NEVADA IN THE SUPREME COURT OF THE STATE OF

No. 68591 BRIAN WILLIAMS, SR., WARDEN; AND THE STATE OF NEVADA, Appellants, vs. FILED NOE LUIS JUAREZ-GUTIERREZ, FEB 1 6 2017 Respondent.

ELIZABETH A. BROWN CLERK OF SUPREME COURT svs5.4.14L i or_._ 44.-v Y OL CEPU1

ORDER OF REVERSAL AND REMAND er granting a This is an appeal from a district court ord corpus. Second Judicial postconviction petition for a writ of habeas , Judge. Appellants argue District Court, Washoe County; Lidia Stiglich dard in granting habeas that the district court applied the incorrect stan factual findings that are relief. Giving deference to the district court's wrong but reviewing the supported by substantial evidence and not clearly o, Lader v. Warden, 121 court's application of the law to those facts de nov reverse and remand for Nev. 682, 686, 120 P.3d 1164, 1166 (2005), we further proceedings. ped by police Respondent Noe Luis Juarez-Gutierrez was stop passenger, E.C.G., were for a purported traffic violation. He and his ned separately in English directed to exit the vehicle and were questio a Mexican national who without Miranda' warnings. Respondent is comprehension. Officers claims extremely limited English-language from the floorboard and seized and searched a coffee can full of change tamine in a plastic bag found approximately one ounce of methamphe 'Miranda v. Arizona, 384 U.S. 436 (1966).

SUPREME COURT OF NEVADA (0) 1947A mtiro to a search of the within it. Officers asserted that respondent consented they found and master bedroom in his sister's nearby house, where kilograms of searched a box that contained approximately two minary hearing methamphetamine. Respondent waived his right to a preli unt of Schedule I and pleaded guilty to one count of trafficking an amo 3385(1)(c), for the controlled substances greater than 28 grams, NRS 453. methamphetamine seized within the house. pro se Respondent did not file a direct appeal but filed 'a that trial counsel postconviction motion to suppress evidence, arguing e to suppress the provided ineffective assistance by failing to mov r to engage in methamphetamine and to investigate the case in orde ed the motion as a meaningful plea negotiations. The district court treat postconviction habeas petition, see NRS 34.724(2), appointed postconviction counsel, and held an evidentiary hearing. ied During the evidentiary hearing, the arresting officer testif search the sister's that he asked respondent for and received consent to G. testified that he house but did not speak Spanish with respondent. E.C. had never heard knew that respondent did not speak English well and that respondent respondent speak English. Another witness testified in English and that would have been unable to understand a conversation basic directions. his facility in English was limited to matters such as as consisting in Trial counsel described her inquiry into the incident and asking him if having the arrest report read to respondent in Spanish inquire into any it was false—when he said that it was not, she did not the arrest report.

Fourth Amendment issues implicated by the account in mstances of the Trial counsel did not ask respondent about the circu rstoo d the police consent alleged in the arrest report, if respondent unde SUPREME COURT OF NEVADA (0) 1947A (ce rstood English, inquiries of him following the traffic stop, or if he unde an interpreter. even though she never spoke with him in English and used ish, The district court found that respondent spoke little Engl the that coun sel only spoke with him through an interpreter, that that the record purported consent to search was obtained in English, trial counsel supported a good-faith suppression challenge, and that was indifferent investigated only by reviewing the police reports and that trial counsel toward respondent's case. The district court determined respondent's was deficient when she decided not to inquire further into that "it appears purported consent to search. The district court concluded issue] may have that such a [suppression] motion [challenging the consent was a "valid enjoyed a reasonable likelihood of success" and that there not freely and argument" that respondent's consent to search was voluntarily given and granted respondent's petition. ioner To demonstrate ineffective assistance of counsel, a petit it fell below an must show that counsel's performance was deficient in that performance objective standard of reasonableness and that the deficient U.S. 668, 687-88 prejudiced the defense. Strickland v. Washington, 466 P.2d 504, 505 (1984) (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 ective assistance (adopting the test in Strickland). Where a claim of ineff nce based on an is predicated on counsel's failure to move to suppress evide g requires a alleged Fourth Amendment violation, the prejudice pron torious and (2) showing that (1) the Fourth Amendment claim was meri evidence would there was a reasonable likelihood that exclusion of the 990, 923 P.2d have led to a different result. Kirksey v. State, 112 Nev. 980, U.S. 365, 375 1102, 1109 (1996) (citing Kimmelman v. Morrison, 477 prejudice—that (1986)). As to the second showing required to establish SUPREME COURT OF NEVADA (0) 1947A (49i.1:0 result—a the exclusion of the evidence would have led to a different had been petitioner who pleaded guilty must show that if the evidence d not have excluded, there was a reasonable probability that he woul (1985); Kirksey, pleaded guilty. See Hill v. Lockhart, 474 U.S. 52, 58-59 112 Nev. at 988, 923 P.2d at 1107.

Appellants argue that the district court erred when it did not specificall y determine whether a suppression motion would have prevailed the district and that such a motion would have failed on the merits. As merit and court did not determine both whether a suppression motion had t would not whether there was a reasonable probability that responden that the have pleaded guilty if the evidence had been suppressed, we agree ineffective- district court did not apply the correct prejudice test for the decide in the assistance claim as to the suppression motion. We decline to eded on the first instance whether a suppression motion would have succe regarding merits. Because the district court's prejudice determination merits of a counsel's ineffectiveness in plea bargaining is predicated on the cannot suppression motion, we conclude that the district court's order direct the stand based solely on that ineffective-assistance claim. 2 We dering the district court to enter additional findings and conclusions consi is based prejudice test that governs when an ineffective-assistance claim

2 Though the district court did not enter defic iency findings on an offer of respondent's claim that counsel should have pursued he entered substantial assistance and argued for a lesser sentence after . his plea, respondent did not demonstrate prejudice on that claim

SUPREME COURT OF NEVADA (0) 1947A ce a Fourth on counsel's failure to file a motion to suppress evidence based on Amendment violation. 3 Accordingly, we ORDER the judgment of the district court REVERSED AND stent with REMAND this matter to the district court for proceedings consi this order.

ChaartAv , C.J.

Cherry

A-43ex Hardesty

J.

Parraguirre

cc: Chief Judge, The Second Judicial District Court Second Judicial District Court, Department 8 Attorney General/Carson City Washoe County District Attorney Patricia C. Halstead Washoe District Court Clerk

3 If the district court deems it necessary , a second evidentiary hearing should be held.

SUPREME COURT OF NEVADA (0) 1947A