PALMIERI VS. CLARK CO.

131 Nev., Advance Opinion 102.

IN THE COURT OF APPEALS OF THE STATE OF NEVADA

JUDY PALMIERI, No. 65143

Appellant,

vs.

CLARK COUNTY, A POLITICAL

SUBDIVISION OF THE STATE OF

NEVADA; AND DAWN STOCKMAN, DEC 3 1 2015

CE096, INDIVIDUALLY AND IN HER

OFFICIAL CAPACITY AS AN OFFICER

EMPLOYED BY THE COUNTY OF

CLARK,

Respondents.

Appeal from a district court order granting summary

judgment in a civil rights and a torts action. Eighth Judicial District

Court, Clark County; Gloria Sturman, Judge.

Affirmed.

Potter Law Offices and Cal J. Potter, III, and Cal J. Potter, IV, Las Vegas,

for Appellant.

Steven B. Wolfson, District Attorney, and Matthew J. Christian, Deputy

District Attorney, Clark County,

for Respondents.

BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

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OPINION

By the Court, SILVER, J.:

Appellant Judy Palmieri was criminally charged after a search

of her residence revealed several violations of the Clark County Code's

provisions for the health and welfare of animals. In obtaining the warrant

to search Palmieri's residence, respondents Dawn Stockman and Clark

County relied in part on a tip from an informant who, Palmieri later

alleged, provided a false identity when she filed a complaint against

Palmieri. After Palmieri obtained the evidence underlying her allegation

that the informant provided a false identity, Palmieri sued Stockman and

Clark County, asserting a 42 U.S.C. § 1983 claim, a Monelll claim, and

several state law causes of action. Respondents moved for summary

judgment, which the district court granted.

On appeal, the primary issue is whether the district court

erred by granting summary judgment with respect to Palmieri's § 1983

claim against Stockman based on a finding that Stockman was entitled to

qualified immunity. 2 We hold that Stockman was entitled to qualified

1Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).

2 Palmieri also challenges the portions of the district court's order

granting Clark County summary judgment on her Monell claim and

Stockman summary judgment on her claims for negligent and intentional

infliction of emotional distress, conspiracy, and malicious prosecution. We

have considered these arguments, and they lack merit because, as fully

discussed below, we conclude that there was administrative probable

cause sufficient to support an administrative search warrant. For the

same reason, we need not reach Palmieri's argument that the district

court improperly concluded that Stockman was entitled to discretionary

act immunity. Although Palmieri's complaint presented additional claims,

she does not challenge the district court's grant of summary judgment

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immunity for the following reasons: (1) Palmieri failed to make a

substantial showing that Stockman knowingly and intentionally, or with a

reckless disregard for the truth, included a false statement in the search

warrant affidavit supporting the search warrant for Palmieri's residence;

and (2) Palmieri failed to establish a genuine issue of material fact as to

whether probable cause existed to support an administrative search

warrant for her residence. Therefore, we conclude the district court

appropriately granted Stockman and Clark County's motion for summary

judgment. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Individuals significant to this case

Respondent Dawn Stockman is a licensed veterinary

technician and animal control officer for Clark County Animal Control—

an agency of respondent Clark County. At the time of the events

underlying this appeal, Stockman had been an animal control officer for a

little more than three years. Appellant Judy Palmieri is a pet store owner

and a resident of Clark County; her home was searched pursuant to a

warrant obtained by Stockman. Kaitlyn Nichols is not a party to this case,

but someone used her name to file a complaint against Palmieri with

animal control. Prior to the events giving rise to this appeal, Nichols

worked at one of Palmieri's pet stores.

...continued

with respect to those claims on appeal, and, therefore, we do not address

them today. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161

11.3, 252 P.3d 668, 672 n.3 (2011) (providing that issues not raised on

appeal are deemed waived).

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The complaint and investigation

On May 10, 2010, an animal control supervisor with the City

of Las Vegas, Richard Molinari, received a complaint from a woman who

identified herself as Kaitlyn Nichols (the Informant) against Palmieri for

alleged animal abuse. Because Palmieri is a Clark County property owner

and outside the jurisdiction of the City of Las Vegas, Molinari forwarded

the Informant's complaint to Clark County Animal Control. Clark County

Animal Control assigned the complaint to Stockman, who called the

Informant on May 10, 2010, to discuss her complaint. During the

conversation, Stockman requested that the Informant prepare a written

complaint. The Informant subsequently prepared a signed written

statement and faxed it to Stockman. After receiving the written

statement from the Informant, Stockman called the Informant once again

to confirm that she received everything that the Informant had sent.

Stockman later provided the following account of her

conversation with the Informant in a search warrant affidavit:

[Nichols] then told me that she use[d] to

work for Mrs. Palmieri at Meadow[s] Pets. She

was asked to help Mrs. Palmieri move some boxes

at her place of residence. She arrived at

[Palmieri's residence]. Once Ms. Nichols was

inside the residence she saw several animals in

the house. Ms. Nichols also told me there w[ere]

several animals kept in the garage in kennels.

The animals on the property looked very thin and

several appeared to have mats and fecal [matter]

all over them. Ms. Nichols said a lot of the

animals appeared to be unhealthy. Ms. Nichols

then went on to tell me Mrs. Palmieri breeds the

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dogs and sells them at her pet shop. Ms. Nichols

also stated Mrs. Palmieri also houses animals that

are sick or too young for the pet shop in her house.

To corroborate the Informant's complaint, Stockman checked

property records to confirm Palmieri owned the residence identified by the

Informant, and she reviewed Clark County Animal Control's records for

previous citations against Palmieri. The search revealed that Palmieri

owned the residence identified by the Informant, Palmieri owned a pet

store, Clark County Animal Control had responded to Palmieri's residence

in January 2006 regarding allegations that Palmieri had a dead animal in

her garage, 3 and Clark County Animal Control had received numerous

health and welfare complaints regarding one of Palmieri's pet stores, Bark

Avenue, including a complaint in September 2007. 4 Stockman did not

3 Jason Elff, an animal control officer for Clark County Animal

Control, responded to Palmieri's residence regarding the dead animal

complaint. Officer Elff reported that he smelled a foul odor but could not

confirm whether it was a dead animal. Palmieri would not permit Officer

Elff on the property without a warrant and advised him to leave. Knowing

that Palmieri previously refused to allow an animal control officer to enter

her property without a warrant, Stockman elected to seek a search

warrant after receiving the Informant's complaint.

4 It is unclear from the record exactly how many citations Palmieri's

pet stores have received. During her deposition, Palmieri acknowledged

that in 2000 she received an 18-count indictment related to violations at

one of her pet stores. Palmieri also acknowledged she received citations in

December 2009 for violations at one of her pet stores; however, she alleges

that the basis for the citations was false. Regarding Bark Avenue, the

search warrant affidavit only details the September 2007 complaint, and

the record does not indicate why Stockman did not provide details

regarding the other complaints against Palmieri's businesses.

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investigate the Informant's complaint further or solicit additional

information from the Informant. 5

The warrant

Based on the complaint and investigation Stockman decided

to seek a warrant authorizing the search of Palmieri's residence.

Stockman prepared an "Administrative Search and Seizure Warrant" and

an "Application and Affidavit for Administrative Search and Seizure

Warrant," which included the above account of her conversation with the

Informant and the corroborating information that Stockman gathered.

Two of Stockman's supervisors and a deputy district attorney

subsequently reviewed and approved Stockman's proposed search warrant

and search warrant affidavit, and a district court judge signed the search

warrant and authorized the search on May 18, 2010, after Stockman

swore to the truth of the contents of the affidavit.

The search

Stockman executed the search warrant together with another

animal control officer and an officer of the Las Vegas Metropolitan Police

Department on May 19, 2010. 6 During the search, the officers found 24

5 Before becoming an animal control officer and veterinary

technician, Stockman worked at one of Palmieri's pet stores. As such, she

had independent knowledge that Palmieri owned a pet store at one time.

But Stockman did not include that information in the search warrant

affidavit.

6 The group knocked and announced at Palmieri's front door, but

Palmieri did not answer. The group then walked around Palmieri's house

to a garage where they knocked on the garage door and heard dogs

barking. After gaining access to Palmieri's backyard, the group entered

Palmieri's house and announced their presence again. Palmieri, who had

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adult dogs and 5 puppies in Palmieri's house and garage. Palmieri could

not provide proof that any of the animals had received a rabies vaccination

or been spayed or neutered as required by Clark County Code. The

officers found that Palmieri provided the animals a sanitary environment

and adequate food and water. However, because two elderly dogs looked

sickly and because Palmieri could not provide proof the dogs had been to a

veterinarian's office recently, the officers impounded those dogs for a

welfare check by a veterinarian. The officers also impounded the five

puppies because Palmieri did not have a breeding permit. As a result of

the search, the officers cited Palmieri for failing to provide proof of rabies

vaccination, failing to obtain a permit for intact dogs, and failing to

provide proof of medical care. 7

After the search, Palmieri questioned Stockman regarding the

warrant and the Informant's complaint. In response, Stockman showed

Palmieri the Informant's signed complaint, and Palmieri acknowledged

that the signature on the complaint looked like Kaitlyn Nichols'

...continued

been in the shower when the officers first arrived, subsequently appeared

from around the corner.

As Stockman and the other animal control officer began searching

the house, the LVMPD officer instructed Palmieri to go outside where she

could read the warrant. According to Palmieri, she was not permitted to

enter her residence for approximately 20 to 30 minutes. During that time,

Palmieri was not handcuffed, but "[she] was in [her] pajamas, had no

underwear on, no makeup, [and] no shoes."

7 The Clark County District Attorney's office subsequently brought

five charges against Palmieri in Las Vegas Justice Court. For reasons

that are unclear from the appendix, the justice court dismissed those

charges.

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signature. 8 According to Palmieri, Stockman told her "animal control

ha[d] never been able to get anything on [her] until now." 9

The aftermath of the search

Approximately five months after the search of Palmieri's

residence, Kaitlyn Nichols signed an affidavit averring that she never

made a complaint regarding Palmieri to Clark County Animal Control or

signed any such complaint. Nichols further indicated that she had never

been to Palmieri's residence and that she believed a former coworker "who

ha[d] previously stolen [her] identity and forged [her] name[] on bank

checks" was responsible for filing the complaint against Palmieri. 1 °

Palmieri subsequently sued Stockman and respondent Clark

County. Palmieri's complaint included four claims for relief: (1) a 42

U.S.C. § 1983 claim against Stockman for violation of her constitutional

rights under the Fourth and Fourteenth Amendments, (2) a Monell claim

asserting § 1983 liability against Clark County, (3) a claim against

Stockman encompassing several state law causes of action, and (4) a

8 During her deposition, Palmieri explained that she was familiar

with Nichols because Nichols worked at one of her pet stores, Frisky Pet

Emporium.

9At her deposition, Palmieri stated she understood Stockman's

statement to mean "on the very day the [breeding permit] ordinance went

into effect, that they waited with a warrant till that day so that if they

could find anything, they could add more charges to it, and that this way it

would be their hopes of finally getting something."

10 During her deposition, Palmieri stated that the former coworker

identified by Nichols was one of Palmieri's former employees and that

Nichols lived with the former coworker that she identified.

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separate claim against Stockman and Clark County for "illegal search and

illegal warrant."

Palmieri's deposition

During her deposition, Palmieri acknowledged that the Clark

County Code requires a homeowner to obtain a special permit or a zoning

variance to possess more than 3 dogs, and she acknowledged she did not

obtain such a permit or variance before housing 29 animals at her

residence. Palmieri also stated that, for approximately 18 years, she had

been bringing animals home from her pet stores and keeping them at her

residence for short periods. Palmieri further acknowledged she had been

charged numerous times for health- and welfare-related violations of the

Clark County Code—both personally and through her businesses.

Although Palmieri acknowledged that Clark County was not

involved with all of her previous violations, she stated that "the head of

Animal Control has had [her] on his particular list for many years."

According to Palmieri, she is on the head of Animal Control's list because

he "doesn't like women, and. . . [he does not] like[ ] women involved in pet

stores." She believes Clark County wants "to see [her] out of

business. . . . [and that] the county doesn't appreciate pet stores or

business—viable businesses in the county. And that's kind of their quest."

Palmieri, however, explained that she did not believe Stockman was part

of the conspiracy or that Stockman acted with malice against her.

Instead, Palmieri suggested Stockman "came in as an officer instructed to

go ahead and serve th[e] warrant and see what she could come up with."

Palmieri also stated she believes Stockman actually received the

complaint, but she thinks a former employee called Clark County Animal

Control, pretending to be Nichols.

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Summary judgment

After the close of discovery, Clark County and Stockman

moved for summary judgment, arguing Palmieri failed to provide

sufficient evidence to support her claims, and the district court granted

that motion in its entirety. This appeal followed.

ANALYSIS

In this appeal, we primarily address whether the district court

appropriately granted Stockman summary judgment on Palmieri's § 1983

claim. Palmieri contends that she established a genuine issue of material

fact as to whether Stockman was entitled to qualified immunity, and,

therefore, she asserts that the district court improperly granted Stockman

summary judgment on her § 1983 claim. Stockman disagrees.

Standard of review

This court reviews a district court's decision granting or

denying summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724,

729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate when

the evidence, viewed in the light most favorable to the nonmoving party,

demonstrates that no genuine issue of material fact remains and that the

moving party is entitled to judgment as a matter of law. Id.; NRCP 56(c).

Qualified immunity

Section 1983 provides a check against the abuse of state power

by creating a cause of action against state and local officials who violate

an individual's federal rights while acting within the scope of their duties.

State v. Eighth Judicial Dist. Court (Anzalone), 118 Nev. 140, 153, 42 P.3d

233, 242 (2002). To successfully assert a claim under § 1983, the plaintiff

must establish that "the conduct complained of: (1) was committed by a

person acting under color of state law, and (2) deprived the plaintiff of

rights, privileges, or immunities secured by the Constitution or laws of the

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United States." Id. at 153, 42 P.3d at 241. However, where a state or

local official's discretionary act does not violate clearly established federal

statutory or constitutional rights, the doctrine of qualified immunity

affords that official protection from civil liability. Butler ex rel. Biller v.

Bayer, 123 Nev. 450, 458, 168 P.3d 1055, 1061 (2007). Because qualified

immunity provides 7an entitlement not to stand trial or face the other

burdens of litigation," courts should resolve qualified immunity defenses

"at the earliest possible stage in litigation, ' and, therefore, "a finding of

qualified immunity is an appropriate basis for granting summary

judgment." Id. (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001),

overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236

(2009)).

In determining whether a government official is entitled to

summary judgment based on qualified immunity, this court considers

(1) whether the facts, when "ft] aken in the light most favorable to the

party asserting the injury. . . show the officer's conduct violated a

constitutional right," and (2) whether, at the time of the alleged violation,

the right was clearly established. Saucier, 533 U.S. at 201; Butler, 123

Nev. at 458-59, 168 P.3d at 1061-62 (applying the Saucier test). We need

not follow the rigid sequential approach set forth in Saucier, but rather,

may determine which prong to address first based upon the specific

context of the case before this court, See Pearson, 555 U.S. at 236. If no

constitutional violation occurred, even where the facts are taken in the

light most favorable to the § 1983 plaintiff, or if the constitutional right

was not clearly established at the time of the alleged constitutional

violation, then the defendant is entitled to qualified immunity and

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summary judgment is appropriate. Butler, 123 Nev. at 458-59, 168 P.3d

1061-62 (citing Saucier, 533 U.S. at 201-02).

On appeal, Palmieri argues that Stockman was not entitled to

qualified immunity because the search of her residence violated her

constitutional rights under the Fourth and Fourteenth Amendments.

With regard to Palmieri's argument that Stockman violated her

constitutional rights, we address two issues: first, we consider whether

Palmieri may challenge the validity of the search warrant based on the

veracity of the search warrant affidavit under Franks v. Delaware, 438

U.S. 154 (1978); and second, we examine whether, even without a Franks

violation, the search warrant affidavit was insufficient to establish

probable cause. We consider each of these constitutional issues in turn.

Franks v. Delaware and the Informant's fictitious name

Palmieri asserts that Stockman searched her residence

pursuant to an invalid search warrant because Stockman included the

Informant's fictitious name in the search warrant affidavit, and thereby

"knowingly and intentionally, or with reckless disregard for the truth,"

submitted a fictitious search warrant affidavit. By contrast, Stockman

argues that she was not required to investigate the Informant's identity;

that Palmieri did not raise a genuine issue of material fact as to whether

Stockman knowingly and intentionally, or with reckless disregard for the

truth, included a false statement in the search warrant affidavit; and that,

even if the Informant's name is purged from the search warrant affidavit,

it was nevertheless sufficient to establish probable cause.

Franks, a criminal case, is the seminal decision addressing a

challenge to the validity of a search warrant based on the veracity of the

supporting search warrant affidavit. In considering whether a criminal

defendant may challenge the validity of the search warrant by attacking

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the search warrant affidavit, the Franks Court confirmed that search

warrant affidavits are entitled to a presumption of validity. 438 U.S. at

171. But the Franks Court reasoned that if search warrant affidavits were

not subject to impeachment, then the probable cause requirement would

be a nullity, as government officials could deliberately falsify information

with impunity. Id. at 168. Thus, the Franks Court concluded an

evidentiary hearing is required where (1) "the defendant makes a

substantial preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was included by the

affiant in the warrant affidavit," and (2) "the allegedly false statement is

necessary to the finding of probable cause." Id. at 155-56; see also United

States v. DeLeon, 979 F.2d 761, 763-64 (9th Cir. 1992) (applying Franks to

omissions of material fact). Even when a search warrant affidavit

includes a false statement within the contemplation of Franks, an

evidentiary hearing is not required if, after the false statement is purged,

the search warrant affidavit remains sufficient to support a finding of

probable cause. Franks, 438 U.S. at 171-72.

While the Nevada Supreme Court has consistently applied the

standard set forth in Franks in the criminal context, see, e.g., Garrettson v.

State, 114 Nev. 1064, 1068, 967 P.2d 428, 430 (1998), it has not considered

the applicability of Franks to § 1983 claims. This court, however, can

discern no reason not to apply Franks in the civil context; whether a

criminal defendant or a civil plaintiff raises Franks, the conduct under

attack is identical. Moreover, nearly every circuit of the federal courts of

appeal has applied Franks in addressing defenses of qualified immunity

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from civil liability. 11 Therefore, we take this opportunity to clarify that

Franks applies in the civil context.

In the criminal context, Franks issues generally arise prior to

trial during suppression hearings where the trial court is necessarily the

finder of fact. Because the jury is generally the finder of fact in civil cases,

such as this one, we must consider what role the judge plays in resolving a

Franks issue on summary judgment given the United States Supreme

Court's qualified immunity jurisprudence and the requirement in Franks

that the party moving for an evidentiary hearing make a substantial

preliminary showing. Franks, 438 U.S. at 155, 170. To resolve that

question, we look to the United States Supreme Court's decision in Harlow

v. Fitzgerald, 457 U.S. 800 (1982), and persuasive caselaw from the Ninth

Circuit of the United States Court of Appeals.

To prevent excessive disruption of government and facilitate

the resolution of meritless claims on summary judgment, the Supreme

Court held in Harlow that "government officials performing discretionary

functions generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known." Id.

at 818. That standard places the focus of the qualified immunity analysis

11 See, e.g., Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010);

Miller v. Prince George's Cnty., 475 F.3d 621, 627 (4th Cir. 2007); Kohler v.

Englade, 470 F.3d 1104, 1113 (5th Cir. 2006); Burke v. Town of Walpole,

405 F.3d 66, 82 (1st Cir. 2005); Pierce v. Gilchrist, 359 F.3d 1279, 1293

(10th Cir. 2004); Hunter v. Namanny, 219 F.3d 825, 829 (8th Cir. 2000);

Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997); Kelly v. Curtis, 21

F.3d 1544, 1554 (11th Cir. 1994); Rivera v. United States, 928 F.2d 592,

604 (2d Cir. 1991); Forster v. Cnty. of Santa Barbara, 896 F.2d 1146, 1148

(9th Cir. 1990); Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989).

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on the objective reasonableness of the government official's conduct as

measured by clearly established law. Id. Thus, in the qualified immunity

context, bare allegations of malice are insufficient "to subject government

officials either to the costs of trial or to the burdens of broad-reaching

discovery." Id. at 817-18.

The Ninth Circuit has observed that a tension exists "between

Harlow's emphasis on 'objective reasonableness' and cases in which the

'clearly established law' at issue contains a subjective element, such as

motive or intent." Branch v. Tunnell, 937 F.2d 1382, 1385 (9th Cir. 1991),

overruled on other grounds by Galbraith v. Santa Clara, 307 F.3d 1119

(9th Cir. 2002). Based on that tension, the Ninth Circuit has adopted a

standard for overcoming summary judgment that parallels the threshold

showing that a criminal defendant must make to establish entitlement to

a Franks hearing. Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995).

Specifically, the Ninth Circuit concluded that

a plaintiff can only survive summary judgment on

a defense claim of qualified immunity if the

plaintiff can both establish a substantial showing

of a deliberate falsehood or reckless disregard and

establish that, without the dishonestly included or

omitted information, the magistrate would not

have issued the warrant.

Id. at 789. If a § 1983 plaintiff both makes the requisite substantial

showing and establishes that the issuing court would not have issued the

warrant without the false information, then, and only then, does the

question of whether the government official's conduct was intentional or

reckless become a factual determination for the jury. Id. We find the

Ninth Circuit's reasoning in Branch and Hervey persuasive, and,

therefore, we adopt Hervey's standard for deciding Franks claims in the

summary judgment context. We address each prong in turn below.

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Deliberate falsehood or reckless disregard

The evidence here does not support the proposition that

Stockman made a knowing and intentional false statement in her

affidavit. To the contrary, Palmieri conceded in her deposition that

Stockman did not harbor malice against her, that Stockman actually

received the complaint, and that Stockman was merely doing her job in

serving the search warrant. Nevertheless, the question of whether

Stockman showed reckless disregard for the truth still requires analysis

and elaboration.

Reckless disregard for the truth may be shown by establishing

that the warrant affiant entertained serious doubts with regard to the

truth of the search warrant affidavit's allegations. United States v.

Williams, 737 F.2d 594, 602 (7th Cir. 1984) (citing St. Amant v. Thompson,

390 U.S. 727, 731 (1968)) (concluding that the First Amendment definition

of reckless disregard for the truth is applicable in the Franks context). A

party attacking the veracity of a search warrant affidavit may also

establish reckless disregard for the truth inferentially "from circumstances

evincing 'obvious reasons to doubt the veracity' of the allegations" in the

search warrant affidavit. Id. (quoting St. Amant, 390 U.S. at 732).

Under Franks, conclusory assertions and allegations of

negligence or innocent mistake are insufficient to warrant an evidentiary

hearing. 438 U.S. at 171. And a criminal defendant seeking to attack a

search warrant affidavit cannot rely on the false statements of any

nongovernmental informant but, rather, must limit his or her challenge to

the deliberate falsity or reckless disregard of the affiant. Id. ("The

deliberate falsity or reckless disregard whose impeachment is permitted

today is only that of the affiant, not of any nongovernmental informant.").

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Here, in support of her challenge to the veracity of the search

warrant affidavit, Palmieri provided an affidavit from Nichols in which

Nichols averred that she never made or signed a complaint against

Palmieri, she had never been to Palmieri's residence, and she believed a

former coworker was responsible for filing the complaint. For purposes of

summary judgment, we view the facts in the light most favorable to

Palmieri and assume the Informant provided Stockman a false name-

Kaitlyn Nichols. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d

1026, 1029 (2005); see also Saucier v. Katz, 533 U.S. 194, 201 (2001)

(providing that courts must consider the facts in the light most favorable

to the party asserting that his or her constitutional rights were violated

when considering whether to grant summary judgment based on qualified

immunity), overruled on other grounds by Pearson v. Callahan, 555 U.S.

223, 236 (2009). But, although Stockman included the Informant's

fictitious name in the search warrant affidavit, the alleged falsehood is

attributable to the Informant, rather than Stockman, and Palmieri cannot

use Franks to impeach the Informant. See Franks, 438 U.S. at 171

(explaining that a challenge to a search warrant affidavit may not be

based on a nongovernmental informant's deliberate falsehood or reckless

disregard).

Palmieri's only direct allegation relevant to whether Stockman

recklessly disregarded the truth is that Stockman should have known that

the Informant provided a false identity. That allegation assumes that an

officer has a duty to investigate and confirm an informant's identity prior

to obtaining a search warrant based on an informant's tip. But Palmieri

did not present, and our research has not revealed, any legal authority to

support that assumption. To the contrary, the United States Supreme

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Court has considered whether officers may rely on tips from anonymous

informants and concluded that a tip from an anonymous informant can

form at least part of the basis for reasonable suspicion or even probable

cause. See Alabama v. White, 496 U.S. 325 (1990) (discussing an

anonymous tip in the reasonable suspicion context); see also Illinois v.

Gates, 462 U.S. 213 (1983) (considering an anonymous tip in the probable

cause context).

Because the anonymity of an informant affects the weight of

the various indicia of reliability accompanying the informant's tip, see

Gates, 462 U.S. at 237, the real issue in the present case is whether the

Informant is properly classified as an anonymous informant or an

identified, citizen informant for purposes of assessing the reasonableness of

the search warrant. And, as discussed more below, where a citizen

informant provides a tip via telephone and states his or her occupation or

name and home and cellular telephone numbers, courts have found that

such information is sufficient to categorize the informant as an identified

citizen informant whose tip should be credited with a greater degree of

reliability than that of an anonymous informant. See, e.g., Maumee v.

Weisner, 720 N.E.2d 507 (Ohio 1999) (cataloging relevant cases, rejecting

an argument that an informant who provided a tip via telephone may

have provided a false identity, and concluding that the informant, who

provided a name and home and cellular telephone numbers, was an

identified citizen informant whose tip should be recognized as more

reliable than that of an anonymous informant).

The evidentiary basis for Palmieri's argument is also lacking.

Palmieri presented no evidence to suggest that Stockman knew the

Informant provided a false identity or entertained serious doubts as to the

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Informant's identity. See Williams, 737 F.2d at 602 (concluding that

reckless disregard for the truth may be established through evidence

establishing that the warrant affiant entertained cast serious doubts

regarding the allegations in the search warrant affidavit). Nor did she

present evidence from which a fact-finder could infer an obvious reason to

doubt the veracity of the allegations in the search warrant affidavit. Id.

(holding that reckless disregard for the truth may be proven inferentially

through evidence establishing an obvious reason to doubt the allegations

in the search warrant affidavit). By contrast, Stockman testified that she

believed and continues to believe that Nichols was the Informant, and

Palmieri did not dispute that testimony. Palmieri, therefore, did not make

the substantial preliminary showing necessary to survive a motion for

summary judgment based on qualified immunity.

In reality, Palmieri's allegation assumes that Stockman

should have known or suspected that the Informant provided a false

identity without providing a basis for that assumption, and, therefore, her

assertion amounts to a conclusory allegation of negligence, and such an

allegation does not constitute a substantial showing that Stockman acted

with a reckless disregard for the truth when she included the Informant's

false name in the search warrant affidavit. See Franks, 438 U.S. at 171

(explaining that conclusory allegations and allegations• of negligence are

insufficient to warrant an evidentiary hearing); see also Hervey, 65 F.3d at

789 (explaining that a plaintiff must make the same showing to reach a

jury in a § 1983 action as would be required of a criminal defendant to

obtain an evidentiary hearing under Franks). As Palmieri's offer of proof

is insufficient to satisfy the first prong of Franks, we conclude she cannot

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challenge the search warrant based on the search warrant affidavit's

veracity.

Because Palmieri failed to demonstrate that Stockman

included the Informant's fictitious name in the search warrant affidavit

with a reckless disregard for the truth, we need not proceed to the second

prong of Franks. See Hervey, 65 F.3d at 788-89 (providing that to survive

summary judgment on a Franks issue, a plaintiff must make a substantial

showing of a deliberate falsehood or reckless disregard for the truth and

establish that the search warrant affidavit was insufficient to establish

probable cause without the false information). But because Palmieri

raises a number of issues regarding the sufficiency of the search warrant

and because all of Palmieri's arguments regarding the district court's

grant of summary judgment turn on probable cause, we proceed to

consider whether the search warrant affidavit established probable cause

to search Palmieri's residence such that Stockman is entitled to qualified

immunity under Saucier. In considering whether the search warrant was

supported by probable cause, we review the issuing court's probable cause

determination based on the search warrant affidavit as written, given

Palmieri's failure to make the requisite substantial preliminary showing

sufficient to overcome summary judgment with regard to her Franks

argument. See Franks, 438 U.S. at 171-72 (providing that where a party

satisfies the Franks test, the reviewing court must purge the false

statements from the search warrant affidavit and assess probable cause

based on the modified affidavit).

Probable cause

Palmieri contends the judge who issued the "Administrative

Search and Seizure Warrant" lacked an adequate basis for doing so

because Stockman did not investigate the Informant's identity, and,

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therefore, the "Application and Affidavit for Administrative Search and

Seizure Warrant" provided no indicia of the Informant's reliability. She

further complains that the search warrant affidavit contains no indication

that Stockman corroborated the Informant's complaint. 12 Stockman, on

the other hand, argues probable cause existed because she received

specific, credible information indicating that animals on Palmieri's

property were kept in a condition that jeopardized their health and

welfare, and because she corroborated the identity and residence of the

alleged wrongdoer.

In evaluating an issuing court's decision to issue a search

warrant, we do not conduct a de novo review; instead, we consider whether

the evidence, taken together, demonstrated a substantial basis for the

issuing court's probable cause determination. Keesee v. State, 110 Nev.

997, 1002, 879 P.2d 63, 67 (1994); see also West Point-Pepperell, Inc. v.

Donovan, 689 F.2d 950, 959 (11th Cir. 1982) (explaining that for both

administrative and criminal search warrants, appellate courts apply the

same standard of review). And we are mindful that "[a] grudging or

negative attitude by reviewing courts toward warrants will tend to

discourage police officers from submitting their evidence to a judicial

officer before acting." United States v. Ventresca, 380 U.S. 102, 108 (1965).

Nevertheless, we review a district court's legal conclusions regarding a

12 We have considered Palmieri's remaining arguments with regard

to whether the search warrant was supported by probable cause, and, for

the reasons discussed below, we conclude that under the totality of the

circumstances, the search warrant was supported by administrative

probable cause.

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search's constitutionality de novo. State v. Lloyd, 129 Nev. „ 312

P.3d 467, 469 (2013).

The Fourth Amendment to the United States Constitution and

Article 1, Section 18 of the Nevada Constitution prohibit unreasonable

searches and seizures. Probable cause is the standard by which a search's

reasonableness is tested, and the type of probable cause necessary to

support a search warrant differs depending on the objective of the

search. 13 See Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978); Camara

v. Mun. Court, 387 U.S. 523, 534 (1967). As relevant to this case, criminal

search warrants require a stronger showing of probable cause, whereas

administrative search warrants generally are supportable by a lesser

showing of probable cause. E.g., Marshall, 436 U.S. at 320 (holding that

"[p]robable cause in the criminal law sense is not required" to support an

administrative search warrant); see also Michigan v. Clifford, 464 U.S.

287 (1984) (discussing administrative probable cause in the context of a

search of a private residence).

The search warrant here is entitled "Administrative Search

and Seizure Warrant," but the title affixed to a search warrant is not

13 We are cognizant that a warrant or probable cause is not the sole

measure of reasonableness where such requirements would undermine the

governmental purpose underlying the search. E.Z. v. Coler, 603 F. Supp.

1546, 1558 (N.D. Ill. 1985), affd sub nom. Darryl H. v. Coler, 801 F.2d 893

(7th Cir. 1986). For example, in child welfare law, it has been recognized

that the fastest way to verify an allegation of abuse or neglect is to access

the home and observe the child, and that to require officials to corroborate

allegations through independent sources prior to executing a search

warrant may not only be impractical, but may unnecessarily delay

examination of a child's situation, possibly resulting in harm or death to

the child. Id. at 1558-59.

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determinative of the legal standard by which its reasonableness is

assessed. See Clifford, 464 U.S. at 294 (providing that the objective of the

search determines whether an administrative or a criminal warrant is

required). As a preliminary matter, therefore, we consider whether the

search warrant in the present case is properly classified as an

administrative or a criminal search warrant. 14

Generally, an administrative warrant is a warrant issued by a

judge authorizing an administrative agency to conduct a search "to

determine whether physical conditions exist which do not comply with

minimum standards prescribed in local regulatory ordinances." See

Camara, 387 U.S. at 530 (discussing administrative searches in the

14 Clark County did not argue before the district court that the

search warrant was supported by administrative probable cause, and on

appeal, it did not raise the issue in its opening or reply briefs. As a

general rule, issues not raised before the district court or in the appellant's

opening brief on appeal are deemed waived. See Old Aztec Mine, Inc. v.

Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the

trial court, unless it goes to the jurisdiction of that court, is deemed to

have been waived and will not be considered on appeal."), see also Powell

v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3

(2011) (explaining that issues not raised on appeal are deemed waived).

But this court has discretion to consider issues of constitutional dimension

sua sponte notwithstanding the parties' failure to raise such issues before

the district court or on appeal. See Desert Chrysler-Plymouth, Inc. v.

Chrysler Corp., 95 Nev. 640, 643-44, 600 P.2d 1189, 1191 (1979) (providing

that an appellate court may raise constitutional issues sua sponte on

appeal).

During oral argument, this court raised the issue of administrative

probable cause and permitted the parties an opportunity to discuss that

issue. Because the issue of whether administrative probable cause

supported the search warrant presents an important constitutional

question, we have determined to address it sua sponte. See id.

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context of a constitutional challenge to a warrantless administrative

search); see also Administrative Warrant, Black's Law Dictionary (10th ed.

2014) ("A warrant issued by a judge at the request of an administrative

agency that seeks to conduct an administrative search."), and

Administrative Search, Black's Law Dictionary (10th ed. 2014) ("The

inspection of a facility by one or more officials of an agency with

jurisdiction over the facility's fire, health, or safety standards."). Unlike a

criminal search warrant that authorizes a search for evidence of criminal

conduct, an administrative search warrant merely authorizes a routine

inspection for regulatory compliance. See Camara, 387 U.S. at 530.

Because an administrative search warrant only authorizes "a routine

inspection of the physical condition of private property," an inspection

pursuant to such a warrant "is a less hostile intrusion than the typical

policeman's search for the fruits and instrumentalities of crime." Id.

Where a warrant is required to conduct a search, the objective

of the search determines whether an administrative or a criminal warrant

is required. Clifford, 464 U.S. at 294. If the primary objective of a search

is to gather evidence of criminal conduct, then a criminal search warrant

is required. Id. On the other hand, an administrative search warrant is

required where the primary objective of the search is to ascertain

compliance with the minimum standards set forth in regulatory

ordinances. See id.; see also Camara, 387 U.S. at 530. The United States

Supreme Court, however, has acknowledged that, notwithstanding the

underlying objective of an administrative search warrant, discovery of a

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regulatory violation during an administrative search may lead to criminal

penalties. 15 Specifically, the Supreme Court has observed:

Like most regulatory laws, fire, health, and

housing codes are enforced by criminal processes.

In some cities, discovery of a violation by the

inspector leads to a criminal complaint. Even in

cities where discovery of a violation produces only

an administrative compliance order, refusal to

comply is a criminal offense, and the fact of

compliance is verified by a second inspection,

again without a warrant. Finally, as this case

demonstrates, refusal to permit an inspection is

itself a crime, punishable by fine or even by jail

sentence.

Camara, 387 U.S. at 531 (footnotes omitted); see also Bd. of Cnty. Comm'rs

v. Grant, 954 P.2d 695, 701 (Kan. 1998) (concluding that a potential

"criminal penalt[y] is not a constitutional obstacle to obtaining an

administrative search warrant for routine inspections").

Title 10 of the Clark County Code governs the care and control

of animals in Clark County. As relevant to this appeal, Title 10 sets forth

standards to protect the health and welfare of animals in Clark County—

for example, it includes numerous provisions prohibiting various forms of

animal cruelty. Clark County Code §§ 10.32.010-10.32.21. To ensure

compliance with the regulatory framework, Title 10 authorizes searches of

15 During a valid administrative search, authorities may seize

evidence of criminal conduct in plain view. Clifford, 464 U.S. at 294.

Authorities may not use that evidence as a justification to expand the

scope of the initial administrative search, but they may use evidence

seized under the plain-view doctrine to obtain a criminal search warrant.

Id.

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001o)

private property. Specifically, Clark County Code § 10.24.06 provides as

follows:

The animal control officer and any police officer in

the county while on duty, for just cause, shall have

the right to enter upon private property or public

property in the county in order to examine or

capture any animal thereon or therein; provided,

however, that no such officer or employee shall

have the right to enter a house or structure which

is in use as a residence without having first

secured a search warrant.

And Clark County Code § 10.40.040(b)provides that persons who violate

Title 10 are subject to civil or criminal penalties.

In the present case, Stockman obtained a warrant to search

Palmieri's residence, as authorized by Clark County Code § 10.24.060.

The warrant was entitled "Administrative Search and Seizure Warrant."

Consistent with its title, the search warrant did not authorize a search of

Palmieri's private property to uncover evidence of criminal conduct, but

rather, instructed officers to ascertain the condition of the animals on

Palmieri's property. Specifically, the search warrant instructed officers to

determine whether the animals on Palmieri's property were unhealthy,

held in violation of Clark County Code Title 10, or kept in a cruel

condition. And if officers determined that any animals on Palmieri's

property were unhealthy or kept in a cruel condition, the search warrant

authorized the officers to seize and hold such animals until their release

was ordered by the district court or until Palmieri complied with

conditions set forth by the officers. If determined necessary by a

veterinarian, the search warrant also provided for the immediate

euthanasia of any animals seized.

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Although a person who commits animal cruelty or otherwise

violates Clark County Code Title 10 may be subject to criminal penalties,

see NRS 574.100, the primary objective of the search of Palmieri's

property, as demonstrated by the warrant authorizing the search, was to

protect the health and welfare of Palmieri's animals. As the primary

objective of the search warrant in the present case was to protect the

health and welfare of animals on Palmieri's property, we conclude the

search warrant constituted an administrative search warrant. And given

our conclusion that the search warrant constituted an administrative

search warrant, we next consider whether probable cause existed to

support an administrative search warrant.

The probable cause requirement as applied to administrative

search warrants was first discussed by the United States Supreme Court

in Camara. There, the Court noted that where an administrative search

is undertaken pursuant to a neutral inspection scheme, the heightened

showing of probable cause required for a criminal search is impractical

and unnecessary because many violations could not be corroborated

absent a search and because the privacy invasion associated with an

administrative search is limited. Camara, 387 U.S. at 537.

Since Camara, the Supreme Court has determined that

probable cause to support an administrative search warrant may be based

either on a neutral inspection scheme or on specific evidence of a violation.

Marshall v. Barlow's, Inc., 436 U.S. 307 320 (1978). And, interpreting

Marshall, lower courts have held that, even where an administrative

search arises from specific evidence of a violation, rather than as part of a

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neutral inspection scheme, traditional criminal probable cause is not

required. 16

For example, in Commonwealth v. DeLuca, the court upheld

an administrative search warrant allowing officials to search a home for

code violations regarding the home's condition and habitability. 6 Pa. D.

& C. 5th 306, 324-25 (Pa. Ct. C.P., Del. Cnty. 2008). There, probable cause

sufficient to support the warrant existed based upon the specific

allegations regarding the property's condition, the property's history of

similar complaints, and officials' observations of trash and graffiti outside

and in the home. Id. at 310, 326. The court observed "that an

administrative search warrant does not require as high a level of probable

cause as a criminal search warrant." Id. at 323. It further noted the

search was driven by public health and welfare considerations, and the

defendants' invasion of privacy was negligible when balanced with the

city's need to inspect the property. Id. at 325-26.

Although an administrative search warrant based on specific

evidence of a violation does not require criminal probable cause, that

proposition does not provide guidance as to the quantum of specific

evidence necessary to establish administrative probable cause. In West

Point-Pepperell, Inc. v. Donovan, the United States Court of Appeals for

the Eleventh Circuit considered the showing necessary to establish

administrative probable cause. 689 F.2d 950, 957-58 (11th Cir. 1982).

16 See&e.g., In re Establishment Inspection of Gilbert & Bennett Mfg.

Co., 589 F.2d 1335, 1339 (7th Cir. 1979); In re Alameda Cnty. Assessor's

cr Parcel Nos. 537-801-2-4 & 537-850-, 672 F. Supp. 1278, 1287 (N.D. Cal.

1987); Pieper v. United States, 460 F. Supp. 94, 97-98 (D. Minn. 1978),

affd 604 F.2d 1131 (8th Cir. 1979); In re Inspection of Titan Tire, 637

N.W.2d 115, 123 (Iowa 2001).

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There, the Eleventh Circuit reasoned that even though a lesser showing of

probable cause is required for an administrative search warrant given the

limited intrusion associated with an administrative search, the

administrative search warrant must still satisfy the Fourth Amendment's

basic purpose, "which is 'to safeguard the privacy and security of

individuals against arbitrary invasions by government officials." Id. at

958 (quoting Marshall, 436 U.S. at 312).

To satisfy that requirement, the Eleventh Circuit observed

that an administrative search must not subject individuals "to the

unbridled discretion of 'executive and administrative officers, particularly

those in the field, as to when to search and whom to search." Id. (quoting

Marshall, 436 U.S. at 323). Thus, the Eleventh Circuit concluded that

administrative probable cause may be found where "the proposed

inspection is based upon a reasonable belief that a violation has been or is

being committed" and that the belief is supported "by a showing of specific

evidence sufficient to support a reasonable suspicion of a violation." Id.

We agree with the Eleventh Circuit's rationale in Donovan and conclude

that to establish administrative probable cause based on evidence of a

specific violation, a search warrant affidavit must show specific evidence

sufficient to support a reasonable suspicion of a violation.

To determine whether reasonable suspicion exists, courts look

to the totality of the circumstances. Alabama v. White, 496 U.S. 325, 330-

31 (1990) (applying the totality of the circumstances test to determine

whether an anonymous informant's tip established reasonable suspicion to

justify an investigatory stop); see also State v. Rincon, 122 Nev. 1170,

1173-74 (2006) (explaining that to assess whether an investigatory stop

was supported by reasonable suspicion, courts look to the totality of the

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circumstances). In considering the totality of the circumstances, we

analyze both the "content of information possessed by police and its degree

of reliability." White, 496 U.S. at 330 (comparing quanta of proof required

for reasonable suspicion and probable cause analyses). But, in comparison

to criminal probable cause, reasonable suspicion is a less demanding

standard because it does not require information possessing the same

quality or content as criminal probable cause, and because it can be

established with information that is less reliable than that required to

demonstrate criminal probable cause. Id.

In the present case, we consider whether the Informant's tip,

as corroborated, exhibited sufficient indicia of reliability to support

reasonable suspicion for a search warrant for Palmieri's residence. See

Jones v. United States, 362 U.S. 257, 269 (1960) (concluding hearsay may

support a search warrant "so long as a substantial basis for crediting the

hearsay is presented"), overruled on other grounds by United States v.

Salvucci, 448 U.S. 83 (1980). Because the totality of the circumstances

approach is concerned with the quantity and quality of information, a tip

that has a relatively high degree of reliability will require less

corroborating information to establish the requisite quantum of

administrative probable cause. See White, 496 U.S at 330. In considering

the reliability of an informant's tip, numerous federal and state courts

have determined that a tip from an identified citizen informant is

presumably reliable because an identified citizen that witnesses and

reports a crime has no apparent motive to falsify information. 17

17 See Fabrikant v. French, 691 F.3d 193, 216 (2d Cir. 2012)

(reasoniTii—t1TaPinformation provided by an identified bystander with no

apparent motive to falsify has a peculiar likelihood of accuracy, and. . . an

continued on next page...

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When categorizing informants as anonymous or identified,

courts are flexible in assessing the type and amount of information

necessary to identify an informant. See City of Maumee v. Weisner, 720

N.E.2d 507, 514 (Ohio 1999) (considering whether an identified

informant's tip established reasonable suspicion). For example, in

Weisner, the Supreme Court of Ohio considered whether an informant who

provided a tip via telephone would be considered identified for the purpose

of assessing the informant's credibility. Id. at 509, 513. There, the

informant called 9-1-1 to report a suspected drunk driver. Id. at 509.

During the call, the informant provided the dispatcher with his name and

...continued

identified citizen informant is presumed to be reliabla') (quoting Panetta

v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)); Ewing v. City of Stockton,

588 F.3d 1218, 1224 (9th Cir. 2009) (concluding an identified witness "was

a citizen witness, not an informant, and such witnesses are generally

presumed reliable"); United States v. Martinelli, 454 F.3d 1300, 1307 (11th

Cir. 2006) (observing that "[t]he courts have traditionally viewed

information drawn from an ordinary witness or crime victim with

considerably less skepticism than information derived from anonymous

sources"); Edwards v. Cabrera, 58 F.3d 290, 294 (7th Cir. 1995) (noting

that an identifiable "citizen informant is inherently more reliable than the

usual police informants who are often mired in some criminal activity

themselves"); United States v. Pasquarille, 20 F.3d 682, 689 (6th Cir.

1994) (holding that a citizen informant's tip was presumptively reliable

because the citizen informant was an identified eyewitness to the alleged

crime); Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985)

(noting "the skepticism and careful scrutiny usually found in cases

involving informants, sometimes anonymous, from the criminal milieu, is

appropriately relaxed if the informant is an identified victim or ordinary

citizen witness"); United States v. Philips, 727 F.2d 392, 397 (5th Cir.

1984) (concluding that "[w]hen information is received from an identified

bystander or victim-eyewitness to a crime, . . . reliability need not be

established in the officer's affidavit') (internal quotation marks omitted).

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cellular and home telephone numbers, and he remained on the telephone

with the dispatcher to assist the responding officer in locating the

suspected drunk driver. Id. Based on those facts, the Weisner court

specifically rejected the suspected drunk driver's contention that the

informant was anonymous because the informant may have fabricated his

identity. Id. at 514. Instead, the court concluded that the informant was

sufficiently identified to warrant recognizing the informant's tip as more

reliable than that of an anonymous informant, noting that it was

undisputed that the informant provided his name and cellular and home

telephone numbers. Id. The Weisner court also reasoned that, because

the informant maintained continuous contact with the dispatcher during

the reported incident, he considered face-to-face contact a possibility and

was unlikely to falsify a report given the potential repercussions. Id.

And Weisner is not the only case in which courts have been

flexible with regard to the type and amount of information necessary to

categorize an informant as identified. In United States v. Pasquarille, 20

F.3d 682, 683, 687 (6th Cir. 1994), the court categorized an informant as

an identified citizen informant where the informant did not provide his

name, but rather identified himself as a transporter of prisoners.

Similarly, in Edwards v. Cabrera, 58 F.3d 290, 294 (7th Cir. 1995), the

court treated an unnamed informant as an identified citizen informant

where the police were aware the informant was a bus driver.

Here, Palmieri argues the Informant was anonymous and the

information was, therefore, unreliable. We disagree. As reported to the

issuing judge, the Informant initially contacted Richard Molinari, an

animal control supervisor with the City of Las Vegas, to file a complaint

and provided the name Kaitlyn Nichols. After Molinari forwarded the

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complaint to Clark County Animal Control, Stockman spoke with the

Informant by phone, and the Informant again provided the name Kaitlyn

Nichols. 18 Based on the sequence of events reported by Stockman, which

Palmieri does not dispute, the issuing judge could have inferred that the

Informant provided a telephone number at which Clark County Animal

Control could reach the Informant. And, similar to Weisner, the issuing

judge could have inferred that the Informant's continued participation in

the reporting process suggested that the Informant considered the

possibility of face-to-face contact and was unlikely to fabricate a report

given the potential consequences. Arguably, the information the

Informant provided could have subjected the Informant to prosecution for

perjury, a category D felony under NRS 199.130, for "caus[ing] to be made,

executed or signed, any false or fictitious affidavit. . . for the purpose of

securing a warrant for the searching of the premises. . . of any other

person." As such, the Informant provided Stockman the type and amount

of information needed to identify the Informant, and Stockman provided

that information to the issuing judge in the search warrant affidavit.

We are mindful, of course, of the requirement that this court

must consider "the evidence, and any reasonable inferences drawn from

it. . . in a light most favorable to the nonmoving party." Wood v. Safeway,

Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Accordingly, we

assume that the Informant, in identifying herself as Kaitlyn Nichols,

provided Stockman a false name. But the reasonableness of a search

18Notably, Palmieri acknowledged that she believes that Stockman

received the tip from an informant who identified herself as Kaitlyn

Nichols. And Palmieri acknowledged that the signature on Stockman's

complaint appeared to be Kaitlyn Nichols' signature.

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warrant is not assessed based on information acquired subsequent to a

search, but rather, must be considered based on information provided to

the magistrate in the search warrant affidavit. Maryland v. Garrison, 480

U.S. 79, 85 (1987). As discussed above, Palmieri did not establish a

genuine issue of material fact with regard to whether Stockman knew or

should have known that the Informant provided a false identity. As

known at the time of issuance of the search warrant, the Informant was

identified, and, therefore, we conclude her tip, at the time, was entitled to

a presumption of reliability.

Our categorization of the Informant as an identified citizen

informant is not the only basis for concluding that her tip, as perceived by

Stockman and the issuing judge, demonstrated significant indicia of

reliability. Where an informant's tip is based on personal knowledge, and

includes an explicit, detailed description of alleged criminal activity, the

informant's tip is entitled to greater weight than the weight accorded to a

secondhand description. Illinois v. Gates, 462 U.S. 213,234 (1983). In the

present case, the Informant indicated that she observed violations of the

Clark County Code in Palmieri's residence firsthand, and she provided a

detailed description of those violations, reporting that she saw several

animals in Palmieri's house and garage, that the animals looked

unhealthy and thin and appeared to have matted fur and fecal matter all

over them, and that Palmieri keeps animals at her house that are too sick

or young to be housed at her pet store. 19 Because the Informant's tip was

detailed and based on firsthand observation and because the Informant's

19 We note that Palmieri does not argue that Stockman did not

accurately describe the substance of the Informant's report in the search

warrant affidavit.

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reported relationship to Palmieri provided an objectively reasonable

explanation for the Informant's Opportunity to observe those violations, we

conclude that the basis of the Informant's knowledge provides additional

support for the Informant's presumed reliability. Moreover, the

Informant's allegations did not relate to an isolated incident, but rather, to

unhealthy conditions that develop over a lengthy period of time. Thus, the

Informant's allegations provided reason to believe that there was an

ongoing violation of Clark County's standards for the health and welfare of

animals in Palmieri's residence.

And Stockman did not merely rely on the Informant's

complaint; she also corroborated the Informant's report by verifying that

Palmieri owned the reported residence and reviewing records that

revealed Clark County Animal Control had previously received health and

welfare complaints regarding Palmieri's residence and businesses.

Neither before the district court nor before this court has Palmieri

suggested that Stockman did not actually verify this information, which

Stockman stated she verified in the search warrant affidavit.

Given the foregoing, we conclude that the Informant's specific,

detailed allegations regarding; ongoing animal cruelty in Palmieri's

residence, combined with the Informant's reliability and basis of

knowledge and the corroborating information gathered by Stockman were

sufficient to support a reasonable suspicion that Palmieri was

endangering the health and welfare of animals on her property. 2° We

20 The actual scope of the search and the results of the search do not

affect our probable cause determination, Maryland v. Garrison, 480 U.S.

79, 85 (1987) ("The validity of the warrant must be assessed on the basis

of the information that the officers disclosed, or had a duty to discover and

continued on next page...

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reiterate that our review of the issuing court's probable cause

determination is not de novo, but rather, is limited to an evaluation of

whether the evidence as a whole, including the Informant's presumed

reliability, the Informant's personal knowledge and detailed description of

violations, and the corroborating information provided by Stockman,

...continued

to disclose, to the issuing Magistrate."). However, we note that Stockman

and the accompanying animal control officer limited the scope of their

search as required by the administrative search warrant, and that the

search revealed that (1) Palmieri kept 29 dogs in her house and garage,

(2) two dogs appeared sickly, (3) Palmieri could not provide proof that the

dogs received rabies vaccinations, and (4) Palmieri did not have a permit

to possess intact dogs.

We are cognizant that the search was an unpleasant experience for

Palmieri. But the search did not exceed the limited scope of the

administrative search warrant. Moreover, it only took the officers one to

one-and-a-half hours to search Palmieri's residence, to observe 29 dogs, to

request that Palmieri provide the relevant paperwork, and to remove 7

dogs from Palmieri's residence. Although Palmieri was not detained based

on suspicion of criminal behavior, we note that the 20 to 30 minute period

during which Palmieri was removed from her residence, but not

restrained, was well within the one-hour limit for temporary detentions.

See NRS 171.123(4) ("A person must not be detained longer than is

reasonably necessary to effect the purposes of this section, and in no event

longer than 60 minutes.").

We also note that the manner of the search in the present case did

not approach the intrusiveness of the methods frequently used for

searches related to criminal conduct. See, e.g., Muehler v. Mena, 544 U.S.

93, 95-96, 100, 102 (2005) (upholding a search of a residence where a

Special Weapons and Tactics team was used to secure a residence that

was subject to a search warrant, and the inhabitants of the residence were

handcuffed and detained in a garage for two to three hours during the

ensuing search). In perspective, the invasion of Palmieri's privacy interest

was low compared to the regulatory need to ensure code compliance and

protect the health and welfare of the many dogs on Palmieri's property.

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provided a substantial basis to conclude administrative probable cause

existed to search Palmieri's residence. Keesee v. State, 110 Nev. 997, 1002,

879 P.2d 63, 67 (1994). Our holding today simply recognizes that under

these facts, the totality of the circumstances supported a finding of

administrative probable cause to believe there was evidence in Palmieri's

residence of animal cruelty or a violation of Clark County's codes for the

health and welfare of animals. 21 See Alabama v. White, 496 U.S. 325, 330-

21-The concurrence questions whether the Nevada Supreme Court's

decision in Owens v. City of North Las Vegas, 85 Nev. 105, 450 P.2d 784

(1969), imposed a requirement that officers must first seek permission to

enter a property before obtaining an administrative search warrant. In

Owens, the supreme court relied on the United States Supreme Court's

decision in Camara v. Municipal Court, 387 U.S. 523 (1967), to resolve a

challenge to the validity of an administrative search warrant. There, the

Owens )Zourt suggested that, as a practical matter, officers should seek

permission to inspect a property before turning to the warrant process.

But, the language used by the Owens ,eourt closely follows the United

States Supreme Court's decision in Camara. Compare Owens, 85 Nev. at

111, 450 P.2d at 787-88 ("As a practical matter, in view of the Fourth

Amendment's requirement that a warrant describe the property to be

searched, warrants should normally be sought only after the entry has

been refused, absent some compelling reason for securing immediate

entry."), with Camara, 387 U.S. at 539-40 ("[A]s a practical matter and in

light of the Fourth Amendment's requirement that a warrant specify the

property to be searched, it seems likely that warrants should normally be

sought only after entry is refused unless there has been a citizen

complaint or there is other satisfactory reason for securing immediate

entry."). We are not aware of any legal authority interpreting Camara to

require that an officer must request permission to enter a property before

seeking a search warrant, cf. Ciarlone v. City of Reading, 489 F. App'x 567,

571-72 (3d Cir. 2012) (rejecting an argument that, under Camara, an

opportunity to consent must be provided before officers may seek a search

warrant), and we do not read Owens, which relied on Camara, to impose

such a requirement in Nevada.

continued on next page...

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31 (1990); see also West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 958

(11th Cir. 1982) (providing that administrative probable cause may be

established with evidence sufficient to support a reasonable suspicion of a

violation). Consequently, Palmieri failed to demonstrate a genuine issue

of material fact as to whether Stockman violated her clearly established

constitutional rights. 22 See Mullenix v. Luna, 577 U.S. , 136 S. Ct. 305,

308 (2015) ("The doctrine of qualified immunity shields officials from civil

liability so long as their conduct does not violate clearly established

...continued

Moreover, even if Owens imposed such a requirement, Stockman

specifically averred in the search warrant affidavit that, during a prior

animal-welfare investigation, Palmieri refused to consent to a search of

her residence and demanded that a Clark County Animal Control officer

leave her property until such time as he obtained a search warrant. Based

on that information, the issuing judge could have reasonably concluded

that efforts to procure a consensual search of Palmieri's residence would

have been fruitless. And, although she did not elaborate further in her

search warrant affidavit, we note that Stockman later testified in her

deposition that she sought a search warrant after receiving the

Informant's complaint due to Palmieri's previous refusal to consent to a

search of her residence.

22Notwithstanding our conclusion, we are aware that Stockman

could have done more to corroborate the information provided by the

Informant—for example, Stockman could have observed Palmieri's

residence in person and listened for barking dogs. Simply stated,

Stockman's search warrant affidavit does not evince a model of

investigative work. That Stockman could have done more, however, does

not necessarily mean that the search warrant was invalid. While this is a

close case, we are satisfied that, under the facts of this case,

administrative probable cause existed to search Palmieri's residence for

evidence of animal cruelty or a violation of Clark County's codes for the

health and welfare of animals.

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statutory or constitutional rights of which a reasonable person would have

known." (internal quotation marks omitted)).

CONCLUSION

Palmieri failed to make a substantial showing that Stockman

knowingly and intentionally, or with a reckless disregard for the truth,

included a false statement in the administrative search warrant affidavit,

and Palmieri failed to establish a genuine issue of material fact with

regard to whether the administrative search warrant was supported by

probable cause to search Palmieri's residence. 23 Because Palmieri failed to

establish that Stockman violated her constitutional rights, Stockman is

entitled to qualified immunity, see Butler, 123 Nev. at 458-59, 168 P.3d

1061-62, and, therefore, we conclude the district court did not err by

granting Stockman's summary judgment on Palmieri's § 1983 claim. And,

as previously discussed, absent a violation of Palmieri's constitutional

rights by Stockman, Palmieri's remaining arguments regarding her

Monell claim and her state law tort claims lack merit. Accordingly, we

23In reviewing Stockman's motion for summary judgment, the

district court concluded that criminal probable cause supported the

search warrant for Palmieri's residence. Because we conclude that

administrative probable cause supported the administrative search

warrant in the present case, we express no opinion as to whether criminal

probable cause existed. But we affirm the district court because it reached

the correct result, albeit under the wrong standard. See Sengel v. IGT,

116 Nev. 565, 570, 2 P.3d 258, 261 (2000) (explaining that an appellate

court will affirm a district court's decision if the district court reached the

correct result, but for the wrong reasoi/

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affirm the district court's order granting summary judgment in its

entirety.

J.

I concur:

, C.J.

Gibbons

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TAO, J., concurring:

Although based upon one of the shortest federal statutes on

the books (or maybe because of it), civil rights claims under 42 U.S.C. §

1983 can be complex beasts, requiring courts to sort through a mixture of

substantive criminal law, criminal procedure, and civil procedure, along

with the doctrine of qualified immunity, which hangs over everything and

requires examination before a court can even reach the merits of a claim.

See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (question of whether

qualified immunity bars § 1983 claim should normally be resolved early in

the case).

In a case like this, the doctrine of qualified immunity

implicates two related but different questions: whether the search was

valid, and whether the executing officer reasonably believed that it was

valid. If the answer to both of those inquiries is yes, then as a matter of

law the officer's actions are protected by qualified immunity. If the

answer to both of those inquiries is no, then as a matter of law the officer's

actions are not. In some cases, the answers to those two questions may

diverge: a search can be invalid, yet the searching officer may have

reasonably believed it to be valid and may therefore nonetheless be

immune from civil liability.

The majority concludes both that the warrant was valid and

also that Officer Stockman reasonably believed it to be valid. I write

separately because I believe that a more serious and unsettled question

exists regarding the validity of the administrative warrant in this case

than the majority acknowledges, and therefore this appeal just might fall

into the third category of cases rather than the first. However, I concur

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with the outcome of this appeal because, whether the warrant was valid or

not, Judy Palmieri did not meet her burden of demonstrating that Officer

Stockman acted unreasonably or recklessly enough to waive the shield of

qualified immunity to which she is otherwise entitled as a law

enforcement officer performing a discretionary function.

The first step that we must take to resolve this appeal is to

identify the governing law. The majority analyzes the search warrant in

this case primarily by relying upon federal caselaw, with a few state cases

thrown in for good measure.'

At first blush, this seems to make some sense; Nevada

generally follows federal law on most search-and-seizure questions. State

v. Lloyd, 129 Nev. „ 312 P.3d 467, 471 (2013). Furthermore, as a

general matter, it is axiomatic that federal law governs federal claims,

even those filed in state courts; after all, that is what the Supremacy

Clause says. U.S. Const. art. VI, cl. 2 ("[T]he Laws of the United

States. . . shall be the supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding."). 42 U.S.C. § 1983 is a

'For example, the majority discusses Commonwealth v. DeLuca, 6

Pa. D. & C. 5th 306, 324-25 (Pa. Ct. C.P., Del. Cnty. 2008). But

Pennsylvania does not follow federal search-and-seizure law on many

issues, choosing instead to implement its own version of the exclusionary

rule. Commonwealth v. Edmunds, 586 A.2d 887, 896-99 (Pa. 1991) ("The

history of Article I, Section 8 [of the Pennsylvania Constitution] thus

indicates that the purpose underlying the exclusionary rule in this

Commonwealth is quite distinct from the purpose underlying the

exclusionary rule under the 4th Amendment . . . .").

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federal statute, so federal law follows everywhere a § 1983 claim is filed;

thus it is entirely unnecessary for us to "adopt" any of it to resolve a

§ 1983 action. Howlett v. Rose, 496 U.S. 356, 358, 375 (1990) ("State

courts as well as federal courts have jurisdiction over § 1983 cases" but

"the elements of, and the defenses to, a federal cause of action are defined

by federal law"). Indeed, state courts cannot constitutionally refuse to

apply federal law to § 1983 claims even when filed in a state court. Id. at

367)71 ("The Supremacy Clause makes [federal] laws the supreme Law

of the Land,' and charges state courts with a coordinate responsibility to

enforce that law. . . . The Supremacy Clause forbids state courts to

dissociate themselves from federal law [in resolving § 1983 claims]."). See

Richard v. Bd. of Supervisors of La. State Univ., 960 So. 2d 953, 961 (La.

Ct. App. 2007) ("[T]he same body of federal law governs § 1983 actions in

state and federal courts . . . ."); Walker v. Maruffi, 737 P.2d 544, 547 (N.M.

Ct. App. 1987) (in § 1983 actions, "[w] e are bound by decisions of the

United States Supreme Court affecting federal law"); United States ex rel.

Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir. 1970), cert. denied,

402 U.S. 983 (1971) ("The Supreme Court of the United States has

appellate jurisdiction over federal questions arising either in state or

federal proceedings, and by reason of the supremacy clause the decisions

of that court on national law have binding effect on all lower courts

whether state or federal."). See generally Sheldon H. Nahmod, Civil

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Rights and Civil Liberties Litigation § 4.03, at 275 (3d ed. 1991) (federal

law governs § 1983 actions filed in state court). 2

2The problem is that once we get below the level of greatest

generality, the phrase "federal law" is less clear than it appears because

federal cases are not always as monolithic, uniform, or even consistent as

perhaps they should be. Frequently the real issue boils down to which

competing version of federal law should be applied.

For example, when a search warrant affidavit contains a false

statement, the warrant might still be valid if it would have issued anyway

had the falsity not been included. Golino v. City of New Haven, 950 F.2d

864, 871 (2d Cir. 1991), cert. denied, 505 U.S. 1221 (1992) (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). But in the context of

§ 1983, the federal circuits disagree on whether this question is answered

by the court as a matter of law, or by the jury as a matter of fact. Some

circuits hold that it is either a mixed question of fact and law, or a pure

question of fact reserved for the jury. See Velardi v. Walsh, 40 F.3d 569,

574 (2d Cir. 1994); see Hill v. McIntyre, 884 F.2d 271, 275-76 (6th Cir.

1989). Other circuits, including the Ninth, have held that it is a question

of law. Hervey v. Estes, 65 F.3d 784, 789 n.5 (9th Cir. 1995). Whether a

question is characterized as one of fact or law quite obviously has a real

bearing on whether, and when, a claim can or cannot be properly be

resolved on summary judgment, as Palmieri's claim was below.

Here, the majority chooses to follow the Ninth Circuit's approach in

Hervey. In isolation, I do not disagree with this; Ninth Circuit decisions

are frequently considered to be persuasive, though not binding, authority

by the Nevada Supreme Court. See Blanton v. N. Las Vegas Mun. Court,

103 Nev. 623, 633, 748 P.2d 494, 500 (1987), affd sub nom. Blanton v. City

of N. Las Vegas, Nev., 489 U.S. 538 (1989). But later in the opinion, the

majority also chooses to follow the Eleventh Circuit's approach in West

Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 957-58 (11th Cir. 1982), on

the standards for a proper "administrative search." But the Eleventh

Circuit does not appear to fully agree with the Ninth Circuit on how the

doctrine of qualified immunity in a § 1983 action should be evaluated on

summary judgment. See Branch v. Tunnell, 937 F.2d 1382, 1385-86 (9th

Cir. 1991), disagreeing with Kenyatta v. Moore, 744 F.2d 1179 (5th Cir.

1984) (the Eleventh Circuit was split off of the Fifth Circuit, and Fifth

continued on next page...

4

However, in this particular case it is not clear that the

majority has applied the correct body of law because a state is free to

"impose higher standards on searches and seizures than required by the

Federal Constitution if it chooses to do so," Cooper v. California, 386 U.S.

58, 62 (1967), and Nevada may have done just that in connection with

administrative searches in a case that the majority overlooks.

In Owens v. City of North Las Vegas, 85 Nev. 105, 450 P.2d

784 (1969), the Nevada Supreme Court appears to have imposed a

requirement upon administrative search warrants that does not exist in

some other jurisdictions: administrative warrants "should normally be

sought only after the entry has been refused, absent some compelling

reason for securing immediate entry." 3 Id. at 111, 450 P.2d at 788. The

court noted:

...continued

Circuit precedent from that time frame is binding upon the Eleventh

unless overruled or modified, see Bonner v. City of Prichard, 661 F.2d

1206, 1209 (11th Cir. 1981) (en banc)). See also United States v.

Kapordelis, 569 F.3d 1291, 1308 (11th Cir. 2009) ("This Court has not,

however, stated a precise standard of review for a district court's denial of

a Franks hearing[, and] we need not determine which standard of review

applies today."). So, the majority seems to suggest that we follow the

Eleventh Circuit's law when it comes to the substance of an

administrative warrant, but we follow the law of the Ninth Circuit when it

comes to whether we analyze certain aspects of that substance on

summary judgment as questions of law or fact. I am not sure these are

consistent, but I suppose any potential incongruity must be sorted out in

future cases.

3 As the majority notes in footnote 21, this language somewhat

echoes language from the U.S. Supreme Court in Camara v. Municipal

Court, 387 U.S. 523, 539-40 (1967). But notably, Camara stated that an

administrative warrant could issue without a prior "refusal of entry" when

the warrant was based upon a "citizen complaint" or there is "other

continued on next page...

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Where considerations of health and safety are

involved, the facts that would justify an inference

of "probable cause" to make an inspection are

different from those that would justify an

inference when a criminal investigation has been

undertaken. Experience may show the need for

periodic inspections of certain facilities without a

further showing of cause. . . that substandard

conditions dangerous to the public are being

maintained. The passage of a certain period

without inspection might of itself be sufficient in a

given situation to justify the issuance of a

warrant. The test of "probable cause" required by

the Fourth Amendment can take into account the

nature of the search that is being sought. There

can be no ready test for determining

reasonableness other than by balancing the need

to search against the invasion which the search

entails.

• . . We appreciate that in most routine inspections

there is no great urgency to inspect at a certain

time on a given day. Likewise, most citizens will

permit routine inspections without a warrant. As

a practical matter, in view of the Fourth

Amendment's requirement that a warrant

...continued

satisfactory reason." The Nevada Supreme Court specifically omitted this

language from Owens, instead only permitting an exception where there is

a "compelling reason" for immediate entry regardless of whether the

complaint came from a citizen or not, language that does not appear in

Camara and is obviously much narrower. Therefore, I disagree that

Owens only repeats and adds nothing to Camara when it plainly, and we

must assume intentionally, uses entirely different language.

Furthermore, Owens has been good law since 1969, and kspondent Clark

County is well aware of it, at least at an institutional level, having cited it

as authority in its swering /grief in Ransdell v. Clark County,ANo.

48592/

D-4 'Tecitcr

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describe the property to be searched, warrants

should normally be sought only after the entry has

been refused, absent some compelling reason for

securing immediate entry.

Id. at 110-11, 450 P.2d at 787-88. The court affirmed the validity of the

administrative warrant in the case before it, observing that the warrant

request "grew out of Owens' refusal to permit the city building inspector to

enter his home to check for violations of the city building code." Id. at 106,

450 P.2d at 785.

In contrast, nothing like that happened before Palmieri's home

was searched. Officer Stockman made no effort to seek consensual entry

into Judy Palmieri's home at any time before seeking a warrant; according

to Stockman's own affidavit, she merely received a phone tip, performed a

computer search, and then submitted a warrant application for approval.

From what I can tell, this all happened within a matter of minutes, and

Officer Stockman never even bothered to visit the premises until she

arrived later with the signed warrant already in hand. Therefore, entry

was never requested or denied in this case before the warrant was sought

or obtained.

Furthermore, I can see no "compelling" reason in this case to

justify an immediate entry without such a request when the conditions of

Palmieri's dogs were unlikely to have changed during the time it might

have taken to procure a warrant after knocking on the door and asking for

permission first. Unlike drugs or other small contraband, dogs cannot be

flushed down the toilet or otherwise easily disposed of, and if it is true

that they were dangerously unhealthy when Stockman first knocked, they

likely would have been in the same condition shortly thereafter when she

returned with a warrant.

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Accordingly, the "refusal of entry" language of Owens has not

been complied with in this case. 4 The difficult question is whether that

alone renders the administrative warrant invalid; Owens does not quite

say that an administrative warrant sought without a prior refusal of entry

is per se invalid for that reason alone. Rather, Owens emphasizes that the

touchstone for validity is the reasonableness of the warrant request under

the circumstances. 85 Nev. at 107-08, 450 P.2d at 785-86.

Fundamentally, there are three ways to read the "refusal of

entry" language contained in Owens: (1) as imposing an additional

requirement above and beyond those already required by the Fourth

Amendment that must be independently met in every case before an

administrative warrant may issue in Nevada; (2) as merely identifying one

consideration that a judge may take into account in determining whether

a warrant request is reasonable or not (i.e., observing that warrant

4The closest the majority comes to applying the Owens test to the

facts of this case is in its observation in footnote 3 that Palmieri previously

denied entry to another animal control officer, Jason Elff*.on another

occasion. But that was in 2006, four years before the search in this case

and in response to an entirely different complaint. The majority also notes

in footnote 21 that Officer Stockman later testified in deposition that she

believed requesting entry would be futile, but that assertion was not

included within the search warrant affidavit. The validity of a search

warrant must be assessed based only upon what the judge knew when the

warrant was signed, not on facts hidden from the judge or uncovered after

the warrant has already been obtained. See Illinois v. Gates, 462 U.S. 213,

236 (1983) (when assessing the validity of a search warrant affidavit,

courts look only to the four corners of the affidavit itself to determine

whether, based upon the affidavit alone, the magistrate had a "substantial

basis" for authorizing the search at the time the request was made).

Therefore, Officer Stockman's later deposition testimony simply cannot be

considered in assessing whether the warrant was valid when issued.

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requests made after entry has been refused are more likely to be deemed

reasonable than ones in which this has not happened); or (3) as pure obiter

dicta that adds nothing to the constitutional analysis.

If Owens is anything other than pure dicta, then as an

intermediate court we must follow and apply it faithfully, even if it might

seem incompatible with federal law or decisions from other states

addressing the same issue.

The principle of stare decisis is designed to

promote stability and certainty in the law. While

most often invoked to justify a court's refusal to

reconsider its own decisions, it applies a fortiori to

enjoin lower courts to follow the decision of a

higher court. This principle is so firmly

established in our jurisprudence that no lower

court would deliberately refuse to follow the

decision of a higher court. But cases come in all

shapes and varieties, and it is not always clear

whether a precedent applies to a situation in

which some of the facts are different from those in

the decided case. Here lower courts must

necessarily make judgments as to how far beyond

its particular facts the higher court precedent

extends.

Hubbard v. United States, 514 U.S. 695, 720 (1995) (Rehnquist, J.,

dissenting).

If Owens is read to impose an additional and independent

Nevada-specific requirement upon administrative warrants in order for

them to be validly issued, that requirement was not met here and the

warrant was invalid. If Owens is read to merely articulate one factor

relating to "reasonableness" that the court must consider, that factor was

not considered by the district court below and has not been considered by

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the majority, and the warrant might or might not be valid. Either way,

the question is considerably more complicated than it might first appear.

Were the constitutionality of Officer Stockman's

administrative warrant the only question before us, then we would have to

"make judgments as to how far beyond its particular facts the higher court

precedent extends." Hubbard, 514 U.S. at 720. But the question before us

is not the per se validity of the warrant, but rather whether Officer

Stockman is entitled to qualified immunity from liability under § 1983.

And, under the circumstances of this appeal, answering that question does

not require us to definitively resolve how Owens must be interpreted.

Indeed, and perhaps somewhat ironically, what is important for purposes

of resolving Officer Stockman's qualified immunity defense is the very lack

of clarity in Owens.

In certain circumstances, a law enforcement officer can

conduct a defective search and yet still be cloaked with qualified immunity

from subsequent civil liability. A searching officer is entitled to qualified

immunity if "a reasonable officer could have believed" that the search was

lawful "in light of clearly established law and the information the

searching officers possessed." Anderson v. Creighton, 483 U.S. 635, 641

(1987). The central question is whether someone in the officer's position

could reasonably but mistakenly conclude that his conduct complied with

the Fourth Amendment. Id.; see also Saucier v. Katz, 533 U.S. 194, 206

(2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223,

236 (2009); Hunter v. Bryant, 502 U.S. 224, 227 (1991). This is the same

objective reasonableness standard applied under the "good faith" exception

to the exclusionary rule. See Malley v. Briggs, 475 U.S. 335, 344 (1986);

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see also Groh v. Ramirez, 540 U.S. 551, 566 (2004) (Kennedy, J.,

dissenting).

Law enforcement officers lose their immunity if it is "obvious

that no reasonably competent officer would have concluded that a warrant

should issue; but if officers of reasonable competence could disagree on

this issue, immunity should be recognized." Malley, 475 U.S. at 341; see

Velardi v. Walsh, 40 F.3d 569, 575-76 (2d Cir. 1994) ("Whether or not the

Fourth Amendment's particularity requirement would have been satisfied

on these facts in the context of a motion to suppress. . . we conclude that

the defendants' qualified immunity shields them from liability [when] it

was objectively reasonable for them to believe that their actions did not

violate Fourth Amendment requirements." (citation omitted)).

Generally speaking, there are several types of mistakes that a

law enforcement official may make. The officer may make a mistake of

law, i.e., be unaware of existing law and how it should be applied. See

Saucier, 533 U.S. at 206. Alternatively, the officer may make a mistake of

fact, i.e., may misunderstand important facts about the search and assess

the legality of his conduct based on that misunderstanding. See, e.g.,

Arizona v. Evans, 514 U.S. 1 (1995). Or, the officer may misunderstand

elements of both the facts and the law. See Creighton, 483 U.S. at 641.

Qualified immunity jurisprudence applies regardless of whether the

officer's error was a mistake of law, a mistake of fact, or a mistake based

on mixed questions of law and fact. Butz v. Economou, 438 U.S. 478, 507

(1978) (noting that qualified immunity covers "mere mistakes in

judgment, whether the mistake is one of fact or one of law"). Whatever

kind of mistake is involved, the ultimate question is whether the officer's

reliance upon the defect was reasonable.

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What we have in this case is a possible mistake of law; entry

into Palmieri's home was not refused pursuant to Owens before the

warrant was sought. But if a mistake occurred, it was not a violation of

"clearly established" law that should have been "obvious" to Officer

Stockman. As I have observed, Owens can be read in alternative ways,

one of which would invalidate the warrant and two of which might or

might not. Therefore, it cannot be said to have represented law so

established that every reasonable law enforcement officer should have

familiarized themselves with its contours before being put into the field

with the power to apply for administrative warrants. For that reason, I

agree that Officer Stockman cannot be said to have acted unreasonably

under the totality of the circumstances, and she has not forfeited the

shield of qualified immunity. 5

5 Furthermore, a defective search may still be considered valid so

long as the executing officer relied in objective "good faith" upon the

authority of the search warrant. See United States v. Leon, 468 U.S. 897,

920-21 (1984); Byars v. State, 130 Nev. , , 336 P.3d 939, 947 (2014)

(following Leon). Here, Officer Stockman submitted her search warrant

application to her supervisor, to the career prosecutors at the Clark

County District Attorney's Office, and finally to a district court judge, all

of whom approved the application notwithstanding its possible flaws.

Considering the vagueness of Owens, Officer Stockman acted reasonably

when she went through proper channels and sought, and received,

approval for her actions at every level from others in whom she was

entitled to place her trust. Under the circumstances of this case, the

district judge reviewed and signed the warrant, and there is no evidence

that Officer Stockman acted in a nefarious or underhanded way or had

any reason to doubt that the warrant was entirely valid once the ink on

the judge's signature was dry.

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Therefore, I agree with the majority's thorough and detailed

analysis of this appeal. Under the facts of this case, the meaning of Owens

is not central to our disposition and will have to be addressed another day.

Tao

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