SHAUN RAY WHITMORE v. THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

Shaun Ray Whitmore appeals from a judgment of conviction, entered pursuant to a no contest plea, of possession of a firearm by a prohibited person. Fourth Judicial District Court, Elko County; Hon. Mason E. Simons, Judge.

Whitmore argues the district court erred by denying his motion to suppress a firearm found in his vehicle during a traffic stop. A district court's resolution of a motion to suppress evidence presents a mixed question of law and fact. State v. Beckman, 129 Nev. 481, 485, 305 P.3d 912, 916 (2013). “This court reviews findings of fact for clear error, but the legal consequences of those facts involve questions of law that we review de novo.” Id. at 486, 305 P.3d at 916.

Whitmore contends that the police illegally seized a firearm from his vehicle and that the police prolonged the stop beyond the time necessary to issue a ticket in order to determine whether he was a convicted felon. “Under the Fourth Amendment,[¹ ] a seizure for a traffic stop is a relatively brief encounter, more analogous to a so-called Terry[² ] stop than to a formal arrest.” United States v. Steinman, 159 F.4th 550, 560-61 (9th Cir. 2025) (internal quotation marks omitted). “A traffic stop can become unlawful if it is prolonged beyond the time reasonably required to complete the mission of” the stop. Rodriguez v. United States, 575 U.S. 348, 354-55 (2015) (citation modified). Thus, “[t]o be lawful, a traffic stop must be limited in its scope: an officer may address the traffic violation that warranted the stop, make ordinary inquiries incident to the traffic stop, and attend to related safety concerns.” Steinman, 159 F.4th at 561 (emphasis added) (quotation marks omitted). Because “traffic stops are especially fraught with danger to police officers,” an officer may “take certain negligibly burdensome precautions in order to complete his mission safely,” including checking the driver's criminal history. United States v. Hylton, 30 F.4th 842, 847 (9th Cir. 2022) (citation modified).

The United States and Nevada Supreme Courts have not determined whether a police officer may seize a firearm located in a vehicle that is in plain view of the officer, even if its incriminating character is not immediately apparent,³ as part of the “negligibly burdensome precautions” the officer may take to ensure their safety during a traffic stop. However, even assuming police cannot, such a seizure is still justified if the police officer reasonably believes, based on specific and articulable facts, “that the suspect is dangerous and the suspect may gain immediate control of weapons.” Michigan v. Long, 463 U.S. 1032, 1049 (1983). Here, the district court found that “the officers on scene had ample basis to be concerned about their safety.” The district court's finding is supported by the record, which indicates that (1) Whitmore and a passenger were pulled over by Officer J. Silva at approximately 3:30 a.m.; (2) Officer Silva clearly observed through the front driver side window a firearm in an atypical location: behind the radio and underneath the dashboard of the vehicle, toward the floorboard; (3) Officer Silva recognized the passenger from prior encounters as someone with gang affiliations; (4) the passenger informed Officer Silva that they were looking for a “tweaker bitch” who had robbed them, and the occupants declined police assistance; (5) when Whitmore and the passenger were ordered to exit the vehicle, another officer saw a second firearm in the passenger door; (6) Officer Silva conducted a Terry pat-down frisk of Whitmore, which revealed multiple knives; and (7) Whitmore and the passenger sat on the curb unrestrained while Officer Silva retrieved the firearms from the vehicle.

Whitmore contends that concerns about officer safety cannot justify the seizure because Officer Silva testified at the evidentiary hearing on the motion that he did not believe Whitmore was armed and dangerous after he had frisked Whitmore and had Whitmore sit on the curb. We disagree. Officer Silva's subjective belief is not determinative of the matter; rather, “the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 1050 (citation modified); Scott v. United States, 436 U.S. 128, 138 (1978) (“[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”).

Moreover, although Officer Silva did not believe Whitmore was armed and dangerous while sitting on the curb, he was aware Whitmore was sitting on the curb unrestrained and that there was at least one firearm located in the vehicle.⁴ The United States Supreme Court has recognized that a suspect in such a situation might “break away from police control and retrieve a weapon from his automobile” or access any weapons inside the vehicle after being permitted to reenter the vehicle. Long, 463 U.S. at 1051-52. After review, we conclude that a reasonably prudent person in Officer Silva's position would be warranted in the belief that his safety or the safety of others was in danger. Therefore, a protective sweep of the vehicle was justified. Cf. Padilla v. State, No. 73353, 2019 WL 6840114, at *3 (Nev. Dec. 13, 2019) (Order of Reversal) (concluding a protective sweep of a vehicle was not justified where a Terry frisk revealed no weapons, law enforcement had plain view of the interior of the vehicle and observed no weapons, and there was no indication that the officers were going to permit the defendant to return to the vehicle).

Finally, even if Officer Silva illegally seized the firearm from Whitmore's vehicle, the district court properly denied Whitmore's motion because Officer Silva would have had probable cause to believe the firearm was contraband, and thus would have been permitted to seize the firearm, after dispatch confirmed Whitmore was a convicted felon.⁵ See State v. Lloyd, 129 Nev. 739, 750, 312 P.3d 467, 474 (2013) (stating that, under the automobile exception to the warrant requirement, “a police officer who has probable cause to believe [a] car contains contraband or evidence of a crime must either seize the vehicle while a warrant is sought or search the vehicle without a warrant”); see also Nix v. Williams, 467 U.S. 431, 444 (1984) (stating that evidence will not be suppressed based on improper police conduct if the evidence ultimately would have been discovered by lawful means). To the extent Whitmore contends that Officer Silva improperly prolonged the stop to check his criminal history, as previously discussed, “a criminal history check stems from the mission of the stop itself.” Hylton, 30 F.4th at 848 (internal quotation marks omitted). Thus, absent evidence indicating the criminal history check took an unreasonably long time to complete such that it could no longer be considered a “negligibly burdensome precaution[ ],” Rodriguez, 575 U.S. at 356, such a check does not unlawfully prolong a traffic stop. No such evidence was presented in this matter.⁶

For the foregoing reasons, we

ORDER the judgment of conviction AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Whitmore does not contend that Article 1, Section 18 of the Nevada Constitution imposes stricter standards than its federal cognate. Thus, we treat both provisions as coextensive. See State v. Lloyd, 129 Nev. 739, 745, 312 P.3d 467, 471 (2013) (recognizing that “Nevada has historically followed the United States Supreme Court on most, if not all, of its interpretations and applications of the law governing searches and seizures” (internal quotation marks omitted)).

2.   Terry v. Ohio, 392 U.S. 1 (1968).

3.   Whitmore contends, and we agree, that the plain-view doctrine does not apply in this case because the police did not know he was a convicted felon at the time they seized the firearm. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). However, for the reasons discussed below, we conclude that the seizure of the firearm was nonetheless lawful.

4.   It is unclear from the record whether Officer Silva learned of the second firearm before or after frisking Whitmore.

5.   Whitmore admitted to Officer Silva that he was a convicted felon.

6.   The district court found, and the parties do not dispute, that Officer Silva initiated the criminal history check after recovering the first firearm from the vehicle, which occurred approximately four to five minutes into the stop. Whitmore admitted to being a convicted felon approximately 16 minutes into the stop, and dispatch confirmed this status shortly thereafter.