                                                         131 Nev., Advance Opinion
                         IN THE SUPREME COURT OF THE STATE OF NEVADA
                                                                                     2.

                 RALPH TORRES,                                            No. 61946
                 Appellant,
                 vs.
                 THE STATE OF NEVADA,
                 Respondent.



                              Appeal from a judgment of conviction, pursuant to a \Allay
                 plea, of ex-felon in possession of a firearm. Fourth Judicial District Court,
                 Elko County; Nancy L. Porter, Judge.
                              Reversed and remanded.


                Frederick B. Lee, Jr., Public Defender, and Alina M. Kilpatrick, Deputy
                Public Defender, Elko County,
                for Appellant.
                Mewl 17a.t.d 1.444.1+-
                                          Attorney General, Carson City; Mark Torvinen,
                District Attorney, and Mark S. Mills, Deputy District Attorney, Elko
                County,
                for Respondent.




                 BEFORE THE COURT EN BANC.

                                               Q•     OPINION
                 By the Court, HARDESTY,AJ.:
                               In this appeal, we determine whether the discovery of a valid
                 arrest warrant purges the taint from the illegal seizure of a pedestrian,
                 such that the evidence obtained during a search incident to the arrest is
                 admissible. We conclude that the officer's continued detention of Ralph
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                Torres, after he dispelled any suspicion that Torres was committing a
                crime, constituted an illegal seizure in violation of the Fourth Amendment
                and the fruits of that illegal seizure should have been suppressed.
                Therefore, we reverse the judgment of conviction.
                                                  FACTS
                            In February 2008, Officer Shelley observed a smaller male
                wearing a sweatshirt with the hood pulled over his head sway and stagger
                as he walked over a bridge in Elko, Nevada. Officer Shelley thought that
                the man might be intoxicated and too young to be out past curfew. He
                then parked his patrol car in a store parking lot at the end of the bridge
                and addressed Torres as he walked in that direction. Officer Shelley told
                Torres that he stopped him because he was concerned that Torres was too
                young to be out after curfew and that it appeared he had been drinking.
                He asked Torres for identification.
                            Torres gave Officer Shelley his California identification card
                (ID card), which revealed that Torres was over the age of 21, and thus, old
                enough to be out past curfew and consuming alcohol. After reading
                Torres's ID card, Officer Shelley retained the ID card as he recited
                Torres's information to police dispatch for verification and to check for
                outstanding arrest warrants. According to Officer Shelley, it is his
                standard practice to verify the identification information of every person
                he encounters because police officers are often given fake identification
                cards that contain inaccurate information. However, nothing in Officer
                Shelley's testimony indicated that anything about Torres's ID card seemed
                fake or inaccurate. Although Officer Shelley could not remember when he
                handed Torres his ID card back after reciting the information to dispatch,



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                he stated that it is also his standard practice to keep an identification card
                in his possession until after he gets a response from dispatch.
                            Within five minutes of transmitting Torres's information to
                dispatch, Officer Shelley was informed that Torres had two outstanding
                arrest warrants from California. A second patrol officer arrived and, upon
                confirmation from dispatch that one of the warrants was extraditable,
                Officer Shelley took Torres into custody. After taking Torres into custody,
                Officer Shelley went to conduct a search incident to arrest, at which point
                Torres told him that he had a gun in his pocket. Officer Shelley then
                handcuffed Torres, removed a .22 caliber gun from his pocket, and located
                .22 ammunition in another pocket.
                            Torres was charged with being an ex-felon in possession of a
                firearm, receiving or possessing stolen goods, and carrying a concealed
                weapon. Torres filed a motion to suppress the handgun evidence and to
                ultimately dismiss the charges. Torres argued that his detention after
                Officer Shelley confirmed that he was not in violation of curfew was
                unconstitutional because Officer Shelley did not have suspicion that any
                other crime was occurring and Torres did not consent to the interaction.
                Therefore, once Officer Shelley knew Torres was of age, the encounter
                evolved into an illegal seizure that resulted in the discovery of the firearm.
                Torres also contended that the discovery of the warrant was not an
                intervening circumstance sufficient to purge the taint of the discovery of
                the handgun from the illegal seizure.
                            In response, the State argued that Officer Shelley had
                reasonable suspicion to detain Torres because of his stature, the time of
                day, and his apparent drunkenness, and that Torres consented to the
                encounter. The State further contended that the discovery of the warrant

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                was an intervening circumstance sufficient to purge the taint of the
                possibly illegal seizure from the discovery of the handgun, and, therefore,
                the handgun evidence was not the fruit of an illegal seizure.
                             The district court denied Torres's motion to suppress because
                it determined that the initial contact between Officer Shelley and Torres
                was consensual. However, the district court did not make a determination
                about whether the consensual encounter became an illegal seizure.
                Instead, the district court determined the warrant to be an intervening
                circumstance and found that "the legality, or illegality, of Officer Shelley's
                decision to run a warrants check on [Torres] to be irrelevant to the legality
                of [Torres's] arrest." The court found the question irrelevant because the
                warrant would have been an "intervening circumstance" sufficient to
                purge the illegality of the seizure if the stop had become illegal. Upon the
                district court's denial of Torres's motion to suppress, Torres pleaded guilty
                to being an ex-felon in possession of a firearm pursuant to NRS
                202.360(1)(a). 1 This appeal followed.
                                               DISCUSSION
                             In this appeal, we consider whether the judgment of conviction
                must be reversed based on Torres's Fourth Amendment challenge and the
                district court's denial of his motion to suppress. 2 In reaching our


                      1 In
                         Gallegos v. State, we concluded that paragraph (b) of NRS
                202.360(1) was unconstitutionally vague. 123 Nev. 289, 163 P.3d 456
                (2007). This holding does not affect the paragraph at issue here,
                paragraph (a) of NRS 202.360(1), or our analysis of the issues in this
                appeal.

                      2 Torresreserved the right to challenge the denial of his motion to
                suppress on appeal. See NRS 174.035(3)


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                conclusion, we first determine whether Officer Shelley's continued
                detention of Torres constituted an illegal seizure. If so, we must decide
                whether the discovery of Torres's valid arrest warrant attenuated the
                taint from the illegal seizure, such that the firearm evidence obtained
                during a search incident to arrest was admissible.
                Officer Shelley's continued detention of Torres resulted in an illegal seizure
                in violation of the Fourth Amendment
                               In Fourth Amendment challenges, this court reviews the
                district court's findings of fact for clear error but reviews legal
                determinations de novo. Somee v. State, 124 Nev. 434, 441, 187 P.3d 152,
                157-58 (2008). Police encounters can be consensual.         See United States v.
                Mendenhall, 446 U.S. 544, 553-54 (1980). "As long as the person to whom
                questions are put remains free to disregard the questions and walk away,
                there has been no intrusion upon that person's liberty or privacy as would
                under the Constitution require some particularized and objective
                justification." Id. at 554. However, if a reasonable person would not feel
                free to leave, he or she has been "seized' within the meaning of the Fourth
                Amendment." Id.
                               If a person does not consent, "a police officer may [still] 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."     State v. Lisenbee, 116 Nev. 1124, 1127, 13 P.3d 947, 949
                (2000); see also NRS 171.123(1); Terry v. Ohio, 392 U.S. 1, 27 (1968). To
                conduct an investigative stop, an officer must have more than an
                "inchoate and unparticularized suspicion or "hunch" that criminal
                activity is occurring; the officer must have "some objective justification for
                detaining a person." Lisenbee, 116 Nev. at 1128, 13 P.3d at 949 (quoting
                Terry, 392 U.S. at 27).
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                             "But a 'seizure that is lawful at its inception can violate the
                Fourth Amendment if its manner of execution unreasonably infringes
                interests protected by the Constitution." State v. Beckman, 129 Nev. ,
                   , 305 P.3d 912, 916-17 (2013) (quoting Illinois v. Caballes, 543 U.S.
                405, 407 (2005)). For an investigative stop to be reasonable, it "must be
                temporary and last no longer than is necessary to effectuate the purpose of
                the stop." Florida v. Royer, 460 U.S. 491, 500 (1983). "[An individual]
                may not be detained even momentarily without reasonable, objective
                grounds for doing so. . . ." Id. at 498 (emphasis added).
                             "[Tihe nature of the police-citizen encounter can change—what
                may begin as a consensual encounter may change to an investigative
                detention if the police conduct changes and vice versa."     United States v.
                Zapata, 997 F.2d 751, 756 n.3 (10th Cir. 1993). A consensual encounter is
                transformed into a seizure in violation of the Fourth Amendment "if, in
                view of all the circumstances surrounding the incident, a reasonable
                person would have believed that he was not free to leave." Immigration &
                Naturalization Serv. v. Delgado, 466 U.S. 210, 215 (1984).
                             In Lisenbee, we considered such a transformation and
                determined the defendant was not "free to leave." 116 Nev. at 1128-30, 13
                P.3d at 950-51. There, we concluded that after the defendant produced
                identification demonstrating he was not the possible suspect police were
                looking for, NRS 171.123(4) prevented further detention by police. 3 Id.
                Accordingly, the defendant's further detention was unreasonable and


                      3NRS    171.123(4) states in part that la] person must not be detained
                longer than is reasonably necessary to effect the purposes of this section
                [(temporary detention by peace officer of person suspected of criminal
                behavior)] ."

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                resulted in an illegal seizure. Id. See also United States v. Lopez, 443
                F.3d 1280, 1285-86 (10th Cir. 2006) (holding that the officer's retention of
                the defendant's identification transformed a consensual encounter into an
                unconstitutional seizure because the officer's reasonable suspicion for the
                encounter was cured "[w]ithin seconds of reviewing [the defendant's]
                license," and, given the totality of the circumstances, the defendant would
                not have felt free to leave); State v. Westover, 10 N.E.3d 211, 219 (Ohio Ct.
                App. 2014) (concluding that "no reasonable person would [feel] free to
                terminate [an] encounter and go about their business, where an officer is
                holding that individual's identification and is using it to run a warrants
                check").
                            Veritably, scholars have noted the disagreement between
                other courts on whether a seizure has occurred for Fourth Amendment
                purposes when the police retain an individual's identification.   See Aidan
                Taft Grano, Note, Casual or Coercive? Retention of Identification in Police-
                Citizen Encounters, 113 Colum. L. Rev. 1283 (2013) (highlighting the
                differences between the Fourth and the D.C. Circuit Courts regarding
                whether a consensual encounter can become a seizure solely through the
                retention of an individual's identification). In United States v. Weaver, the
                Fourth Circuit Court of Appeals held that an officer's retention of the
                defendant's identification beyond its intended purpose was not a seizure,
                as the defendant was a pedestrian, and, while "awkward," the defendant
                "could have walked away from the encounter [without his identification]."
                282 F.3d 302, 311-12 (4th Cir. 2002). By contrast, in United States v.
                Jordan, the D.C. Circuit Court of Appeals held that a consensual
                encounter transformed into a seizure when officers retained the
                defendant's identification and continued questioning him, despite no

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                "articulable suspicion that would have made a brief Terry-style detention
                reasonable." 958 F.2d 1085, 1086-89 (D.C. Cir. 1992). Based on our
                previous holding in Lisenbee, and being mindful of NRS 171.123(4), we
                agree with the reasoning of the D.C. Circuit Court that generally a
                reasonable person would not feel free to leave when an officer retains a
                pedestrian's identification after the facts giving rise to articulable
                suspicion for the original stop have been satisfied.
                            Here, Officer Shelley testified that he stopped Torres because
                Officer Shelley thought Torres was a minor out past curfew and too young
                to be drinking. Once Torres produced his ID card verifying he was not a
                minor and over the age of 21, the suspicion for the original encounter was
                cured and Officer Shelley no longer had reasonable suspicion to detain
                Torres. But rather than release Torres, Officer Shelley continued to
                detain him, and contacted dispatch to check for warrants. The officer
                explained his further detention of Torres as his "standard practice"
                because he "very often get[s] fake I.D.'s, altered information on I.D.'s,
                I.D.'s that resemble the person but is not truly that person." However,
                there is no evidence to show that Torres's ID card was fake or altered in
                any way. Like Lisenbee, where a consensual encounter transformed into
                an illegal seizure, Officer Shelley retained Torres's ID card after the
                reasonable suspicion for the original stop eroded. 4 Nothing in the record
                provides a basis for Shelley's continued detention of Torres or offers a
                basis for us to conclude that a reasonable person in Torres's position was


                      4Because  Torres was a pedestrian, we do not address the application
                of Lisenbee or NRS 171.123(4) to a traffic stop. See, e.g., State v. Lloyd,
                129 Nev. , 312 P.3d 467 (2013) (discussing warrantless searches and
                the automobile exception).


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                free to leave. We conclude that under NRS 171.123(4), this continued
                detention of Torres transformed the investigative stop into an illegal
                seizure in violation of the Fourth Amendment. Because Torres was
                illegally seized, we must now examine whether the district court should
                have suppressed the firearm evidence Officer Shelley discovered in the
                search incident to arrest.
                The firearm evidence should have been suppressed because it was the fruit
                of an illegal seizure
                            Generally, the exclusionary rule requires courts to exclude
                evidence that the police obtained in violation of the Fourth Amendment,
                thereby deterring any incentive for the police to disregard constitutional
                privileges. See generally Mapp v. Ohio, 367 U.S. 643, 656 (1961). Courts
                must also exclude evidence obtained after the constitutional violation as
                "indirect fruits of an illegal search or arrest."   New York v. Harris, 495
                U.S. 14, 19 (1990). However, not "all evidence is 'fruit of the poisonous
                tree' simply because it would not have come to light but for the illegal
                actions of the police." Wong Sun v. United States, 371 U.S. 471, 487-88
                (1963). The United States Supreme Court has found that when the
                constitutional violation is far enough removed from the acquisition of the
                evidence, the violation is sufficiently "attenuated [so] as to dissipate the
                taint'" of the illegality and the evidence may be admitted.        Id. at 491
                (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)). To be
                admissible, the police must acquire the evidence "by means sufficiently
                distinguishable to be purged of the primary taint."          Id. at 488, 491
                (internal quotations omitted) (excluding physical evidence because it was
                discovered "by the exploitation" of the illegality of the unlawful arrest, but
                not excluding statements made by the defendant several days after his


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arrest because the causal connection had attenuated "the primary taint"
(internal quotations omitted)).
            To resolve the suppression issue, the State urges this court to
either create a per se rule of attenuation or apply the factors from Brown
v. Illinois, 422 U.S. 590 (1975), and determine that attenuation exists
here. Torres argues that we should not adopt the three-factor test from
Brown to analyze whether the presence of an outstanding arrest warrant
purges the taint of evidence discovered during an illegal seizure. We agree
with Torres.
            In Brown, the police arrested the defendant without probable
cause and without a warrant. Id. at 591. Thereafter, the police gave the
defendant comprehensive Miranda5 warnings, and he proceeded to make
incriminating statements.     Id.   The question presented to the United
States Supreme Court was whether the Miranda warnings sufficiently
attenuated the illegal arrest from the incriminating statements, such that
the incriminating statements were not the fruit of the illegal arrest and
were thus admissible.     Id. at 591-92. In performing its attenuation
analysis, the Court refused to adopt a "per se" rule of attenuation or lack
thereof when a Fourth Amendment violation preceded Miranda warnings
and subsequent confessions. Id. at 603. Rather, the Court established a
three-part test for determining whether the taint of the evidence is
attenuated from illegal police conduct such that the confession would be
admissible: "The temporal proximity of the arrest and the confession, the
presence of intervening circumstances, . . . and, particularly, the purpose
and flagrancy of the official misconduct. . . ."    Id. at 603-04 (internal


      5Miranda   v. Arizona, 384 U.S. 436 (1966).



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                citation and footnote omitted). One factor alone is not dispositive of
                attenuation. Id. Applying those factors and limiting its decision to the
                facts of the case before it, the Court concluded that the lower court
                erroneously assumed "that the                  Miranda       warnings, by
                themselves,. . . always purge the taint of an illegal arrest." Id. at 605.
                            To be sure, the Brown factors are well suited to address the
                factual scenario of that case in determining "whether a confession is the
                product of a free will under Wong Sun." Id. at 603-04. We do not perceive
                the Brown factors as particularly relevant when, as here, there was no
                demonstration of an act of free will by the defendant to purge the taint
                caused by an illegal seizure. 6 Accordingly, in the absence of reasonable
                suspicion, the discovery of an arrest warrant is not "sufficiently
                distinguishable to be purged of the primary taint" from an illegal seizure.
                Wong Sun, 371 U.S. at 488 (internal quotations omitted). Thus, we agree
                with the Ninth and Tenth Circuits, as well as the Supreme Court of
                Tennessee, that without reasonable suspicion, the discovery of arrest
                warrants cannot purge the taint from an illegal seizure.      See Lopez, 443
                F.3d 1280; United States v. Luckett, 484 F.2d 89 (9th Cir. 1973); State v.
                Daniel, 12 S.W.3d 420 (Tenn. 2000).




                      6 Some  courts have considered the Brown factors when the
                "intervening circumstance" is the discovery of an arrest warrant, but these
                cases do not adequately address the difference between an intervening
                circumstance caused by a defendant's act of free will to purge the primary
                taint and the absence of a defendant's free will resulting from an illegal
                seizure. See, e.g., United States v. Green, 111 F.3d 515, 521-23 (7th Cir.
                1997); Golphin v. State, 945 So. 2d 1174, 1191-93 (Fla. 2006); People v.
                Mitchell, 824 N.E.2d 642, 649-50 (Ill. App. Ct. 2005).

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                              We conclude that the further detention of Torres was not
                consensual at the time of the warrants check, and thus Torres was
                illegally seized. The officer retained Torres's             ID card longer than
                necessary to confirm Torres's age, rendering Torres unable to leave.
                Because the officer did not have reasonable suspicion necessary to justify
                the seizure under NRS 171.123(4), the evidence discovered as a result of
                the illegal seizure must be suppressed as "fruit of the poisonous tree" since
                no intervening circumstance purged the taint of the illegal seizure.
                Therefore, we conclude that the district court in this case should have
                suppressed the evidence of the firearm discovered on Torres's person after
                the investigative stop transformed into an illegal seizure.
                              For the reasons set forth above, we reverse the judgment of
                conviction and remand this matter to the district court to allow Torres to
                withdraw his guilty plea.


                                                                     C.J.
                                         Hardesty

                We concur:


                                                           —   DC)1A-49                   J.
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                                                                                          J.
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