                                                         131 Nev., Advance Opinion          102-
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   JUDY PALMIERI,                                         No. 65143
                   Appellant,
                   vs.
                   CLARK COUNTY, A POLITICAL
                   SUBDIVISION OF THE STATE OF
                                                                               FILED
                   NEVADA; AND DAWN STOCKMAN,                                   DEC 3 1 2015
                   CE096, INDIVIDUALLY AND IN HER                                 caE K. 1.R4DEMAN2-..
                   OFFICIAL CAPACITY AS AN OFFICER                                              0.4:1


                   EMPLOYED BY THE COUNTY OF                               6Y4... DEPUit'CL'erth:

                   CLARK,
                   Respondents.



                               Appeal from a district court order granting summary
                   judgment in a civil rights and a torts action. Eighth Judicial District
                   Court, Clark County; Gloria Sturman, Judge.
                               Affirmed.


                   Potter Law Offices and Cal J. Potter, III, and Cal J. Potter, IV, Las Vegas,
                   for Appellant.

                   Steven B. Wolfson, District Attorney, and Matthew J. Christian, Deputy
                   District Attorney, Clark County,
                   for Respondents.




                   BEFORE GIBBONS, C.J., TAO and SILVER, JJ.




COURT OF APPEALS
       OF
    NEVADA
                                                    OPINION
                   By the Court, SILVER, J.:
                               Appellant Judy Palmieri was criminally charged after a search
                   of her residence revealed several violations of the Clark County Code's
                   provisions for the health and welfare of animals In obtaining the warrant
                   to search Palmieri's residence, respondents Dawn Stockman and Clark
                   County relied in part on a tip from an informant who, Palmieri later
                   alleged, provided a false identity when she filed a complaint against
                   Palmieri. After Palmieri obtained the evidence underlying her allegation
                   that the informant provided a false identity, Palmieri sued Stockman and
                   Clark County, asserting a 42 U.S.C. § 1983 claim, a Monelll claim, and
                   several state law causes of action. Respondents moved for summary
                   judgment, which the district court granted.
                               On appeal, the primary issue is whether the district court
                   erred by granting summary judgment with respect to Palmieri's § 1983
                   claim against Stockman based on a finding that Stockman was entitled to
                   qualified immunity. 2 We hold that Stockman was entitled to qualified



                         aMonell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
                         2 Palmieri also challenges the portions of the district court's order
                   granting Clark County summary judgment on her Monell claim and
                   Stockman summary judgment on her claims for negligent and intentional
                   infliction of emotional distress, conspiracy, and malicious prosecution. We
                   have considered these arguments, and they lack merit because, as fully
                   discussed below, we conclude that there was administrative probable
                   cause sufficient to support an administrative search warrant. For the
                   same reason, we need not reach Palmieri's argument that the district
                   court improperly concluded that Stockman was entitled to discretionary
                   act immunity. Although Palmieri's complaint presented additional claims,
                   she does not challenge the district court's grant of summary judgment
                                                                       continued on next page...
COURT Or APPEALS
        OF
     NEVADA
                                                         2
(0) V4478    e
                   immunity for the following reasons: (1) Palmieri failed to make a
                   substantial showing that Stockman knowingly and intentionally, or with a
                   reckless disregard for the truth, included a false statement in the search
                   warrant affidavit supporting the search warrant for Palmieri's residence;
                   and (2) Palmieri failed to establish a genuine issue of material fact as to
                   whether probable cause existed to support an administrative search
                   warrant for her residence. Therefore, we conclude the district court
                   appropriately granted Stockman and Clark County's motion for summary
                   judgment. Accordingly, we affirm.
                                   FACTUAL AND PROCEDURAL HISTORY
                   Individuals significant to this case
                               Respondent Dawn Stockman is a licensed veterinary
                   technician and animal control officer for Clark County Animal Control—
                   an agency of respondent Clark County. At the time of the events
                   underlying this appeal, Stockman had been an animal control officer for a
                   little more than three years. Appellant Judy Palmieri is a pet store owner
                   and a resident of Clark County; her home was searched pursuant to a
                   warrant obtained by Stockman. Kaitlyn Nichols is not a party to this case,
                   but someone used her name to file a complaint against Palmieri with
                   animal control. Prior to the events giving rise to this appeal, Nichols
                   worked at one of Palmieri's pet stores.




                   ...continued
                   with respect to those claims on appeal, and, therefore, we do not address
                   them today. See Powell v. Liberty Mitt. Fire Ins. Co., 127 Nev. 156, 161
                   11.3, 252 P.3d 668, 672 n.3 (2011) (providing that issues not raised on
                   appeal are deemed waived).


COURT OF APPEALS
        OF
     NEVADA
                                                          3
(0) 1947R
                   The complaint and investigation
                               On May 10, 2010, an animal control supervisor with the City
                   of Las Vegas, Richard Molinari, received a complaint from a woman who
                   identified herself as Kaitlyn Nichols (the Informant) against Palmieri for
                   alleged animal abuse. Because Palmieri is a Clark County property owner
                   and outside the jurisdiction of the City of Las Vegas, Molinari forwarded
                   the Informant's complaint to Clark County Animal Control. Clark County
                   Animal Control assigned the complaint to Stockman, who called the
                   Informant on May 10, 2010, to discuss her complaint. During the
                   conversation, Stockman requested that the Informant prepare a written
                   complaint. The Informant subsequently prepared a signed written
                   statement and faxed it to Stockman. After receiving the written
                   statement from the Informant, Stockman called the Informant once again
                   to confirm that she received everything that the Informant had sent.
                               Stockman later provided the following account of her
                   conversation with the Informant in a search warrant affidavit:
                                     [Nichols] then told me that she use [d] to
                               work for Mrs. Palmieri at Meadow [s] Pets. She
                               was asked to help Mrs. Palmieri move some boxes
                               at her place of residence. She arrived at
                               [Palmieri's residence]. Once Ms. Nichols was
                               inside the residence she saw several animals in
                               the house. Ms. Nichols also told me there w[ere]
                               several animals kept in the garage in kennels.
                               The animals on the property looked very thin and
                               several appeared to have mats and fecal [matter]
                               all over them. Ms. Nichols said a lot of the
                               animals appeared to be unhealthy. Ms. Nichols
                               then went on to tell me Mrs. Palmieri breeds the




COURT DE APPEALS
        OF
     NEVADA
                                                        4
(0) 19475    eo
                                dogs and sells them at her pet shop. Ms. Nichols
                                also stated Mrs Palmieri also houses animals that
                                are sick or too young for the pet shop in her house.
                                To corroborate the Informant's complaint, Stockman checked
                   property records to confirm Palmieri owned the residence identified by the
                   Informant, and she reviewed Clark County Animal Control's records for
                   previous citations against Palmieri. The search revealed that Palmieri
                   owned the residence identified by the Informant, Palmieri owned a pet
                   store, Clark County Animal Control had responded to Palmieri's residence
                   in January 2006 regarding allegations that Palmieri had a dead animal in
                   her garage, 3 and Clark County Animal Control had received numerous
                   health and welfare complaints regarding one of Palmieri's pet stores, Bark
                   Avenue, including a complaint in September 2007. 4 Stockman did not




                         3 Jason Elff, an animal control officer for Clark County Animal
                   Control, responded to Palmieri's residence regarding the dead animal
                   complaint. Officer Elff reported that he smelled a foul odor but could not
                   confirm whether it was a dead animal. Palmieri would not permit Officer
                   Elff on the property without a warrant and advised him to leave. Knowing
                   that Palmieri previously refused to allow an animal control officer to enter
                   her property without a warrant, Stockman elected to seek a search
                   warrant after receiving the Informant's complaint.

                         4 It
                            is unclear from the record exactly how many citations Palmieri's
                   pet stores have received. During her deposition, Palmieri acknowledged
                   that in 2000 she received an 18-count indictment related to violations at
                   one of her pet stores. Palmieri also acknowledged she received citations in
                   December 2009 for violations at one of her pet stores; however, she alleges
                   that the basis for the citations was false. Regarding Bark Avenue, the
                   search warrant affidavit only details the September 2007 complaint, and
                   the record does not indicate why Stockman did not provide details
                   regarding the other complaints against Palmieri's businesses.


COURT OF APPEALS
        OF
     NEVADA
                                                         5
(0) 19418    e
                   investigate the Informant's complaint further or solicit additional
                   information from the Informant.'
                   The warrant
                                Based on the complaint and investigation, Stockman decided
                   to seek a warrant authorizing the search of Palmieri's residence.
                   Stockman prepared an "Administrative Search and Seizure Warrant" and
                   an "Application and Affidavit for Administrative Search and Seizure
                   Warrant," which included the above account of her conversation with the
                   Informant and the corroborating information that Stockman gathered.
                   Two of Stockm.an's supervisors and a deputy district attorney
                   subsequently reviewed and approved Stockman's proposed search warrant
                   and search warrant affidavit, and a district court judge signed the search
                   warrant and authorized the search on May 18, 2010, after Stockman
                   swore to the truth of the contents of the affidavit.
                   The search
                                Stockman executed the search warrant together with another
                   animal control officer and an officer of the Las Vegas Metropolitan Police
                   Department on May 19, 2010. 6 During the search, the officers found 24




                         'Before becoming an animal control officer and veterinary
                   technician, Stockman worked at one of Palmieri's pet stores. As such, she
                   had independent knowledge that Palmieri owned a pet store at one time.
                   But Stockman did not include that information in the search warrant
                   affidavit.

                         @The group knocked and announced at Palmieri's front door, but
                   Palmieri did not answer. The group then walked around Palmieri's house
                   to a garage where they knocked on the garage door and heard dogs
                   barking. After gaining access to Palmieri's backyard, the group entered
                   Palmieri's house and announced their presence again. Palmieri, who had
                                                                   continued on next page...
COURT OF APPEALs
        OF
     NEVADA
                                                          6
(0) 1947B    e
                    adult dogs and 5 puppies in Palmieri's house and garage. Palmieri could
                    not provide proof that any of the animals had received a rabies vaccination
                    or been spayed or neutered as required by Clark County Code. The
                    officers found that Palmieri provided the animals a sanitary environment
                    and adequate food and water. However, because two elderly dogs looked
                    sickly and because Palmieri could not provide proof the dogs had been to a
                    veterinarian's office recently, the officers impounded those dogs for a
                    welfare check by a veterinarian. The officers also impounded the five
                    puppies because Palmieri did not have a breeding permit. As a result of
                    the search, the officers cited Palmieri for failing to provide proof of rabies
                    vaccination, failing to obtain a permit for intact dogs, and failing to
                    provide proof of medical care. 7
                                  After the search, Palmieri questioned Stockman regarding the
                    warrant and the Informant's complaint. In response, Stockman showed
                    Palmieri the Informant's signed complaint, and Palmieri acknowledged
                    that the signature on the complaint looked like Kaitlyn Nichols'


                    ...continued
                    been in the shower when the officers first arrived, subsequently appeared
                    from around the corner.

                          As Stockman and the other animal control officer began searching
                    the house, the LVMPD officer instructed Palmieri to go outside where she
                    could read the warrant. According to Palmieri, she was not permitted to
                    enter her residence for approximately 20 to 30 minutes. During that time,
                    Palmieri was not handcuffed, but "[she] was in [her] pajamas, had no
                    underwear on, no makeup, [and] no shoes."

                          7 TheClark County District Attorney's office subsequently brought
                    five charges against Palmieri in Las Vegas Justice Court. For reasons
                    that are unclear from the appendix, the justice court dismissed those
                    charges.


COURT OF APPEALS
         OF
      NEVADA
                                                           7
(0) 194711    me.
                     signature. 8 According to Palmieri, Stockman told her "animal control
                     ha[d] never been able to get anything on [her] until now." 9
                     The aftermath of the search
                                 Approximately five months after the search of Palmieri's
                     residence, Kaitlyn Nichols signed an affidavit averring that she never
                     made a complaint regarding Palmieri to Clark County Animal Control or
                     signed any such complaint. Nichols further indicated that she had never
                     been to Palmieri's residence and that she believed a former coworker "who
                     ha[d] previously stolen [her] identity and forged [her] name [ ] on bank
                     checks" was responsible for filing the complaint against Palmieri. 19
                                 Palmieri subsequently sued Stockman and respondent Clark
                     County. Palmieri's complaint included four claims for relief: (1) a 42
                     U.S.C. § 1983 claim against Stockman for violation of her constitutional
                     rights under the Fourth and Fourteenth Amendments, (2) a Monell claim
                     asserting § 1983 liability against Clark County, (3) a claim against
                     Stockman encompassing several state law causes of action, and (4) a




                           8 Duringher deposition, Palmieri explained that she was familiar
                     with Nichols because Nichols worked at one of her pet stores, Frisky Pet
                     Emporium.

                           9At •her deposition, Palmieri stated she understood Stockman's
                     statement to mean "on the very day the [breeding permit] ordinance went
                     into effect, that they waited with a warrant till that day so that if they
                     could find anything, they could add more charges to it, and that this way it
                     would be their hopes of finally getting something."

                           mDuring her deposition, Palmieri stated that the former coworker
                     identified by Nichols was one of Palmieri's former employees and that
                     Nichols lived with the former coworker that she identified.


COURT OF APPEALS
        OF
     NEVADA
                                                           8
(0) 194D3    cvgro
                    separate claim against Stockman and Clark County for "illegal search and
                    illegal warrant."
                    Palmieri's deposition
                                During her deposition, Palmieri acknowledged that the Clark
                    County Code requires a homeowner to obtain a special permit or a zoning
                    variance to possess more than 3 dogs, and she acknowledged she did not
                    obtain such a permit or variance before housing 29 animals at her
                    residence. Palmieri also stated that, for approximately 18 years, she had
                    been bringing animals home from her pet stores and keeping them at her
                    residence for short periods. Palmieri further acknowledged she had been
                    charged numerous times for health- and welfare-related violations of the
                    Clark County Code—both personally and through her businesses.
                                Although Palmieri acknowledged that Clark County was not
                    involved with all of her previous violations, she stated that "the head of
                    Animal Control has had [her] on his particular list for many years."
                    According to Palmieri, she is on the head of Animal Control's list because
                    he "doesn't like women, and. . . [he does not] like[ ] women involved in pet
                    stores." She believes Clark County wants "to see [her] out of
                    business. . . . [and that] the county doesn't appreciate pet stores or
                    business—viable businesses in the county. And that's kind of their quest."
                    Palmieri, however, explained that she did not believe Stockman was part
                    of the conspiracy or that Stockman acted with malice against her.
                    Instead, Palmieri suggested Stockman "came in as an officer instructed to
                    go ahead and serve th[e] warrant and see what she could come up with."
                    Palmieri also stated she believes Stockman actually received the
                    complaint, but she thinks a former employee called Clark County Animal
                    Control, pretending to be Nichols.

COURT OF APPEALS
         OF
      NEVADA
                                                         9
(0) 194713    se,
                   Summary judgment
                               After the close of discovery, Clark County and Stockman
                   moved for summary judgment, arguing Palmieri failed to provide
                   sufficient evidence to support her claims, and the district court granted
                   that motion in its entirety. This appeal followed.
                                                   ANALYSIS
                               In this appeal, we primarily address whether the district court
                   appropriately granted Stockman summary judgment on Palmieri's § 1983
                   claim. Palmieri contends that she established a genuine issue of material
                   fact as to whether Stockman was entitled to qualified immunity, and,
                   therefore, she asserts that the district court improperly granted Stockman
                   summary judgment on her § 1983 claim. Stockman disagrees.
                   Standard of review
                               This court reviews a district court's decision granting or
                   denying summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724,
                   729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate when
                   the evidence, viewed in the light most favorable to the nonmoving party,
                   demonstrates that no genuine issue of material fact remains and that the
                   moving party is entitled to judgment as a matter of law. Id.; NRCP 56(c).
                   Qualified immunity
                               Section 1983 provides a check against the abuse of state power
                   by creating a cause of action against state and local officials who violate
                   an individual's federal rights while acting within the scope of their duties.
                   State v. Eighth Judicial Dist. Court (Anzalone), 118 Nev. 140, 153, 42 P.3d
                   233, 242 (2002). To successfully assert a claim under § 1983, the plaintiff
                   must establish that "the conduct complained of (1) was committed by a
                   person acting under color of state law, and (2) deprived the plaintiff of
                   rights, privileges, or immunities secured by the Constitution or laws of the
COURT OF APPEALS
        OF
     NEVADA
                                                         10
(0) 19473
                   United States." Id. at 153, 42 P.3d at 241. However, where a state or
                   local official's discretionary act does not violate clearly established federal
                   statutory or constitutional rights, the doctrine of qualified immunity
                   affords that official protection from civil liability.     Butler ex rel. Biller v.
                   Bayer, 123 Nev. 450, 458, 168 P.3d 1055, 1061 (2007). Because qualified
                   immunity provides "an entitlement not to stand trial or face the other
                   burdens of litigation," courts should resolve qualified immunity defenses
                   "at the earliest possible stage in litigation," and, therefore, "a finding of
                   qualified immunity is an appropriate basis for granting summary
                   judgment."    Id. (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001),
                   overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236
                   (2009)).
                                In determining whether a government official is entitled to
                   summary judgment based on qualified immunity, this court considers
                   (1) whether the facts, when "[t] aken in the light most favorable to the
                   party asserting the injury.... show the officer's conduct violated a
                   constitutional right," and (2) whether, at the time of the alleged violation,
                   the right was clearly established.       Saucier, 533 U.S. at 201; Butler, 123
                   Nev. at 458-59, 168 P.3d at 1061-62 (applying the Saucier test). We need
                   not follow the rigid sequential approach set forth in Saucier, but rather,
                   may determine which prong to address first based upon the specific
                   context of the case before this court.        See Pearson, 555 U.S. at 236. If no
                   constitutional violation occurred, even where the facts are taken in the
                   light most favorable to the § 1983 plaintiff, or if the constitutional right
                   was not clearly established at the time of the alleged constitutional
                   violation, then the defendant is entitled to qualified immunity and



COURT OF APPEALS
       OF
    NEVADA
                                                            11
(0) 194M FDGIBIF
                   summary judgment is appropriate. Butler, 123 Nev. at 458-59,168 P.3d
                   1061-62 (citing Saucier, 533 U.S. at 201-02).
                               On appeal, Palmieri argues that Stockman was not entitled to
                   qualified immunity because the search of her residence violated her
                   constitutional rights under the Fourth and Fourteenth Amendments.
                   With regard to Palmieri's argument that Stockman violated her
                   constitutional rights, we address two issues: first, we consider whether
                   Palmieri may challenge the validity of the search warrant based on the
                   veracity of the search warrant affidavit under Franks v. Delaware, 438
                   U.S. 154 (1978); and second, we examine whether, even without a Franks
                   violation, the search warrant affidavit was insufficient to establish
                   probable cause. We consider each of these constitutional issues in turn.
                         Franks v. Delaware and the Informant's fictitious name
                               Palmieri asserts that Stockman searched her residence
                   pursuant to an invalid search warrant because Stockman included the
                   Informant's fictitious name in the search warrant affidavit, and thereby
                   "knowingly and intentionally, or with reckless disregard for the truth,"
                   submitted a fictitious search warrant affidavit. By contrast, Stockman
                   argues that she was not required to investigate the Informant's identity;
                   that Palmieri did not raise a genuine issue of material fact as to whether
                   Stockman knowingly and intentionally, or with reckless disregard for the
                   truth, included a false statement in the search warrant affidavit; and that,
                   even if the Informant's name is purged from the search warrant affidavit,
                   it was nevertheless sufficient to establish probable cause.
                               Franks, a criminal case, is the seminal decision addressing a
                   challenge to the validity of a search warrant based on the veracity of the
                   supporting search warrant affidavit. In considering whether a criminal
                   defendant may challenge the validity of the search warrant by attacking
COURT OF APPEALS
        OF
     NEVADA
                                                         12
(0) 1947B
                     the search warrant affidavit, the Franks Court confirmed that search
                     warrant affidavits are entitled to a presumption of validity. 438 U.S. at
                     171. But the Franks Court reasoned that if search warrant affidavits were
                     not subject to impeachment, then the probable cause requirement would
                     be a nullity, as government officials could deliberately falsify information
                     with impunity.     Id. at 168. Thus, the Franks Court concluded an
                     evidentiary hearing is required where (1) "the defendant makes a
                     substantial preliminary showing that a false statement knowingly and
                     intentionally, or with reckless disregard for the truth, was included by the
                     affiant in the warrant affidavit," and (2) "the allegedly false statement is
                     necessary to the finding of probable cause." Id. at 155-56; see also United
                     States v. DeLeon, 979 F.2d 761, 763-64 (9th Cir. 1992) (applying Franks to
                     omissions of material fact). Even when a search warrant affidavit
                     includes a false statement within the contemplation of Franks, an
                     evidentiary hearing is not required if, after the false statement is purged,
                     the search warrant affidavit remains sufficient to support a finding of
                     probable cause. Franks, 438 U.S. at 171-72.
                                 While the Nevada Supreme Court has consistently applied the
                     standard set forth in Franks in the criminal context, see, e.g., Garrettson v.
                     State, 114 Nev. 1064, 1068, 967 P.2d 428, 430 (1998), it has not considered
                     the applicability of Franks to § 1983 claims. This court, however, can
                     discern no reason not to apply Franks in the civil context; whether a
                     criminal defendant or a civil plaintiff raises Franks, the conduct under
                     attack is identical. Moreover, nearly every circuit of the federal courts of
                     appeal has applied Franks in addressing defenses of qualified immunity




COURT OF APPEALS
        OF
     NEVADA
                                                           13
10) 1947B    airy>
                      from civil liability.il Therefore, we take this opportunity to clarify that
                      Franks applies in the civil context.
                                   In the criminal context, Franks issues generally arise prior to
                      trial during suppression hearings where the trial court is necessarily the
                      finder of fact. Because the jury is generally the finder of fact in civil cases,
                      such as this one, we must consider what role the judge plays in resolving a
                      Franks issue on summary judgment given the United States Supreme
                      Court's qualified immunity jurisprudence and the requirement in Franks
                      that the party moving for an evidentiary hearing make a substantial
                      preliminary showing.      Franks, 438 U.S. at 155, 170. To resolve that
                      question, we look to the United States Supreme Court's decision in Harlow
                      v. Fitzgerald, 457 U.S. 800 (1982), and persuasive caselaw from the Ninth
                      Circuit of the United States Court of Appeals.
                                   To prevent excessive disruption of government and facilitate
                      the resolution of meritless claims on summary judgment, the Supreme
                      Court held in Harlow that "government officials performing discretionary
                      functions generally are shielded from liability for civil damages insofar as
                      their conduct does not violate clearly established statutory or
                      constitutional rights of which a reasonable person would have known." Id.
                      at 818. That standard places the focus of the qualified immunity analysis

                            "See, e.g., Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010);
                      Miller v. Prince George's Cnty., 475 F.3d 621, 627 (4th Cir. 2007); Kohler v.
                      Englade, 470 F.3d 1104, 1113 (5th Cir. 2006); Burke v. Town of Walpole,
                      405 F.3d 66, 82 (1st Cir. 2005); Pierce v. Gilchrist, 359 F.3d 1279, 1293
                      (10th Cir. 2004); Hunter v. Namanny, 219 F.3d 825, 829 (8th Cir. 2000);
                      Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997); Kelly v. Curtis, 21
                      F.3d 1544, 1554 (11th Cir. 1994); Rivera v. United States, 928 F.2d 592,
                      604 (2d Cir. 1991); Forster v. Cnty. of Santa Barbara, 896 F.2d 1146, 1148
                      (9th Cir. 1990); Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989).


COURT OF APPEALS
        OF
     NEVADA
                                                             14
(0) 19475    44qac,
                   on the objective reasonableness of the government official's conduct as
                   measured by clearly established law. Id. Thus, in the qualified immunity
                   context, bare allegations of malice are insufficient "to subject government
                   officials either to the costs of trial or to the burdens of broad-reaching
                   discovery." Id. at 817-18.
                               The Ninth Circuit has observed that a tension exists "between
                   Harlow's emphasis on 'objective reasonableness' and cases in which the
                   'clearly established law' at issue contains a subjective element, such as
                   motive or intent." Branch v. Tunnell, 937 F.2d 1382, 1385 (9th Cir. 1991),
                   overruled on other grounds by Galbraith v. Santa Clara, 307 F.3d 1119
                   (9th Cir. 2002). Based on that tension, the Ninth Circuit has adopted a
                   standard for overcoming summary judgment that parallels the threshold
                   showing that a criminal defendant must make to establish entitlement to
                   a Franks hearing. Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995).
                   Specifically, the Ninth Circuit concluded that
                               a plaintiff can only survive summary judgment on
                               a defense claim of qualified immunity if the
                               plaintiff can both establish a substantial showing
                               of a deliberate falsehood or reckless disregard and
                               establish that, without the dishonestly included or
                               omitted information, the magistrate would not
                               have issued the warrant.
                   Id. at 789. If a § 1983 plaintiff both makes the requisite substantial
                   showing and establishes that the issuing court would not have issued the
                   warrant without the false information, then, and only then, does the
                   question of whether the government official's conduct was intentional or
                   reckless become a factual determination for the jury.     Id.   We find the
                   Ninth Circuit's reasoning in Branch and Hervey           persuasive, and,
                   therefore, we adopt Hervey's standard for deciding Franks claims in the
                   summary judgment context. We address each prong in turn below.
COURT OF APPEALS
         OF
     NEVADA
                                                        15
(0) 1947 a
                               Deliberate falsehood or reckless disregard
                               The evidence here does not support the proposition that
                   Stockman made a knowing and intentional false statement in her
                   affidavit. To the contrary, Palmieri conceded in her deposition that
                   Stockman did not harbor malice against her, that Stockman actually
                   received the complaint, and that Stockman was merely doing her job in
                   serving the search warrant. Nevertheless, the question of whether
                   Stockman showed reckless disregard for the truth still requires analysis
                   and elaboration.
                               Reckless disregard for the truth may be shown by establishing
                   that the warrant affiant entertained serious doubts with regard to the
                   truth of the search warrant affidavit's allegations.       United States v.
                   Williams, 737 F.2d 594, 602 (7th Cir. 1984) (citing St. Amant v. Thompson,
                   390 U.S. 727, 731 (1968)) (concluding that the First Amendment definition
                   of reckless disregard for the truth is applicable in the Franks context). A
                   party attacking the veracity of a search warrant affidavit may also
                   establish reckless disregard for the truth inferentially "from circumstances
                   evincing 'obvious reasons to doubt the veracity' of the allegations" in the
                   search warrant affidavit. Id. (quoting St. Amant, 390 U.S. at 732).
                               Under Franks, conclusory assertions and allegations of
                   negligence or innocent mistake are insufficient to warrant an evidentiary
                   hearing. 438 U.S. at 171. And a criminal defendant seeking to attack a
                   search warrant affidavit cannot rely on the false statements of any
                   nongovernmental informant but, rather, must limit his or her challenge to
                   the deliberate falsity or reckless disregard of the      affiant. Id. ("The
                   deliberate falsity or reckless disregard whose impeachment is permitted
                   today is only that of the affiant, not of any nongovernmental informant.").

COURT OF APPEALS
          OF
      NEVADA
                                                        16
(0) I 94711
                                 Here, in support of her challenge to the veracity of the search
                   warrant affidavit, Palmieri provided an affidavit from Nichols in which
                   Nichols averred that she never made or signed a complaint against
                   Palmieri, she had never been to Palmieri's residence, and she believed a
                   former coworker was responsible for filing the complaint. For purposes of
                   summary judgment, we view the facts in the light most favorable to
                   Palmieri and assume the Informant provided Stockman a false name-
                   Kaitlyn Nichols. See Wood v. Safeway, Inc.,     121 Nev. 724, 729, 121 P.3d
                   1026, 1029 (2005); see also Saucier v. Katz, 533 U.S. 194, 201 (2001)
                   (providing that courts must consider the facts in the light most favorable
                   to the party asserting that his or her constitutional rights were violated
                   when considering whether to grant summary judgment based on qualified
                   immunity), overruled on other grounds by Pearson v. Callahan, 555 U.S.
                   223, 236 (2009). But, although Stockman included the Informant's
                   fictitious name in the search warrant affidavit, the alleged falsehood is
                   attributable to the Informant, rather than Stockman, and Palmieri cannot
                   use Franks to impeach the Informant.          See Franks, 438 U.S. at 171
                   (explaining that a challenge to a search warrant affidavit may not be
                   based on a nongovernmental informant's deliberate falsehood or reckless
                   disregard).
                                 Palmieri's only direct allegation relevant to whether Stockman
                   recklessly disregarded the truth is that Stockman should have known that
                   the Informant provided a false identity. That allegation assumes that an
                   officer has a duty to investigate and confirm an informant's identity prior
                   to obtaining a search warrant based on an informant's tip. But Palmieri
                   did not present, and our research has not revealed, any legal authority to
                   support that assumption. To the contrary, the United States Supreme

COURT OF APPEALS
        OF
     NEVADA
                                                         17
(0) 19478    eo
                    Court has considered whether officers may rely on tips from anonymous
                    informants and concluded that a tip from an anonymous informant can
                    form at least part of the basis for reasonable suspicion or even probable
                    cause.   See Alabama v. White,      496 U.S. 325 (1990) (discussing an
                    anonymous tip in the reasonable suspicion context); see also Illinois v.
                    Gates, 462 U.S. 213 (1983) (considering an anonymous tip in the probable
                    cause context).
                                Because the anonymity of an informant affects the weight of
                    the various indicia of reliability accompanying the informant's tip, see
                    Gates, 462 U.S. at 237, the real issue in the present case is whether the
                    Informant is properly classified as an anonymous informant or an
                    identified citizen informant for purposes of assessing the reasonableness of
                    the search warrant. And, as discussed more below, where a citizen
                    informant provides a tip via telephone and states his or her occupation or
                    name and home and cellular telephone numbers, courts have found that
                    such information is sufficient to categorize the informant as an identified
                    citizen informant whose tip should be credited with a greater degree of
                    reliability than that of an anonymous informant.      See, e.g., Maumee v.
                    Weisner, 720 N.E.2d 507 (Ohio 1999) (cataloging relevant cases, rejecting
                    an argument that an informant who provided a tip via telephone may
                    have provided a false identity, and concluding that the informant, who
                    provided a name and home and cellular telephone numbers, was an
                    identified citizen informant whose tip should be recognized as more
                    reliable than that of an anonymous informant).
                                The evidentiary basis for Palmieri's argument is also lacking.
                    Palmieri presented no evidence to suggest that Stockman knew the
                    Informant provided a false identity or entertained serious doubts as to the

COURT OF APPEALS
        OF
     NEVADA
                                                         18
101 1947R    cre,
                   Informant's identity.   See Williams, 737 F.2d at 602 (concluding that
                   reckless disregard for the truth may be established through evidence
                   establishing that the warrant affiant entertained cast serious doubts
                   regarding the allegations in the search warrant affidavit). Nor did she
                   present evidence from which a fact-finder could infer an obvious reason to
                   doubt the veracity of the allegations in the search warrant affidavit.   Id.
                   (holding that reckless disregard for the truth may be proven inferentially
                   through evidence establishing an obvious reason to doubt the allegations
                   in the search warrant affidavit). By contrast, Stockman testified that she
                   believed and continues to believe that Nichols was the Informant, and
                   Palmieri did not dispute that testimony. Palmieri, therefore, did not make
                   the substantial preliminary showing necessary to survive a motion for
                   summary judgment based on qualified immunity.
                               In reality, Palmieri's allegation assumes that Stockman
                   should have known or suspected that the Informant provided a false
                   identity without providing a basis for that assumption, and, therefore, her
                   assertion amounts to a conclusory allegation of negligence, and such an
                   allegation does not constitute a substantial showing that Stockman acted
                   with a reckless disregard for the truth when she included the Informant's
                   false name in the search warrant affidavit.   See Franks, 438 U.S. at 171
                   (explaining that conclusory allegations and allegations of negligence are
                   insufficient to warrant an evidentiary hearing); see also Hervey, 65 F.3d at
                   789 (explaining that a plaintiff must make the same showing to reach a
                   jury in a § 1983 action as would be required of a criminal defendant to
                   obtain an evidentiary hearing under Franks). As Palmieri's offer of proof
                   is insufficient to satisfy the first prong of Franks, we conclude she cannot



COURT OF APPEALS
      OF
    NEVADA
                                                        19
(0) 194713 '<SP
                   challenge the• search warrant based on the search warrant affidavit's
                   veracity.
                               Because Palmieri failed to demonstrate that Stockman
                   included the Informant's fictitious name in the search warrant affidavit
                   with a reckless disregard for the truth, we need not proceed to the second
                   prong of Franks. See Hervey, 65 F.3d at 788-89 (providing that to survive
                   summary judgment on a Franks issue, a plaintiff must make a substantial
                   showing of a deliberate falsehood or reckless disregard for the truth and
                   establish that thefl search warrant affidavit was insufficient to establish
                   probable cause without the false information). But because Palmieri
                   raises a number of issues regarding the sufficiency of the search warrant
                   and because all of Palmieri's arguments regarding the district court's
                   grant of summary judgment turn on probable cause, we proceed to
                   consider whether the search warrant affidavit established probable cause
                   to search Palmieri's residence such that Stockman is entitled to qualified
                   immunity under Saucier. In considering whether the search warrant was
                   supported by probable cause, we review the issuing court's probable cause
                   determination based on the search warrant affidavit as written, given
                   Palmieri's failure to make the requisite substantial preliminary showing
                   sufficient to overcome summary judgment with regard to her Franks
                   argument. See Franks, 438 U.S. at 171-72 (providing that where a party
                   satisfies the Franks test, the reviewing court must purge the false
                   statements from the search warrant affidavit and assess probable cause
                   based on the modified affidavit).
                               Probable cause
                               Palmieri contends the judge who issued the "Administrative
                   Search and Seizure Warrant" lacked an adequate basis for doing so
                   because Stockman did not investigate the Informant's identity, and,
COURT OF APPEALS
         OF
      NEVADA
                                                       20
10) 194711
                   therefore, the "Application and Affidavit for Administrative Search and
                   Seizure Warrant" provided no indicia of the Informant's reliability. She
                   further complains that the search warrant affidavit contains no indication
                   that Stockman corroborated the Informant's complaint. 12 Stockman, on
                   the other hand, argues probable cause existed because she received
                   specific, credible information indicating that animals on Palmieri's
                   property were kept in a condition that jeopardized their health and
                   welfare, and because she corroborated the identity and residence of the
                   alleged wrongdoer.
                                 In evaluating an issuing court's decision to issue a search
                   warrant, we do not conduct a de novo review; instead, we consider whether
                   the evidence, taken together, demonstrated a substantial basis for the
                   issuing court's probable cause determination.     Keesee v. State, 110 Nev.
                   997, 1002, 879 P.2d 63, 67 (1994); see also West Point-Pepperell, Inc. v.
                   Donovan, 689 F.2d 950, 959 (11th Cir. 1982) (explaining that for both
                   administrative and criminal search warrants, appellate courts apply the
                   same standard of review). And we are mindful that "[a] grudging or
                   negative attitude by reviewing courts toward warrants will tend to
                   discourage police officers from submitting their evidence to a judicial
                   officer before acting." United States v. Ventresca, 380 U.S. 102, 108 (1965).
                   Nevertheless, we review a district court's legal conclusions regarding a




                         12 Wehave considered Palmieri's remaining arguments with regard
                   to whether the search warrant was supported by probable cause, and, for
                   the reasons discussed below, we conclude that under the totality of the
                   circumstances, the search warrant was supported by administrative
                   probable cause.

COURT OF APPEALS
        OF
     NEVADA
                                                        21
(0) 19475
                    search's constitutionality de novo. State v. Lloyd, 129 Nev.       „ 312
                    P.3d 467, 469 (2013).
                                  The Fourth Amendment to the United States Constitution and
                    Article 1, Section 18 of the Nevada Constitution prohibit unreasonable
                    searches and seizures. Probable cause is the standard by which a search's
                    reasonableness is tested, and the type of probable cause necessary to
                    support a search warrant differs depending on the objective of the
                    search. 13 See Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978); Camara
                    v. Mun. Court, 387 U.S. 523, 534 (1967). As relevant to this case, criminal
                    search warrants require a stronger showing of probable cause, whereas
                    administrative search warrants generally are supportable by a lesser
                    showing of probable cause. E.g., Marshall, 436 U.S. at 320 (holding that
                    "[p]robable cause in the criminal law sense is not required" to support an
                    administrative search warrant); see also Michigan v. Clifford, 464 U.S.
                    287 (1984) (discussing administrative probable cause in the context of a
                    search of a private residence).
                                  The search warrant here is entitled "Administrative Search
                    and Seizure Warrant," but the title affixed to a search warrant is not


                          13 We  are cognizant that a warrant or probable cause is not the sole
                    measure of reasonableness where such requirements would undermine the
                    governmental purpose underlying the search. E.Z. v. Coler, 603 F. Supp.
                    1546, 1558 (N.D. Ill. 1985), affd sub nom. Darryl H. v. Coler, 801 F.2d 893
                    (7th Cir. 1986). For example, in child welfare law, it has been recognized
                    that the fastest way to verify an allegation of abuse or neglect is to access
                    the home and observe the child, and that to require officials to corroborate
                    allegations through independent sources prior to executing a search
                    warrant may not only be impractical, but may unnecessarily delay
                    examination of a child's situation, possibly resulting in harm or death to
                    the child. Id. at 1558-59.


COURT OF APPEAl S
        OF
     NEVADA
                                                         22
(0) 19470
                   determinative of the legal standard by which its reasonableness is
                   assessed. See Clifford, 464 U.S. at 294 (providing that the objective of the
                   search determines whether an administrative or a criminal warrant is
                   required). As a preliminary matter, therefore, we consider whether the
                   search warrant in the present case is properly classified as an
                   administrative or a criminal search warrant.' 4
                               Generally, an administrative warrant is a warrant issued by a
                   judge authorizing an administrative agency to conduct a search "to
                   determine whether physical conditions exist which do not comply with
                   minimum standards prescribed in local regulatory ordinances."              See
                   Camara, 387 U.S. at 530 (discussing administrative searches in the


                         14 Clark  County did not argue before the district court that the
                   search warrant was supported by administrative probable cause, and on
                   appeal, it did not raise the issue in its opening or reply briefs. As a
                   general rule, issues not raised before the district court or in the appellant's
                   opening brief on appeal are deemed waived. See Old Aztec Mine, Inc. v.
                   Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the
                   trial court, unless it goes to the jurisdiction of that court, is deemed to
                   have been waived and will not be considered on appeal."); see also Powell
                   v. Liberty Mitt. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3
                   (2011) (explaining that issues not raised on appeal are deemed waived).
                   But this court has discretion to consider issues of constitutional dimension
                   sua sponte notwithstanding the parties' failure to raise such issues before
                   the district court or on appeal. See Desert Chrysler-Plymouth, Inc. v.
                   Chrysler Corp., 95 Nev. 640, 643-44, 600 P.2d 1189, 1191 (1979) (providing
                   that an appellate court may raise constitutional issues sua sponte on
                   appeal).

                         During oral argument, this court raised the issue of administrative
                   probable cause and permitted the parties an opportunity to discuss that
                   issue. Because the issue of whether administrative probable cause
                   supported the search warrant presents an important constitutional
                   question, we have determined to address it sua sponte. See id.


COURT OF APPEALS
        OF
     NEVADA
                                                         23
(0) 1947B    .0
                   context of a constitutional challenge to a warrantless administrative
                   search); see also Administrative Warrant, Black's Law Dictionary (10th ed.
                   2014) ("A warrant issued by a judge at the request of an administrative
                   agency that seeks to conduct an administrative search "),                  and
                   Administrative Search, Black's Law Dictionary          (10th ed. 2014) ("The
                   inspection of a facility by one or more officials of an agency with
                   jurisdiction over the facility's fire, health, or safety standards."). Unlike a
                   criminal search warrant that authorizes a search for evidence of criminal
                   conduct, an administrative search warrant merely authorizes a routine
                   inspection for regulatory compliance.       See Camara, 387 U.S. at 530.
                   Because an administrative search warrant only authorizes "a routine
                   inspection of the physical condition of private property," an inspection
                   pursuant to such a warrant "is a less hostile intrusion than the typical
                   policeman's search for the fruits and instrumentalities of crime." Id.
                                Where a warrant is required to conduct a search, the objective
                   of the search determines whether an administrative or a criminal warrant
                   is required. Clifford, 464 U.S. at 294. If the primary objective of a search
                   is to gather evidence of criminal conduct, then a criminal search warrant
                   is required. Id. On the other hand, an administrative search warrant is
                   required where the primary objective of the search is to ascertain
                   compliance with the minimum standards set forth in regulatory
                   ordinances. See id.; see also Camara, 387 U.S. at 530. The United States
                   Supreme Court, however, has acknowledged that, notwithstanding the
                   underlying objective of an administrative search warrant, discovery of a




COURT OF APPEALS
         OF
      NEVADA
                                                         24
(0) -(941R
                    regulatory violation during an administrative search may lead to criminal
                    penalties.th Specifically, the Supreme Court has observed:
                                Like most regulatory laws, fire, health, and
                                housing codes are enforced by criminal processes.
                                In some cities, discovery of a violation by the
                                inspector leads to a criminal complaint. Even in
                                cities where discovery of a violation produces only
                                an administrative compliance order, refusal to
                                comply is a criminal offense, and the fact of
                                compliance is verified by a second inspection,
                                again without a warrant. Finally, as this case
                                demonstrates, refusal to permit an inspection is
                                itself a crime, punishable by fine or even by jail
                                sentence.
                    Camara, 387 U.S. at 531 (footnotes omitted); see also Bd. of Cnty. Comm'rs
                    v. Grant, 954 P.2d 695, 701 (Kan. 1998) (concluding that a potential
                    "criminal penalt[y] is not a constitutional obstacle to obtaining an
                    administrative search warrant for routine inspections").
                                Title 10 of the Clark County Code governs the care and control
                    of animals in Clark County. As relevant to this appeal, Title 10 sets forth
                    standards to protect the health and welfare of animals in Clark County—
                    for example, it includes numerous provisions prohibiting various forms of
                    animal cruelty. Clark County Code §§ 10.32.010-10.32.250. To ensure
                    compliance with the regulatory framework, Title 10 authorizes searches of




                          '5During a valid administrative search, authorities may seize
                    evidence of criminal conduct in plain view. Clifford, 464 U.S. at 294.
                    Authorities may not use that evidence as a justification to expand the
                    scope of the• initial administrative search, but they may use evidence
                    seized under the plain-view doctrine to obtain a criminal search warrant.
                    Id.


COURT OF APPEALS
             OF
        NEVADA
                                                         25
(0 )   194   Th e
                   private property. Specifically, Clark County Code § 10.24.060 provides as
                   follows:
                               The animal control officer and any police officer in
                               the county while on duty, for just cause, shall have
                               the right to enter upon private property or public
                               property in the county in order to examine or
                               capture any animal thereon or therein; provided,
                               however, that no such officer or employee shall
                               have the right to enter a house or structure which
                               is in use as a residence without having first
                               secured a search warrant.
                   And Clark County Code § 10.40.040(b) provides that persons who violate
                   Title 10 are subject to civil or criminal penalties.
                                In the present case, Stockman obtained a warrant to search
                   Palmieri's residence, as authorized by Clark County Code § 10.24.060.
                   The warrant was entitled "Administrative Search and Seizure Warrant."
                   Consistent with its title, the search warrant did not authorize a search of
                   Palmieri's private property to uncover evidence of criminal conduct, but
                   rather, instructed officers to ascertain the condition of the animals on
                   Palmieri's property. Specifically, the search warrant instructed officers to
                   determine whether the animals on Palmieri's property were unhealthy,
                   held in violation of Clark County Code Title 10, or kept in a cruel
                   condition. And if officers determined that any animals on Palmieri's
                   property were unhealthy or kept in a cruel condition, the search warrant
                   authorized the officers to seize and hold such animals until their release
                   was ordered by the district court or until Palmieri complied with
                   conditions set forth by the officers. If determined necessary by a
                   veterinarian, the search warrant also provided for the immediate
                   euthanasia of any animals seized.



COURT OF APPEALS
        OF
     NEVADA
                                                          26
(0) 19478    e
                               Although a person who commits animal cruelty or otherwise
                   violates Clark County Code Title 10 may be subject to criminal penalties,
                   see NRS 574.100, the primary objective of the search of Palmieri's
                   property, as demonstrated by the warrant authorizing the search, was to
                   protect the health and welfare of Palmieri's animals. As the primary
                   objective of the search warrant in the present case was to protect the
                   health and welfare of animals on Palmieri's property, we conclude the
                   search warrant constituted an administrative search warrant. And given
                   our conclusion that the search warrant constituted an administrative
                   search warrant, we next consider whether probable cause existed to
                   support an administrative search warrant.
                               The probable cause requirement as applied to administrative
                   search warrants was first discussed by the United States Supreme Court
                   in Camara. There, the Court noted that where an administrative search
                   is undertaken pursuant to a neutral inspection scheme, the heightened
                   showing of probable cause required for a criminal search is impractical
                   and unnecessary because many violations could not be corroborated
                   absent a search and because the privacy invasion associated with an
                   administrative search is limited. Camara, 387 U.S. at 537.
                               Since Camara, the Supreme Court has determined that
                   probable cause to support an administrative search warrant may be based
                   either on a neutral inspection scheme or on specific evidence of a violation.
                   Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978). And, interpreting
                   Marshall, lower courts have held that, even where an administrative
                   search arises from specific evidence of a violation, rather than as part of a




COURT OF APPEALS
        OF
     NEVADA
                                                        27
(0) 19473
                   neutral inspection scheme, traditional criminal probable cause is not
                   required. 16
                                  For example, in Commonwealth v. DeLuca, the court upheld
                   an administrative search warrant allowing officials to search a home for
                   code violations regarding the home's condition and habitability. 6 Pa. D.
                   & C. 5th 306, 324-25 (Pa. Ct. C.P., Del. Cnty. 2008). There, probable cause
                   sufficient to support the warrant existed based upon the specific
                   allegations regarding the property's condition, the property's history of
                   similar complaints, and officials' observations of trash and graffiti outside
                   and in the home.         Id. at 310, 326. The court observed "that an
                   administrative search warrant does not require as high a level of probable
                   cause as a criminal search warrant."       Id. at 323. It further noted the
                   search was driven by public health and welfare considerations, and the
                   defendants' invasion of privacy was negligible when balanced with the
                   city's need to inspect the property. Id. at 325-26.
                                  Although an administrative search warrant based on specific
                   evidence of a violation does not require criminal probable cause, that
                   proposition does not provide guidance as to the quantum of specific
                   evidence necessary to establish administrative probable cause. In West
                   Point-Pepperell, Inc. v. Donovan, the United States Court of Appeals for
                   the Eleventh Circuit considered the showing necessary to establish
                   administrative probable cause. 689 F.2d 950, 957-58 (11th Cir. 1982).

                         16See,e.g., In re Establishment Inspection of Gilbert & Bennett Mfg.
                   Co., 589 F.2d 1335, 1339 (7th Cir. 1979); In re Alameda Cnty. Assessor's
                   Parcel Nos. 537-801-2-4 St 537-850-9, 672 F. Supp. 1278, 1287 (N.D. Cal.
                   1987); Pieper v. United States, 460 F. Supp. 94, 97-98 (D. Minn. 1978),
                   affd 604 F.2d 1131 (8th Cir. 1979); In re Inspection of Titan Tire, 637
                   N.W.2d 115, 123 (Iowa 2001).


COURT OF APPEALS
        OF
    NEVADA
                                                         28
   194113
                   There, the Eleventh Circuit reasoned that even though a lesser showing of
                   probable cause is required for an administrative search warrant given the
                   limited intrusion associated with an administrative search, the
                   administrative search warrant must still satisfy the Fourth Amendment's
                   basic purpose, "which is 'to safeguard the privacy and security of
                   individuals against arbitrary invasions by government officials."     Id. at
                   958 (quoting Marshall, 436 U.S. at 312).
                               To satisfy that requirement, the Eleventh Circuit observed
                   that an administrative search must not subject individuals "to the
                   unbridled discretion of 'executive and administrative officers, particularly
                   those in the field, as to when to search and whom to search." Id. (quoting
                   Marshall, 436 U.S. at 323). Thus, the Eleventh Circuit concluded that
                   administrative probable cause may be found where "the proposed
                   inspection is based upon a reasonable belief that a violation has been or is
                   being committed" and that the belief is supported "by a showing of specific
                   evidence sufficient to support a reasonable suspicion of a violation."   Id.
                   We agree with the Eleventh Circuit's rationale in Donovan and conclude
                   that to establish administrative probable cause based on evidence of a
                   specific violation, a search warrant affidavit must show specific evidence
                   sufficient to support a reasonable suspicion of a violation.
                               To determine whether reasonable suspicion exists, courts look
                   to the totality of the circumstances. Alabama v. White, 496 U.S. 325, 330-
                   31 (1990) (applying the totality of the circumstances test to determine
                   whether an anonymous informant's tip established reasonable suspicion to
                   justify an investigatory stop); see also State v. Rincon, 122 Nev. 1170,
                   1173-74 (2006) (explaining that to assess whether an investigatory stop
                   was supported by reasonable suspicion, courts look to the totality of the

COURT OF APPEALS
        OF
     NEVADA
                                                         29
(0) 19470
                   circumstances). In considering the totality of the circumstances, we
                   analyze both the "content of information possessed by police and its degree
                   of reliability." White, 496 U.S. at 330 (comparing quanta of proof required
                   for reasonable suspicion and probable cause analyses). But, in comparison
                   to criminal probable cause, reasonable suspicion is a less demanding
                   standard because it does not require information possessing the same
                   quality or content as criminal probable cause, and because it can be
                   established with information that is less reliable than that required to
                   demonstrate criminal probable cause. Id.
                                 In the present case, we consider whether the Informant's tip,
                   as corroborated, exhibited sufficient indicia of reliability to support
                   reasonable suspicion for a search warrant for Palmieri's residence.      See
                   Jones v. United States, 362 U.S. 257, 269 (1960) (concluding hearsay may
                   support a search warrant "so long as a substantial basis for crediting the
                   hearsay is presented"), overruled on other grounds by United States v.
                   Salvucci, 448 U.S. 83 (1980). Because the totality of the circumstances
                   approach is concerned with the quantity and quality of information, a tip
                   that has a relatively high degree of reliability will require less
                   corroborating information to establish the requisite quantum of
                   administrative probable cause. See White, 496 U.S at 330. In considering
                   the reliability of an informant's tip, numerous federal and state courts
                   have determined that a tip from an identified citizen informant is
                   presumably reliable because an identified citizen that witnesses and
                   reports a crime has no apparent motive to falsify information. 17


                         17See Fabrikant v. French, 691 F.3d 193, 216 (2d Cr. 2012)
                   (reasoning that "information provided by an identified bystander with no
                   apparent motive to falsify has a peculiar likelihood of accuracy, and ... an
                                                                      continued on next page...
COURT OF APPEALS
        OF
     NEVADA
                                                        30
(0) 1947B
                               When categorizing infoi niants as anonymous or identified,
                   courts are flexible in assessing the type and amount of information
                   necessary to identify an informant.    See City of Maumee v. Weisner,    720
                   N.E.2d 507, 514 (Ohio 1999) (considering whether an identified
                   informant's tip established reasonable suspicion). For example, in
                   Weisner, the Supreme Court of Ohio considered whether an informant who
                   provided a tip via telephone would be considered identified for the purpose
                   of assessing the informant's credibility.    Id. at 509, 513. There, the
                   informant called 9-1-1 to report a suspected drunk driver.       Id. at 509.
                   During the call, the informant provided the dispatcher with his name and


                   ...continued
                   identified citizen informant is presumed to be reliable") (quoting Panetta
                   v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)); Ewing ix City of Stockton,
                   588 F.3d 1218, 1224 (9th Cir. 2009) (concluding an identified witness "was
                   a citizen witness, not an informant, and such witnesses are generally
                   presumed reliable"); United States v. Martinelli, 454 F.3d 1300, 1307 (11th
                   Cir. 2006) (observing that "ifihe courts have traditionally viewed
                   information drawn from an ordinary witness or crime victim with
                   considerably less skepticism than information derived from anonymous
                   sources"); Edwards v. Cabrera, 58 F.3d 290, 294 (7th Cir. 1995) (noting
                   that an identifiable "citizen informant is inherently more reliable than the
                   usual police informants who are often mired in some criminal activity
                   themselves"); United States v. Pasquarille, 20 F.3d 682, 689 (6th Cir.
                   1994) (holding that a citizen informant's tip was presumptively reliable
                   because the citizen informant was an identified eyewitness to the alleged
                   crime); Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985)
                   (noting "the skepticism and careful scrutiny usually found in cases
                   involving informants, sometimes anonymous, from the criminal milieu, is
                   appropriately relaxed if the informant is an identified victim or ordinary
                   citizen witness"); United States v. Philips, 727 F.2d 392, 397 (5th Cir.
                   1984) (concluding that "[wthen information is received from an identified
                   bystander or victim-eyewitness to a crime, . . . reliability need not be
                   established in the officer's affidavit.") (internal quotation marks omitted).


COURT OF APPEALS
        OF
     NEVADA
                                                         31
(0) 19478    ea
                   cellular and home telephone numbers, and he remained on the telephone
                   with the dispatcher to assist the responding officer in locating the
                   suspected drunk driver.     Id.   Based on those facts, the Weisner court
                   specifically rejected the suspected drunk driver's contention that the
                   informant was anonymous because the informant may have fabricated his
                   identity. Id. at 514. Instead, the court concluded that the informant was
                   sufficiently identified to warrant recognizing the informant's tip as more
                   reliable than that of an anonymous informant, noting that it was
                   undisputed that the informant provided his name and cellular and home
                   telephone numbers.    Id.   The Weisner court also reasoned that, because
                   the informant maintained continuous contact with the dispatcher during
                   the reported incident, he considered face-to-face contact a possibility and
                   was unlikely to falsify a report given the potential repercussions. Id.
                               And Weisner is not the only case in which courts have been
                   flexible with regard to the type and amount of information necessary to
                   categorize an informant as identified. In United States v. Pasquarille, 20
                   F.3d 682, 683, 687 (6th Cir. 1994), the court categorized an informant as
                   an identified citizen informant where the informant did not provide his
                   name, but rather identified himself as a transporter of prisoners.
                   Similarly, in Edwards v. Cabrera, 58 F.3d 290, 294 (7th Cir. 1995), the
                   court treated an unnamed informant as an identified citizen informant
                   where the police were aware the informant was a bus driver.
                               Here, Palmieri argues the Informant was anonymous and the
                   information was, therefore, unreliable. We disagree. As reported to the
                   issuing judge, the Informant initially contacted Richard Molinari, an
                   animal control supervisor with the City of Las Vegas, to file a complaint
                   and provided the name Kaitlyn Nichols. After Molinari forwarded the

COURT OF APPEALS
        OF
     NEVADA
                                                        32
(0) I947B
                   complaint to Clark County Animal Control, Stockman spoke with the
                   Informant by phone, and the Informant again provided the name Kaitlyn
                   Nichols. 18 Based on the sequence of events reported by Stockman, which
                   Palmieri does not dispute, the issuing judge could have inferred that the
                   Informant provided a telephone number at which Clark County Animal
                   Control could reach the Informant. And, similar to Weisner, the issuing
                   judge could have inferred that the Informant's continued participation in
                   the reporting process suggested that the Informant considered the
                   possibility of face-to-face contact and was unlikely to fabricate a report
                   given the potential consequences. Arguably, the information the
                   Informant provided could have subjected the Informant to prosecution for
                   perjury, a category D felony under NRS 199.130, for "caus [in& to be made,
                   executed or signed, any false or fictitious affidavit, . . for the purpose of
                   securing a warrant for the searching of the premises. . . of any other
                   person." As such, the Informant provided Stockman the type and amount
                   of information needed to identify the Informant, and Stockman provided
                   that information to the issuing judge in the search warrant affidavit.
                               We are mindful, of course, of the requirement that this court
                   must consider "the evidence, and any reasonable inferences drawn from
                   it. . . in a light most favorable to the nonmoving party." Wood v. Safeway,
                   Inc. , 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Accordingly, we
                   assume that the Informant, in identifying herself as Kaitlyn Nichols,
                   provided Stockman a false name. But the reasonableness of a search


                          Notably, Palmieri acknowledged that she believes that Stockman
                         l8

                   received the tip from an informant who identified herself as Kaitlyn
                   Nichols. And Palmieri acknowledged that the signature on Stockman's
                   complaint appeared to be Kaitlyn Nichols' signature.


COURT OF APPEALS
       OF
    NEVADA
                                                        33
(0) 19475 .4SF40
                   warrant is not assessed based on information acquired subsequent to a
                   search, but rather, must be considered based on information provided to
                   the magistrate in the search warrant affidavit. Maryland v. Garrison, 480
                   U.S. 79, 85 (1987). As discussed above, Palmieri did not establish a
                   genuine issue of material fact with regard to whether Stockman knew or
                   should have known that the Informant provided a false identity. As
                   known at the time of issuance of the search warrant, the Informant was
                   identified, and, therefore, we conclude her tip, at the time, was entitled to
                   a presumption of reliability.
                                 Our categorization of the Informant as an identified citizen
                   informant is not the only basis for concluding that her tip, as perceived by
                   Stockman and the issuing judge, demonstrated significant indicia of
                   reliability. Where an informant's tip is based on personal knowledge, and
                   includes an explicit, detailed description of alleged criminal activity, the
                   informant's tip is entitled to greater weight than the weight accorded to a
                   secondhand description. Illinois v. Gates, 462 U.S. 213, 234 (1983). In the
                   present case, the Informant indicated that she observed violations of the
                   Clark County Code in Palmieri's residence firsthand, and she provided a
                   detailed description of those violations, reporting that she saw several
                   animals in Palmieri's house and garage, that the animals looked
                   unhealthy and thin and appeared to have matted fur and fecal matter all
                   over them, and that Palmieri keeps animals at her house that are too sick
                   or young to be housed at her pet store. 19 Because the Informant's tip was
                   detailed and based on firsthand observation and because the Informant's

                         19 We note that Palmieri does not argue that Stockman did not
                   accurately describe the substance of the Informant's report in the search
                   warrant affidavit.


COURT OF APPEALS
       OF
    NEVADA
                                                        34
(0) 194Th ce
                    reported relationship to Palmieri provided an objectively reasonable
                    explanation for the Informant's opportunity to observe those violations, we
                    conclude that the basis of the Informant's knowledge provides additional
                    support for the Informant's presumed reliability. Moreover, the
                    Informant's allegations did not relate to an isolated incident, but rather, to
                    unhealthy conditions that develop over a lengthy period of time. Thus, the
                    Informant's allegations provided reason to believe that there was an
                    ongoing violation of Clark County's standards for the health and welfare of
                    animals in Palmieri's residence.
                                And Stockman did not merely rely on the Informant's
                    complaint; she also corroborated the Informant's report by verifying that
                    Palmieri owned the reported residence and reviewing records that
                    revealed Clark County Animal Control had previously received health and
                    welfare complaints regarding Palmieri's residence and businesses.
                    Neither before the district court nor before this court has Palmieri
                    suggested that Stockman did not actually verify this information, which
                    Stockman stated she verified in the search warrant affidavit.
                                Given the foregoing, we conclude that the Informant's specific,
                    detailed allegations regarding ongoing animal cruelty in Palmieri's
                    residence, combined with the Informant's reliability and basis of
                    knowledge and the corroborating information gathered by Stockman were
                    sufficient to support a reasonable suspicion that Palmieri was
                    endangering the health and welfare of animals on her property. 2° We



                          20 The actual scope of the search and the results of the search do not
                    affect our probable cause determination, Maryland u. Garrison, 480 U.S.
                    79, 85 (1987) ("The validity of the warrant must be assessed on the basis
                    of the information that the officers disclosed, or had a duty to discover and
                                                                        continued on next page...
COURT OF APPEALS
        OF
     NEVADA
                                                          35
(0) 19475    etr,
                   reiterate that our review of the issuing court's probable cause
                   determination is not de novo, but rather, is limited to an evaluation of
                   whether the evidence as a whole, including the Informant's presumed
                   reliability, the Informant's personal knowledge and detailed description of
                   violations, and the corroborating information provided by Stockman,

                   ...continued
                   to disclose, to the issuing Magistrate."). However, we note that Stockman
                   and the accompanying animal control officer limited the scope of their
                   search as required by the administrative search warrant, and that the
                   search revealed that (1) Palmieri kept 29 dogs in her house and garage,
                   (2) two dogs appeared sickly, (3) Palmieri could not provide proof that the
                   dogs received rabies vaccinations, and (4) Palmieri did not have a permit
                   to possess intact dogs.

                         We are cognizant that the search was an unpleasant experience for
                   Palmieri. But the search did not exceed the limited scope of the
                   administrative search warrant. Moreover, it only took the officers one to
                   one-and-a-half hours to search Palmieri's residence, to observe 29 dogs, to
                   request that Palmieri provide the relevant paperwork, and to remove 7
                   dogs from Palmieri's residence. Although Palmieri was not detained based
                   on suspicion of criminal behavior, we note that the 20 to 30 minute period
                   during which Palmieri was removed from her residence, but not
                   restrained, was well within the one-hour limit for temporary detentions.
                   See NRS 171.123(4) ("A person must not be detained longer than is
                   reasonably necessary to effect the purposes of this section, and in no event
                   longer than 60 minutes.").

                         We also note that the manner of the search in the present case did
                   not approach the intrusiveness of the methods frequently used for
                   searches related to criminal conduct. See, e.g., Muehler v. Mena, 544 U.S.
                   93, 95-96, 100, 102 (2005) (upholding a search of a residence where a
                   Special Weapons and Tactics team was used to secure a residence that
                   was subject to a search warrant, and the inhabitants of the residence were
                   handcuffed and detained in a garage for two to three hours during the
                   ensuing search). In perspective, the invasion of Palmieri's privacy interest
                   was low compared to the regulatory need to ensure code compliance and
                   protect the health and welfare of the many dogs on Palmieri's property.

COURT OF APPEALS
        OF
     NEVADA
                                                        36
(0) 1947B    en
                        provided a substantial basis to conclude administrative probable cause
                        existed to search Palmieri's residence. Keesee v. State, 110 Nev. 997, 1002,
                        879 P.2d 63, 67 (1994). Our holding today simply recognizes that under
                        these facts, the totality of the circumstances supported a finding of
                        administrative probable cause to believe there was evidence in Palmieri's
                        residence of animal cruelty or a violation of Clark County's codes for the
                        health and welfare of animals. 21 See Alabama v. White, 496 U.S. 325, 330-



                              2 'The concurrence questions whether the Nevada Supreme Court's
                        decision in Owens v. City of North Las Vegas, 85 Nev. 105, 450 P.2d 784
                        (1969), imposed a requirement that officers must first seek permission to
                        enter a property before obtaining an administrative search warrant. In
                        Owens, the supreme court relied on the United States Supreme Court's
                        decision in Camara v. Municipal Court, 387 U.S. 523 (1967), to resolve a
                        challenge to the validity of an administrative search warrant. There, the
                        Owens Court suggested that, as a practical matter, officers should seek
                        permission to inspect a property before turning to the warrant process.
                        But, the language used by the Owens Court closely follows the United
                        States Supreme Court's decision in Camara. Compare Owens, 85 Nev. at
                        111, 450 P.2d at 787-88 ("As a practical matter, in view of the Fourth
                        Amendment's requirement that a warrant describe the property to be
                        searched, warrants should normally be sought only after the entry has
                        been refused, absent some compelling reason for securing immediate
                        entry."), with Camara, 387 U.S. at 539-40 ("[A]s a practical matter and in
                        light of the Fourth Amendment's requirement that a warrant specify the
                        property to be searched, it seems likely that warrants should normally be
                        sought only after entry is refused unless there has been a citizen
                        complaint or there is other satisfactory reason for securing immediate
                        entry."). We are not aware of any legal authority interpreting Camara to
                        require that an officer must request permission to enter a property before
                        seeking a search warrant, cf. Ciarlone v. City of Reading, 489 F. App'x 567,
                        571-72 (3d Cir. 2012) (rejecting an argument that, under Camara, an
                        opportunity to consent must be provided before officers may seek a search
                        warrant), and we do not read Owens, which relied on Camara, to impose
                        such a requirement in Nevada.
                                                                           continued on next page...
COURT OF APPEALS
         OF
      NEVADA
                                                             37
(0) I 9478    ,tiser•
                   31 (1990); see also West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 958
                   (11th Cir. 1982) (providing that administrative probable cause may be
                   established with evidence sufficient to support a reasonable suspicion of a
                   violation). Consequently, Palmieri failed to demonstrate a genuine issue
                   of material fact as to whether Stockman violated her clearly established
                   constitutional rights. 22 See Mullenix v. Luna, 577 U.S. , 136 S. Ct. 305,
                   308 (2015) ("The doctrine of qualified immunity shields officials from civil
                   liability so long as their conduct does not violate clearly established




                   ...continued
                          Moreover, even if Owens imposed such a requirement, Stockman
                   specifically averred in the search warrant affidavit that, during a prior
                   animal-welfare investigation, Palmieri refused to consent to a search of
                   her residence and demanded that a Clark County Animal Control officer
                   leave her property until such time as he obtained a search warrant. Based
                   on that information, the issuing judge could have reasonably concluded
                   that efforts to procure a consensual search of Palmieri's residence would
                   have been fruitless. And, although she did not elaborate further in her
                   search warrant affidavit, we note that Stockman later testified in her
                   deposition that she sought a search warrant after receiving the
                   Informant's complaint due to Palmieri's previous refusal to consent to a
                   search of her residence.

                         22Notwithstanding our conclusion, we are aware that Stockman
                   could have done more to corroborate the information provided by the
                   Informant—for example, Stockman could have observed Palmieri's
                   residence in person and listened for barking dogs. Simply stated,
                   Stockman's search warrant affidavit does not evince a model of
                   investigative work. That Stockman could have done more, however, does
                   not necessarily mean that the search warrant was invalid. While this is a
                   close case, we are satisfied that, under the facts of this case,
                   administrative probable cause existed to search Palmieri's residence for
                   evidence of animal cruelty or a violation of Clark County's codes for the
                   health and welfare of animals.

COURT OF APPEALS
        OF
     NEVADA
                                                        38
(0) 19478    e>
                    statutory or constitutional rights of which a reasonable person would have
                    known." (internal quotation marks omitted)).
                                                   CONCLUSION
                                Palmieri failed to make a substantial showing that Stockman
                    knowingly and intentionally, or with a reckless disregard for the truth,
                    included a false statement in the administrative search warrant affidavit,
                    and Palmieri failed to establish a genuine issue of material fact with
                    regard to whether the administrative search warrant was supported by
                    probable cause to search Palmieri's residence. 23 Because Palmieri failed to
                    establish that Stockman violated her constitutional rights, Stockman is
                    entitled to qualified immunity, see Butler, 123 Nev. at 458-59, 168 P.3d
                    1061-62, and, therefore, we conclude the district court did not err by
                    granting Stockman's summary judgment on Palmieri's § 1983 claim. And,
                    as previously discussed, absent a violation of Palmieri's constitutional
                    rights by Stockman, Palmieri's remaining arguments regarding her
                    Monell claim and her state law tort claims lack merit. Accordingly, we




                          231n reviewing Stockman's motion for summary judgment, the
                    district court concluded that criminal probable cause supported the
                    search warrant for Palmieri's residence. Because we conclude that
                    administrative probable cause supported the administrative search
                    warrant in the present case, we express no opinion as to whether criminal
                    probable cause existed. But we affirm the district court because it reached
                    the correct result, albeit under the wrong standard. See Sengel v. JUT,
                    116 Nev. 565, 570, 2 P.3d 258, 261 (2000) (explaining that an appellate
                    court will affirm a district court's decision if the district court reached the
                    correct result, but for the wrong reason.

COURT OF APPEALS
        OF
     NEVADA
                                                          39
(0) 1947B    ,aeo
                   affirm the district court's order granting summary judgment in its
                   entirety.



                                                                             J.



                   I concur:



                                            , C.J.
                   Gibbons




COURT OF APPEALS
      OF
    NEVADA
                                                     40
   194713 vacego
                   TAO, J., concurring:

                                Although based upon one of the shortest federal statutes on
                   the books (or maybe because of it), civil rights claims under 42 U.S.C. §
                   1983 can be complex beasts, requiring courts to sort through a mixture of
                   substantive criminal law, criminal procedure, and civil procedure, along
                   with the doctrine of qualified immunity, which hangs over everything and
                   requires examination before a court can even reach the merits of a claim.
                   See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (question of whether
                   qualified immunity bars § 1983 claim should normally be resolved early in
                   the case).
                                In a case like this, the doctrine of qualified immunity
                   implicates two related but different questions: whether the search was
                   valid, and whether the executing officer reasonably believed that it was
                   valid. If the answer to both of those inquiries is yes, then as a matter of
                   law the officer's actions are protected by qualified immunity. If the
                   answer to both of those inquiries is no, then as a matter of law the officer's
                   actions are not. In some cases, the answers to those two questions may
                   diverge: a search can be invalid, yet the searching officer may have
                   reasonably believed it to be valid and may therefore nonetheless be
                   immune from civil liability.
                                The majority concludes both that the warrant was valid and
                   also that Officer Stockman reasonably believed it to be valid. I write
                   separately because I believe that a more serious and unsettled question
                   exists regarding the validity of the administrative warrant in this case
                   than the majority acknowledges, and therefore this appeal just might fall
                   into the third category of cases rather than the first. However, I concur



COURT OF APPEALS
        OF
     NEVADA


(0) 1947R    e
                   with the outcome of this appeal because, whether the warrant was valid or
                   not, Judy Palmieri did not meet her burden of demonstrating that Officer
                   Stockman acted unreasonably or recklessly enough to waive the shield of
                   qualified immunity to which she is otherwise entitled as a law
                   enforcement officer performing a discretionary function.
                                 The first step that we must take to resolve this appeal is to
                   identify the governing law. The majority analyzes the search warrant in
                   this case primarily by relying upon federal caselaw, with a few state cases
                   thrown in for good measure.'
                                 At first blush, this seems to make some sense; Nevada
                   generally follows federal law on most search-and-seizure questions. State
                   v. Lloyd, 129 Nev. , 312 P.3d 467, 471 (2013). Furthermore, as a
                   general matter, it is axiomatic that federal law governs federal claims,
                   even those filed in state courts; after all, that is what the Supremacy
                   Clause says. U.S. Const. art. VI, cl. 2 ("[T]he Laws of the United
                   States. . . shall be the supreme Law of the Land; and the Judges in every
                   State shall be bound thereby, any Thing in the Constitution or Laws of
                   any State to the Contrary notwithstanding."). 42 U.S.C. § 1983 is a




                         1 Forexample, the majority discusses Commonwealth v. DeLuca, 6
                   Pa. D. & C. 5th 306, 324-25 (Pa. Ct. C.P., Del. Cnty. 2008). But
                   Pennsylvania does not follow federal search-and-seizure law on many
                   issues, choosing instead to implement its own version of the exclusionary
                   rule. Commonwealth v. Edmunds, 586 A.2d 887, 896-99 (Pa. 1991) ("The
                   history of Article I, Section 8 [of the Pennsylvania Constitution] thus
                   indicates that the purpose underlying the exclusionary rule in this
                   Commonwealth is quite distinct from the purpose underlying the
                   exclusionary rule under the 4th Amendment ... .").


COURT OF APPEALS
        OF                                               2
     NEVADA


(0) 19475
                   federal statute, so federal law follows everywhere a § 1983 claim is filed;
                   thus it is entirely unnecessary for us to "adopt" any of it to resolve a
                   § 1983 action.   Howlett v. Rose, 496 U.S. 356, 358, 375 (1990) ("State
                   courts as well as federal courts have jurisdiction over § 1983 cases" but
                   "the elements of, and the defenses to, a federal cause of action are defined
                   by federal law"). Indeed, state courts cannot constitutionally refuse to
                   apply federal law to § 1983 claims even when filed in a state court.     Id. at
                   367-371 ("The Supremacy Clause makes [federal] laws 'the supreme Law
                   of the Land,' and charges state courts with a coordinate responsibility to
                   enforce that law... . . The Supremacy Clause forbids state courts to
                   dissociate themselves from federal law [in resolving § 1983 claims] ")     See
                   Richard v. Bd. of Supervisors of La. State Univ., 960 So. 2d 953, 961 (La.
                   Ct. App. 2007) ("[T]he same body of federal law governs § 1983 actions in
                   state and federal courts ... ."); Walker v. Maruffi, 737 P.2d 544, 547 (N.M.
                   Ct. App. 1987) (in § 1983 actions, "[wie are bound by decisions of the
                   United States Supreme Court affecting federal law");    United States ex rel.
                   Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir. 1970), cert. denied,
                   402 U.S. 983 (1971) ("The Supreme Court of the United States has
                   appellate jurisdiction over federal questions arising either in state or
                   federal proceedings, and by reason of the supremacy clause the decisions
                   of that court on national law have binding effect on all lower courts
                   whether state or federal.").    See generally Sheldon H. Nahmod, Civil




COURT OF APPEALS
       OF                                                3
    NEVADA


(0) 194M    e
                   Rights and Civil Liberties Litigation § 4.03, at 275 (3d ed. 1991) (federal
                   law governs § 1983 actions filed in state court). 2



                         2 The problem is that once we get below the level of greatest
                   generality, the phrase "federal law" is less clear than it appears because
                   federal cases are not always as monolithic, uniform, or even consistent as
                   perhaps they should be. Frequently the real issue boils down to which
                   competing version of federal law should be applied.

                         For example, when a search warrant affidavit contains a false
                   statement, the warrant might still be valid if it would have issued anyway
                   had the falsity not been included. Golino v. City of New Haven, 950 F.2d
                   864, 871 (2d Cir. 1991), cert. denied, 505 U.S. 1221 (1992) (citing Anderson
                   v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). But in the context of
                   § 1983, the federal circuits disagree on whether this question is answered
                   by the court as a matter of law, or by the jury as a matter of fact. Some
                   circuits hold that it is either a mixed question of fact and law, or a pure
                   question of fact reserved for the jury. See Velardi v. Walsh, 40 F.3d 569,
                   574 (2d Cir. 1994); see Hill v. McIntyre, 884 F.2d 271, 275-76 (6th Cir.
                   1989). Other circuits, including the Ninth, have held that it is a question
                   of law. Hervey v. Estes, 65 F.3d 784, 789 n.5 (9th Cir. 1995). Whether a
                   question is characterized as one of fact or law quite obviously has a real
                   bearing on whether, and when, a claim can or cannot be properly be
                   resolved on summary judgment, as Palmieri's claim was below.

                          Here, the majority chooses to follow the Ninth Circuit's approach in
                   Hervey. In isolation, I do not disagree with this; Ninth Circuit decisions
                   are frequently considered to be persuasive, though not binding, authority
                   by the Nevada Supreme Court. See Blanton v. N. Las Vegas Mun. Court,
                   103 Nev. 623, 633, 748 P.2d 494, 500 (1987), aff'd sub nom. Blanton v. City
                   of N. Las Vegas, Nev., 489 U.S. 538 (1989). But later in the opinion, the
                   majority also chooses to follow the Eleventh Circuit's approach in West
                   Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 957-58 (11th Cir. 1982), on
                   the standards for a proper "administrative search." But the Eleventh
                   Circuit does not appear to fully agree with the Ninth Circuit on how the
                   doctrine of qualified immunity in a § 1983 action should be evaluated on
                   summary judgment. See Branch v. Tunnell, 937 F.2d 1382, 1385-86 (9th
                   Cir. 1991), disagreeing with Kenyatta v. Moore, 744 F.2d 1179 (5th Cir.
                   1984) (the Eleventh Circuit was split off of the Fifth Circuit, and Fifth
                                                                      continued on next page...
COURT OF APPEALS
       OF                                                 4
     NEVADA


(0) 9478    e
                                  However, in this particular case it is not clear that the
                   majority has applied the correct body of law because a state is free to
                   "impose higher standards on searches and seizures than required by the
                   Federal Constitution if it chooses to do so," Cooper v. California, 386 U.S.
                   58, 62 (1967), and Nevada may have done just that in connection with
                   administrative searches in a case that the majority overlooks.
                                  In Owens v. City of North Las Vegas,   85 Nev. 105, 450 P.2d
                   784 (1969), the Nevada Supreme Court appears to have imposed a
                   requirement upon administrative search warrants that does not exist in
                   some other jurisdictions: administrative warrants "should normally be
                   sought only after the entry has been refused, absent some compelling
                   reason for securing immediate entry." 3 Id. at 111, 450 P.2d at 788. The
                   court noted:


                   ...continued
                   Circuit precedent from that time frame is binding upon the Eleventh
                   unless overruled or modified, see Bonner v. City of Prichard, 661 F.2d
                   1206, 1209 (11th Cir. 1981) (en banc)).        See also United States v.
                   Kapordelis, 569 F.3d 1291, 1308 (11th Cir. 2009) ("This Court has not,
                   however, stated a precise standard of review for a district court's denial of
                   a Franks hearing], and] we need not determine which standard of review
                   applies today."). So, the majority seems to suggest that we follow the
                   Eleventh Circuit's law when it comes to the substance of an
                   administrative warrant, but we follow the law of the Ninth Circuit when it
                   comes to whether we analyze certain aspects of that substance on
                   summary judgment as questions of law or fact. I am not sure these are
                   consistent, but I suppose any potential incongruity must be sorted out in
                   future cases.

                         3 Asthe majority notes in footnote 21, this language somewhat
                   echoes language from the U.S. Supreme Court in Camara v. Municipal
                   Court, 387 U.S. 523, 539-40 (1967). But notably, Camara stated that an
                   administrative warrant could issue without a prior "refusal of entry" when
                   the warrant was based upon a "citizen complaint" or there is "other
                                                                     continued on next page...
COURT OF APPEALS
        OF                                               5
     NEVADA


(0) 1947B
                                 Where considerations of health and safety are
                                 involved, the facts that would justify an inference
                                 of "probable cause" to make an inspection are
                                 different from those that would justify an
                                 inference when a criminal investigation has been
                                 undertaken. Experience may show the need for
                                 periodic inspections of certain facilities without a
                                 further showing of cause. . . that substandard
                                 conditions dangerous to the public are being
                                 maintained. The passage of a certain period
                                 without inspection might of itself be sufficient in a
                                 given situation to justify the issuance of a
                                 warrant. The test of "probable cause" required by
                                 the Fourth Amendment can take into account the
                                 nature of the search that is being sought. There
                                 can be no ready test for determining
                                 reasonableness other than by balancing the need
                                 to search against the invasion which the search
                                 entails.

                                 ... We appreciate that in most routine inspections
                                 there is no great urgency to inspect at a certain
                                 time on a given day. Likewise, most citizens will
                                 permit routine inspections without a warrant. As
                                 a practical matter, in view of the Fourth
                                 Amendment's requirement that a warrant


                     ...continued
                     satisfactory reason." The Nevada Supreme Court specifically omitted this
                     language from Owens, instead only permitting an exception where there is
                     a "compelling reason" for immediate entry regardless of whether the
                     complaint came from a citizen or not, language that does not appear in
                     Camara and is obviously much narrower. Therefore, I disagree that
                     Owens only repeats and adds nothing to Camara when it plainly, and we
                     must assume intentionally, uses entirely different language.
                     Furthermore, Owens has been good law since 1969, and Respondent Clark
                     County is well aware of it, at least at an institutional level, having cited it
                     as authority in its Answering Brief in Ransdell v. Clark County, No.
                     48592, 2007 WL 6528461 (Nev. Aug. 16, 2007).

COURT OF APPEALS
       OF                                                   6
     NEVADA


(0) 1947B 411111N,
                                  describe the property to be searched, warrants
                                  should normally be sought only after the entry has
                                  been refused, absent some compelling reason for
                                  securing immediate entry.
                   Id. at 110-11, 450 P.2d at 787-88. The court affirmed the validity of the
                   administrative warrant in the case before it, observing that the warrant
                   request "grew out of Owens' refusal to permit the city building inspector to
                   enter his home to check for violations of the city building code." Id. at 106,
                   450 P.2d at 785.
                                  In contrast, nothing like that happened before Palmieri's home
                   was searched. Officer Stockman made no effort to seek consensual entry
                   into Judy Palmieri's home at any time before seeking a warrant; according
                   to Stockman's own affidavit, she merely received a phone tip, performed a
                   computer search, and then submitted a warrant application for approval.
                   From what I can tell, this all happened within a matter of minutes, and
                   Officer Stockman never even bothered to visit the premises until she
                   arrived later with the signed warrant already in hand. Therefore, entry
                   was never requested or denied in this case before the warrant was sought
                   or obtained.
                                  Furthermore, I can see no "compelling" reason in this case to
                   justify an immediate entry without such a request when the conditions of
                   Palmieri's dogs were unlikely to have changed during the time it might
                   have taken to procure a warrant after knocking on the door and asking for
                   permission first. Unlike drugs or other small contraband, dogs cannot be
                   flushed down the toilet or otherwise easily disposed of, and if it is true
                   that they were dangerously unhealthy when Stockman first knocked, they
                   likely would have been in the same condition shortly thereafter when she
                   returned with a warrant.

COURT OF APPEALS
        OF                                                 7
     NEVADA


(0) 1947B    0
                                Accordingly, the "refusal of entry" language of Owens has not
                   been complied with in this case. 4 The difficult question is whether that
                   alone renders the administrative warrant invalid; Owens does not quite
                   say that an administrative warrant sought without a prior refusalS of entry
                   is per se invalid for that reason alone. Rather, Owens emphasizes that the
                   touchstone for validity is the reasonableness of the warrant request under
                   the circumstances. 85 Nev. at 107-08, 450 P.2d at 785-86.
                                Fundamentally, there are three ways to read the "refusal of
                   entry" language contained in Owens: (1) as imposing an additional
                   requirement above and beyond those already required by the Fourth
                   Amendment that must be independently met in every case before an
                   administrative warrant may issue in Nevada; (2) as merely identifying one
                   consideration that a judge may take into account in determining whether
                   a warrant request is reasonable or not (i.e., observing that warrant


                         4The   closest the majority comes to applying the Owens test to the
                   facts of this case is in its observation in footnote 3 that Palmieri previously
                   denied entry to another animal control officer, Jason Elff on another
                   occasion. But that was in 2006, four years before the search in this case
                   and in response to an entirely different complaint. The majority also notes
                   in footnote 21 that Officer Stockman later testified in deposition that she
                   believed requesting entry would be futile, but that assertion was not
                   included within the search warrant affidavit. The validity of a search
                   warrant must be assessed based only upon what the judge knew when the
                   warrant was signed, not on facts hidden from the judge or uncovered after
                   the warrant has already been obtained. See Illinois v. Gates, 462 U.S. 213,
                   236 (1983) (when assessing the validity of a search warrant affidavit,
                   courts look only to the four corners of the affidavit itself to determine
                   whether, based upon the affidavit alone, the magistrate had a "substantial
                   basis" for authorizing the search at the time the request was made).
                   Therefore, Officer Stockman's later deposition testimony simply cannot be
                   considered in assessing whether the warrant was valid when issued.

COURT OF APPEALS
         OF                                               8
      NEVADA


(0) 194713
                   requests made after entry has been refused are more likely to be deemed
                   reasonable than ones in which this has not happened); or (3) as pure obiter
                   dicta that adds nothing to the constitutional analysis.
                                  If Owens is anything other than pure dicta, then as an
                   intermediate court we must follow and apply it faithfully, even if it might
                   seem incompatible with federal law or decisions from other states
                   addressing the same issue.
                                  The principle of stare decisis is designed to
                                  promote stability and certainty in the law. While
                                  most often invoked to justify a court's refusal to
                                  reconsider its own decisions, it applies a fortiori to
                                  enjoin lower courts to follow the decision of a
                                  higher court. This principle is so firmly
                                  established in our jurisprudence that no lower
                                  court would deliberately refuse to follow the
                                  decision of a higher court. But cases come in all
                                  shapes and varieties, and it is not always clear
                                  whether a precedent applies to a situation in
                                  which some of the facts are different from those in
                                  the decided case. Here lower courts must
                                  necessarily make judgments as to how far beyond
                                  its particular facts the higher court precedent
                                  extends.
                   Hubbard v. United States, 514 U.S. 695, 720 (1995) (Rehnquist, J.,
                   dissenting).
                                  If Owens is read to impose an additional and independent
                   Nevada-specific requirement upon administrative warrants in order for
                   them to be validly issued, that requirement was not met here and the
                   warrant was invalid. If Owens is read to merely articulate one factor
                   relating to "reasonableness" that the court must consider, that factor was
                   not considered by the district court below and has not been considered by



COURT OF APPEALS
          OF                                                9
      NEVADA


(0) I 94711
                   the majority, and the warrant might or might not be valid. Either way,
                   the question is considerably more complicated than it might first appear.
                               Were the constitutionality of Officer Stockman's
                   administrative warrant the only question before us, then we would have to
                   "make judgments as to how far beyond its particular facts the higher court
                   precedent extends." Hubbard, 514 U.S. at 720. But the question before us
                   is not the per se validity of the warrant, but rather whether Officer
                   Stockman is entitled to qualified immunity from liability under § 1983.
                   And, under the circumstances of this appeal, answering that question does
                   not require us to definitively resolve how Owens must be interpreted.
                   Indeed, and perhaps somewhat ironically, what is important for purposes
                   of resolving Officer Stockman's qualified immunity defense is the very lack
                   of clarity in Owens.
                               In certain circumstances, a law enforcement officer can
                   conduct a defective search and yet still be cloaked with qualified immunity
                   from subsequent civil liability. A searching officer is entitled to qualified
                   immunity if "a reasonable officer could have believed" that the search was
                   lawful "in light of clearly established law and the information the
                   searching officers possessed." Anderson v. Creighton, 483 U.S. 635, 641
                   (1987). The central question is whether someone in the officer's position
                   could reasonably but mistakenly conclude that his conduct complied with
                   the Fourth Amendment. Id.; see also Saucier v. Katz, 533 U.S. 194, 206
                   (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223,
                   236 (2009); Hunter v. Bryant, 502 U.S. 224, 227 (1991). This is the same
                   objective reasonableness standard applied under the "good faith" exception
                   to the exclusionary rule. See Malley v. Briggs, 475 U.S. 335, 344 (1986);



COURT OF APPEALS
         OF                                             10
      NEVADA


(01 1.147B
                   see also Groh v. Ramirez, 540 U.S. 551, 566 (2004) (Kennedy, J.,
                   dissenting).
                                  Law enforcement officers lose their immunity if it is "obvious
                   that no reasonably competent officer would have concluded that a warrant
                   should issue; but if officers of reasonable competence could disagree on
                   this issue, immunity should be recognized." Malley, 475 U.S. at 341; see
                   Velardi v. Walsh, 40 F.3d 569, 575-76 (2d Cir. 1994) ("Whether or not the
                   Fourth Amendment's particularity requirement would have been satisfied
                   on these facts in the context of a motion to suppress . . . we conclude that
                   the defendants' qualified immunity shields them from liability [when] it
                   was objectively reasonable for them to believe that their actions did not
                   violate Fourth Amendment requirements." (citation omitted)).
                                  Generally speaking, there are several types of mistakes that a
                   law enforcement official may make. The officer may make a mistake of
                   law, i.e., be unaware of existing law and how it should be applied.       See
                   Saucier, 533 U.S. at 206. Alternatively, the officer may make a mistake of
                   fact, i.e., may misunderstand important facts about the search and assess
                   the legality of his conduct based on that misunderstanding.         See, e.g.,
                   Arizona v. Evans, 514 U.S. 1 (1995). Or, the officer may misunderstand
                   elements of both the facts and the law.      See Creighton, 483 U.S. at 641.
                   Qualified immunity jurisprudence applies regardless of whether the
                   officer's error was a mistake of law, a mistake of fact, or a mistake based
                   on mixed questions of law and fact. Butz v. Economou, 438 U.S. 478, 507
                   (1978) (noting that qualified immunity covers "mere mistakes in
                   judgment, whether the mistake is one of fact or one of law"). Whatever
                   kind of mistake is involved, the ultimate question is whether the officer's
                   reliance upon the defect was reasonable.

COURT OF APPEALS
       OF                                                 11
    NEVADA
                               What we have in this case is a possible mistake of law; entry
                   into Palmieri's home was not refused pursuant to Owens before the
                   warrant was sought. But if a mistake occurred, it was not a violation of
                   "clearly established" law that should have been "obvious" to Officer
                   Stockman. As I have observed, Owens can be read in alternative ways,
                   one of which would invalidate the warrant and two of which might or
                   might not. Therefore, it cannot be said to have represented law so
                   established that every reasonable law enforcement officer should have
                   familiarized themselves with its contours before being put into the field
                   with the power to apply for administrative warrants. For that reason, I
                   agree that Officer Stockman cannot be said to have acted unreasonably
                   under the totality of the circumstances, and she has not forfeited the
                   shield of qualified immunity 5




                          °Furthermore, a defective search may still be considered valid so
                   long as the executing officer relied in objective "good faith" upon the
                   authority of the search warrant. See United States v. Leon, 468 U.S. 897,
                   920-21 (1984); Byars v. State, 130 Nev. , , 336 P.3d 939, 947 (2014)
                   (following Leon). Here, Officer Stockman submitted her search warrant
                   application to her supervisor, to the career prosecutors at the Clark
                   County District Attorney's Office, and finally to a district court judge, all
                   of whom approved the application notwithstanding its possible flaws.
                   Considering the vagueness of Owens, Officer Stockman acted reasonably
                   when she went through proper channels and sought, and received,
                   approval for her actions at every level from others in whom she was
                   entitled to place her trust. Under the circumstances of this case, the
                   district judge reviewed and signed the warrant, and there is no evidence
                   that Officer Stockman acted in a nefarious or underhanded way or had
                   any reason to doubt that the warrant was entirely valid once the ink on
                   the judge's signature was dry.

COURT OF APPEALS
        OF                                              12
     NEVADA


(0) 1947B
                                   Therefore, I agree with the majority's thorough and detailed
                       analysis of this appeal. Under the facts of this case, the meaning of Owens
                       is not central to our disposition and will have to be addressed another day.




                                                                  Tao




COURT   OF   APPEALS
         OF                                                 13
      NEVADA


(0) I 047E    ea
