Harper v. State , 84 Nev. 233 ( 1968 )

OPINION

By the Court,

Batjer, J.:

Harper was convicted of first degree burglary. His appeal asserts a violation of his rights protected by the Fourth Amendment of the Constitution of the United States. The trial court received evidence obtained from the search of a stolen automobile in which Harper had been riding as a passenger. When the original search was made the patrolman did not have a search warrant or a warrant for the arrest of the appellant. However, the initial search of the stolen vehicle was with the permission of the driver who claimed ownership, and the subsequent search and seizure of the evidence was reasonable and incidental to the arrest of the appellant upon probable cause. It is our opinion that there is no violation of the Fourth Amendment’s proscription against unreasonable searches and seizures. We affirm the judgment of the district court.

Shortly before midnight on October 11, 1966, patrolman Patrick Charles Stevens, of the Las Vegas Police Department, observed a 1961 bronze Chevrolet automobile pull out of a gas station. Two men were in the front seat. The patrolman and his shift partner, reserve police officer G. H. Body, started to follow in the patrol car, noting that the automobile had no license plates, but it did have a dealer’s sticker on the rear window which could not be read because of its position. Both driver and passenger kept furtively looking back, and the automobile then began changing lanes, from left to right and then back to left again; at this point it signaled for a left-hand turn, but the turn was not made and the car pulled back into the right lane. At that point officer Stevens stopped the Chevrolet automobile, approached the driver’s side of the car, and asked to see the driver’s license. Officer Body went to the passenger’s side where Leroy Harper, the appellant, was sitting. The driver, Homer Washington, looked through his wallet, could not produce a driver’s license, and said he must have left it at home. In the wallet, officer Stevens noticed a Las Vegas police citation for failure to have a driver’s license.

When asked whose car it was, Washington stated that it was his, and that he had purchased it three days before from Country Boy Auto Sales. However, there was no dealer’s report of sale affixed to the front window (as required by law if there are no license plates on the car) and Washington said that he had apparently also left this at home. Officer Stevens informed him that he was going to issue a citation for driving without a license, returned to the patrol car to write the citation and to radio the station to check with Country Boy Auto Sales in regard to the alleged sale. During this interval Harper got out of the passenger side of the car and was sitting on the ground near the curb.

It took from ten to twenty minutes for the call to come back from police control, at which time the patrolman learned that the car had not been sold by the auto agency, and that no one had been given permission to take it from the lot. Officer Stevens then told the driver that he was under arrest for grand larceny auto, and after a brief talk with Harper, arrested him on the same charge, since his story was at variance with Washington’s. A citation for a moving traffic violation was never issued, although the citation to Washington for operating a motor vehicle without a driver’s license was delivered to him after he was booked at the jail.

At some point in time prior to the arrest of either Harper or Washington for grand larceny and burglary, officer Stevens had observed a typewriter case and a receipt book in the back seat of the car. Washington told the patrolman that he worked as a mechanic and carried tools in the car, at which time he gave officer Stevens permission to look in the trunk. In addition to the tools, the trunk also contained a number of dealer’s stickers and a pair of coveralls.

Subsequent to the larceny arrest, a second call came from police control relaying information that one of the owners of the auto agency and a police officer had proceeded to the auto sales office, found it burglarized of a typewriter receipt book, checkbook, tools and dealer’s stickers. Washington was then placed under arrest for burglary.

A third call came in shortly thereafter from detective Brown who had been sent to Country Boy Auto Sales, to photograph and process the scene of the crime. He stated that he had found a piece of gray yarn, or thread, apparently from a sweater caught in one of the doors that had been broken open, and inquired if either suspect was wearing a sweater of that color. Harper was wearing a gray sweater, and he was immediately arrested on the burglary charge. Following the felony arrests, the Chevrolet was again searched and the items found were taken as evidence. All of the items found in the stolen automobile were received in evidence and identified by one of the agency owners as being either his or his partner’s personal property. A checkbook recovered from Harper during the booking-in process was also introduced into evidence as were the piece of yarn found at the scene, and the sweater Harper was wearing at the time of his arrest. The yarn and the sweater were tied together by expert testimony. The burglary conviction of Harper resulted.

As one of his assignments of error the appellant contends that the trial court erred when it found that he was without standing to claim the protection of the Fourth Amendment and refused to suppress the evidence obtained by the patrolman when he searched the stolen vehicle.

The appellant further contends that the stopping of the Chevrolet automobile in which appellant was a passenger, was without probable cause, that all proceedings in the case thereafter were illegal and invalid, and that the trial court erred in its refusal to dismiss the case.

We find that the appellant is without standing to claim the protection of the Fourth Amendment. On two previous occasions this court has ruled on the matter of standing. Dean v. Fogliani, 81 Nev. 541, 407 P.2d 580 (1965), and Osborne v. State, 82 Nev. 342, 418 P.2d 812 (1966). Osborne involved the search of a stolen automobile. In that case, we held that since the accused did not own, nor have the right to possess the automobile, he was without standing to claim the protection of the Fourth Amendment. The rule announced in Osborne is controlling in this case.

In the case of Carroll v. United States, 267 U.S. 132 (1925), the court considered the problem of a search of an automobile without a warrant, and it said: “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” However, in the case of Agnello v. United States, 269 U.S. 20 (1925), decided a few months after Carroll v. United States, supra, the court said: “One’s house cannot be searched without a search warrant, except as an incident to lawful arrest.”

The Carroll case indicates that the search of an automobile, while still subject to some restrictions, may be conducted much more freely than the search of a house, store or other fixed piece of property. This position is based on the common sense approach that a speeding automobile would be long gone before a search warrant could be obtained. Cooper v. California, 386 U.S. 58 (1967), Preston v. United States, infra.

The Supreme Court’s holding in Jones v. United States, 362 U.S. 257 (1960), regarding the question of standing to claim the protection of the Fourth Amendment was premised on two separate and distinct grounds. First, it was decided that if a person is legitimately on the premises when the search was made, the Fourth Amendment protects him, and secondly, that standing arises in those offenses in which the allegation of ownership or possession usually required for the motion to suppress the evidence would be an admission of the sole essential element necessary to establish guilt. In holding that Jones was legitimately on the premises and was an aggrieved person who had standing to raise the constitutional issue, the court said: “No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.” (Emphasis added.)

The holding in Jones precludes Harper from having any standing to raise the constitutional protection of the Fourth Amendment and from suppressing the evidence found by the patrolman when he searched the stolen automobile. Not being legitimately in the automobile, and not asserting any ownership therein, Harper was not an aggrieved person.

Within the holding of Jones v. United States, supra, Harper was one of- that class who “by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.” Nor does Harper have standing by virtue of the offense charged. The mere possession of an automobile, even though it is stolen, is not a crime, nor does possession standing alone establish guilt.

In the case of Simmons v. United States, 390 U.S. 377 (1968), the question of standing to claim the protection of the Fourth Amendment was again decided, and the court citing Jones v. United States, supra, reaffirmed the principle that one must be legitimately upon the premises to claim standing when it said: “. . . we held alternatively that the defendant need have no possessory interest in the searched premises in order to have standing; it is sufficient that he be legitimately on those premises when the search occurs.” (Emphasis added.)

The appellant urges that Henry v. United States, 361 U.S. 98 (1959) is controlling in this case. In Henry, the defendant was illegally arrested; therefore no search could be justified as incident to arrest. Furthermore, there was no probable cause that would bring the case within Carroll v. United States, supra. The Henry case does not support appellant’s position. Here the arrest of the appellant was upon probable cause from information received by the patrolman. Before his arrest Harper was merely a passenger standing by while the driver of the vehicle was being cited for a traffic violation. The first search of the stolen vehicle was with the consent of the driver, and the subsequent search and seizure of evidence was incident to the appellant’s arrest for grand larceny and burglary.

In People v. Howard, 334 P.2d 105 (Cal.App. 1958), the court said: “It is of course, the law that evidence secured in an illegal search is not admissible. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513. However, it is also the law that if the defendant or someone with apparent authority, consents to the entry, and the entry is made in good faith, it is not unlawful.” See Williams v. State, 375 S.W.2d 375 (Ark. 1964); 79 C.J.S. Search and Seizures § 62, at 816, et seq.

At the time, the driver, Washington, gave his consent to an examination of the trunk of the automobile, he was claiming ownership of the 1961 Chevrolet, and the patrolman had every reason to believe that Washington had authority to consent to the examination.

In the case of Cooper v. California, supra, the conviction rested in part on the introduction into evidence of a small piece of brown paper sack seized by the police, without a warrant, which, upon Cooper’s arrest, had been impounded and was being held in a garage. The search occurred a week after the arrest. The Supreme Court in affirming the conviction, said: “Petitioner appealed his conviction to the California District Court of Appeal which, considering itself bound by our holding and opinion in Preston v. United States, 376 U.S. 364, held that the search and seizure violated the Fourth Amendment’s ban of unreasonable searches and seizures. That court went on, however, to determine that this was harmless error . . . [W]e are satisfied that the lower court erroneously decided that our Preston case required that this search be held an unreasonable one within the meaning of the Fourth Amendment.

“We made it clear in Preston that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case and pointed out, in particular, that searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in a search of a home, a store, or other fixed piece of property.” See Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966).

In support of the proposition that a thief has standing to invoke the protection of the Fourth Amendment, Cotton v. United States, 371 F.2d 385 (9 Cir. 1967), and Simpson v. United States, 346 F.2d 291 (10 Cir. 1965), have been brought to our attention.

We do not agree with the court’s positions in these two cases regarding standing to invoke the protection of the Fourth Amendment, and find them inapplicable to this case.

Even if we are willing to ignore Jones v. United States, supra, and Osborne v. State, supra, and to abandon a common sense approach to the principles of substantial justice in order to follow the majority opinions in Cotton and Simpson, we are precluded from so doing because their rationale does not fit the facts of this case. Here, only the driver, Washington, asserted a proprietory interest in the automobile. Harper asserted no proprietory or possessory interest whatsoever. In both Cotton and Simpson the majority found that the thief had standing only because he met the prerequisite of asserting a proprietory or possessory interest in the stolen vehicle.

We next turn to the appellant’s attack on his arrest. We find that in each instance the arrests were reasonable and made upon probable cause, and are valid. Had the arresting officers done less they would have been derelict in their duty. It is recognized that an officer need not and, in fact, should not ignore evidence of a crime which comes to his attention. State v. Elkins, 422 P.2d 250 (Ore. 1966).

The arresting officers attention was first attracted to the automobile when they noticed that it was without a regular license plate,¹ and that the dealer’s sticker in the rear window was unreadable. Immediately thereafter careless driving ensued.² Lanes were changed without a signal being given³ and signals were given that were not followed. All or any of these violations of the traffic laws would have prompted and authorized the patrolman to stop the vehicle.

In the case of People v. Mickelson, 380 P.2d 658 (Cal. 1963), the court said: “* * * circumstances short of probable cause to make an arrest may still justify an officer’s stopping pedestrians or motorists on the streets for questioning * * *. Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search.”

When the automobile was first stopped, there was nothing to arouse any suspicion towards the occupants concerning the commission of any other misdemeanors or felonies. Later, the plot began to thicken. First, Washington was without a proper driver’s license,⁴ second, he claimed ownership of the automobile but had no registration or dealer’s report of sale.⁵ At this point there was probable cause for an arrest and citation of the driver for careless driving, changing lanes without proper signals, failure to have a valid driver’s license and failure to display a dealer’s report of sale. The patrolman chose to write the citation for failure to have a valid driver’s license, and in the proper performance of his duty he proceeded to further investigate the failure to display a dealer’s report of sale.

Up to this time, the appellant was enjoying the status of a passenger. Reason dictates that a passenger in a motor vehicle is not, as a matter of law, under arrest or legal restraint while a driver is being questioned or cited for a traffic violation.

While writing the citation, the patrolman received by radio, reliable information upon which he had probable cause to arrest the driver, Washington, and the appellant, Harper, for grand larceny and burglary. The subsequent search and seizure of the “fruits” of the felonies found in the automobile and on the person of the appellant were incident to those lawful arrests.

In Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966), this court said: “Reasonable cause for arrest has been defined as such a state of facts as would lead a man of ordinary care and prudence to believe or entertain an honest and strong suspicion that the person is guilty.”

We find that the traffic violations occurring in the presence of the officers were of sufficient magnitude to establish probable cause for their stopping the 1961 Chevrolet automobile and questioning the driver, and that reasonable investigation immediately thereafter lead to the probable cause for the arrest of the appellant without a warrant.

We further find that the searches and seizures made by the officers were reasonable and lawful within the constitutional limits, and that the appellant had no standing to claim the protections afforded by the Fourth Amendment.

The judgment of the district court is affirmed.

Collins, Zenoff, and Mowbray, JJ., concur.

1 NRS 482.275.

2 NRS 484.060.

3 NRS 484.154.

4 NRS 483.230.

5 NRS 482.403.