The Erik Scott Case: Update 6--Las Vegas Follies Redux

It was my intention to temporarily put this series to bed with Update 5, thinking that little would be of interest to readers until a civil suit was filed at some point in the future and discovery began as is common with such cases. But as I’ve noted in previous updates, there is much about this case that is unusual, so unusual as to raise reasonable suspicions about the actions of the Las Vegas authorities before, during and after the shooting of Erik Scott. This update will focus on the involvement of the Office of the Clark County Public Administrator, John J. Cahill. The PA’s website can be found here, and the section of the Nevada Revised Statutes (NRS 2009) that deals with Public Administrators can be found here. A You Tube rendition of a message left on Kevin Scott’s answering machine by Clark County Deputy Public Administrator Steve Grodin can be heard here.

The Office of the Public Administrator was established by the Nevada Legislature in 1922 and is an elected office with a four year term. A PA is authorized for each county. Public Administrators may appoint as many deputies as they consider necessary to do their jobs. Oversight of each PA Office is in the hands of the Commissioners of each county. Public Administrators are responsible for securing the estates of people who have died, leaving no family or relatives able to deal with that property. They deal with real estate, wills, trusts, bank accounts and similar, related matters. The relevant portion of the law is:

“NRS 253.0405  Circumstances under which public administrator may secure property of deceased.  Before the issuance of the letters of administration for an estate, before filing an affidavit to administer an estate pursuant to NRS 253.0403 or before petitioning to have an estate set aside pursuant to NRS 253.0425, the public administrator may secure the property of a deceased person if the administrator finds that:

1.  There are no relatives of the deceased who are able to protect the property; or

 Failure to do so could endanger the property.”

The statute makes clear that the PA may act to care for the estates of the deceased if no joint tenants or relatives exist to protect the property and if their failure to do so may endanger the property. Enter the Scott case.

Erik Scott was shot and killed by Metro Police Officers at approximately 1 PM on July 10, 2010. Shortly thereafter, deputies of the Clark County Public Administrator began calling Erik’s younger brother, Kevin to obtain permission to enter Erik’s Las Vegas condominium, ostensibly to secure it. Between three and four attempts were made to contact Kevin. The first was a message left on his answering machine telling Kevin that the PA’s office intended to enter Erik’s home and asking him to call back. Kevin, who was traveling on business by air, did return the call and spoke with PA Deputy Steve Grodin. Kevin, who had only just heard of Erik’s death at the hands of Metro Police, was trying to serve as the primary point of contact between the authorities and his family while in the midst of making airline connections. Grodin made plain to Kevin that he intended to enter Erik’s home, with or without Kevin’s permission, but was seeking his permission, which Kevin clearly refused to give, telling the Deputy that he was about to board an aircraft and accordingly, would not be reachable for some time.

Despite this warning, the PA’s office continued to call Kevin, leaving messages at 5:57 PM and again at 7:03 PM. It is the 7:03 PM call that appears on You Tube. In that call, Grodin makes clear his intention to enter Erik’s home, but remains intent on obtaining Kevin’s permission. In the message, Grodin identified himself by name as a Deputy with the Public Administrator’s Office. He said that he had already contacted a locksmith because he did not have a key to Erik’s home and that the locksmith was “enroute” to “change out the deadbolt.” Grodin said that he intended to secure “weapons and valuables.” Grodin, who clearly sounds frustrated, said that Erik’s “...girlfriend has been stonewalling me...” and telling him that she [Samantha Sterner] did not want him to enter the house. Grodin said that he knew that she lived there and that her clothing and other property was there. He said that Sterner told him that she had been in touch with Erik’s parents and their attorney, and both did not want him to enter the home, but he said that he did not believe her because he had not been able to contact them and that he had “full authority” to enter the house [It's unclear where Grodin got this idea as Scott's parents were unaware of his desire to enter Erik's home for some time]. He said that there was an open window and he could enter there. He again mentioned that a locksmith was coming and said something unintelligible regarding the “Metro Police,” but in the context of his comments, it’s clear he was saying that the Police were with him. Grodin was running a bluff. He demonstrably did not have authority, full or otherwise, to enter Erik’s home.

Neither Kevin, nor any other member of the Scott family, gave the PA’s Office permission to enter Erik’s home. Grodin’s recorded message made clear that he was told repeatedly not to enter by Sterner who was exercising her legitimate rights to the property, yet Grodin, accompanied by at least one Metro Police Officer, did indeed enter Erik’s home where they seized and took a number of items of Erik’s property, some of which were eventually returned to the family. However, there is reason to believe that other items were taken from the home, items that were not acknowledged and not returned to the Scott family and which may be important in the future.

How did the PA’s Office become aware of Erik Scott and his home and what were they doing there? Why was a PA deputy so desperate to enter Erik’s home? Did he have lawful authority to be there, to enter, and to conduct a search and to seize Erik’s property? And why were the police there with the PA Deputy? This is a good time to revisit the foundation of the state’s authority to conduct searches and to seize property: The Fourth Amendment of the Constitution:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This is significant in that Public Administrators and their deputies are not, under Nevada law, law enforcement officers (“Peace Officers” in NRS language). While the law could, under certain unusual and specific circumstances, confer certain temporary law enforcement powers on a PA or deputy, this would require appointment by a prosecuting attorney or other officer of the executive or judicial branch having the power to make such appointment. There is no known evidence of such an appointment in this case. Nevada law clearly intends that Public Administrators function as custodians of real property and estates, not as enforcers of criminal law. In fact, the law specifically prohibits them from administering certain estates. Pay particular attention to 2.(a):

“NRS 253.0415  Duties in administering estate; estates that administrator is not to administer.

1.  The public administrator shall: (a) Investigate:

(2) Whether there is any qualified person who is willing and able to serve as administrator of the estate of an intestate decedent to determine whether he or she is eligible to serve in that capacity.

2.  The public administrator shall not administer any estate:

(a) Held in joint tenancy unless all joint tenants are deceased;

NRS 253.042  Investigatory powers.  In connection with an investigation conducted pursuant to subsection 1 of NRS 253.0415, a public administrator may:

 Require any spouse, parent, child or other kindred of the decedent to give any information and to execute any written requests or authorizations necessary to provide the public administrator with access to records, otherwise confidential, needed to evaluate the public administrator’s eligibility to serve.”

I’ve reproduced the relevant portions of the law. Those interested in the portions I’ve omitted can satisfy themselves by accessing the link in the opening paragraph of this update, but will likely find them to be procedural rather than substantive.

It is clear that the PA has a duty--and the authority--to determine whether anyone is eligible and willing to serve as an estate administrator, to care for the property of someone who has died. It is also clear that he may compel relatives to provide information that will allow him to make that determination. However, the PA is SPECIFICALLY PROHIBITED from administering any estate “Held in joint tenancy unless all joint tenants are deceased.”

Let us return to our earlier questions:

(1) How did the PA’s Office become aware of Erik Scott and his home and what were they doing there? The unqualified answer is not currently known, however, since a police officer accompanied Grodin on the search of Erik’s home, it’s reasonable to believe that the Metro Police notified the PA and enlisted his help. It is important to understand that an employee of the PA’s office has admitted that it is unusual for police officers to accompany them. It is not known what the police told Grodin, but he was obviously willing to cooperate with the police or felt an obligation to cooperate based on what he was told. Exactly who ordered this contact and their motives in so doing are currently unknown, but some reasonable inferences can and will be drawn.

The law does allow a variety of individuals and entities to contact the PA’s Office and request their help. It is not unreasonable to believe that the Metro Police, from time to time, do just that and for the most altruistic of reasons. However, it is also likely that this is not something encountered daily by the average officer, and that it almost certainly does not occur within minutes of a police shooting. It would be interesting, in fact, for the Las Vegas media to determine if this had ever occurred in the course of any of the many police shootings in the decade leading up to the Scott shooting and if so, under which circumstances? Specifically, has a PA Deputy ever led the Metro Police on an entry and search of the property of someone they have shot and killed, and what property, if any, did they seize?

(2) What was the Public Administrator doing at Erik’s home? Remember that Public Administrators are specifically prohibited from being involved where one who holds “joint tenancy” exists. “Joint tenancy” is reasonably understood to mean someone who actually lives in a given home as opposed to a mere visitor, someone having authority to live there who has or shares responsibility for that home. Was there such a joint tenant?

Indeed: Samantha Sterner, Erik’s girlfriend who was with Erik at the Costco and standing with him when he was shot and killed. Sterner had, in fact, moved in with Erik a week before Erik’s shooting and had full access to and control of the condo, including a key. The Police knew this because Sterner told them during the taped interview they conducted with Sterner after the shooting. Grodin also knew this as his own admission on the recording clearly proves. He also knew that Sterner--the girlfriend who was “stonewalling” him--who had, by any reasonable understanding of the term, “joint tenancy,” repeatedly refused him permission to enter. Grodin’s message also indicates that he wanted to contact Erik’s parents but failed. In this case, the wishes of Kevin Scott and Scott’s parents would hold moral, but no legal force. Sterner’s wishes certainly did, yet Grodin ignored her and in so doing, the police and he likely violated the law--potentially many laws. By the clear language of Nevada law, the PA apparently had no authority whatsoever to be involved. Of course, this raises the question of whether the Police told the PA’s Office of Sterner’s joint tenancy independent of Sterner, and if they did not, why they withheld that information. Was it merely a lack of communication or was less innocent motivation involved?

Remember that Grodin said that he intended to search for “weapons and valuables.” If Grodin and the Police were not merely on a fishing expedition in the hope of finding something, anything that might be used to smear or incriminate Erik Scott, how did Grodin come to expect to find “weapons” in Scott’s home? Remember too that Scott died shortly after being shot. There is no need to gather evidence to prosecute the dead. Any evidence to be discovered and seized in his home would have been useful only as a means of justifying the actions of the authorities in shooting him and in providing cover--if the police believed that such cover was necessary.

It appears obvious that the Police wanted to enter and search Erik’s home and seize property therein. Even if Grodin was unaware of Fourth Amendment restrictions on search and seizure (to say nothing of the very laws that establish and limit his office), the Police can claim no such naivete. The Police deal with issues of joint tenancy every day. They know that people don’t carry copies of leases, deeds or other legal documents with them. Any rational police officer speaking to Sterner would surely have concluded that as she actually lived there and her clothing and property were there, she was a joint tenant in control of the home. The police know that if one legitimately in control of a property refuses them entrance, they have only one remaining legal option: Obtain a search warrant.

There is reason to believe that this is the last thing they wanted to do. Why? All warrants are accompanied by a return document on which the police are required to specify the property seized. This return must be returned to the judge and filed with all the related paperwork after the search is conducted. In addition, warrants come with time limits. They must commonly be executed within a day, two at the most, of the time of issuance unless an exception is specifically granted by a judge and such exception must also appear on the warrant. There may be reason to believe that the police wanted the least possible paper trail. There may be reason to believe that they hoped to find a weapon in Scott’s home, the right kind of weapon, a weapon they knew existed, and that they did find what they were looking for.

(3) Why was a PA deputy so desperate to enter Erik’s home? The most obvious answer to this question, absent testimony under oath, is that Grodin, on behalf of the police, was looking for something. Under the kindest possible interpretation, Grodin, unaware of Sterner, intended to search in good faith for the identities of and information about Erik’s relatives or joint tenants. But this is not credible as Grodin knew of Sterner and her refusal to grant entry. He already knew of Erik’s relatives, particularly Kevin, who told Grodin that he intended to be in Las Vegas the next day. What then were they seeking and why? Why did the Police--through Grodin--continually try for more than six hours to obtain Kevin’s permission to enter Erik’s home, knowing that he did not have joint tenancy and therefore, no legal standing to consent? Remember that Grodin and the Police knew that Sterner had joint tenancy and of course, lived in Las Vegas and was immediately available to secure and maintain that property, a property that was consequently in no danger whatever. They also knew that Kevin Scott and Erik’s parents lived out of state. And why did they try to bluff, to intimidate Kevin, asserting authority they must have known that they did not have? Remember, Kevin’s authority would have been worthless, no better, legally speaking, than asking a passerby for permission. Could it have been the intention of Grodin and the Police--and Grodin did allude to this in the 7:03 PM call to Kevin--to ignore Sterner’s lawful claim of joint tenancy and to provide cover for themselves by trying to establish a competing claim by Kevin Scott using the fact that he was out of state as a transparent justification for immediately taking control of Erik’s home?

(4) Did he have lawful authority to be there, to enter, and to conduct a search and to seize Erik’s property? And why were the police there with the PA Deputy? Consider that the PA and his deputies are not law enforcement officers. They have no authority to conduct searches and seizures, nor do they have the means, training, expertise and facilities to properly handle evidence. Of course, the Metro Officer (or officers) that accompanied him do have such authority and abilities. This being the case, why was the PA’s Office involved at all? This is where the Fourth Amendment figures prominently.

While there are specific emergency exceptions to the warrant requirement, none apply in this case. For a police officer to lawfully conduct a search and to seize property that will be admissible in court, they must file a signed affidavit, under oath, with the court that explains their authority and relation to the case at hand, and that specifically establishes probable cause to believe that the items they seek are at a specific address. They must specify this address and must specifically describe each and every item they seek, and they must specifically explain why each and every item is liable to be seized. This latter qualification is very important. In addition, the law relating to searches is very specific. If, for instance, the police are looking for stolen truck tires, they may search any place in the specified building where a truck tire could possibly be hidden, but may not, for example, search in a kitchen drawer, in a cookie jar or in a jewelry case.

Warrants are issued to allow the police to protect and preserve evidence, evidence that might prove that a crime has been committed and that a particular person has committed it, or evidence of the crime itself such as stolen property. “Fruits of a crime” may also be seized. If, for example a burglar fences stolen property, obtains cash and buys an expensive watch, that watch may be seized as a fruit of the crime. Again, remember that Erik Scott was dead. No charges could be brought against him. There was no need to seize any evidence of potential crime.

Warrants aren’t issued on mere suspicion--the police can’t legally conduct fishing expeditions in the uninformed, desperate hope of finding, something, anything they might use against a suspect--but only upon probable cause which is universally understood to be facts and circumstances that would lead a reasonable police officer to believe that a specific crime has been committed and that a specific person has committed it. Notice the requirement for very specific information, information which establishes probable cause. It is the judge who reads the affidavit, and if convinced that probable cause exists, authorizes the issuance of the actual warrant which specifies the place(s) to be searched and the property to be seized. No competent, honest judge will issue a warrant for a fishing expedition, or if any of the specific information required by the Constitution is unclear or missing from the affidavit.

Keep in mind too that in most police agencies of any size, patrol officers are not allowed to obtain warrants on their own. This is, for the most part, a matter of efficient resource allocation. Patrol officers are generally relegated to patrolling and taking initial reports of crimes, making only brief, on scene investigations with the aim of returning to the street as quickly as possible. Any report requiring more thorough investigation is routed to a detective responsible for that class of crime, such as car theft or residential burglary. It is detectives, officers of higher rank above and apart from patrol officers, who commonly obtain warrants when required. This does not mean that patrol officers never do so, but for most agencies this is uncommon. Patrol officers are adept at handling the forms they deal with every day, but most would not be familiar with the required documents and procedures involved in search warrants. I do not know the specific policies of the Metro Police in this regard, but suspect that it is in line with what I’ve represented here as it is throughout much of America. Also keep in mind that what is written in official police regulations and procedures and what officers actually do may be two different things. The real world often does not well agree with the world of paper and ink.

Erik’s home and the property within were substantially removed in time and location from the scene of the shooting. In fact when he was shot, Erik was not under arrest and the most serious crime of which the police could reasonably have suspected him was shoplifting or failing to leave the Costco (which would likely have been classified as trespassing), and both of these were incorrectly radioed to the responding officers by a dispatcher. In neither case could any evidence remotely related to such crimes have been at Erik’s home. Remember that no witness at the inquest testified that Erik shoplifted or was ever specifically asked to leave, hence, no crimes, no possible evidence of crimes, no lawful search.

The Police have asserted that the Ruger .380 ACP pistol reportedly found in Erik’s pocket by firefighter/medic Chris Thorpe constituted a crime, but the evidence of that “crime,” the pistol itself, was already in the hands of the police if their account of the incident is accurate. It may not be. All available evidence--to say nothing of common sense and constitutionally sound police procedure--indicates that Erik’s home had nothing whatever to do with any crime, nor did any of its contents. It was the home of a man the police shot and killed. That home was under the lawful control of Sterner, his joint tenant. The police knew this. Deputy Public Administrator Grodin knew this. The police had no lawful reason to enter or search Erik’s home or to take any property within. I am aware that I have repeated this point more than once. As Shakespeare said, there is method in my madness.

Experienced investigators listening to the voice of the PA Deputy Grodin on the You Tube recording would hear what I heard: A man running a bluff and running it badly. Unless he was incompetent (or under pressure?), Grodin would surely know the limits of his authority, and would also know, as has been admitted, that being accompanied by the police was unusual. He would have known that he had no authority to enter Erik’s home despite his bluff to the contrary, to say nothing of seizing his property, and would have understood that he could never, absent committing blatant perjury on an affidavit, have obtained a warrant. Realistically, he would likely have had no idea how to find and complete an affidavit to obtain a warrant as this is, in all probability, not a usual requirement of his daily duties.

The police would know how to obtain a warrant. They would know without a doubt that they had no legitimate reason and no lawful authority for a search and that obtaining a warrant would require a perjured affidavit, an original affidavit bearing their false assertions and an officer’s signature that would be on file with the court, difficult or impossible to control. In addition, as previously mentioned, the warrant return would have to specify each item seized which would then have to be entered into the police evidence system. All or any of these documents, if indicative of perjury or any other crime, would point directly at them and could lead to dismissal, prosecution and incarceration.

So why did the police contact the PA’s Office? Why did they enlist their aid? Why were they desperate to enter Erik’s home and seize property despite knowing that Sterner had joint tenancy and that they had no reason to be there and no lawful authority to conduct a search?

Part of the answer is suggested by the fact that after illegally searching the house and illegally removing property, they changed the locks and kept the key, locking Sterner out of her home until Kevin Scott was able to obtain the key at least a day later. The services of the PA’s office and the locksmith cost Erik’s family hundreds of dollars. Scott’s family were billed for the arguably illegal actions of PA Deputy Grodin and the Metro Police. Why did they believe it necessary to keep Sterner out of her home, to have unrestricted, unobserved time alone in that home before she was allowed to return to it?

It is interesting, and another potential irony in a case rife with ironies, that Nevada Law provides a direct and specific means of addressing at least part of what appears to be improper conduct by Clark county authorities:

     " NRS 253.091  Reports to and investigations by board of county commissioners.

      1.  The board of county commissioners shall:

      (a) Establish regulations for the form of any reports made by the public administrator.

      (b) Review reports submitted to the board by the public administrator.

      (c) Investigate any complaint received by the board against the public administrator.

      2.  The board of county commissioners may at any time investigate any estate for which the public administrator is serving as administrator.
      (Added to NRS by 1979, 992; A 2007, 2489)"

It would seem that apart from considering changes in the rules and procedures of Coroner’s Inquests, the Clark County Board of County Commissioners have the opportunity to investigate and clarify additional anomalies in a case that may come to embody the term. If they hope to limit the legal liability of Clark County, they may be wise to conduct a prompt, thorough and ethically pristine investigation.

In Update 7, which will be posted soon, we’ll provide analysis that may serve to explain why the Police were so anxious to search Erik’s Scott’s home. We’ll also analyze a number of other interesting, and troubling, developments.