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131 Nev., Advance Opinion 2 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

RALPH TORRES, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 61946 

MED 

JAN 29 2015 

, 1_,, .4AN CLIM 

CLERK 

Appeal from a judgment of conviction, pursuant to a gi -uilty 

plea, of ex-felon in possession of a firearm. Fourth Judicial District Court, 

Elko County; Nancy L. Porter, Judge. 

Reversed and remanded. 

Frederick B. Lee, Jr., Public Defender, and AlMa M. Kilpatrick, Deputy 

Public Defender, Elko County, 

for Appellant. 

Catherine Cortez Masto, Attorney General, Carson City; Mark Torvinen, 

District Attorney, and Mark S. Mills, Deputy District Attorney, Elko 

County, 

for Respondent. 

BEFORE THE COURT EN BANC. 

OPINION 

By the Court, HARDESTY, J.: 

In this appeal, we determine whether the discovery of a valid 

arrest warrant purges the taint from the illegal seizure of a pedestrian, 

such that the evidence obtained during a search incident to the arrest is 

admissible. We conclude that the officer's continued detention of Ralph 

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Torres, after he dispelled any suspicion that Torres was committing a 

crime, constituted an illegal seizure in violation of the Fourth Amendment 

and the fruits of that illegal seizure should have been suppressed. 

Therefore, we reverse the judgment of conviction. 

FACTS 

In February 2008, Officer Shelley observed a smaller male 

wearing a sweatshirt with the hood pulled over his head sway and stagger 

as he walked over a bridge in Elko, Nevada. Officer Shelley thought that 

the man might be intoxicated and too young to be out past curfew. He 

then parked his patrol car in a store parking lot at the end of the bridge 

and addressed Torres as he walked in that direction. Officer Shelley told 

Torres that he stopped him because he was concerned that Torres was too 

young to be out after curfew and that it appeared he had been drinking. 

He asked Tones for identification. 

Torres gave Officer Shelley his California identification card 

(ID card), which revealed that Torres was over the age of 21, and thus, old 

enough to be out past curfew and consuming alcohol. After reading 

Torres's ID card, Officer Shelley retained the ID card as he recited 

Torres's information to police dispatch for verification and to check for 

outstanding arrest warrants. According to Officer Shelley, it is his 

standard practice to verify the identification information of every person 

he encounters because police officers are often given fake identification 

cards that contain inaccurate information. However, nothing in Officer 

Shelley's testimony indicated that anything about Torres's ID card seemed 

fake or inaccurate. Although Officer Shelley could not remember when he 

handed Torres his ID card back after reciting the information to dispatch, 

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he stated that it is also his standard practice to keep an identification card 

in his possession until after he gets a response from dispatch. 

Within five minutes of transmitting Torres's information to 

dispatch, Officer Shelley was informed that Torres had two outstanding 

arrest warrants from California. A second patrol officer arrived and, upon 

confirmation from dispatch that one of the warrants was extraditable, 

Officer Shelley took Torres into custody. After taking Torres into custody, 

Officer Shelley went to conduct a search incident to arrest, at which point 

Torres told him that he had a gun in his pocket. Officer Shelley then 

handcuffed Torres, removed a .22 caliber gun from his pocket, and located 

.22 ammunition in another pocket. 

Torres was charged with being an ex-felon in possession of a 

firearm, receiving or possessing stolen goods, and carrying a concealed 

weapon. Torres filed a motion to suppress the handgun evidence and to 

ultimately dismiss the charges. Torres argued that his detention after 

Officer Shelley confirmed that he was not in violation of curfew was 

unconstitutional because Officer Shelley did not have suspicion that any 

other crime was occurring and Torres did not consent to the interaction. 

Therefore, once Officer Shelley knew Torres was of age, the encounter 

evolved into an illegal seizure that resulted in the discovery of the firearm. 

Torres also contended that the discovery of the warrant was not an 

intervening circumstance sufficient to purge the taint of the discovery of 

the handgun from the illegal seizure. 

In response, the State argued that Officer Shelley had 

reasonable suspicion to detain Torres because of his stature, the time of 

day, and his apparent drunkenness, and that Torres consented to the 

encounter. The State further contended that the discovery of the warrant 

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was an intervening circumstance sufficient to purge the taint of the 

possibly illegal seizure from the discovery of the handgun, and, therefore, 

the handgun evidence was not the fruit of an illegal seizure. 

The district court denied Torres's motion to suppress because 

it determined that the initial contact between Officer Shelley and Torres 

was consensual. However, the district court did not make a determination 

about whether the consensual encounter became an illegal seizure. 

Instead, the district court determined the warrant to be an intervening 

circumstance and found that "the legality, or illegality, of Officer Shelley's 

decision to run a warrants check on [Torres] to be irrelevant to the legality 

of [Torres's] arrest." The court found the question irrelevant because the 

warrant would have been an "intervening circumstance" sufficient to 

purge the illegality of the seizure if the stop had become illegal. Upon the 

district court's denial of Torres's motion to suppress, Torres pleaded guilty 

to being an ex-felon in possession of a firearm pursuant to NRS 

202.360(1)(a). 1This appeal followed. 

DISCUSSION 

In this appeal, we consider whether the judgment of conviction 

must be reversed based on Torres's Fourth Amendment challenge and the 

district court's denial of his motion to suppress. 2In reaching our 

'In Gallegos v. State, we concluded that paragraph (b) of NRS 

202.360(1) was unconstitutionally vague. 123 Nev. 289, 163 P.3d 456 

(2007). This holding does not affect the paragraph at issue here, 

paragraph (a) of NRS 202.360(1), or our analysis of the issues in this 

appeal. 

2Torres reserved the right to challenge the denial of his motion to 

suppress on appeal. See NRS 174.035(3), 

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conclusion, we first determine whether Officer Shelley's continued 

detention of Tones constituted an illegal seizure. If so, we must decide 

whether the discovery of Torres's valid arrest warrant attenuated the 

taint from the illegal seizure, such that the firearm evidence obtained 

during a search incident to arrest was admissible. 

Officer Shelley's continued detention of Torres resulted in an illegal seizure 

in violation of the Fourth Amendment 

In Fourth Amendment challenges, this court reviews the 

district court's findings of fact for clear error but reviews legal 

determinations de novo. Somee v. State, 124 Nev. 434, 441, 187 P.3d 152, 

157-58 (2008). Police encounters can be consensual. See United States v. 

Mendenhall, 446 U.S. 544, 553-54 (1980). "As long as the person to whom 

questions are put remains free to disregard the questions and walk away, 

there has been no intrusion upon that person's liberty or privacy as would 

under the Constitution require some particularized and objective 

justification." Id. at 554. However, if a reasonable person would not feel 

free to leave, he or she has been "seized' within the meaning of the Fourth 

Amendment." Id. 

If a person does not consent, "a police officer may [still] stop a 

person and conduct a brief investigation when the officer has a reasonable, 

articulable suspicion that criminal activity is taking place or is about to 

take place." State v. Lisenbee, 116 Nev. 1124, 1127, 13 P.3d 947, 949 

(2000); see also NRS 171.123(1); Terry v. Ohio, 392 U.S. 1, 27 (1968). To 

conduct an investigative stop, an officer must have more than an 

"inchoate and unparticularized suspicion or "hunch" that criminal 

activity is occurring; the officer must have "some objective justification for 

detaining a person." Lisenbee, 116 Nev. at 1128, 13 P.3d at 949 (quoting 

Terry, 392 U.S. at 27). 

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"But a 'seizure that is lawful at its inception can violate the 

Fourth Amendment if its manner of execution unreasonably infringes 

interests protected by the Constitution." State v. Beckman, 129 Nev. , 

, 305 P.3d 912, 91647 (2013) (quoting Illinois v. Caballes, 543 U.S. 

405, 407 (2005)). For an investigative stop to be reasonable, it "must be 

temporary and last no longer than is necessary to effectuate the purpose of 

the stop." Florida v. Royer, 460 U.S. 491, 500 (1983). "[An individual] 

may not be detained even momentarily without reasonable, objective 

grounds for doing so. . ." Id. at 498 (emphasis added). 

"[TI he nature of the police-citizen encounter can change—what 

may begin as a consensual encounter may change to an investigative 

detention if the police conduct changes and vice versa." United States v. 

Zapata, 997 F.2d 751, 756 n.3 (10th Cir. 1993). A consensual encounter is 

transformed into a seizure in violation of the Fourth Amendment "if, in 

view of all the circumstances surrounding the incident, a reasonable 

person would have believed that he was not free to leave." Immigration & 

Naturalization Serv. v. Delgado, 466 U.S. 210, 215 (1984). 

In Lisenbee, we considered such a transformation and 

determined the defendant was not "free to leave." 116 Nev. at 1128-30, 13 

P.3d at 950-51. There, we concluded that after the defendant produced 

identification demonstrating he was not the possible suspect police were 

looking for, MRS 171.123(4) prevented further detention by police. 3 Id. 

Accordingly, the defendant's further detention was unreasonable and 

3NRS 171.123(4) states in part that "[a] person must not be detained 

longer than is reasonably necessary to effect the purposes of this section 

[(temporary detention by peace officer of person suspected of criminal 

behavior)]." 

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resulted in an illegal seizure. Id. See also United States v. Lopez, 443 

F.3d 1280, 1285-86 (10th Cir. 2006) (holding that the officer's retention of 

the defendant's identification transformed a consensual encounter into an 

unconstitutional seizure because the officer's reasonable suspicion for the 

encounter was cured "[w]ithin seconds of reviewing [the defendant's] 

license," and, given the totality of the circumstances, the defendant would 

not have felt free to leave); State v. Westover, 10 N.E.3d 211, 219 (Ohio Ct. 

App. 2014) (concluding that "no reasonable person would [feel] free to 

terminate [an] encounter and go about their business, where an officer is 

holding that individual's identification and is using it to run a warrants 

check"). 

Veritably, scholars have noted the disagreement between 

other courts on whether a seizure has occurred for Fourth Amendment 

purposes when the police retain an individual's identification. See Aidan 

Taft Grano, Note, Casual or Coercive? Retention of Identification in PoliceCitizen Encounters, 113 Colum. L. Rev. 1283 (2013) (highlighting the 

differences between the Fourth and the D.C. Circuit Courts regarding 

whether a consensual encounter can become a seizure solely through the 

retention of an individual's identification). In United States v. Weaver, the 

Fourth Circuit Court of Appeals held that an officer's retention of the 

defendant's identification beyond its intended purpose was not a seizure, 

as the defendant was a pedestrian, and, while "awkward," the defendant 

"could have walked away from the encounter [without his identification]." 

282 F.3d 302, 311-12 (4th Cir. 2002). By contrast, in United States v. 

Jordan, the D.C. Circuit Court of Appeals held that a consensual 

encounter transformed into a seizure when officers retained the 

defendant's identification and continued questioning him, despite no 

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"articulable suspicion that would have made a brief Terry-style detention 

reasonable." 958 F.2d 1085, 1086-89 (D.C. Cir. 1992). Based on our 

previous holding in Lisenbee, and being mindful of NRS 171.123(4), we 

agree with the reasoning of the D.C. Circuit Court that generally a 

reasonable person would not feel free to leave when an officer retains a 

pedestrian's identification after the facts giving rise to articulable 

suspicion for the original stop have been satisfied. 

Here, Officer Shelley testified that he stopped Torres because 

Officer Shelley thought Torres was a minor out past curfew and too young 

to be drinking. Once Torres produced his ID card verifying he was not a 

minor and over the age of 21, the suspicion for the original encounter was 

cured and Officer Shelley no longer had reasonable suspicion to detain 

Torres. But rather than release Torres, Officer Shelley continued to 

detain him, and contacted dispatch to check for warrants. The officer 

explained his further detention of Torres as his "standard practice" 

because he "very often get[s] fake I.D.'s, altered information on I.D.'s, 

I.D.'s that resemble the person but is not truly that person." However, 

there is no evidence to show that Torres's ID card was fake or altered in 

any way. Like Lisenbee, where a consensual encounter transformed into 

an illegal seizure, Officer Shelley retained Torres's ID card after the 

reasonable suspicion for the original stop eroded. 4Nothing in the record 

provides a basis for Shelley's continued detention of Torres or offers a 

basis for us to conclude that a reasonable person in Torres's position was 

4Because Tones was a pedestrian, we do not address the application 

of Lisenbee or NRS 171.123(4) to a traffic stop. See, e.g., State v. Lloyd, 

129 Nev. , 312 P.3d 467 (2013) (discussing warrantless searches and 

the automobile exception). 

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free to leave. We conclude that under NRS 171.123(4), this continued 

detention of Torres transformed the investigative stop into an illegal 

seizure in violation of the Fourth Amendment. Because Torres was 

illegally seized, we must now examine whether the district court should 

have suppressed the firearm evidence Officer Shelley discovered in the 

search incident to arrest. 

The firearm evidence should have been suppressed because it was the fruit 

of an illegal seizure 

Generally, the exclusionary rule requires courts to exclude 

evidence that the police obtained in violation of the Fourth Amendment, 

thereby deterring any incentive for the police to disregard constitutional 

privileges. See generally Mapp v. Ohio, 367 U.S. 643, 656 (1961). Courts 

must also exclude evidence obtained after the constitutional violation as 

"indirect fruits of an illegal search or arrest." New York v. Harris, 495 

U.S. 14, 19 (1990). However, not "all evidence is 'fruit of the poisonous 

tree' simply because it would not have come to light but for the illegal 

actions of the police." Wong Sun v. United States, 371 U.S. 471, 487-88 

(1963). The United States Supreme Court has found that when the 

constitutional violation is far enough removed from the acquisition of the 

evidence, the violation is sufficiently "attenuated [so] as to dissipate the 

taint'" of the illegality and the evidence may be admitted. Id. at 491 

(quoting Nardone v. United States, 308 U.S. 338, 341 (1939)). To be 

admissible, the police must acquire the evidence "by means sufficiently 

distinguishable to be purged of the primary taint." Id. at 488, 491 

(internal quotations omitted) (excluding physical evidence because it was 

discovered "by the exploitation" of the illegality of the unlawful arrest, but 

not excluding statements made by the defendant several days after his 

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arrest because the causal connection had attenuated "the primary taint" 

(internal quotations omitted)). 

To resolve the suppression issue, the State urges this court to 

either create a per se rule of attenuation or apply the factors from Brown 

v. Illinois, 422 U.S. 590 (1975), and determine that attenuation exists 

here. Torres argues that we should not adopt the three-factor test from 

Brown to analyze whether the presence of an outstanding arrest warrant 

purges the taint of evidence discovered during an illegal seizure. We agree 

with Tones. 

In Brown, the police arrested the defendant without probable 

cause and without a warrant. Id. at 591. Thereafter, the police gave the 

defendant comprehensive Miranda5 warnings, and he proceeded to make 

incriminating statements. Id. The question presented to the United 

States Supreme Court was whether the Miranda warnings sufficiently 

attenuated the illegal arrest from the incriminating statements, such that 

the incriminating statements were not the fruit of the illegal arrest and 

were thus admissible. Id. at 591-92. In performing its attenuation 

analysis, the Court refused to adopt a "per se" rule of attenuation or lack 

thereof when a Fourth Amendment violation preceded Miranda warnings 

and subsequent confessions. Id. at 603. Rather, the Court established a 

three-part test for determining whether the taint of the evidence is 

attenuated from illegal police conduct such that the confession would be 

admissible: "The temporal proximity of the arrest and the confession, the 

presence of intervening circumstances, .. and, particularly, the purpose 

and flagrancy of the official misconduct ...." Id. at 603-04 (internal 

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

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citation and footnote omitted). One factor alone is not dispositive of 

attenuation. Id. Applying those factors and limiting its decision to the 

facts of the case before it, the Court concluded that the lower court 

erroneously assumed "that the Miranda warnings, by 

themselves,. . . always purge the taint of an illegal arrest." Id. at 605. 

To be sure, the Brown factors are well suited to address the 

factual scenario of that case in determining "whether a confession is the 

product of a free will under Wong Sun." Id. at 603-04. We do not perceive 

the Brown factors as particularly relevant when, as here, there was no 

demonstration of an act of free will by the defendant to purge the taint 

caused by an illegal seizure. 6Accordingly, in the absence of reasonable 

suspicion, the discovery of an arrest warrant is not "sufficiently 

distinguishable to be purged of the primary taint" from an illegal seizure. 

Wong Sun, 371 U.S. at 488 (internal quotations omitted). Thus, we agree 

with the Ninth and Tenth Circuits, as well as the Supreme Court of 

Tennessee, that without reasonable suspicion, the discovery of arrest 

warrants cannot purge the taint from an illegal seizure. See Lopez, 443 

F.3d 1280; United States v. Luckett, 484 F.2d 89 (9th Cir. 1973); State v. 

Daniel, 12 S.W.3d 420 (Tenn. 2000). 

6Some courts have considered the Brown factors when the 

"intervening circumstance" is the discovery of an arrest warrant, but these 

cases do not adequately address the difference between an intervening 

circumstance caused by a defendant's act of free will to purge the primary 

taint and the absence of a defendant's free will resulting from an illegal 

seizure. See, e.g., United States v. Green, 111 F.3d 515, 521-23 (7th Cir. 

1997); Golphin v. State, 945 So. 2d 1174, 1191-93 (Fla. 2006); People v. 

Mitchell, 824 N.E.2d 642, 649-50 (Ill. App. Ct. 2005). 

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Parraguirre 

--DO 01 

Douglas-- 

Saitta 

J. 

J. 

, J. 

We conclude that the further detention of Torres was not 

consensual at the time of the warrants check, and thus Torres was 

illegally seized. The officer retained Torres's ID card longer than 

necessary to confirm Torres's age, rendering Torres unable to leave. 

Because the officer did not have reasonable suspicion necessary to justify 

the seizure under NRS 171.123(4), the evidence discovered as a result of 

the illegal seizure must be suppressed as "fruit of the poisonous tree" since 

no intervening circumstance purged the taint of the illegal seizure. 

Therefore, we conclude that the district court in this case should have 

suppressed the evidence of the firearm discovered on Torres's person after 

the investigative stop transformed into an illegal seizure. 

For the reasons set forth above, we reverse the judgment of 

conviction and remand this matter to the district court to allow Torres to 

withdraw his guilty plea. 

 C.J. 

Hardesty 

We concur: 

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