Wright v. State

WRIGHT, Appellant, FERMAN WAYNE v. THE NEVADA, Respondent. STATE OF

No. 6482 August 1, Legakes, Defender,

Robert G. Public County, Clark Appellant. List, General, Robert Roy Attorney City; Carson A. Woof-

ter, Garner, District Attorney, and Charles L. Chief Deputy for Appeals, Clark County, for Respondent.

OPINION Court, Gunderson, J.:

By of committing burglary by Convicted entering Henderson Bowling with to commit Alley intent con- larceny, appellant tends originally officers who arrested him for stolen displaying 482.545, car, license on his in violation of NRS infringed his Amendment rights by Fourth warrantless “searches” person vehicle that evidence produced linking appellant merit, the burglary. This contention has no in the factual

context of this case.

About 2:00 Vegas a.m. on two Las April patrol officers, control, through a routine check with central learned the 1964 of them stolen Texas Oldsmobile ahead bore license As the Oldsmobile turned into a motel plates. parking lot, the officers ten fifteen feet pulled “[approximately driver, Watts, behind it.” The out George got Oldsmobile’s and walked approached toward motel office. Officer Jones him, Watts, said he wanted him to “step to talk to asked back to Wright ignored vehicle.” appellant When get out of the Officer Gates ordered repeated requests him out at and took him to the vehicle also. gunpoint, unoccu-

Returning make sure the Oldsmobile was now the front pied, Officer Gates saw a from under protruding seat, as he visible because had not closed the door appellant debarked. The officers then “frisked” and Watts no more patting clothing, down the exterior of their found weapons, large bulge but discerned a inside shirt. appellant’s was; Officer said it was bulge Jones asked what the appellant money he from a man in California had taken force and, soft, did not satisfy debt; a since it the officers seemed remove it from his person. When and appellant why Watts asked they being were

detained, the officers explained plates on the Oldsmobile were stolen. reported claimed Appellant say- ownership ing he had the plates borrowed from a friend he would not name, for a he would not disclose. The officers then purpose arrested and for license appellant Watts “fictitious plates”; they gave the warning,” “Miranda and radioed for a truck tow to impound car.1 appellant’s Appellant Watts continued talk, saying each was “hitch-hiker” Watts had appellant California, on the from but picked up way stating their meet- ing arrival, place differently. awaiting While the truck’s tow the contents; officers “inventoried” the Oldsmobile’s on the seat, back they found a case of assorted “with a crow- whiskey it”; seat, bar on sitting on the floor behind the driver’s top they Russell, found a bowling bag that bore the name of Elvis Henderson, 346 Tungston, bowling bag, Nevada. Inside the which was closed but not Gates discovered Officer zipped, appellant carrying deadly weapon 1 The officers also arrested for and, acknowledged using in an automobile because he force to “collect” money person, being fugitive justice. the discovered on his for legality need We not determine the of these arrests. testified: “When I pushed of rolled coins. Gates large quantity forward, and look top apart seat I could the spread the front sheet, the officers inventory bowling bag.” inside the On their trunk, did in but suitcases found the apparently also listed came; car was truck appellant’s look inside. The tow except all storage yard property, at a with impounded private rolled coins. Those containing gun bag and the bowling the appellant When headquarters. valuables were taken to police clothes bulge proved his jail, was “booked” into currency, as he had said. County Clark agencies The officers notified police entry. signs forced bowling alleys check bars and the Henderson burglary Henderson discovered crime; with Alley. charged Bowling Appellant his currency person, at his trial evidence showed contained, coins it were and the whiskey, bowling bag, crime, hours of appel- two of that committed within proceeds fired to break the lant’s apprehension. safe. locking bowling alley’s mechanism of the wife, he, Watts trial, his acknowledged During Bowling Alley Henderson had been girlfriend and Watts’ had “found” However, he said crime. day before the there. He denied burglary him to the that linked property as two in jail, while oral admissions making incriminating advised did, being again after testified Henderson policemen him guilty; found surprisingly, jury his Not rights. follows. him this appeal to 10 years prison; court sentenced Nevada Patrol Highway contends Appellant 482.545, and duty Vegas has a to enforce NRS concludes Las misdemeanor investigate evident use of license is com- involving possession stolen mitted in their his conclusion Assuming premise, presence. act a may public

is a non for officer sequitur; any peace offense is committed in his NRS presence. or attempted 171.124(1)(a). Indeed, a arrest in even private person 171.104; 171.126(1).2 such circumstances. NRS NRS the officers not have arrested might agree properly We could 2 Appellant recognizes exceptions apparently NRS that with stated operate, 482.545 or owner thereof “[t]o declares it unlawful for knowingly permit operation of, upon highway any to a motor registered attached vehicle . . . which is not or which does not have displayed plate assigned plates thereto and thereon the number of or registra by department thereto vehicles] motor for the current [of misdemeanor; period”; tion that a NRS 482.555 declares violation 482.545,

appellant under NRS if he or his had companion shown the information from central control was incorrect. However, Ohio, in Terry 392 U.S. 1 the United States Supreme recognized “a officer police may in appropriate circumstances and in an manner appropriate a approach person for the purpose investigating possible criminal behavior even though there is no cause to Id., accord, make an 22; State, arrest.” at in Robertson v. Indeed, Nev. Terry, P.2d before this court upheld right of a Las to a Vegas stop officer police vehicle that was without regular saying: recog- “It is plate, nized that and, fact, an officer ignore need not should not evidence of a crime Harper which comes to his attention.” appellant by exception provided was not within the 482.385 NRS (1) proper for plates nonresident owners with another state. issued However, appellant argues Department that NRS creates a 481.019 Vehicles; concerning 481.027(4) provides of Motor NRS its functions highway safety duplicated; shall not be NRS 481.130 creates the Nevada Highway Vehicles; Department Patrol as a division within the of Motor 481.180(3) duty Depart- NRS confers on the Patrol a to act for ment, Chapter NRS; appellant enforcement of 482 of concludes only duty “it Highway is of the Nevada Patrol to enforce the violation of N. R. S. 482.545.” us, argument First, only To this seems flawed. if Patrol has the “duty,” peace Second, it right. does not follow other officers lack the present, if others act when the Patrol is the Patrol’s functions seem augmented, “duplicated.” (Of course, city’s power to vest its municipal authority punish court with violations of NRS 482.545 question, would express be a opinion.) different about which we no Third, 482.545, Vegas police right if Las had no to arrest for violations NRS investigate it must be conceded could when the crime of possessing property apparently being stolen committed in their presence. Jones, (8th NRS 205.275. Cf. United States v. 452 F.2d 884 Cir. Pappacostas, (Utah 1965), Consider also: State v. holding that where Nevada, false license were used on a a misdemeanor was committed not under NRS 482.545 but under 482.275, requires plates NRS thereto; which issued vehicle to be attached being presence such misdemeanors committed in the of a Vegas police officer, power arrest; Las he had and that a warrantless search, revealing burglary incident was valid. City, evidence of a in Salt Lake Compare: People Franklin, Cal.Rptr. (Cal.App. 1968), upon holding which relies. While local had no right registration stop solely speculation an out-of-state vehicle its expired, right court said: “The of a officer deputy stop investigate sheriff ... a vehicle and where the license exhibited discloses what fact misdemeanor of failure display to Id., a valid license ... is not in issue in the instant case.” n. 5.

465 239, 893, State, P.2d 897-898 440 84 Nev. may officer Terry, “Any peace declared: legislature

After our under circum- such officer encounters detain whom any person has com- such person indicate that reasonably stances which mitted, a crime.” NRS or is about to commit committing Thus, 171.123(1). properly the officers acted we think and Watts. stopped, approached certain to search under subject automobiles are While later, summarily may officer other rules discussed another, wherever seize in the personal property possession instru- it is the be, exists to believe may it if cause crime, inadvertently if it has come or evidence of a mentality view,” if inadequate oppor- into the officer’s lawful “plain cir- “exigent rise to tunity gives genuinely to obtain a warrant 403 U.S. cumstances.” See: v. New Coolidge Hampshire, States, 365 (1971).3 United In accord: v. Chapman 464-469 reasonably passing, Coolidge a car involved seizure of 3 In we note evidence, parked plain on the defendant’s drive believed to be way. view warrant, ample and did not to obtain a Since time inadvertently, prerequisites upon these come the Court held vehicle for warrantless seizure were absent. States, (1968), where witnesses United 390 U.S. 234 In Harris v. car,” apprehended “getaway while enter- identified a ing it, and defendant that the car’s warrantless assumed without discussion the Court circumstances, upheld proper use evidence was in such seizure as “plain did not view.” Harris thereafter found inside it of evidence search; peculiar are because the officer an extensive its facts involve rolling up challenged evidence as he was he discovered testified the car’s windows protect it from rain. peculiar Cooper California, also had a factual 386 U.S. 58 v. custody Cooper, automobile “lawful of an the Court said basis. In does not of itself requirements dispense of searches with constitutional custody it,” nature but “the reason for and made of thereafter may (id. 61), constitutionally justify and held that lawful the search” proceed- possession ing” “as evidence in a forfeiture an automobile held (id. 62). custody is such exploratory approved warrantless searches recent cases have Other the interior of vehicles previously See: seized and held as evidence. (Miss. 1971); People Teale, State, Taylor 450 254 So.2d 728 v. v. Norman, (Cal. 1969); Cal.Rptr. (Cal.App. People v. 60 609 P.2d 564 (Cal. 1966); Miller, Talbot, People 1967); People 414 P.2d 1966); State, (Cal.App. Cal.Rptr. Johnson v. 209 A.2d 765 concept presents prob- (Md.App. various The car-as-evidence delayed lems, e.g., any to which a are there limitations the extent exploratory? such a vehicle be right Consider: Harris v. United search of States, to search a vehicle evidence cited above. Does seized as Coolidge Hampshire, above, ever terminate? Consider: v. New cited States, (1961); 357 U.S. 493 U.S. 610 Jones v. United (1948); (1958); McDonald United U.S. ;4 States, (1948) Johnson 334 U.S. 699 v. United Trupiano States, (1948); 333 U.S. United Taylor v. United 10 v. Here, (1932). appli- 286 contests apparently U.S. 1 appellant gun, of his cation view” doctrine to seizure “plain Officer was obtained unlawfully on that Gates’ view theory when, “no says, from his car by ordering appellant appellant to or detain for the officer independent ground question existed Appellant.” indicated, not on cause

As Gates’ actions were dependent Ohio, above, recognized police- to that Terry arrest. cited to right investigatory man reasonable has making stop the indi- believing justified himself when “is protect at close investigating he is vidual behavior suspicious whose U.S., 24. at dangerous.” and range presently is armed 392 view, see two 171.1232(1). In our See also: NRS plates, out-of-state license bearing adult males in a car stolen is armed fear or driver reasonably passenger either may right not, indicating White, J., indicating does dissent belief it while of delayed probable cause under Chambers to conduct a auto search on U.S., Maroney (hereinafter discussed) at 523. does terminate. See: 403 prove Here, appellant’s arguably could have vehicle been seized of the car’s where were If examination the stolen discovered. justified, would have to consider interior were not otherwise whether we thus regard evidentiary appellant’s car, nature of arrested, justified subsequent offense its and for which he was seizure search. 4 Trupiano regard. cited in be this Rabinowitz, (1950), U.S. 56 held: “To United States v. upon Trupiano solely requires . extent that . . a search warrant practicability procuring upon of rather than the reason- basis of the it arrest, after is overruled.” ableness of the search a lawful that case U.S., However, seemingly Trupiano viable, except left at 66. this “exigent property requirement circumstances” for its in States, of even seize plain Chapman time In at the a lawful arrest. v. United view of (1961), Frankfurter, concurring, noted: 365 U.S. 610 Justice it, rely explicitly underlying present on “While the Court does approach Trupiano.” of Id. at 618. decision is the California, Then, U.S. 752 said in Chimel v. Court “hardly unimpeachable on an was founded line of Rabinowitz Go-Bart, authority,” approach that “the in cases taken such as Lefko~ witz, Trupiano essentially disregarded by was and the Rabinowitz 760), (id. longer “no Court” at and was to be followed” Rabinowitz (id. Coolidge, involving parallel Trupiano, any Finally facts removed Trupiano Trupiano’s viability; doubt the authorities of one of Coolidge heavily on which the most relied. Hence, think ordered properly we Gates dangerous.5 and, after discovered car; from the Gates particularly appellant had a clear the officers sitting, where appellant on weapons search for to conduct a limited right protective Ohio, Adams v. Wil- above; cited Terry appellant’s person. liams, U.S. S.Ct. 1921

Therefore, weapon, discovery Gates’ appellant’s need person, initial on discovery currency appellant’s to arrest.6 justified on basis cause However, contends grounds, on at two appellant least bag whiskey bowling discovery Gates’ subsequent occa- to and an related “inventory,” cannot be sustained as First, relying of the vehicle. impound sioned proper Court of Sacramento v. Superior Mozzetti particularly 1971), contends (Cal. County, nature, unjustified and thus “inventory” exploratory County, 5 Compare: People Superior 449 478 P.2d v. Court of Yolo case, heavily (Cal. 1970), upon appellant most relies. In that which stopped Supreme who had the California held an officer unjustified speed exceeding posted limit in the was driver for door, passenger right opening was where a woman his vehicle’s front sitting, although aas “furtive made the construed she had what officer although stop, gesture” signaled the to and downward when he driver waiting for to than the driver had walked back the officer’s car rather proceeds theory speeding mere on the that a the officer. The decision justifies contains contra violation no inference that the driver’s vehicle any band, precludes prospect and that the nature of offense thereof; “instrumentalities,” contains or evidence vehicle “fruits” logical guilt may be drawn when a driver or evasion no inference of stop; gets response an officer’s order to and that out his car in to may gestures will not themselves establish which well innocent search, recognized recently in we cause for an arrest or as State, 320, (1972). v. Schmitt 88 Nev. 497 P.2d 891 currency, appellant course, recovery was 6 Of actual jail, when not an unconstitutional “search.” Arabia “booked” into State, was State, 453, (1966); 82 82 421 P.2d Nootenboom Nev. States, 329, (1966); Brett United 412 F.2d cf. Nev. 401 is, case, (5th 1969). recovery any unimportant our to Cir. That currency analysis events, except both of later that with the and burglary, against appellant lawfully and evidence seized linked any admitting conviction, quite and error was sufficient sustain his beyond physical other evidence would seem harmless reasonable physical explanation having Appellant’s was for evidence doubt. bar; jury disposed and it behind if the that he had “found” to believe that they explanation, plausible with should have found it as them, physical evidence that was before as would con all the case, sidering only currency gun. we “In this conclude that average jury’ found case ‘minds of an would have the State’s persuasive testimony whiskey significantly had the as to [the less Florida, 427, bowling bag] been excluded.” Schneble v. 405 U.S. 340, (1972). L.Ed.2d Second, contends search.7 appellant and unconstitutional property, lawfully private since his vehicle was parked no justifica- hence impound, there no for an justification during impound.8 for its contents “inventory” protect tion an further contends grounds, at least two appellant On “search,” it, as incidental justified not be styles may this as 7 Thiscontention seems insubstantial. marijuana in a suitcase involved in a but unlocked closed Mozzetti necessitating damaged highway by an accident left on the appropriate hospitalization. recognizing impound an owner’s While exploration circumstances, Supreme Court held in such of the the California it exceeded unconstitutional search because suitcase was an necessary protection contents. How- what was of the vehicle and its vehicle, that, impound ever, recognized given the court also cause to legiti- may inventory impound’s confined to the conduct purpose: police, doubt that the in the course of mate “We have no measures, may any personal property protective valid take note of such being custody. Any sight plain within the automobile taken into objects clearly probing including visible without the suitcase this — inventory report.” Id. be listed in an other instance— States, (5th See also: Williams v. United 412 F.2d Cir. (5th 1969); Brett v. United F.2d 401 Cir. case, application would not benefit In this standard Mozzetti view; thus, appellant; whiskey bowling bag plain the stolen were in bag’s suppression could obtain the most is contents. totally persuaded unzipped bowling bag exactly that an We are Mozzetti; however, this, analogous assuming we to the closed suitcase in again “significantly note that the State’s case would not have been less testimony bag’s persuasive to [the contents] had the as been excluded.” Florida, supra Schneble v. cited at footnote 405 U.S. 31 L.Ed.2d 340, 345 Furthermore, standing object this court has held a thief no has property, except charged to a search of stolen with an offense possession Harper State, that makes 233, of its contents a crime. v. 84 Nev. (1968). Appellant suggested 440 P.2d 893 has not we should Harper, appellant standing overrule complain under which would have no looking bowling bag. police into the stolen question 8 The is substantial. Vegas City police The Las Code authorizes “to remove a vehicle highway” illegally from a street or when it anis obstruction to traffic or parked, incapacitated provide and either unattended or its driver for custody Vegas § City (A) (1960). its or removal. Las Code 10-21-10: States, 1961), (D.C.App. In Williams United v. 170 A.2d 233 legally parked police defendant his car in front of the he station after speeding there, was arrested for the officers and ordered to follow officers impounded custody. the vehicle while he was in court “inventory” search, held an saying: of its contents was an unconstitutional government “The has not shown that the automobile was impounded pursuant regulation Vegas to this [similar to Las Code provision] by appellant the mere statement that ‘could not leave the

469 First, to an arrest under 482.545. relying NRS on Chimel v. California, (1969), 395 U.S. 752 contends “search” took so far he distant where was place arrested, at the that it police impermissible scope.9 was Second, relying on People County, v. Court of Yolo Superior above, (Cal. 1970), cited he contends that violation,” an where arrest is for a search “routine traffic of the vehicle cannot be reference to the arrest justified by parked gov- police automobile in front of the Because of station.’ unlawfully showing ernment’s failure to make a the car was parked, subject 91, to removal under we must rule that the Section seizure, exploratory conducted a forbidden search and even though inspection by was not motivated a desire to discover incriminating Id. at evidence.” 234-235. Similarly, Pannell, (D.C.App. in United States v. 256 A.2d 925 1969), parked police parking where defendant’s on a lot while being making driving he was inside booked and bail for with a sus- pended license, purported impound held court of his vehicle was improper purported “inventory” and a therefore an unconstitutional government’s recognizing protect proper search. While inventory-taking need “to property against both the of those arrested and itself claims,” “Nevertheless, future the court stated: must first custody acquiring appellee’s had a have they lawful for basis auto before employ safe-keeping inventory could such as methods an of its contents.” Id. at 926. Again, Pigford States, 1971), (D.C.App. United A.2d v. 837 parked police lot, “inventory” where defendant’s vehicle was on the warrants, conducted there an hour after within his arrest on traffic release, while obtaining he was collateral for his was determined to be an unconstitutional search. Mayfield States, (D.C.App. United See also: A.2d impound appellant’s justified Whether vehicle could be in the case, rightfully protective because the instant either officers could take yet definitely true action on behalf of the owner who was not deter- 7, supra, mined United [see Williams v. cited footnote (5th 1969)], evidentiary F.2d 729 or because the car had Cir. value reason, supra], for footnote some other we need not decide [see for reasons stated later. justified arrest, 9 Chimelheld that to as incidental a lawful person must be limited to the search of the arrestee or the area under might gain possession immediate from which control of a weapon or destructible evidence. However, necessarily even so limited search is not constitutional merely contemporaneously arrest; because conducted with a lawful problem People Superior subtler than that. Consider: Court County, Agar Superior County Angeles, Yolo of Los infra, hand, justifications On the discussed for a n. 11. other where other exist, police conducting more extensive search are limited to search, Chimel-type although Maroney, a limited before Chambers v. decided, thought U.S. 42 some commentators this might A be the case. See: Chimel v. Potential Roadblock to California: Searches, Vehicle 17 U.C.L.A.L.Rev. 470 vehicle believe the arrestee’s there exists no reason to

because either or evidence.10 contains weapons contentions; for believe exam- need not resolve these we We this case because ination of the vehicle’s interior was proper to believe it con- the that time had reasonable cause currency to evidence in addition tained contraband or found and the already person discovered on appellant’s view.11 plain States, 132 U.S. In Carroll v. United the contention long ago rejected States Court Supreme United be only an can justified that a warrantless search of automobile arrest, a exception new if incidental and announced to lawful made unless to the rule that a search is unreasonable general to the prior exception, to a search warrant.12 That pursuant operating 10 Appellant’sgratuitous assumption a vehicle with offense,” speeding like stolen license a “routine traffic is County, People Superior seems Yolo violation concerned in v. Court of (8th 1971). Jones, questionable. 452 F.2d 884 Cir. See: United States v. County, People Superior California Yolo 11 In Court of Supreme though a routine held be cause to arrest for Court there offense, scope ordinarily not exceed the traffic even search that does above, permissible cited cannot be under United Chime! v. justified justify a warrantless search car’s as incident thereto. To interior, held, independent cause to the court “there must be at 453. contain contraband.” P.2d believe the vehicle does fact clothing Indeed, “inventory” even the arrestee’s has a stationhouse unlawful, entitled either to be cases where he is been held in traffic magistrate appear, be taken released on notice to before Angeles, Agar Superior County of set. Court for Los have bail Cal.Rptr. 1971). (Cal.App. Blodgett, (Cal. Appellant People also relies Court, case, Traynor, said that while the “driver Justice for In parking, search of his cab been arrested for double could have ground, justified it no on that relation to the traffic cannot be for therefor.” not have been incidental to arrest and would violation case, 58; However, emphasis as we do at added. instant Id. (one Supreme dissenting) independent found Justice California cause Blodgett, that for contraband. In cause was search vehicle seeing left from behind “defendant withdraw his hand the officer juncture back cushion.” 293 P.2d at 58. at the seat and seat independent sufficiency gesture” as this “furtive cause While Supreme debatable, “it and the California Court has since said will (Yolo, 5), Blodgett to its n. well to limit facts” 478 P.2d Blodgett recognize a vehicle be searched for con both Yolo cause, though upon independent reasonable even there is traband violation, present present arrest or no cause cause to traffic arrest at all. decided, major since see: Auto Search: The 12 Fora resume of cases Coolidge, Rocky Carroll to Road 17 So.Dak.L.Rev. Maroney, decision in Chambers v. 399 U.S. Court’s as generally could be stated follows: validity essential conditions to the of the reason

“The two 1) Carroll are: able cause auto search under the exception the contains officer must have reasonable cause to believe auto seizure, 2) ‘movable’ in the auto must be subject items that it reasonably the sense that the officer believes it is therefore moved someone is free to do so and that by who A. secure a search warrant.” ‘reasonably not practicable’ Aitken, Limitations Automo R. Constitutional Murray and of Searches, (1970). (L.A.) 3 Loyola U.L.Rev. bile above, in cited which Maroney, Then came Chambers on the basis of wagon of a station were arrested occupants the vehicle robbery; to a by information witnesses provided station, evi- search revealed driven to the where a on search As a reigning expert dence used at trial. petitioner’s and seizure has said: that Carroll was based upon in mind fact

“Keeping of search advance obtaining warrant impracticability search, more recent pronouncements and also the Court’s closely searches must be in Chimel and Vale that warrantless that the necessity, might thought Supreme tied to one well have unlawful. find the search in Chambers Once Court would arrested, the lawfully of the automobile had occupants movable, search even a no so that warrantless longer it, As one court necessary. put at the time the arrest was are suspect not exist the vehicle and ‘Exigencies do when LaFave, Searches . . .” Warrantless custody.’ both in W. “Quag- Supreme Ventures Into

and the Court: Further mire.” 8 Crim.L.Bull. On

However, the Court ruled otherwise. in Chambers 18-19, LaFave, id. at Professor reasoning questioned could wagon the station concluded that of arrest under time and place have been searched at the Carroll, the station law- the search at but found principles have justified that would exigency ful. The Court found it upheld it was stopped”; vehicle’s “search on the when spot stationhouse, “there is little saying search at the delayed between an in terms of practical consequences choose car’s immobiliza- and the search without a warrant immediate U.S., 52. Given this tion until a is obtained.” 399 warrant officers in the arresting continuing “exigency,” standard of car, although search appellant’s instant case could properly nonmobile, if had reason- they arrest rendered it appellant’s items to seizure. subject cause to believe it contained able Coolidge, above, in there was no cited which (Compare: occurred.) initial seizure “exigency” case, cause element In instant we think the the officers the Carroll-Chambers doctrine was satisfied. When lawfully knew they the contents of appellant’s examined some criminal had license on it for he stolen placed burglary; with likely robbery connected purpose, quite shirt, his under they large money he had a wad of stuffed knew gave most concerning questionable explanation; which feet; and they at his traveling he was with knew stories con- given conflicting knew he companion circumstances, such if the cerning Under relationship. their car, they think acted officers indeed “searched” we appellant’s on probable cause.13 granted

5. also the court have contends should Appellant when a State witness mentioned appellant mistrial state- been on for another crime. While the witness’s probation court the court recognized, ment was as the trial improper, the evidence denied motion for a mistrial because appellant’s therefore and the comment against overwhelming, him was 178.598; State, v. 83 Nev. 429 harmless. NRS Fairman record, of we agree. 63 After review the P.2d careful Affirmed. Batjer JJ., J., and concur. Thompson, C. and

Zenoff, J., concurring: Mowbray, Wright guilty jury Wayne

A in found Ferman County Clark short, perceive pattern that in 13 In we in case a much like White this (8th 1971). United also: Thunder v. 448 F.2d Cir. See 250 (8th Dakota, Cir. Horse v. State of South 456 F.2d 1262 State, Heffley 423 It should be noted that in v. 83 Nev. P.2d (1967), upheld 666 this court examination a vehicle’s interior of Hocker, doctrine; “inventory” Heffley 420 F.2d on basis in v. of (9th 1969), Appeals adjudged Cir. Circuit Court of Ninth incorrect; Hocker, Heffley, (1970), us Warden v. U.S. Supreme judgment United vacated the States Ninth Circuit’s light remanded the case “for consideration in the of Chambers further Hocker, Maroney”; Heffley F.2d Heffley authority Ninth Circuit denied relief. This line of establishes that, although explora- has make an an officer not articulated intent tory probable cause, upheld on actions will be if search his meet Maroney. the tests Chambers Henderson, of burglarizing bowling Nevada. He has alley from his reversal conviction and seeks appealed judgment ground that the seizure of the used to blow pistol off a ball alley, bag lock safe located bowling bowling crowbar, money that contained taken in the burglary, a case of whiskey Wright’s items that were found in —all time at the of his arrest —were seized the arrest- by improperly officers in He ing Wright’s rights. violation constitutional claims one also that reversible error committed the State’s made to Wright’s witnesses a reference probation status. The Facts.

During the early morning 17, 1970, hours of April two officers on patrol observed a 1964 bearing Oldsmobile license Texas LWK 373 stopped at a traffic light Vegas. in Las radio, the By officers requested their headquarters to check They were plates. informed that the plates had been stolen. The officers followed car into a motel lot and parking driver, it. Watts, one George stopped left the vehicle and for the headed motel. Wright Appellant remained seated in the front passenger seat car. One of the officers ordered get him to out of the car. refused. Wright The officer pulled time, his revolver and repeated request. This com- Wright After plied. Wright left the officer a pistol noticed under front seat where protruding Wright had sitting. The Wright officers then frisked both and Watts and a bulge found inside Watts’s shirt. the officers’ Upon inquiry, bulge currency Watts said that the force had taken from one of his debtors in California. he Wright claimed the vehicle owned and he had borrowed the stolen license from a whom he plates friend did care to name. The Wright officers arrested both and for fictitious displaying Watts license and them the plates gave warning. Miranda required car, officers then for a the The radioed tow truck to impound to they inventory and the vehicle. In addition to proceeded found, car, the the officers in the back seat of the a case pistol, whiskey crowbar; of and and on the rear floor found they Wright and officers bowling bag money. the ball took Later, friend to the a check and his Watts station. after authorities, the learned that the they with law enforcement bowling alley burglarized. had been Wright’s The Search Car and the Con- Seizure of of

traband. Wright claims his of that the principal assignment as error taken from mentioned above were and the other items

pistol search, during a warrantless car at the time of his arrest his rights. of his Fourth Amendment derogation case, there- me in the instant It to that our review appears focused fore, that it is to the facts presented, is limited validity on-the-spot, of warrantless upon and narrowed properly automobiles that have been of defendants’ searches stopped by police. of warrantless venturing further into “quagmire”

Before it well I think is searches, majority, as so characterized the Fourth Amendment for protection in mind whose keep Sumrall United said in Judge Chief Murrah is intended. As States, 1967) (10th Cir. i1 F.2d and controversial long, interpreta- tedious “Throughout standing in which history of the Fourth Amendment tive constantly expanded almost has been protections invoke its right of keystone protection has been enlarged, never been character- Amendment has of The Fourth privacy. evidence, freedom but rather charter ized as a rule of . .” of . right privacy. the invasion of the Frankfurter, wrote Murrah Judge Mr. Justice In quoting 654): (also at recognized

“. . . Mr. Justice Frankfurter unequivocally (I960)] 362 U.S. Jones v. United [in the Fourth exclusionary rule incident to prohibitions making Amendment is ‘a means for effective the protection rule that to come within the one privacy’; exclusionary belong to ‘the class for whose sake the constitutional must class, that to come within the given’; and provision the search in the sense that his right must be the victim of . invaded. . .” privacy of this it Certainly, posture under the factual case cannot invaded. Wright’s right privacy unlawfully be said that duty, Wright’s and a every right, stop The officers had advised that his license were because had been stolen plates. (9th 1966), Porter, 361 F.2d Cir.

In Wilson conviction, court, sustaining robbery a bank held 1 The the defendant without a warrant cause arrest officers (a driving speeding proper without a license in “a license for either own”) that, having made name other than such [Nabors’] arrest, subsequent defendant search of the time and lawful appropriately place incidental thereto and of his arrest was (a “large money”) obtained amount of as result evidence theory inadmissible it was violation of search was the Fourth Amendment. States, 315 F.2d court, v. United Frye from quoting 1963), 491, (9th Cir. said: having duty in addition to . local policeman,

. ‘[T]he very his is also in a jurisdiction, criminal laws of to enforce the duty and he has a of the guardian public peace real sense a circum- to be alert for suspicious of his work course stances, and, within constitutional limits that he acts provided circumstances indicate to him such investigate whenever added.)” (Emphasis that he should do so.’’ Wilson, officers on saw the defendant patrol

In the police during car at a very speed several times slow by drive defendant, turned hours. The followed the the predawn over to pull directed the defendant to light, on their red that a crime knowledge had no curb. The officers specific violated. committed, had been and no traffic law had been side of the car right-hand to the of the officers walked One for his get out and asked requested passenger door, the officer As the opened identification. passenger the car and into flashlight the car shone his standing outside under from to be a barrel protruding appeared saw what and pulled reached under the seat seat. The officer the front were companion defendant and his The pistol. out a .22 caliber found a searched. The officers arrest and under then placed ruled, 414: court at person. on the defendant’s dagger violated right appellee that no conclude “We subsequent the car and that the officers stopped [posses- was convicted which he upon of the evidence seizure concealed of a a felon and possession firearm sion . . .” arrest. to a lawful as justified pursuant dagger] At the court held: that there is nothing take it as settled facto uncon- ipso

“We detention of citizens in the brief under circumstances stitutional arrest, for of limited in the purposes inquiry justifying investigations. of routine A course [Citations omitted.] investigation reasonable detention routine line between could be characterized as capricious and detention which be drawn. But due for the neatly regard cannot arbitrary effective enforcement requires necessities of law practical brief, recognized informal detention be when- validity totality from the circumstances that the ever it appears grounds could have had reasonable for their detaining officers some necessary, is all that basis suspicion action. A founded can determine that the detention was not which court harassing.” arbitrary

And, the court said: finally, a lawful having car been of appellee’s initial stopping

“The of the evidence arrest, admissibility but not an detention in time upon point depend seized will subsequently preceded discovery pistol If occurred. the arrest for a subsequent cause arrest, probable discovery that provided arrest and search.” Wilson, because than stronger much us is The case before Wright’s on plates knew that the license the officers in our case duty stop and a right then had a They stolen. car had been car, a from the noticed, Wright stepped as They the car. They seat. then the front under from pistol protruding under arrest his companion the defendant placed a concealed and for possession fictitious having contraband to seize the other They proceeded weapon. therein, the money bowling bag ball namely, the crowbar. whiskey, the case Court, in Avalos v. recently, Supreme the Colorado Just validity upheld P.2d People, 498 who had of a defendant purse search of the warrantless function- her car was not right taillight because stopped court, said: its curiam opinion, ing. per The Colorado license, her being operator’s “. . . asked produce Upon had expired. her driver’s license that she told policemen to the police the officers asked to return with She was then license had whether her so could determine procedure or revoked. This or had been suspended expired rights of infringe any upon and did wholly proper the defendant. omitted.] [Citations awaiting the officers were as to the report

“While status license, one of the of the defendant’s driver’s officers noticed right mark on the defendant’s a fresh needle wrist. The needle view. The officer from mark was in knew defendant plain and also had information encounters a reliable past informer, officer, as from a fellow the defendant as well circumstances, . user. . . Under these was a narcotics cause to arrest the defendant. . . . clearly officer arrest, the defendant’s she was taken imme- “Following where a search of her diately to police headquarters, purse marijuana cigarettes. five hand-rolled The warrant- revealed and the search of the defendant’s seizure of the purse less may be either as a search incident marijuana cigarettes upheld inventory conducted procedure prior to arrest or as . . .” incarceration. or tainted warrantless search with

Any exploratory See v. Superior will not be tolerated. Mozzetti sham pretense Court, (Cal. 1971). Cal.Rptr. P.2d 84 There was no such evidence in the officers, case before us. The police making contraband, arrest and seizing the acted prop- erly. Wright that his complain right of privacy was unlawfully invaded. Wright’s 3. The Probationary Status. Reference

During direct examination witnesses, of one of the State’s Officer Edwin R. Lattin of the Henderson Police Department, the following occurred: “Q Was that the extent of the conversation or was more said? Oh,

“A I would say we there probably were for more than fifteen minutes and the there gist ending were dis- —we cussing his probation a letter that he had received from his mother regarding his wife and we about it and spoke we paraphrased well, part it’s relevant nothing letter — the case probably.”

The officer’s observation that “it’s nothing relevant to the accurate, case . . .” was because a officer law enforcement should know that such testimony may highly prejudicial case, to the defendant a ground and be for a mistrial. In this judge Wright’s district denied motion for a mistrial because the evidence was of conviction. overwhelming favor that, case, district judge observed had it been a close motion have granted. would case,

Under the factual posture of this I believe that the district ruled judge properly denying the motion for a mis- State, trial. Fairman v. 288-290, 83 Nev. 429 P.2d DUMLAO, Appellant, PAUL JOHNNIE v. THE STATE Respondent. NEVADA, OF

No. 6629

August 3, 1972

Case Details

Case Name: Wright v. State

Court Name: Nevada Supreme Court

Date Published: Aug 1, 1972

Citation: 499 P.2d 1216

Docket Number: 6482

Court Abbreviation: Nev.