Las Vegas Bistro, LLC v. Las Vegas Metro. Police Dep't (In re Search Warrants Regarding Seizure of Documents)

1

IN THE MATTER OF: SEARCH WARRANTS REGARDING SEIZURE OF DOCUMENTS, LAPTOP COMPUTERS, CELLULAR TELEPHONES, AND OTHER DIGITAL STORAGE DEVICES FROM THE PREMISES OF LAS VEGAS BISTRO, LLC, AND LITTLE DARLINGS OF LAS VEGAS, LLC.

LAS VEGAS BISTRO, LLC, D/B/A LARRY FLYNT'S HUSTLER CLUB; AND LITTLE DARLINGS OF LAS VEGAS, LLC, Appellants, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Respondent.

No. 84931-COA

Court of Appeals of Nevada

April 7, 2023

UNPUBLISHED OPINION

ORDER AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

GIBBONS, C.J.

Las Vegas Bistro, LLC, d/b/a Larry Flynt's Hustler Club (Hustler Club), and Little Darlings of Las Vegas, LLC (Little Darlings), appeal from a district court order denying their motion to unseal and quash search warrants and for the return of property. Eighth Judicial District Court, Clark County Jerry A. Wiese, Judge.

The Las Vegas Metropolitan Police Department's Special Investigation Section began covertly investigating erotic dance locations for prostitution-related activities including investigations at Hustler Club and Little Darlings (collectively, appellants).^[1] As part of its investigation, LVMPD sent undercover officers to each establishment in January and March 2022. During each of these visits, one or more entertainers solicited the undercover officers to engage in illicit prostitution activity.

In April 2022, LVMPD submitted applications and affidavits in support of search warrants for Hustler Club and Little Darlings that were granted by the Las Vegas Justice Court. Both warrant applications indicated an investigation into the crimes of "advancing prostitution" and "living from earnings of prostitution" at these establishments. The warrants for both properties were issued the same day, as well as orders sealing the affidavits for both warrants.

The warrants were executed on both Hustler Club and Little Darlings on April 5. At both properties, LVMPD seized computers, tablets, thumb drives, documents, and the cell phones of managers present. Two days after the warrants were executed, LVMPD submitted additional applications and affidavits in support of search warrants requesting authority to search the digital storage devices seized from Hustler Club and Little Darlings. The justice court issued both search warrants the same day, as well as additional orders sealing the affidavits.

Five days later, appellants filed in the district court a motion to (1) unseal the search warrant applications and supporting affidavits, (2) quash the search warrants, and (3) return seized property. The motion was brought pursuant to NRS 179.105 (retention and restoration of property taken on warrant), 179.045(4) (sealing and unsealing of warrant materials), and 179.085(1)(b), (d), and (e) (requesting the return of property). The motion was divided into two main points: a request to quash and unseal the warrant materials based on a lack of probable cause, and a request for the return of property because the warrants were allegedly insufficient and illegally executed and the property seized contained privileged material.

LVMPD opposed the motion. It argued the warrants were supported by probable cause for the crimes of "advancing prostitution and "living from earnings of prostitution." LVMPD further argued that if the district court were to unseal the warrants, additional evidence would potentially be destroyed and that the ongoing investigation presented a compelling reason against disclosure.

At the time of its opposition, LVMPD confirmed the seized property was in the custody of the LVMPD Digital Forensics Lab (DFL). No search had yet occurred, as DFL was still in the process of creating mirror images of the electronic contents. To address appellants' privilege concerns, LVMPD proposed a search protocol whereby appellants would provide DFL with "a list of full names, email addresses, and/or phone numbers that would be considered privileged." DFL would search for the keywords and review the search results for privileged information. Privileged material would be redacted before the documents were turned over to LVMPD detectives.

LVMPD further argued that the Nevada statute explicitly requiring the return of privileged material among seized property, NRS 179.105, applied only to search warrants executed on practicing attorneys or law firms. Because the search warrants in this case were not executed on any attorneys or law firms, LVMPD argued that no statute required the return of privileged material. LVMPD also asserted that the ongoing criminal investigation justified retaining the material.

At the hearing in district court, appellants asserted there was no evidence of "prostitution" as defined by NRS 201.320 because the undercover officers may have witnessed solicitation, but not prostitution. Appellants further contended that "advancing prostitution" and "living from earnings of prostitution" could not be supported by probable cause because they lacked the material element of "prostitution." With regard to the privileged materials, appellants argued that the proper course would be to i return the seized property to them to create a privilege log, and then the parties could engage a special master or third party to determine what was privileged.

The district court ordered LVMPD to provide the sealed warrant materials in camera so the court could determine whether there was probable cause for the warrants and whether appellants presented good cause to unseal them. After conducting its in camera review, the district court entered an order finding that the warrants were supported by probable cause and denying appellants' request to unseal. The district court further found that LVMPD's proposed DFL search protocol was "a reasonable resolution of' the privilege claim.

On appeal, appellants argue that the district court erred in finding that the warrants were supported by probable cause and that good cause existed for the warrant materials to remain sealed. In addition, appellants argue that the district court erred in finding LVMPD's proposed DFL search protocol was a proper resolution to the privilege issue, because there must be some mechanism for the return of privileged material seized from nonattorneys. LVMPD disagrees, arguing that the warrants were supported by probable cause, that good cause did not exist to unseal the warrants, and that LVMPD's retention of the property was reasonable under the circumstances. In addition, LVMPD argues that appellants request for the return of property is now moot because the electronic devices were returned to the property owners (though LVMPD retained a copy of the contents). We address appellants' arguments in turn.

The district court did not err in finding the warrants were properly supported by probable cause

Appellants argue probable cause for the warrants was lacking because the undercover officers could not have consummated any sexual acts with the entertainers. While there may have been probable cause for solicitation, appellants claim that there could not have been probable cause for prostitution or any crimes which have prostitution as a material element. As a result, appellants argue they are entitled to the return of property under NRS 179.085(1)(b) and (d) because the warrants were insufficient on their face and illegally executed. LVMPD responds that the district court properly found that probable cause existed after its in camera review of the warrant materials.

"[T]he proper standard for determining probable cause for the issuance of [a] warrant is whether, under the totality of the circumstances, there is probable cause to believe that contraband or evidence is located in a particular place." Keesee v. State, 110 Nev. 997, 1002, 879 P.2d 63, 67 (1994). Probable cause to support a search warrant exists where the facts and circumstances within an officer's knowledge warrant a reasonable belief that an offense has been or is being committed. Brinegar v. United States, 338 U.S. 160, 175-76 (1949). "Further, the issuing judge's determination of probable cause should be given great deference by a reviewing court. . . . The duty of a reviewing court is simply to determine whether there is a substantial basis for concluding that probable cause existed." Doyle v. State, 116 Nev. 148, 158, 995 P.2d 465, 471-72 (2000) (internal citations omitted).

In this case, LVMPD's undercover investigations revealed a pattern of entertainers soliciting undercover officers for illicit sexual activity for a fee. Simply because the undercover officers did not personally engage in prostitution does not inherently mean that probable cause was lacking for prostitution-related activities. See Keesee, 110 Nev. at 1002, 879 P.2d at 67 (holding that probable cause is determined under the totality of circumstances). A reasonable inference is that some customers could or would have engaged in illicit activities and that the entertainers were attempting to commit a crime. Having also reviewed the affidavits in camera, we agree under the totality of circumstances that there was a substantial basis for the district court to conclude that probable cause existed. Id. Therefore, we conclude that the district court did not err in finding probable cause for the crimes of "advancing prostitution" and "living from earnings of prostitution," and it properly denied appellants' motion to return property pursuant to NRS 179.085(1)(b) and (d).^[2] Appellants did not establish good cause to unseal the warrant applications and affidavits

Appellants argue that good cause exists to unseal the warrant materials because ¶t]he gravamen of LVMPD's investigation is the alleged solicitation of prostitution at [a]ppellants' businesses in January and March of this year. ... As...