                                                   130 Nev., Advance Opinion 2.4
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 THE STATE OF NEVADA,                                No. 59121
                 Appellant,
                 vs.
                                                                                FILED
                 JARVIS DEER CANTSEE,                                           APR 0 3 2014
                 Respondent.
                                                                             TRACE K. LINDEMAN
                                                                          CLE,RX OF SUPREME COUR
                                                                          BY
                                                                               CHIEF D   TV CL


                            Appeal from a district court order granting a motihn to
                 suppress evidence in a criminal case. Second Judicial District Court,
                 Washoe County; David A. Hardy, Judge.
                            Reversed and remanded.

                 Catherine Cortez Masto, Attorney General, Carson City; Richard A.
                 Gammick, District Attorney, and Joseph R. Plater, Chief Deputy District
                 Attorney, Washoe County, for Appellant.

                 Jeremy T. Bosler, Public Defender, and Christopher P. Frey, Deputy
                 Public Defender, Washoe County, for Respondent.




                 BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

                                                OPINION

                 By the Court, HARDESTY, J.:
                            In this appeal, we must determine whether a police officer's
                 citation to an incorrect statute is a mistake of law that invalidates an
                 investigatory traffic stop under the Fourth Amendment to the United
                 States Constitution. Respondent Jarvis Deer Cantsee was charged with a


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                felony DUI after being pulled over for driving with a cracked windshield.
                Deputy Wendy Jason, the investigating officer, testified that she stopped
                Cantsee because his cracked windshield violated NRS 484D.435.
                However, MRS 48411435 does not prohibit operating a vehicle with a
                cracked windshield.' Although the cracked windshield could violate
                another statute, the district court concluded that Deputy Jason's incorrect
                citation constituted a mistake of law that invalidated the investigatory
                stop under the Fourth Amendment and granted Cantsee's motion to
                suppress the evidence obtained from the traffic stop. We conclude that a
                police officer's citation to an incorrect statute is not a mistake of law that
                invalidates an investigatory traffic stop under the Fourth Amendment if
                another statute nonetheless prohibits the suspected conduct. Therefore,
                we reverse the district court's order.
                                                   FACTS
                            Deputy Jason pulled over Cantsee after she observed him
                driving past her in the opposite direction with a "crack across the
                windshield." Upon pulling him over, Deputy Jason observed that Cantsee
                appeared to be intoxicated. Cantsee failed the field sobriety and
                breathalyzer tests, and a subsequent blood test revealed that his blood
                alcohol levels were above the legal limit. Although Deputy Jason arrested
                him for felony DUI, violating Nevada's open container law, failing to have
                car insurance, and driving with a cracked windshield, she confirmed at the
                preliminary hearing that her sole reason for stopping Cantsee was the
                cracked windshield.



                      'MRS 484D.435(1) prohibits driving a vehicle "with any sign, poster
                or other nontransparent material upon the front windshield."

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                            Cantsee filed a motion to suppress on the ground that Deputy
                Jason's reason for pulling him over was a mistake of law that invalidated
                the investigatory traffic stop under the Fourth Amendment. He relied on
                Deputy Jason's citation to NRS 484D.435 that justified stopping him for
                driving with a cracked windshield because that statute does not prohibit
                that conduct. In opposition, the State initially argued that the stop was
                justified for either one of two reasons: first, that a windshield crack would
                satisfy the reasonable suspicion standard for a possible NRS 484D.435
                violation or second, that the windshield crack constituted a safety hazard.
                            At the hearing on the motion to suppress, Deputy Jason
                testified that she thought Cantsee had violated NRS 484D.435 when she
                pulled him over. She also stated that she knew at the time of the hearing
                that NRS 484D.435 was not the correct statute, but that she was never
                trained to give specific NRS statute numbers whenever she stopped a
                vehicle. The State then argued for the first time that NRS 484B.163(3), 2
                rather than NRS 484D.435, justified the traffic stop. Cantsee objected and
                argued that the State waived its right to argue NRS 484B.163(3) because
                this argument was not included in the State's opposition to the motion to
                suppress. Cantsee also objected to any testimony that the crack in the
                windshield provided a reasonable suspicion of a violation of NRS
                484B.163(3). The court sustained Cantsee's objection and limited the
                scope of Deputy Jason's testimony to whether the crack in the windshield
                constituted a safety hazard.



                      NRS 484B.163(3) states that "a vehicle must not be operated upon
                      2

                any highway unless the driver's vision through any required glass
                equipment is normal."

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                             The district court granted the motion to suppress, finding that
                the investigatory traffic stop based on NRS 484D.435 was not objectively
                reasonable because that statute does not prohibit driving with a cracked
                windshield. The court further concluded that the State's arguments as to
                NRS 484B.163 "unfairly surprised" Cantsee. Thus, the court deemed the
                State's argument waived because the State did not show good cause as to
                why it did not mention the statute in its opposition. The State appeals.
                                                 DISCUSSION
                             The State raises two arguments on appeal: (1) Deputy Jason's
                citation to the wrong statute is not a mistake of law that invalidates the
                investigatory traffic stop under the Fourth Amendment; and (2) the State
                did not waive its right to argue that NRS 484B.163(3) justified the traffic
                stop.
                The traffic stop was valid under the Fourth Amendment
                             Whether an officer's citation to an incorrect statute is a
                mistake of law that invalidates an investigatory traffic stop under the
                Fourth Amendment is an issue of first impression in Nevada. The Fourth
                Amendment to the United States Constitution prohibits unreasonable
                searches and seizures. U.S. Const. amend. IV. Whether an investigatory
                traffic stop violates the Fourth Amendment's prohibition against
                unreasonable searches and seizures is a mixed question of law and fact.
                Somee v. State, 124 Nev. 434, 441, 187 P.3d 152, 157 (2008). This court
                "review[s] the district court's findings of historical fact for clear error [and]
                the legal consequences of those factual findings de novo." Id. at 441, 187
                P.3d at 157-58.
                             To justify an investigatory traffic stop under the Fourth
                Amendment, the State must show that the investigating officer had
                reasonable suspicion that the defendant was engaged in criminal activity.
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                 State v. Rincon, 122 Nev. 1170, 1173, 147 P.3d 233, 235 (2006). When the
                 traffic stop is based on a mistake of law, there is generally no justification
                 for the investigatory traffic stop regardless of the reasonableness of the
                 mistake. See United States ix King, 244 F.3d 736, 739 (9th Cir. 2001). A
                 mistake of law occurs when an officer believes that the suspected conduct
                 is illegal even though the law does not actually prohibit it.     See United
                 States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000).
                               But there is a difference between a mistake of law and a
                 mistake as to which law applies. The incorrect application of a statute is
                 not a mistake of law when the law prohibits the suspected conduct. An
                 example of such a scenario is addressed in United States. v. Wallace, 213
                 F.3d 1216, 1220-21 (9th Cir. 2000). In Wallace, the officer pulled the
                 defendant over for having tinted front windows because the officer
                 believed that California law prohibited all front window tints when in fact
                 California law only prohibited window tints past a certain degree of light
                 transmittance. Id. at 1220. The Ninth Circuit Court of Appeals held that
                 the traffic stop was constitutionally valid even though the officer was
                 mistaken about the law because the officer's observations about the heavy
                 tint obstructing the view into the vehicle "correctly caused him to believe
                 that Wallace's window tinting was illegal; he was just wrong about exactly
                 why."   Id.    The Ninth Circuit reasoned that police officers are not
                 attorneys, and "[t]he issue is not how well [the officer] understood
                 California's window tinting laws, but whether he had objective, probable
                 cause to believe that these windows were, in fact, in violation."       Id. at
                 1220. The Ninth Circuit held that this was not a mistake of law which
                 would invalidate the stop under the Fourth Amendment, stating that
                 "[t]he circumstances here stand in sharp contrast to cases in which the

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                defendant's conduct does not in any way, shape or form constitute a
                crime."3 Id.
                               We agree with the reasoning of the Ninth Circuit. Deputy
                Jason initiated the traffic stop because of the cracked windshield. She
                cited Cantsee for violating NRS 484D.435(1), believing that it was the
                applicable statute. She was mistaken. NRS 484D.435(1) prohibits driving
                a vehicle "with any sign, poster or other nontransparent material upon the
                front windshield." Although this statute does not prohibit Cantsee's
                conduct, a crack that obstructs the driver's vision through the windshield
                could be an infraction under NRS 48413.163(3). We conclude that this
                statute provides a lawful ground to justify the stop because the crack in
                the windshield might have obstructed Cantsee's view. Therefore, Deputy

                      3 Many    jurisdictions have reached similar conclusions. See, e.g.,
                United States v. Eckhart, 569 F.3d 1263, 1272 (10th Cir. 2009) (holding
                that an investigating "officer need not be able to quote statutes" and that
                Islome confusion about the details of the law may be excused so long as
                there was . .. reasonable articulable suspicion that [an actual]
                traffic . . . violation has occurred" (third alteration in original) (internal
                quotations omitted)); In re Justin K, 120 Cal. Rptr. 2d 546, 550 (Ct. App.
                2002) (holding that "an officer's reliance on the wrong statute does not
                render his actions [constitutionally] unlawful if there is a right statute
                that applies to the defendant's conduct"); State v. Munoz, 965 P.2d 349,
                352 (N.M. Ct. App. 1998) (holding that a traffic stop was constitutional
                despite the investigating officer's citation to the wrong statute because the
                conduct observed actually violated a different statute); State v. Heien, 737
                S.E.2d 351, 354-55 (N.C. 2012) (noting that North Carolina will uphold a
                traffic stop based on an officer's mistake as to which law applies if "the
                totality of the circumstances indicates that there is reasonable suspicion
                that the person stopped is violating some other, actual law"); State v.
                Higley, 237 P.3d 875, 878 (Or. Ct. App. 2010) (holding that "a stop is
                lawful even if the officer who executes it does so under the mistaken belief
                that the defendant has violated one law if the facts the officer perceives
                amount to a violation of a different law").

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                   Jason's mistake was not a mistake of law, but a mistake as to which law
                   applied. Accordingly, we conclude that the district court erred in finding
                   that Deputy Jason's citation to the incorrect statute was a mistake of law
                   that invalidated the traffic stop under the Fourth Amendment. 4 However,
                   a question remains as to whether the State waived its right to argue that
                   NRS 484B.163(3) justifies the traffic stop because it failed to include the
                   statute in its opposition to the motion to suppress and raised it for the first
                   time during the suppression hearing
                   The State did not waive its right to argue that NRS 484B.163(3) justified
                   the investigatory traffic stop
                               Whether the State waived its right to argue that NRS
                   4841B.163(3) justified the traffic stop is a question of law. See Nev. Gold &
                   Casinos, Inc. v. Am. Heritage, Inc., 121 Nev. 84, 89, 110 P.3d 481, 484
                   (2005). This court reviews the district court's legal conclusions de novo.
                   Sornee, 124 Nev. at 441, 187 P.3d at 157-58.
                               We are not aware of any authority stating that the failure to
                   include a statute in an opposition to a motion to suppress waives the right
                   to argue that statute at a subsequent hearing. Nevada does have statutes
                   and rules of local practice providing that the failure to file a motion to
                   suppress or an opposition to a motion to suppress waives argument.          See
                   NRS 174.105(2) (failure to file a motion to suppress prior to trial waives
                   exclusionary rule argument); DCR 13(3) (failure to file an opposition to a
                   motion "may be construed as an admission that the motion is

                         4We    do not address the State's argument that NRS 484D.570(1)(b)
                   also justifies the traffic stop because it was not raised before the district
                   court. See Walch v. State, 112 Nev. 25, 30, 909 P.2d 1184, 1187 (1996)
                   ("[I]f a party fails to raise an issue below, this court need not consider it on
                   appeal.")


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                meritorious"). But, there is no rule, statute, or other authority providing
                that failure to include an argument in a timely filed opposition is grounds
                for finding a waiver of that argument. Further, although new arguments
                may not be raised for the first time on appeal, see Walch v. State, 112 Nev.
                25, 30, 909 P.2d 1184, 1187 (1996), we see no reason why an argument on
                an issue may not be raised for the first time before the district court in a
                hearing held prior to trial
                            The district court found that the State waived its right to
                argue this statute because raising it for the first time at the hearing
                unfairly surprised Cantsee. However, we are also unaware of any
                authority providing that the State may not direct the district court to a
                controlling statute solely because doing so will surprise the defendant. In
                addition, although Cantsee stated that he was not prepared to argue NRS
                484B.163, he did not indicate how the addition of this statute prejudiced
                him. Given that the reason for justifying the traffic stop remained the
                same, i.e., that the cracked windshield may have obstructed Cantsee's
                view, it is unclear what prejudice could have resulted from arguing that
                NRS 484B.163(3) rather than NRS 484D.435(1) justified the traffic stop
                when both of these statutes involve obstruction of the driver's view.     CI
                Vi ray v. State, 121 Nev. 159, 162-63, 111 P.3d 1079, 1082 (2005) (holding
                that "lain inaccurate information does not prejudice a defendant[ . if
                the defendant had notice of the State's theory of prosecution").
                            And, even if Cantsee was unfairly surprised, "[ale remedy for
                prejudicial surprise resulting in a defendant's inability to present his
                defense adequately is a continuance."     Zessman v. State, 94 Nev. 28, 32,
                573 P.2d 1174, 1177 (1978) (determining that the district court violated
                defendants' due process rights when it orally amended the information

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                 immediately prior to trial but then denied defendants' motion to continue
                 the trial). Here, the district court did not continue the hearing or request
                 supplemental briefing. Therefore, even if the State unfairly surprised
                 Cantsee when it raised NRS 484B.163 for the first time at the hearing, we
                 conclude that the district court erred in concluding that the State waived
                 its right to argue this statute rather than continuing the hearing. 5
                 The district court did not decide whether Deputy Jason had reasonable
                 suspicion to stop Cantsee
                             The dissent argues that we should not remand this decision to
                 the district court, but rather grant deference to the district court's
                 determination that the crack in the windshield was not a violation of NRS
                 484.163(3). We disagree. Whether Deputy Jason had reasonable
                 suspicion to stop Cantsee for an NRS 484B.163(3) violation is a much
                 different question than whether she had reasonable suspicion to stop him
                 for a safety hazard or whether he actually violated NRS 484B.163(3). An
                 officer has reasonable articulable suspicion "if there are specific,
                 articulable facts supporting an inference of criminal activity."        State v.
                 Rincon, 122 Nev. 1170, 1173, 147 P.3d 233, 235 (2006); Walker v. State,
                 113 Nev. 853, 865, 944 P.2d 762, 770 (1997) ("The officer must be able to
                 point to specific and articulable facts which, when taken together with
                 rational inferences from those facts, reasonably warrant intrusion."). To
                 determine whether an officer objectively had reasonable articulable
                 suspicion, "the evidence is viewed under the totality of the circumstances
                 and in the context of the law enforcement officer's training and

                        5 Given our conclusions in this opinion, we decline to address the
                 State's remaining arguments on appeal.



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                 experience." Rincon, 122 Nev. at 1173-74, 147 P.3d at 235. Here, the
                 district court limited the scope of the evidentiary hearing on the motion to
                 suppress to the issue of whether a safety hazard justified the stop.
                 Further, the order did not analyze whether Deputy Jason had a
                 reasonable suspicion to stop Cantsee for a possible NRS 484B.163(3)
                 violation.
                              The district court specifically stated on the record that the
                 scope of Deputy Jason's testimony at the evidentiary hearing would be
                 limited to the issue of safety. As a result, neither attorney elicited
                 testimony from Deputy Jason about the circumstances surrounding
                 Cantsee's stop or any other facts about what she observed during her
                 initial contact with him. While some of these facts were addressed at the
                 preliminary hearing, the district court's decision to limit the scope of the
                 hearing foreclosed any consideration of Deputy Jason's testimony from the
                 preliminary hearing. The district court specifically noted at the end of its
                 order that after the suppression hearing, "the historical facts known to the
                 deputy at the time of the traffic stop [were] unclear[J" such that it
                 "prevent[ed] the [district court] from assessing whether the stop could
                 have been independently justified under NRS 484B.163" (emphasis
                 added). If the district court had held an evidentiary hearing on whether
                 Deputy Jason had reasonable suspicion that Cantsee violated NRS
                 484B.163(3), then the district court likely would have been able to make a
                 determination on this issue. Multiple courts have upheld stops premised
                 on an officer observing a windshield crack. See State v. Galvan, 37 P.3d
                 1197, 1201 (Utah Ct. App. 2001) (citing several courts that have upheld
                 traffic stops based on windshield cracks).



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                              Accordingly, we reverse the district court's order, and we
                remand this matter for further proceedings consistent with this opinion.




                                                      F--LA Lee-.1-1   \       , J.
                                                   Hardesty

                I concur:




                Parraguirre




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                CHERRY, J., dissenting:
                             I dissent from the majority's decision because I believe that
                the district court, despite some errant legal analysis, explicitly found that
                the facts did not support the State's argument. The district court rejected
                the State's factual contention that Deputy Jason could have reasonably
                suspected that Cantsee was violating NRS 484B.163 at the time of the
                traffic stop. This court should defer to the district court's findings of fact.
                Accordingly, I would affirm.
                             There are two issues in this appeal. The first is a legal issue
                and is adequately addressed by the majority. It is undoubtedly correct
                that a mistaken application of law does not make a traffic stop illegal,
                where the conduct observed is actually prohibited by the law.       See United
                States v. Wallace, 213 F.3d 1216, 1220-21 (9th Cir. 2000). The second
                issue is factual. Did the officer possess a reasonable suspicion, at the time
                of the stop, that the conduct observed was actually prohibited by law? If
                so, then the stop was justified. The majority ignores the district court's
                findings on this second issue and remands the case for a repeat
                consideration of it.
                             A district court's findings of fact in a suppression hearing are
                reviewed for clear error. State v. Lisenbee, 116 Nev. 1124, 1127, 13 P.3d
                947, 949 (2000). Under this standard of review, "factual
                determinations ... are given deference on appeal if they are supported by
                substantial evidence." Goudge v. State, 128 Nev. _ „ 287 P.3d 301,
                304 (2012). This is a lenient standard: "Substantial evidence is 'evidence
                that a reasonable mind might accept as adequate to support a conclusion."
                Thompson v. State, 125 Nev. 807, 816, 221 P.3d 708,715 (2009) (quoting
                Brust v. State, 108 Nev. 872, 874-75, 839 P.2d 1300, 1301 (1992)).

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                                 The district court apparently went on to decide the factual
                     issue, whether Deputy Jason possessed a reasonable suspicion that
                     Cantsee's conduct was illegal, even though its legal analysis obviated the
                     need to do so. The district court stated that "even if the court's legal
                     analysis were ignored, the State's "contention that NRS 484B.163
                     alternatively justifies the stop would be difficult to sustain on the record"
                     (emphasis added). The district court unequivocally found that Deputy
                     Jason did not suspect that Cantsee was violating NRS 484B.163:
                     "Although, at the hearing the State attempted to justify this traffic stop
                     under an alternative statute. . . this Court finds that the deputy did not
                     believe Mr. Cantsee had violated another applicable statute." The district
                     court found not only that Deputy Jason did not reasonably suspect that
                     Cantsee was committing a crime, but also that Deputy Jason could not
                     have reasonably suspected as much. The district court found that "there
                     was no evidence that the crack was positioned in Mr. Cantsee's field of
                     vision, or actually obstructed his 'normal' view of the road." This finding is
                     a death blow to the State's argument that Deputy Jason, at the time of the
                     stop, could have reasonably suspected that Cantsee was violating NRS
                     484B.163(3) (prohibiting the operation of a vehicle on a highway "unless
                     the driver's vision through any required glass equipment is normal"
                     (emphasis added)).
                                 The district court also made a finding as to the credibility of
                     Deputy Jason's testimony. The district court found that "[wthile the
                     deputy claimed that the crack in the windshield went all the way across
                     and up on the passenger side. . . . the deputy acknowledged describing the
                     crack in the past as only six to eight inches." The court went on to say
                     that the lack of clarity resulting from Deputy Jason's contradictory

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                 statements prevented the court from determining that the stop was
                 justified under MRS 484B.163. 1 Hence, the district court incorrectly
                 decided the legal issue, but then declared that even had it decided the
                 legal issue in favor of the State, the facts did not support the State's
                 ultimate position.
                             The State appears, at least to some extent, to be aware that
                 this court should defer to the district court's finding that the facts did not
                 justify a stop under NRS 484B.163(3). At oral argument, the State
                 proffered the extraordinary opinion that any crack in a windshield
                 justifies a reasonable suspicion that the driver is violating NRS
                 484B.163(3) and, therefore, that the district court legally erred by not
                 finding the cracked windshield to be sufficient to justify a stop.   See Oral
                 Argument at 07:45, State v. Cantsee, Docket No. 59121 (Sept. 18, 2013),
                 available at http://goo.gl/wuT7qW ("Our position is [that] the field of vision
                 constitutes the entire windshield."). The State evidently believes that the




                       'The majority points out that the district court narrowed the scope
                 of the evidentiary hearing to the safety hazard issue. It goes on to say
                 that, had the district court held an evidentiary hearing on the NRS
                 484B.163 issue, the court might have been able to make a determination
                 as to whether the stop was justified. But the decision whether to hold an
                 evidentiary hearing is within the discretion of the district court; the State
                 does not have an a priori right to an evidentiary hearing on a motion to
                 suppress. See Cortes v. State, 127 Nev. „ 260 P.3d 184, 187 (2011).
                 Furthermore, the district court noted the contradictions in Deputy Jason's
                 testimony. I fail to see how remanding for another hearing with an
                 expanded scope might make her testimony more credible.

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                  district court's factual determination, that there was a crack in the
                  windshield but that it did not obstruct Cantsee's normal vision, was legal
                  error because any crack in a windshield obstructs vision and thereby
                  violates NRS 484B.163(3). 2 In making this argument, the State implicitly
                  accepts the district court's findings and asks this court to evade them by
                  generously construing the statute in the State's favor.
                               The fact that the district court made a determination in the
                  alternative is nothing new. We regularly affirm district court decisions
                  that were decided on alternative grounds.     See, e.g., Mason v. Mason, 115
                  Nev. 68,69-71, 975 P.2d 340, 341 (1999) (affirming on one of the alternate
                  grounds for the district court's ruling). This court reviews the district
                  court's judgment, not its opinion: "It is well settled that the opinion of the
                  trial judge is no part of the judgment roll, and that it can only be used to
                  aid this court in the proper determination of the appeal."          Hunter v.
                  Sutton, 45 Nev. 430, 439, 205 P. 785, 787 (1922). We do not reverse a
                  correct judgment merely because the opinion contained some extraneous
                  errors.
                               The facts, as found by the district court, show that Deputy
                  Jason could not have formed an objectively reasonable suspicion that
                  Cantsee was violating the law at the time of the traffic stop. These
                  findings warrant deference. I would affirm the district court's order
                  suppressing the evidence acquired from the illegal stop.




                        2 0f course, this argument is troubling; its adoption would make any
                  citizen who was the victim of a pebble lodged in a windshield, a frequent
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