WILLIAM ANTHONY EDWARDS, Appellant, v. THE STATE OF NEVADA, Respondent, 107 Nev. 150

OPINION By the Court, Springer, J.: On July 27, 1989, around 8:30 p.m., Sergeant Richard Ross and Lieutenant Timothy Gonyo of the Washoe County Consolidated Narcotics Unit were in the office of the Six Gun Motel in Reno. They were talking with the manager to see if any known narcotics dealers had checked into the motel. Moments later, an unidentified woman entered the lobby, and explained that a gentleman was dressed in woman’s clothing and exposing himself to her and her children. Without questioning the woman further, Sgt. Ross and Lt. Gonyo walked to Room 155.

As they did so, they saw appellant William Edwards through a window in the front of the motel room; he was stooped over with his right hand over his crotch area. At the time, Edwards was wearing women’s undergarments: specifically, a camisole, nylon stockings, bra, garter belt, and panties. The officers further noted that Edwards remained behind the curtain, and made no attempt to attract the attention of passers-by. Sgt. Ross and Lt. Gonyo knocked on the door and identified themselves as sheriff’s officers.

Edwards then opened the door about ten to fourteen inches, at which time the officers noticed that Edwards’ penis was exposed through a hole in the front of the panties that he was wearing. Edwards next quickly slammed the door, and told the officers to wait “just a minute.” At this point, Sgt. Ross and Lt. Gonyo forced open the door and entered the room. After the officers entered the room, they placed Edwards under arrest and charged him with indecent exposure. During the handcuffing procedure, both officers noticed that Edwards had “an oily substance” on his arms, hands, and wrists.

The police officers also noticed the Edwards’ eyes were watery and his pupils were dilated. Lt. Gonyo told Edwards that he (Edwards) looked like a “mess.” Edwards agreed. Lt. Gonyo then asked Edwards if he had been using “anything,” and Edwards replied that he had, about a half hour before. Officer Greg Curry of the Reno Police Department was called to the Six Gun Motel and took Edwards into custody. At this time, the police conducted a search of Edwards’ room; this search netted a bag of unused hypodermic needles, and one used needle with blood on the tip.

Officer Curry then took Edwards to the Washoe County Jail, where a drug recognition test was performed. Following this test, Officer Curry advised Edwards of his Miranda rights and asked him (Edwards) if he had used any controlled substances. Edwards admitted that he had used methamphetamine. Officer Curry then requested that Edwards provide a urine sample; upon testing, this sample revealed the presence of amphetamine, methamphetamine, and marijuana.

In an information filed August 25, 1989, and an amended information filed October 30, 1989, Edwards was charged with one count of being under the influence of a controlled substance, methamphetamine, and one count of indecent exposure. The indecent exposure count alleged that Edwards, did willfully and unlawfully make an open and indecent or obscene exposure of his person to Sergeant RICHARD ROSS, ... in that the defendant, while wearing women’s undergarments with the front of the panties cut out and with his penis and genitals exposed, stood in front of an open door, thereby exposing himself to public view.

Prior to trial, Edwards petitioned for a writ of habeas corpus, and also moved to suppress the evidence obtained by the police that stemmed from the search of the motel room and subsequent investigation. Both motions were denied. At trial, the jury then acquitted Edwards on the indecent exposure count, but convicted him on the charge of being under the influence of methamphetamine. Edwards was sentenced to three years in the Nevada State Prison, the term to run consecutively to any sentence that Edwards was currently serving. This appeal followed.

Appellant’s primary contention is that his arrest was made in violation of the United States Supreme Court’s holding in Payton v. New York, 445 U.S. 573 (1980). In Payton, the Court held that the fourth amendment prohibits police from making a war-rantless and nonconsensual entry into a suspect’s home in order to make a routine arrest. Id. at 576. The Payton Court then went on to hold that if police failed to obtain a warrant, then all evidence stemming from the arrest must be excluded. Id. at 603.

Because the police officers in Payton had entered a private residence without a warrant (but with probable cause) to make a routine murder arrest, the Court held that the evidence seized on entry of the premises must be suppressed. Id. We recently applied the Payton doctrine in Walters v. State, 106 Nev. 45, 786 P.2d 1202 (1990). In Walters, police arrested defendant in his home without a warrant, after receiving reliable information that defendant had committed a murder. Id. at 47, 786 P.2d at 1203. After his arrest, defendant was transported from Sandy Valley, Nevada to Barstow, California. Id.

During the course of this ride, defendant was Mirandized and then made an incriminating statement that was subsequently used at trial. Id. We unanimously held that because the home arrest was illegal, and the subsequent statement to police officers was the fruit of the arrest, the statement should have been excluded. Therefore, we reversed. Id. The above cases make clear that the fourth amendment requires the exclusion of all evidence obtained as the result of warrantless, non-emergency home searches. In United States v.

Diaz, 814 F.2d 454 (7th Cir.), cert. denied, 484 U.S. 857 (1987), it was made equally clear that this rule also applies to hotel room searches. The Diaz court reasoned that under the relevant United States Supreme Court precedent, fourth amendment protections apply to individuals in hotel rooms as well as homes. Id. at 457-58 (citations omitted). The court then noted that the Payton opinion did nothing to alter this basic rule that “a hotel room can be the object of fourth amendment protection as much as a home or an office.” Id. at 458.

The state attempts to distinguish these cases by arguing that Edwards, by opening his door to police officers in the manner described above, committed a gross misdemeanor in a public place, and was therefore subject to immediate arrest. We disagree, however, because it is obvious from the record that Edwards remained inside the hotel room at all times and was at least partially hidden behind the door. Thus, Edwards never left his “dwelling” and, therefore, never forfeited the protections against intrusion provided by Payton and Walters.

The dissent argues at length that our decision should not be controlled by Payton and Walters, but instead by the recent case of New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640 (1990). A comparison of Harris with the instant case, however, indicates that this case is very easily distinguishable from Harris. In Harris, the Court held that evidence discovered outside the home is admissible, even if traceable to an illegal home arrest, so long as, prior to the entry of the home, police had probable cause to believe that the suspect committed the crime for which he or she was being arrested.

The Harris Court reasoned that police gained no new information by virtue of the home arrest, since they (police) already had probable cause to believe that the suspect had committed the crime for which he was being arrested. While the Supreme Court’s logic in Harris that police gained little through the illegal home intrusion may have been plausible in Harris — where police already had much information pertaining to the crime charged — such logic is clearly inapplicable to the instant case.

Here, police had no information of drug use prior to their entry into the hotel room, and thus discovered a separate violation solely through an illegal arrest. For this reason, any assertion that police received no advantage through the illegality becomes untenable. Consequently, Harris is inapplicable. Having concluded that Edwards never entered a public place and that Harris is inapplicable, we are compelled to hold that all evidence of Edwards’ drug use was improperly admitted at trial.

Such a result is mandated by the Payton and Walters decisions because here, as in those cases, the challenged evidence was obtained as the result of a warrantless “home” arrest; Edwards did not consent to the search (in fact he attempted to prevent police from entering the room), and no emergency circumstances were present. Indeed, the state conceded as much at oral argument when it admitted that, assuming Edwards never entered a public place, the arrest was clearly illegal. Therefore, all evidence traceable to this unlawful arrest should have been suppressed.

Accordingly, we hold that the district court erred when it denied appellant’s motion to suppress the evidence seized as the result of this illegal arrest. For this reason appellant’s conviction is reversed. Rose and Young, JJ., concur. One of the officers later testified that these items of clothing could be clearly identified only by standing two to three feet from the window. Following the arrest (but prior to the discovery that William had been using illegal drugs), Sgt. Ross and Lt. Gonyo turned the case over to the Reno Police Department, because, as Sgt.

Ross put it, “Consolidated Narcotics generally doesn’t become involved in . . . crimes other than narcotics.” Our review of the record indicates that although the court below never issued a formal ruling on William’s motion to suppress, the district court did feel that it made such a ruling when it ruled on appellant’s habeas petition.

During argument on the habeas petition, Judge Adams noted that while a “motion to suppress would be the proper vehicle to address the . . . search, . . . under whatever legal vehicle this matter [is] addressed ... if I concluded that the entry . . . was unlawful, then the evidence which was the result of their search would be vulnerable to suppression.” As an initial matter, we note that respondent’s procedural contentions are resolved by Koenig v.

State, 99 Nev. 780, 672 P.2d 37 (1983), in which we held that where appellant presents an adequate record for reviewing serious constitutional issues, this court will address such claims on the merits. The state does not contend that exigent circumstances were present, nor could it do so credibly in light of statements made in Welsh v. Wisconsin, 466 U.S. 740 (1984).

In Welsh, the Court noted, in the context of an arrest for driving under the influence, that “application of the exigent circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense . . . has been committed.” Id. at 753.