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State v. Bayard6/26/2003
and even agreed to a search of his person for potential drugs and other weapons. The officer was not permitted to arrest Bayard based on a "hunch" or "whim" that Bayard was engaged in other illegal activity that might be revealed through a subsequent strip search or car search. The arrest was unlawful and violated Bayard's state constitutional right to be free from an unlawful search or seizure.
The granting of a motion to suppress "preclude[s] the introduction of evidence at trial which is claimed to be inadmissible for constitutional reasons, and is the remedy contemplated by our criminal code."*fn23 While in jail, Bayard was strip searched and narcotics were found on his person. He was then prosecuted for possessing and trafficking illegal drugs. Bayard filed a pretrial motion to suppress the evidence claiming the arrest was unlawful. The district court approved the motion to suppress and the State appeals. We agree the illegal drugs must be excluded from evidence because they were the product of an unlawful search and seizure in violation of Bayard's state constitutional rights.
CONCLUSION
We conclude that NRS 484.795 governs an officer's ability to arrest an individual or issue the individual a citation for violating Nevada's traffic code. NRS 484.795 contains both a mandatory provision and a discretionary provision. We limit our holding to the discretionary provision. Under the discretionary provision, an officer has discretion to arrest an individual or issue the individual a traffic citation for committing a traffic violation. The officer's discretion is not unfettered, however, and may be abused if exercised in an unreasonable manner. We further conclude that if an officer abuses his discretion, the resulting arrest is in violation of Article 1, Section 18 of the Nevada Constitution.
We affirm the district court's order suppressing the illegal narcotics found on Bayard's person during the subsequent search and seizure because no special circumstances warranting an arrest were presented to the district court and the use of the fruits of the improper arrest implicated the Nevada Constitution.
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