Meisler v. State , 2014 NV 30 ( 2014 )

130 Nev., Advance Opinion 30
IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL CHARLES MEISLER, No. 63034
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. APR 0 3 2014
E K. LINDEMAN
CL OA Qr.414PRafra..BOOR
BY
IEE DE9? CIERK
Appeal from a judgment of conviction, pursuant tjo a jury
verdict, of aggravated stalking. Ninth Judicial District Court, Douglas
County; Michael P. Gibbons, Judge.
Affirmed.
Kristine L. Brown, Gardnerville,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Mark B. Jackson,
District Attorney, and Thomas W. Gregory, Chief Deputy District
Attorney, Douglas County,
for Respondent.
BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.
OPINION
By the Court, CHERRY, J.:
In this case, we are asked to decide whether law enforcement's
efforts to locate appellant Michael Meisler by retrieving his cell phone's
Global Positioning System (GPS) coordinates from his cell phone service
SUPREME COURT
OF
NEVADA
101 19474 e \I-1-1053 L
provider constituted an illegal search. We conclude that Meisler's Fourth
Amendment rights were not violated because law enforcement procured a
valid arrest warrant before requesting his phone's GPS coordinates. In
addition, we hold that the district court did not abuse its discretion in
denying Meisler's request to withdraw from self-representation where his
request was made with an intent to delay proceedings.
FACTS
Meisler was in a romantic relationship with Janice Tebo.
After the relationship ended, Meisler repeatedly sent Tebo emails, text
messages, and letters. The communications from Meisler included
references to the movie Fatal Attraction, statements that she had made a
"fatal decision," allusions to the ancient Greek legend of the Sword of
Damocles,' and threats to sue her for lying to him. One of the
communications stated: "JFK died on this day 48 years ago. Today is also
a day u will also not eva forget befitting an Irishpolak lying SLUT. Have a
nice day :)." After investigating various reports made by Tebo, the
Douglas County Sheriff obtained a warrant for Meisler's arrest. Seeking
Meisler's location in order to make the arrest, a sheriffs investigator
requested that Meisler's cell phone service provider retrieve his GPS
coordinates. The service provider complied, and Meisler was arrested in a
public parking lot.
"The legend recounts a king hanging a sword above Damocles, held
to the ceiling by a single horse hair. See Marcus Tullius Cicero, Tuscu/an
Disputations bk. V, § 21, at 185 (C.D. Yonge trans., New York, Harper &
Brothers 1877) (c. 45 B.C.), available at http://goo.g1/9cVN57 . The king
intended that Damocles understand the "constant apprehension[ ]" under
which a wealthy ruler must live. Id. at 185-86.
SUPREME COURT
OF
NEVADA
2
KO) 1947k '20WP
During the arrest, Meisler's cell phone was retrieved from his
vehicle at his request. The cell phone was kept with his belongings while
he was in custody. A valid search warrant was procured before the
contents of the cell phone were searched. The search of the cell phone
revealed numerous text messages, some of which were eventually used to
support Meisler's conviction.
Meisler was charged by information with aggravated stalking,
a felony under NRS 200.575(2). On his request, Meisler was canvassed
and found competent to represent himself. The court appointed standby
counsel. The district court further denied Meisler's request to suppress
text messages retrieved from his cell phone as a result of his arrest. The
court held that law enforcement did not need to obtain a warrant before
using Meisler's phone GPS coordinates to locate him.
On the day before trial, at 4:23 p.m., Meisler filed a motion to
withdraw from self-representation. The court denied the motion after
argument on the morning of trial because the motion was untimely and
filed with the intent to delay the trial.
Following trial, Meisler was convicted by jury verdict of
aggravated stalking Standby counsel was appointed as counsel of record
for sentencing. Meisler was sentenced to prison for a maximum of 12
years with parole eligibility after 2 years. The court also issued an
extended protective order of 20 years. Meisler appealed.
DISCUSSION
Fourth Amendment and GPS data
Meisler argues that his Fourth Amendment rights were
violated when officers asked his cell phone service provider to use his cell
phone's GPS coordinates to locate him. Specifically, he argues that the
SUPREME COURT
OF
NEVADA
3
(0) 1 947 A e
arrest was illegal because the officers did not obtain a search warrant
before retrieving his GPS coordinates. He also claims that the evidence
retrieved as a result of his arrest should have been excluded as fruit of the
poisonous tree. Meisler admits, however, that the officers did possess a
valid arrest warrant at the time of arrest.
The Supreme Court has stated that "for Fourth Amendment
purposes, an arrest warrant founded on probable cause implicitly carries
with it the limited authority to enter a dwelling in which the suspect lives
when there is reason to believe the suspect is within." Payton v. New
York, 445 U.S. 573, 603 (1980). In Payton, the Court noted that "any
differences in the intrusiveness of entries to search and entries to arrest
are merely ones of degree rather than kind" Id. at 589. Hence, under
federal law, a search warrant may permit officers the authority to arrest a
suspect if probable cause forms during the lawful search. See Mahlberg v.
Mentzer, 968 F.2d 772, 775 (8th Cir. 1992). Likewise, an arrest warrant
may permit officers to seize evidence discovered as a result of a lawful
arrest. See United States v. Pruitt, 458 F.3d 477, 480-82 (6th Cir. 2006)
(concluding that execution of arrest warrant justified seizure of evidence
found in third party's home during protective sweep).
Following Payton and its progeny, a federal court recently held
that "Mlle issuance of the arrest warrant . . . undermines any privacy
interest in prospective geolocation data." In re Smartphone Geolocation
Data Application, F. Supp. 2d „ 2013 WL 5583711, at *15,
(E.D.N.Y. May 1, 2013). The court reasoned that searching for a suspect
in his home is far more intrusive than seeking geolocation data from a
suspect's cell phone, and if the United States Supreme Court has found
the more intrusive home search to be reasonable, then a less intrusive cell
SUPREME COURT
OF
NEVADA
4
(0) 1947A ce,
phone data search is surely reasonable. Id. at *15-*16; see also Steagald v.
United States, 451 U.S. 204, 214 n.7 (1981) ("Because an arrest warrant
authorizes thefl police to deprive a person of his liberty, it necessarily also
authorizes a limited invasion of that person's privacy interest when it is
necessary to arrest him in his home.").
Thus, an arrest warrant that justifies the physical invasion of
the home also justifies a digital invasion into a defendant's cell phone for
the purpose of locating the defendant. "The Fourth Amendment cannot
accord protection to geolocation data associated with a defendant's cell
phone while denying such protection against a physical invasion of his
home, as the latter is entitled to the highest order of defense." In re
Smartphone, F. Supp. 2d at , 2013 WL 5583711, at *15. In this
case, officers obtained a valid warrant for Meisler's arrest. Because an
arrest warrant would have justified an entry into Meisler's home, an
arrest warrant likewise justifies a digital entry into his cell phone to
retrieve GPS coordinates for the purpose of locating him. 2 We hold that
Meisler's Fourth Amendment rights were not violated and, therefore, that
the text messages were not fruit of the poisonous tree. 3
2The record is not clear whether Meisler was voluntarily turning his
GPS data over to his service provider, but the existence of a valid arrest
warrant alleviates any need to discuss Meisler's expectation of privacy.
3 Even had the government violated Meisler's Fourth Amendment
rights in locating him for arrest, the retrieval of text messages from his
cell phone might have been so attenuated from the arrest that the fruit-of-
the-poisonous-tree doctrine would not be applicable at all. As it is not
necessary to our disposition, we merely note the issue and do not opine
upon it.
SUPREME COURT
OF
NEVADA
5
(D) I947A
Meisler's request to withdraw from self-representation
Meisler argues that the district court erred by not permitting
him to revoke his previous decision to represent himself at trial. We
disagree.
"It is well established that a defendant may not manipulate
the right to counsel for purposes of delaying and disrupting the trial."
People v. Howell, 615 N.Y.S.2d 728, 729 (App. Div. 1994); see also Moody v.
State, 888 So. 2d 532, 558-59 (Ala. Crim. App. 2003) (compiling court
decisions supporting the proposition that "obstructionist and dilatory
conduct . . . may constitute a waiver" of a defendant's right to counsel).
We have held that a district court may deny a request for self-
representation if the request was made with the intent to delay
proceedings. Vanisi v. State, 117 Nev. 330, 339, 22 P.3d 1164, 1170 (2001).
It follows that a request to withdraw from self-representation may be
denied on similar grounds. Other courts have precisely so held: "A district
court may refuse a defendant's request to withdraw from self-
representation after a valid waiver 'if a defendant seeks counsel in an
apparent effort to delay or disrupt proceedings on the eve of trial, or once
trial is well underway." United States v. Woodard, 291 F.3d 95, 111 (1st
Cir. 2002) (quoting United States v. Proctor, 166 F.3d 396, 402 (1st Cir.
1999)). We agree with the soundness of this rule and hold that a district
court may deny a request to withdraw from self-representation when said
request is made with an intent to delay or obstruct proceedings
Here, Meisler's request was made on the eve of trial. He made
no mention of his request to withdraw at the pretrial conference, which
occurred just hours before his motion was filed. Standby counsel was not
prepared for trial and would have needed time to become prepared,
SUPREME COURT
OF
NEVADA
6
(0) 1947A
further delaying the proceedin gs. These facts support the district court's
conclusion that the motion was made with an intent to dela y proceedings.
We defer to that conclusion. Thus, the district court did not abuse its
discretion in den ying Meisler's re quest to withdraw from self-
representation because his motion was made with an intent to dela y the
proceedin gs. We have considered Meisler's other ar g uments and conclude
that the y lack merit.4
Because Meisler's Fourth Amendment ri ghts were not violated
and because his other claims lack merit, we affirm the jud gment of
conviction.
C
Cherry
We concur:
ea - J.
Hardesty
ICLAIt 04------ JT
Parra guirre
4Meisler's contention that the evidence was insufficient to
convict him of a ggravated stalkin g lacks merit because a rational juror
could have interpreted his numerous references to death as death threats.
Meisler's ar g ument about the district court's decision to exclude his
proposed expert witnesses lacks merit because those witnesses admitted
that their testimon y would not be relevant. See NRS 50.275 (permittin g
expert testimon y when it "will assist the trier of fact to understand the
evidence or to determine a fact in issue") ; Williams v. Eighth Judicial Dist.
Court, 127 Nev. „ 262 P.3d 360, 368 (2011) ("Mt will assist the trier
of fact if it is relevant and supported b y competent. . . research.").
SUPREME COURT
OF
NEVADA
7
(0) I947A cep