A Minor Boy v. State

Gunderson, C. J.,

dissenting:

I respectfully dissent.

I would be quick to sign an opinion upholding this particular juvenile’s commitment, if I believed such could be done consistently with legal principles. Like my brethren and the district judge, I believe a period of confinement at the Elko training school may be to his benefit. I believe, however, that the Constitution is too high a price to pay for his tuition.

As I see it, the majority here hold a police officer may arrest any person reported to have smoked marijuana, if the officer deems desire to utilize lavatory facilities suspicious, and if the officer either thinks, or says he thinks, that he can detect an odor of marijuana about the suspect’s person.

I suggest a request to use the men’s room typically reflects nothing more sinister than a wish to relieve one’s bowel or bladder. I further suggest that merely because such request is made to a police officer by a schoolboy does not, as a matter of logic, enhance the import thereof. As the United States Supreme Court has said: “The fact that packages have been stolen does not make every man who carries a package subject to arrest nor the package subject to seizure. . . . Under our system suspicion is not enough for an officer to lay hands on a citizen.” Henry v. United States, 361 U.S. 98, 104 (1959). By direct analogy, that marijuana users may sometimes seek to flush contraband down toilets does not, as a matter of logic, evidence that a person asking to use a toilet has marijuana on his person.

I suggest that in this case there was no more justification for a warrantless search than in Schmitt v. State, 88 Nev. 320, 497 P.2d 891 (1972), wherein this court unanimously reversed a conviction on comparable facts.