THE STATE OF NEVADA, 

Appellant, 

vs. 

RICARDO ROBLES-NIEVES, 

Respondent. 

FILED 

JUL 2 5 2013 

No. 61537 

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129 Nev., Advance Opinion 55 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

Motion for a stay of trial court proceedings pending resolution 

of an appeal from an order granting a motion to suppress evidence. 

Motion granted. 

Catherine Cortez Masto, Attorney General, Carson City; Steven B. 

Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District 

Attorney, Clark County, 

for Appellant. 

David M. Schieck, Special Public Defender, and Robert Arroyo, Deputy 

Special Public Defender, Clark County, 

for Respondent. 

BEFORE THE COURT EN BANC. 

OPINION 

By the Court, HARDESTY, J.: 

Respondent Ricardo Robles-Nieves is in custody awaiting trial 

on a charge of murder with the use of a deadly weapon. He successfully 

litigated a pretrial motion to suppress his incriminating statement to 
police based on a claim that his statement was procured through the use of 

extrinsic falsehoods. While this court has adopted a rule concerning the 

use of intrinsic falsehoods in eliciting a confession, the issue of the coercive 

effect of using extrinsic falsehoods is an issue of first impression in 

Nevada. 

Faced with going to trial absent a key piece of evidence, the 

State exercised its statutory right to appeal from the order granting the 

motion to suppress. After several continuances and considering RoblesNieves' repeated assertion of his speedy-trial rights, the district court set a 

trial date and denied the State's request to stay the trial pending 

resolution of its appeal. The State then renewed its motion with this 

court. 

The State's motion provides the opportunity to address the 

factors that govern our discretionary decision on a motion for a stay in a 

criminal proceeding. We conclude that the four factors that govern our 

exercise of discretion in ruling on a stay motion in a civil proceeding under 

NRAP 8(c) are relevant to our exercise of discretion to grant a stay of a 

criminal proceeding pending resolution of an interlocutory suppression 

appeal. Those factors are: (1) whether the object of the appeal will be 

defeated if the stay is denied, (2) whether the appellant will suffer 

irreparable or serious injury if the stay is denied, (3) whether the 

respondent will suffer irreparable injury if the stay is granted, and (4) 

whether the appellant is likely to prevail on the merits in the appeal. In 

the context of an interlocutory suppression appeal, the first factor is the 

most significant because the appeal will be rendered moot and the State's 

right to appeal effectively eliminated if the trial proceeds. In that context, 

the third factor also is significant and may require consideration of the 

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defendant's speedy-trial rights where the defendant has asserted those 

rights and opposed the motion for a stay. Having considered the relevant 

factors, we conclude that they weigh in favor of granting a stay in this 

instance.' 

DISCUSSION 

The State has not always had the right to appeal from an 

order granting a motion to suppress evidence. See 1967 Nev. Stat., ch. 

523, § 287, at 1443-44 (adopting NRS 177.015 without provision for 

interlocutory appeal from an order resolving a motion to suppress 

evidence); see also State v. Pearce, 96 Nev. 383, 609 P.2d 1237 (1980) 

(observing that the Nevada Legislature gave the State the right to file an 

interlocutory appeal from an order granting a motion to suppress evidence 

in 1971 but then deleted the provision the following legislative session); 

Cook v. State, 85 Nev. 692, 694-95, 462 P.2d 523, 526 (1969) (observing 

that interlocutory appeal from trial court's ruling on motion to suppress 

evidence "is not authorized"). Part of the concern with affording the State 

the right to such an interlocutory appeal was that it would cause delay 

that would impede the defendant's right to a speedy trial. See Cook, 85 

Nev. at 695, 462 P.2d at 526 ("An interlocutory appeal from the trial 

court's ruling on. . . a motion [to suppress evidence] is not authorized 

because of attendant delay and the desire to avoid the piecemeal handling 

1-We granted the motion and stayed the trial in an order entered on 

June 10, 2013. Although time constraints prevented us from explaining 

our decision in a formal opinion at that time, we explained in our order 

that a formal opinion, setting forth the grounds for our decision, would be 

forthcoming. Cf. Indep. Am. Party v. Lau, 110 Nev. 1151, 1153 n.3, 880 

P.2d 1391, 1392 n.3 (1994). 

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of cases?), Franklin v. Eighth Judicial Dist. Court, 85 Nev. 401, 404, 455 

P.2d 919, 921 (1969) ("Piecemeal review does not promote the orderly 

handling of a case, and is particularly disruptive in criminal cases where 

the defendant is entitled to a speedy resolution of the charges against 

him."). In 1981, the Nevada Legislature adopted NRS 177.015(2), which 

grants the State the right to appeal to this court from a district court's 

pretrial order granting a motion to suppress evidence. 1981 Nev. Stat., ch. 

702, § 1, at 1706. 

In addition to authorizing an interlocutory appeal from an 

order granting a suppression order, NRS 177.015(2) expressly authorizes 

this court to "enter an order staying the trial for such time as may be 

required" if the court decides to entertain the State's appeal or if a stay 

"otherwise appears necessary." Providing for a stay makes sense given the 

timing of pretrial suppression motions. Under NRS 174.125(1), motions to 

suppress evidence generally must be filed before trial and, in the largest 

judicial districts in this state, the motion may be filed as little as 15 days 

before the trial date, NRS 174.125(3)(a). Because the motion may be filed 

such a short time before trial, it is not unreasonable to expect that a stay 

would be needed if the State exercises its right to an interlocutory appeal 

from an order granting the motion. Although NRS 177.015(2) 

acknowledges this situation by allowing for a stay, it does not identify any 

factors that are relevant to the court's exercise of its discretion to stay the 

trial. In that void, we turn to Rule 8 of the Nevada Rules of Appellate 

Procedure, which addresses requests to stay proceedings while an appeal 

is pending. 

Unfortunately, Rule 8 has little to say about stays in criminal 

cases beyond the procedural requirements for filing the motion such as 

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pursuing relief in the district court in the first instance (which the State 

did in this case) and what must be included in the motion. NRAP 8(a)(1), 

(2). When it comes to stays in criminal cases in particular, the rule simply 

refers to NRS 177.095 and unidentified statutes following it. NRAP 8(e). 

Those statutes, however, similarly have little to say beyond authorizing or 

mandating stays in certain circumstances. None of the statutes that 

provide discretionary authority to grant a stay identify factors that should 

govern the exercise of that discretion. See, e.g., NRS 177.115; NRS 

177.125. 

In contrast, Rule 8(c) provides specific factors to be considered 

when a stay motion has been filed in a civil appeal. Those factors are: (1) 

whether the object of the appeal will be defeated if the stay is denied, (2) 

whether the appellant will suffer irreparable or serious injury if the stay is 

denied, (3) whether the respondent will suffer irreparable or serious injury 

if the stay is granted, and (4) whether the appellant is likely to prevail on 

the merits in the appeal. NRAP 8(c). The parties seem to agree that these 

factors should guide the decision whether to grant a stay under NRS 

177.015(2). Because the factors set forth in NRAP 8(c) allow us to take 

into consideration the interests of both the prosecution and the defense 

and the legislative concern about delay that is reflected in the short appeal 

period (two days for filing a notice in the district court and five days for 

filing a separate notice in this court), State v. Loyle, 101 Nev. 65, 67, 692 

P.2d 516, 518 (1985) (Steffen, J., dissenting) (discussing the reason for the 

short appeal period in NRS 177.015(2)), we will look to those factors in 

deciding whether to grant a stay under NRS 177.015(2). 

We have not ascribed particular weights to any of the stay 

factors in the civil context, but we have recognized that depending on the 

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type of appeal, certain factors may be especially strong and 

counterbalance other weak factors. Mikohn Gaming Corp. v. McCrea, 120 

Nev. 248, 251, 89 P.3d 36, 38 (2004). Our stay analysis in the context of 

an appeal from an order granting a motion to suppress evidence 

necessarily reflects the interlocutory nature of the appeal and the concerns 

about delay that are implicit in NRS 177.015(2). Accordingly, the first and 

third factors take on added significance in our stay analysis. 

Object of the appeal 

The parties do not seriously dispute the first factor—whether 

the object of the State's appeal will be defeated if the stay is denied. The 

object of the State's appeal is to have the confession available for use at 

trial. If the stay is denied, that object will be defeated as the trial will 

proceed without the suppressed evidence. The Legislature has provided 

for an interlocutory appeal of an order granting a motion to suppress 

evidence, NRS 177.015(2), which demonstrates the intent to secure review 

of an order suppressing evidence before trial. If the trial proceeds while 

the appeal is pending, the State will lose the opportunity for that review. 

We therefore conclude that this factor weighs heavily in favor of a stay. 

Irreparable or serious harm if stay is denied 

The second factor is the subject of some dispute—whether the 

State will suffer irreparable or serious injury if the stay is denied. The 

State argues that it will be injured if the trial proceeds because its case is 

not as strong without that evidence and Robles-Nieves may be acquitted 

as a result. Robles-Nieves suggests that the State will not be harmed 

because even if it succeeds on some level in this appeal, the district court 

likely will grant the motion again on other grounds and therefore the 

State will still be faced with proceeding to trial without the suppressed 

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evidence. Both arguments are somewhat speculative. But based on the 

information provided to this court, it appears that the State's case absent 

the suppressed evidence is circumstantial at best and the suppressed 

evidence is particularly probative of Robles-Nieves' guilt. Considering 

those circumstances, the seriousness of the charged offense, and the 

absence of any recourse for the State if Robles-Nieves is acquitted, we 

conclude that this factor weighs in favor of a stay. 

Irreparable or serious harm if stay is granted 

The third factor we must consider is whether Robles-Nieves 

will be irreparably harmed if the stay is granted. Robles-Nieves offers two 

arguments: he will remain incarcerated unnecessarily based on a coerced 

confession, and the delay will infringe his speedy-trial rights. The first 

argument is somewhat relevant but not controlling in this case since 

denying the stay would not result in Robles-Nieves' immediate release. 2 

The second argument gets to the heart of this factor as the Legislature 

clearly was concerned about the impact that interlocutory appeals under 

NRS 177.015(2) would have on the defendant's speedy-trial rights. See 

Loyle, 101 Nev. at 67, 692 P.2d at 518 (Steffen, J., dissenting) (observing 

that NRS 177.015(2)'s "short [appeal period] reflects a concern for 

preserving the right to speedy trials for defendants who have successfully 

moved to suppress evidence"). Because this presents a significant issue, 

we take this opportunity to provide some guidance on the relationship 

between a defendant's speedy-trial rights and a stay during an 

21t is not entirely clear from the documents before us, but it appears 

that Robles-Nieves remains in custody at least in part because he is 

subject to an immigration hold. 

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interlocutory appeal under NRS 177.015(2). There are two speedy-trial 

rights at issue: the constitutional right protected by the Sixth Amendment 

and a statutory right to a trial within 60 days of arraignment under NRS 

178.556(1). We address the constitutional right first. 

Irreparable harm based on constitutional right to speedy trial 

The United States Supreme Court has adopted a four-part 

balancing test to determine whether continuances have infringed on a 

defendant's constitutional right to a speedy trial: (1) the length of the 

delay, (2) the reason for the delay, (3) the defendant's assertion of the 

right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 

530 (1972). The four factors are "related" and "must be considered 

together with such other circumstances as may be relevant." Id. at 533. 

The United States Supreme Court has applied the same test "to determine 

the extent to which appellate time consumed in the review of pretrial 

motions should weigh towards a defendant's speedy trial claim." United 

States v. Loud Hawk, 474 U.S. 302, 314 (1986). We similarly conclude 

that these factors are relevant when considering whether a stay during an 

interlocutory appeal under NRS 177.015(2) will irreparably harm the 

defendant by infringing on his constitutional right to a speedy trial. 

The first speedy-trial factor—length of the delay—is "a 

triggering mechanism." Barker, 407 U.S. at 530. "[T]here must be a delay 

long enough to be 'presumptively prejudicial." Loud Hawk, 474 U.S. at 

314 (quoting Barker, 407 U.S. at 530). Here, Robles-Nieves was arrested 

on the charges on November 23, 2011. Thus far, he has been held 

approximately 18 months; just over 12 months since his arraignment. Of 

that time, approximately 8 months is attributable to this appeal (starting 

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from October 17, 2012—the date that the district court first granted a 

continuance based on the appeal). 

Under the second speedy-trial factor—the reason for the 

delay—different reasons are assigned different weights. Barker, 407 U.S. 

at 531. For example, if the State deliberately delays the trial to hamper 

the defense, that would weigh heavily against the State, whereas delay 

due to overcrowded courts generally is weighed less heavily. Loud Hawk, 

474 U.S. at 315. The Supreme Court has observed that "[gliven the 

important public interests in appellate review, it hardly need be said that 

an interlocutory appeal by the [State] ordinarily is a valid reason that 

justifies delay." Id. (citation omitted). Several factors should be 

considered in assessing the purpose and reasonableness of an 

interlocutory appeal by the State: "the strength of the [State's] position on 

the appealed issue, the importance of the issue in the posture of the case, 

and—in some cases—the seriousness of the crime," i.e., whether it is 

"sufficiently serious to justify restraints that may be imposed on the 

defendant pending the outcome of the appeal." Id. at 315, 316. Looking at 

these factors, the State's interlocutory appeal serves a legitimate purpose 

and is reasonable. First, the appeal does not appear to be frivolous. That 

the appeal is not frivolous is reflected by this court's decision to exercise 

its discretion to entertain the appeal after considering the State's 

preliminary showing of good cause. See NRS 177.015(2) ("The Supreme 

Court may establish such procedures as it determines proper in requiring 

the appellant to make a preliminary showing of the propriety of the appeal 

and whether there may be a miscarriage of justice if the appeal is not 

entertained."). Second, the appellate issue is significant to the case 

because the confession is a key piece of evidence. Third, the charged 

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offense, first-degree murder, is sufficiently serious to justify the restraints 

that may be imposed on Robles-Nieves pending the outcome of this appeal. 

We therefore conclude that the reason for the delay (the State's pursuit of 

this interlocutory appeal) does not weigh heavily against the State. 

The third speedy-trial factor—Robles-Nieves' assertion of the 

right—would seem to present no great difficulty: he promptly asserted his 

speedy-trial rights at arraignment in district court and has been 

consistent in objecting to any continuances and stays (even those that 

would allow the district court to rule on his suppression motion before the 

trial). The State, however, asserts that the motion to suppress should be 

treated as an implied waiver of any speedy-trial right for the time 

required to finally resolve the motion, apparently including the 

interlocutory appeal. In this, the State equates the motion with a pretrial 

habeas petition, which by statute (NRS 34.700(1)(b)) must include a 

waiver of speedy-trial rights. Although the filing of the motion may be 

viewed as conduct that conflicts with the assertion of the speedy-trial 

right, see Loud Hawk, 474 U.S. at 314-15 (noting that although defendants 

asserted speedy-trial rights, they also "consumed six months by filing 

indisputably frivolous petitions for rehearing and for certiorari" and "also 

filled the District Court's docket with repetitive and unsuccessful 

motions"), we are not convinced that it necessarily implicates a waiver of 

speedy-trial rights. In this case, the suppression motion appears to be one 

of the only motions filed by the defense, it was timely filed, and it cannot 

be characterized as frivolous given the district court's order granting the 

motion. Tellingly, the record indicates that Robles-Nieves wanted to 

proceed to trial and objected to a continuance that would have allowed the 

judge who heard the suppression motion to make a decision on the motion. 

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Thus, at worst, the time consumed by the motion weighs against RoblesNieves, but we will not treat the motion as a waiver of the right. 

The final speedy-trial factor—prejudice to the defendant—is 

assessed in light of the interests that the speedy-trial right was designed 

to protect: "to prevent oppressive pretrial incarceration," "to minimize 

anxiety and concern of the accused," and "to limit the possibility that the 

defense will be impaired." Barker, 407 U.S. at 532. Robles-Nieves focuses 

on the first of these concerns—he has been incarcerated for approximately 

18 months away from his family. We do not take this concern lightly. It is 

not, however, the most serious of the interests that the speedy-trial right 

was designed to protect. The most serious of those interests is to limit 

impairment to the defense caused by delay. Id. There is no suggestion 

that the delay has impaired the defense. 

We must balance all of these speedy-trial factors to determine 

whether the stay requested by the State will irreparably harm RoblesNieves by infringing his constitutional right to a speedy trial. On balance, 

we conclude that there has not been a speedy-trial violation. 3That 

balance could change because two of the factors are fluid—the length of 

the delay and the prejudice to the defendant. By taking an interlocutory 

appeal and requesting a stay, the State takes the risk that at some point 

the balance may tip against it. But because the balance has not yet 

tipped, Robles-Nieves has not demonstrated that granting the stay would 

result in irreparable injury to him. 

30f note, the district court denied a defense motion to dismiss based 

on a speedy-trial violation a few weeks before the State filed its stay 

motion in this court. 

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Irreparable harm based on statutory speedy-trial right 

The asserted harm that will be suffered by Robles-Nieves if a 

stay is granted also includes the statutory right to a trial within 60 days of 

arraignment. See NRS 178.556(1). We have recognized that the 60-day 

rule set forth in NRS 178.556 is mandatory only when there is a lack of 

good cause for the delay. Huebner v. State, 103 Nev. 29, 31, 731 P.2d 

1330, 1332 (1987). Here, the good cause for the delay mirrors the second 

of the Barker factors (the reason for the delay). The Legislature has 

determined that the State should have the right to appeal from an order 

granting a motion to suppress evidence. NRS 177.015(2). That right 

would be severely limited, if not effectively eliminated, were the delay 

attributable to such an appeal not considered good cause for purposes of 

the 60-day rule. We therefore conclude that unless the appeal is frivolous 

or involves only a tangential issue, the State's interlocutory appeal under 

NRS 177.015(2) will be regarded as good cause for delay in bringing a 

defendant to trial. Thus, similar to the constitutional speedy-trial right, 

Robles-Nieves' statutory right will not be irreparably harmed if the stay is 

granted. 

Likelihood of success on the merits 

The final consideration in whether to grant the motion for a 

stay is the likelihood that the State will succeed on the merits. In some 

circumstances, this stay factor is significant. But in the context of an 

interlocutory appeal under NRS 177.015(2), we conclude that it is far less 

significant than the first stay factor. As we have already explained, the 

first stay factor takes on added significance in the context of an 

interlocutory appeal from an order granting a suppression motion because 

denying a stay would effectively eliminate the right to appeal afforded by 

12 
NRS 177.015(2). Because the first stay factor weighs heavily in favor of a 

stay, the final factor will counterbalance the first factor only when the 

appeal appears to be frivolous or the stay sought purely for dilatory 

purposes. Cf. Mikohn Gaming Corp. v. McCrea, 120 Nev. 248, 253, 89 

P.3d 36, 40 (2004) (taking similar approach to stay analysis in 

interlocutory appeal from order refusing to compel arbitration). We have 

already observed in the context of the speedy-trial analysis related to the 

third factor that the appeal here does not appear to be frivolous. 

Regardless of whether we may ultimately agree with the State or RoblesNieves on the merits of the suppression issue, there is at least a fair 

dispute as to whether our decision in Sheriff, Washoe County v. Bessey, 

112 Nev. 322, 914 P.2d 618 (1996), adopted a rule that the use of extrinsic 

falsehoods in eliciting a confession is coercive per se. As the district court 

observed in its order granting the motion, Bessey adopted the rationale of 

another state court that had recognized such a rule but did so in the 

context of the use of intrinsic falsehoods and no Nevada case addresses 

extrinsic falsehoods. Under the circumstances, we conclude that this 

factor does not weigh strongly either way in the stay analysis. 

Considering all of the stay factors, we conclude that the first 

factor is most significant in this case. There has not been a sufficient 

showing of irreparable harm to Robles-Nieves or that there is not a 

likelihood of success on the merits to counterbalance that factor—if a stay 

is denied and the trial commences, the object of the appeal will be defeated 

as will the purpose of NRS 177.015(2). We therefore grant the State's 

motion and stay the trial pending resolution of this appeal. In view of the 

concerns with disrupting a criminal proceeding wherein a defendant has a 

constitutional and statutory right to a speedy trial, and to the extent our 

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docket permits, we will expedite appeals from orders granting motions to 

suppress evidence. 

J. 

Hardesty 

We concur: