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State v. Bayard - 119 Nev. 241, 71 P.3d 498 (2003)

Rule:

An arrest made in violation of Nev. Rev. Stat. § 484.795 violates a suspect's right to be free from unlawful searches and seizures under Nev. Const. art. I, § 18, even though the arrest does not offend the Fourth Amendment. An officer violates Nev. Rev. Stat. § 484.795 if the officer abuses his or her discretion in making a full custodial arrest instead of issuing a traffic citation. The Nevada Supreme Court adopts the test set forth by the Montana Supreme Court in State v. Bauer for determining the proper exercise of police discretion to arrest under Nev. Rev. Stat. § 484.795. To make a valid arrest based on state constitutional grounds, an officer's exercise of discretion must be reasonable. Reasonableness requires probable cause that a traffic offense has been committed and circumstances that require immediate arrest. Absent special circumstances requiring immediate arrest, individuals should not be made to endure the humiliation of arrest and detention when a citation will satisfy the State's interest. Such special circumstances are contained in the mandatory section of Nev. Rev. Stat. § 484.795 or exist when an officer has probable cause to believe other criminal misconduct is afoot.

Facts:

Reno Police Officer Ty Sceirine witnessed Bayard commit two minor moving traffic violations, i.e., illegal left turn and lane change. The officer followed the vehicle and activated his lights. At this point, Bayard pulled his vehicle over to the side of the road. The officer told Bayard to step out of the vehicle. Bayard then consented to a search of his person which yielded $116 in cash. The officer then arrested Bayard for violating local traffic ordinances. During the booking procedure, police strip searched Bayard and bundles of cocaine and marijuana fell on the floor when he removed his underwear. Bayard was then charged with trafficking in a controlled substance, and possession of a controlled substance for the purpose of sale. After a preliminary hearing and arraignment, Bayard filed a motion to suppress the drugs based on the allegedly illegal arrest. The trial court found that Bayard’s arrest violated Nev. Rev. Stat. § 171.1771 because he was arrested instead of being issued a citation even though there were no facts and circumstances which would cause a person of reasonable caution to believe that Bayard would disregard a written promise to appear.

Issue:

Did the officer abuse his discretion by performing a full custodial arrest under the circumstances?

Answer:

Yes.

Conclusion:

The Court held that the officer abused his discretion, as he had no legitimate reason to subject defendant to the humiliation of a full custodial arrest instead of issuing him a citation. The Court noted that defendant was cooperative at all times, provided adequate identification, volunteered that he was carrying a concealed weapon and furnished a valid permit, and even agreed to a search of his person for potential drugs and other weapons. The officer was not permitted to arrest defendant based on a "hunch" or "whim" that defendant was engaged in other illegal activity that might be revealed through a subsequent strip search or car search. The arrest was unlawful and violated defendant's state constitutional right to be free from an unlawful search or seizure. The Court concluded that the illegal drugs found had to be excluded from evidence, as they were the product of an unlawful search and seizure.

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