amendment rights were
                  violated when officers asked his cell phone service provider to use his cell
                  phone's GPS coordinates to locate him. Specifically, he argues that the

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                   arrest was illegal because the officers did not obtain a search warrant
                   before retrieving his GPS coordinates. He also claims that the evidence
                   retrieved as a result of his arrest should have been excluded as fruit of the
                   poisonous tree. Meisler admits, however, that the officers did possess a
                   valid arrest warrant at the time of arrest.
                               The Supreme Court has stated that "for Fourth Amendment
                   purposes, an arrest warrant founded on probable cause implicitly carries
                   with it the limited authority to enter a dwelling in which the suspect lives
                   when there is reason to believe the suspect is within."       Payton v. New
                   York, 445 U.S. 573, 603 (1980). In Payton, the Court noted that "any
                   differences in the intrusiveness of entries to search and entries to arrest
                   are merely ones of degree rather than kind"       Id. at 589. Hence, under
                   federal law, a search warrant may permit officers the authority to arrest a
                   suspect if probable cause forms during the lawful search. See Mahlberg v.
                   Mentzer, 968 F.2d 772, 775 (8th Cir. 1992). Likewise, an arrest warrant
                   may permit officers to seize evidence discovered as a result of a lawful
                   arrest. See United States v. Pruitt, 458 F.3d 477, 480-82 (6th Cir. 2006)
                   (concluding that execution of arrest warrant justified seizure of evidence
                   found in third party's home during protective sweep).
                               Following Payton and its progeny, a federal court recently held
                   that "Mlle issuance of the arrest warrant . . . undermines any privacy
                   interest in prospective geolocation data."    In re Smartphone Geolocation
                   Data Application,       F. Supp. 2d „ 2013 WL 5583711, at *15,
                   (E.D.N.Y. May 1, 2013). The court reasoned that searching for a suspect
                   in his home is far more intrusive than seeking geolocation data from a
                   suspect's cell phone, and if the United States Supreme Court has found
                   the more intrusive home search to be reasonable, then a less intrusive cell

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                phone data search is surely reasonable. Id. at *15-*16; see also Steagald v.
                United States, 451 U.S. 204, 214 n.7 (1981) ("Because an arrest warrant
                authorizes thefl police to deprive a person of his liberty, it necessarily also
                authorizes a limited invasion of that person's privacy interest when it is
                necessary to arrest him in his home.").
                             Thus, an arrest warrant that justifies the physical invasion of
                the home also justifies a digital invasion into a defendant's cell phone for
                the purpose of locating the defendant. "The Fourth Amendment cannot
                accord protection to geolocation data associated with a defendant's cell
                phone while denying such protection against a physical invasion of his
                home, as the latter is entitled to the highest order of defense."         In re
                Smartphone,        F. Supp. 2d at , 2013 WL 5583711, at *15. In this
                case, officers obtained a valid warrant for Meisler's arrest. Because an
                arrest warrant would have justified an entry into Meisler's home, an
                arrest warrant likewise justifies a digital entry into his cell phone to
                retrieve GPS coordinates for the purpose of locating him. 2 We hold that
                Meisler's Fourth Amendment rights were not violated and, therefore, that
                the text messages were not fruit of the poisonous tree. 3




                      2The  record is not clear whether Meisler was voluntarily turning his
                GPS data over to his service provider, but the existence of a valid arrest
                warrant alleviates any need to discuss Meisler's expectation of privacy.

                      3 Even had the government violated Meisler's Fourth Amendment
                rights in locating him for arrest, the retrieval of text messages from his
                cell phone might have been so attenuated from the arrest that the fruit-of-
                the-poisonous-tree doctrine would not be applicable at all. As it is not
                necessary to our disposition, we merely note the issue and do not opine
                upon it.

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                Meisler's request to withdraw from self-representation
                            Meisler argues that the district court erred by not permitting
                him to revoke his previous decision to represent himself at trial. We
                disagree.
                            "It is well established that a defendant may not manipulate
                the right to counsel for purposes of delaying and disrupting the trial."
                People v. Howell, 615 N.Y.S.2d 728, 729 (App. Div. 1994); see also Moody v.
                State, 888 So. 2d 532, 558-59 (Ala. Crim. App. 2003) (compiling court
                decisions supporting the proposition that "obstructionist and dilatory
                conduct . . . may constitute a waiver" of a defendant's right to counsel).
                We have held that a district court may deny a request for self-
                representation if the request was made with the intent to delay
                proceedings. Vanisi v. State, 117 Nev. 330, 339, 22 P.3d 1164, 1170 (2001).
                It follows that a request to withdraw from self-representation may be
                denied on similar grounds. Other courts have precisely so held: "A district
                court may refuse a defendant's request to withdraw from self-
                representation after a valid waiver 'if a defendant seeks counsel in an
                apparent effort to delay or disrupt proceedings on the eve of trial, or once
                trial is well underway." United States v. Woodard, 291 F.3d 95, 111 (1st
                Cir. 2002) (quoting United States v. Proctor, 166 F.3d 396, 402 (1st Cir.
                1999)). We agree with the soundness of this rule and hold that a district
                court may deny a request to withdraw from self-representation when said
                request is made with an intent to delay or obstruct proceedings
                            Here, Meisler's request was made on the eve of trial. He made
                no mention of his request to withdraw at the pretrial conference, which
                occurred just hours before his motion was filed. Standby counsel was not
                prepared for trial and would have needed time to become prepared,

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                further delaying the proceedin gs. These facts support the district court's
                conclusion that the motion was made with an intent to dela y proceedings.
                We defer to that conclusion. Thus, the district court did not abuse its
                discretion in den ying Meisler's re quest to withdraw from self-
                representation because his motion was made with an intent to dela y the
                proceedin gs. We have considered Meisler's other ar g uments and conclude
                that the y lack merit.4
                              Because Meisler's Fourth Amendment ri ghts were not violated
                and because his other claims lack merit, we affirm the jud gment of
                conviction.


                                                     C
                                                     Cherry
                We concur:


                              ea -              J.
                Hardesty


                ICLAIt 04------                 JT
                Parra guirre


                               4Meisler's contention that the evidence was insufficient to
                convict him of a ggravated stalkin g lacks merit because a rational juror
                could have interpreted his numerous references to death as death threats.
                Meisler's ar g ument about the district court's decision to exclude his
                proposed expert witnesses lacks merit because those witnesses admitted
                that their testimon y would not be relevant. See NRS 50.275 (permittin g
                expert testimon y when it "will assist the trier of fact to understand the
                evidence or to determine a fact in issue") ; Williams v. Eighth Judicial Dist.
                Court, 127 Nev. „ 262 P.3d 360, 368 (2011) ("Mt will assist the trier
                of fact if it is relevant and supported b y competent. . . research.").

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