                                                  129 Nev., Advance Opinion         I 02.
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                THE STATE OF NEVADA,                                 No. 61262
                Appellant,
                vs.
                MICHAEL ALAN KINCADE,
                Respondent.

                                                                     No. 61263
                THE STATE OF NEVADA,
                Appellant,                                                FILED
                vs.
                MICHAEL ALAN KINCADE,                                      DEC 2 6 2013
                Respondent.                                                        LINDEMAN
                                                                     CL
                                                                     BY
                                                                          CI-YEE-DEPUTY CLERK



                           Appeal from a district court order granting a motion to
                suppress evidence. Seventh Judicial District Court, Lincoln County; Steve
                L. Dobrescu, Judge.
                           Affirmed.


                Catherine Cortez Masto, Attorney General, Carson City; Daniel M. Hooge,
                District Attorney, Lincoln County,
                for Appellant.

                Dylan V. Frehner, Public Defender, Lincoln County,
                for Respondent.



                BEFORE THE COURT EN BANG.




SUPREME COURT
      OF
    NEVADA

(0) 1947A
                                                                                   /3- 39,70
                                                       OPINION


                      By the Court, PARRAGUIRRE, J.:
                                  In this case, we consider whether the district court properly
                      excluded evidence seized pursuant to a search warrant where the warrant
                      did not comply with NRS 179.045(5)'s requirement that a warrant include
                      a statement of probable cause or have the affidavit upon which probable
                      cause was based attached. Recognizing that a state may provide broader
                      protections to its citizens than provided by the U.S. Constitution, we
                      reaffirm our decision in State v. Allen, 119 Nev. 166, 69 P.3d 232 (2003)
                      (Allen II), and conclude that failure to comply with NRS 179.045(5)
                      triggers exclusion despite the U.S. Supreme Court's contrary holding in
                      United States v. Grubbs, 547 U.S. 90, 97 (2006).
                                                        FACTS
                                  The Lincoln County Sheriffs Department initiated an
                      investigation of respondent Michael Kincade following reports that he was
                      sexually abusing minor relatives. In the course of the investigation, a
                      detective filed an affidavit for a warrant to search Kincade's residence for
                      evidence related to the allegations. A justice of the peace issued a
                      warrant, but when it was served on Kincade, the warrant did not include a
                      statement of probable cause and the affidavit setting forth the basis for
                      probable cause was not attached to the warrant. The subsequent search
                      revealed images of child pornography on Kincade's computer and external
                      hard drive, The State pursued numerous charges against Kincade for
                      sexual assault and possession of child pornography.' Kincade moved to


                            'The sexual assault charges and child pornography charges were
                      bifurcated into separate cases.

SUPREME COURT
        OF
     NEVADA
                                                           2
(0) 1947A    440444
                suppress the evidence found on his computer, which the district court
                granted. The district court concluded that the affidavit did not support a
                probable cause finding and that the execution of the warrant violated NRS
                179.045(5), which requires a warrant to either include a statement of
                probable cause or have the affidavit supporting the warrant attached. The
                State now brings this appeal.
                                                DISCUSSION
                            The State argues that the district court erred by excluding
                evidence under NRS 179.045(5), which requires the warrant to include a
                statement of probable cause or have the affidavit upon which it is based
                attached, because the omission was merely a ministerial violation. The
                State also argues that the district court erred in suppressing the evidence
                because the detective relied in good faith on the validity of the warrant
                issued by the justice of the peace.
                The search warrant's failure to comply with NRS 179.045(5) mandates
                exclusion of evidence seized pursuant to the warrant
                            NRS 179.045(5) provides that a warrant must either include a
                statement of probable cause or have the affidavit upon which probable
                cause is based attached. NRS 179.085 provides that a person may move to
                suppress evidence on the grounds that "lit] he warrant is insufficient on its
                face." NIBS 179.085(1)(b). In a case factually similar to this one, we held
                that failure to include a statement of probable cause or to attach a valid
                affidavit to a search warrant in violation of NRS 179.045 triggers
                exclusion under NRS 179.085. State v. Allen, 119 Nev. 166, 168, 69 P.3d
                232, 233 (2003) (Allen II), modifying State v. Allen,   118 Nev. 842, 60 P.3d
                475 (2002) (Allen I).    In Allen II, a deputy conducted a home search
                pursuant to a warrant, but the warrant did not include a statement of
                probable cause and the deputy did not leave a copy of the affidavit with
SUPREME COURT
        OF
     NEVADA
                                                      3
(0) 1947A
                 the warrant following the search as required by NRS 179.045. 119 Nev. at
                 168, 69 P.3d at 233-34. We held that exclusion is proper upon failure to
                 leave a copy of an affidavit with a warrant where the warrant does not
                 itself include a statement of probable cause, even if the affidavit is
                 incorporated by reference into the warrant. Id. at 171-72, 69 P.3d at 235-
                 36. 2
                             The State argues, however, that United States v. Grubbs, a
                 more recent U.S. Supreme Court case, abrogates Allen IL 547 U.S. 90, 97
                 (2006). In Grubbs, the Court considered the issue of whether a triggering
                 clause, which was part of the basis for the magistrate's probable cause
                 determination, was required in a warrant that anticipated the future
                 presence of contraband at a defendant's residence.    Id. The Grubbs court
                 held that the Fourth Amendment does not require an anticipatory warrant
                 to include a triggering condition.       Id.   Instead, the Court narrowly
                 construed the Fourth Amendment to only require that a warrant state
                 with particularity the place to be searched and the items subject to
                 seizure. Id.   Indeed, the Court confirmed that "the Fourth Amendment
                 does not require that the warrant set forth the magistrate's basis for
                 finding probable cause, even though probable cause is the quintessential
                 precondition to the valid exercise of executive power."   Id. at 98 (internal
                 quotations omitted).
                             However, states are permitted to provide broader protections
                 and rights than provided by the U.S. Constitution. Virginia v. Moore, 553


                        The requirement that the affidavit must be attached does not apply
                         2

                 to sealed warrants or to telephonic warrants issued pursuant to NRS
                 179.045(2). See Allen II, 119 Nev. at 167-68, 69 P.3d at 233; State v.
                 Gameros-Perez, 119 Nev. 537, 541, 78 P.3d 511, 514 (2003).

SUPREME COURT
        OF
     NEVADA
                                                      4
(0) 1947A    e
                U.S. 164, 171 (2008); Osburn v. State, 118 Nev. 323, 326, 44 P.3d 523, 525
                (2002). Thus, to the extent that Allen II promulgates a statutory rule of
                criminal procedure, the more permissive standard of Grubbs does not
                vitiate this court's holding in Allen II.
                             Regardless, the State argues that this court should adopt
                Grubbs because Allen II was an application of the Fourth Amendment and
                not of Nevada statutory or constitutional law. The State is incorrect. In
                Allen II, we determined that NRS 179.045 is plain and unambiguous and
                held that failure to comply with NRS 179.045 warrants exclusion.     Id. at
                168, 170, 69 P.3d at 233, 235. The Legislature established these
                requirements for a valid warrant in Nevada and has provided for
                suppression of evidence obtained based on a warrant that is insufficient on
                its face. NRS 179.085(1)(b). Thus, the holding of Allen II need not
                necessarily be affected by developments in federal Fourth Amendment
                jurisprudence. Moore, 553 U.S. at 171; Osburn, 118 Nev. at 326, 44 P.3d
                at 525. Accordingly, we decline to depart from Allen II's holding that
                failure to comply with NRS 179.045 mandates exclusion.
                Leon's good-faith exception does not apply
                             The State next argues that the district court excluded
                evidence without first determining whether suppression would further the
                purposes of the exclusionary rule under the balancing test of United States
                v. Leon, 468 U.S. 897, 906 (1984).
                             The U.S. Constitution does not provide for exclusion of
                evidence obtained in violation of the Fourth Amendment.         Arizona v.
                Evans, 514 U.S. 1, 10 (1995). Instead, the exclusionary rule is a judicial
                remedy designed to deter law enforcement from future Fourth
                Amendment violations. Leon, 468 U.S. at 906. Accordingly, "suppression
                of evidence obtained pursuant to a warrant should be ordered only on a
SUPREME COURT
        OF
     NEVADA

                                                        5
(0) I947A
                case-by-case basis and only in those unusual cases in which exclusion will
                further the purposes of the exclusionary rule."       Id. at 918. However,
                exclusion is warranted without engaging in a case-by-case analysis where
                (1) the probable cause determination is based on misleading information
                in the affidavit that the affiant knew was false or would have known was
                false absent a reckless disregard for the truth, (2) the magistrate wholly
                abandoned a detached or neutral role, (3) the warrant is so facially
                deficient that the officers executing it cannot reasonably presume its
                validity, or (4) the supporting affidavits are so lacking in probable cause as
                to render official belief in its existence entirely unreasonable.   Id. at 923.
                Outside of those four exceptions, a search based on a deficient warrant is
                not unreasonable where the officer executing the warrant has an objective
                good-faith belief that the warrant is valid.
                            In Allen II, this court held that failure of a police officer to
                follow the requirements of NRS 179.045(5) rendered reliance on the
                warrant unreasonable, thus the warrant in question did not trigger Leon's
                good-faith exception. 119 Nev. at 172, 69 P.3d at 236. We see no reason to
                disturb our holding in Allen II that exclusion is the appropriate remedy
                when a warrant does not comply with the statute. Thus, as the instant
                warrant similarly does not comply with NRS 179.045(5)'s requirements,
                the Leon exception is inapplicable.
                                               CONCLUSION
                            In conclusion, Allen II is still controlling law despite Grubbs
                because this court may grant broader protections to its citizens than
                required by the U.S. Constitution, and Leon's good-faith exception will not
                apply where statutory requirements are not followed. Thus, failure to



SUPREME COURT
        OF
     NEVADA
                                                       6
(0) 1947A
                   comply with NRS 179.045 justifies the exclusion of evidence obtained in a
                   search pursuant to a defective warrant.     See Allen II, 119 Nev. at 171-72,
                   69 P.3d at 235-36. 3
                                Accordingly, we affirm the district court's order.




                                                                      J.
                                            Parraguirre

                   We concur:


                       'Chit                   , C.J.
                   Pickering


                                                                                          J.
                   Hardesty




                                                               Saitta




                         3 Although we affirm the district court's order solely on the ground
                   that the warrant did not comply with NRS 179.045, we also note with
                   approval the district court's determination that the affidavit was "wholly
                   insufficient" and did not provide a substantial basis for the justice of the
                   peace to find probable cause that would justify issuing a search warrant.


SUPREME COURT
      OF
    NEVADA
                                                          7
(0) 1947A .7409D
