Palombo v. Sheriff, Clark County , 93 Nev. 492 ( 1977 )

568 P.2d 580 (1977)

James E. PALOMBO and Linda Ann Holler, Appellants,
v.
SHERIFF, CLARK COUNTY, Nevada, Respondent.

No. 10091.

Supreme Court of Nevada.

September 19, 1977.

Crosby & Stein, Stephen Stein, Las Vegas, for appellants.

Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty., and Rimantas A. Rukstele, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Pursuant to a True Bill by the Clark County Grand Jury an indictment was filed charging James E. Palombo and Linda Ann Holler with selling a controlled substance (heroin), a felony under NRS 453.321 and NRS 453.161.

A pretrial petition for a writ of habeas corpus contended there was insufficient legal and competent evidence to establish probable cause that the crime was committed. Habeas was denied and the same contention is reasserted in this appeal.

The transcript of the grand jury proceeding establishes that about 8:45 p.m. September 9, 1976, an undercover agent employed by the Las Vegas Metropolitan Police Department paid $70 to James E. Palombo for two (2) packets, which were represented to contain heroin. Palombo completed the transaction from the driver's seat of an automobile in the parking lot of a market "located at Cambridge and Dumond Avenues" in Las Vegas. This evidence meets the probable cause test delineated in NRS 172.155, as to Palombo.

The only testimony connecting Ms. Holler with the charged offense was that she was physically seated in a passenger seat of the automobile during the time Palombo was engaged in his illicit activity.

The mere physical presence of Ms. Holler may subject her to some criminal charge; however, we deem such presence, without more, insufficient to establish probable cause that she made a "sale" of the contraband. See Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972); cf. Oxborrow v. Sheriff, 93 Nev. ___, 565 P.2d 652 (1977), and the cases cited therein.

Affirmed as to James E. Palombo.

Reversed as to Linda Ann Holler.