Fairman v. Warden, Nev. State Prison, s. 5235

• Decision Date: 19 September 1967
• Docket Number: Nos. 5235,5264,s. 5235
• Citation: 83 Nev. 332,431 P.2d 660
• Parties: Earl FAIRMAN, Jr., Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent. Dorothy Mae JOHNSON, also known as Dorothy Mae Benson, Appellant, v. SHERIFF OF CLARK COUNTY, State of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 660

431 P.2d 660

83 Nev. 332

Earl FAIRMAN, Jr., Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.

Dorothy Mae JOHNSON, also known as Dorothy Mae Benson, Appellant, v. SHERIFF OF CLARK COUNTY, State of Nevada, Respondent.

Nos. 5235, 5264.

Supreme Court of Nevada.

Sept. 19, 1967.

Babcock & Sutton, Las Vegas, for appellant Earl Fairman, Jr.

Foley, Garner & Shoemaker, Las Vegas, for appellant Dorothy Mae Johnson.

Harvey Dickerson, Atty. Gen. State of Nevada, Carson City, George E. Franklin, Jr., Clark County Dist. Atty., and James D. Santini, Deputy Dist. Atty., Las Vegas, for respondents.

OPINION

COLLINS, Justice.

These cases were consolidated for argument and disposition since they arose out of the same incident. Each appeal is from a district court denial of habeas corpus following preliminary examination.

Fairman contends that evidence of possession of narcotics was erroneously admitted, because secured by an unconstitutional search and seizure. Fairman and Johnson each urge that there was an insufficient showing of possession to hold either for trial. We find no merit to these contentions and affirm.

A summary of the facts shows that William Harrison arranged to have sexual intercourse for compensation with Dorothy Mae Johnson. They proceeded from a bar to room 516 of the West Motel in Las Vegas, Nevada. When they arrived, the room, registered to one Lionel Winder, was occupied by appellant Fairman, stepson of Winder. Fairman immediately departed. When Harrison and Johnson had completed intercourse, Johnson responded to a rap on the door, and admitted Thelma Dupree and another woman to the room. All three women retired to the bathroom, after which Dupree came out, obtained a gun from a dresser drawer in the room and robbed Harrison of approximately $60. Harrison, clad only in his trousers, left the room, went to the manager's office, and called the police.

Harrison returned to the area of his automobile, observed the three women leave room 516 and proceed upstairs where, from the balcony, Thelma Dupree pointed the gun at the victim in a threatening manner and then, along with the other women, disappeared into another room. Harrison took a knife from his glove compartment and proceeded upstairs to recover his stolen money. When one of the girls appeared he started to chase her. At this moment Fairman appeared, and using the lid of a garbage can as a weapon, prevented Harrison from pursuing her and chased him off. Harrison went back downstairs and waited for the police.

Officers Mouliot and Chappell responded to the call and were met by Harrison at the motel. He related the foregoing circumstances cumstances to them. The officers obtained a key from the manager to room 516. They entered the unoccupied room to retrieve the remainder of Harrison's clothes. His clothing was later found in the bushes outside the motel. While in the room they neither searched for nor removed anything. Harrison, noticing a photograph of Dupree in the room, identified her as the one who had held the gun on him and taken his money. He described the appearance and dress of Fairman and the three women to the policemen.

The officers then commenced a stake-out of the room. They observed Fairman and Willie Corbin enter the room. Shortly thereafter, they saw Fiarman emerge from the room, look furtively up and down the street, go to some bushes, pick up a brown paper sack and re-enter the room. Being satisfied that Fairman was the person identified by Harrison as the man who had prevented him from pursuing the women following the robbery, the officers again secured a key to the room and entered it unannounced. They had no arrest or search warrants.

Upon entering the room they found Fairman, Corin and the three women. After identifying themselves as police officers, they placed Fairman and the women under arrest for robbery. The officers then commenced a search of the room for the gun.

Fairman, who was standing in the room, became combative and resistful during the search. Dorothy Mae Johnson was sitting on the bed upon entry of the officers and remained there during commencement of the search. She arose once to put on some slipprs but immediately sat down on the same place on the bed. When asked by the officers to move, she refused to do so and asked, 'Why?' They told her that it was to enable them to search the bed. She then complied. Under the covers of the bed, in the exact place she had been sitting, the officers found a brown paper sack containing 19 packets of marijuana and a roach (a half-smoked marijuana cigarette). The suspects were then advised they were under arrest for possession of narcotics.

Under Nevada law an officer may make an arrest without a warrant when he has reasonable cause to believe a felony has been committed, and that the suspect committed it. NRS 171.235. Probable cause exists if the facts and circumstances known to the officers at the moment of the arrest would warrant a prudent man in believing that a felony had been committed by the person arrested. Gordon v. State, 83 Nev. ---, 426 P.2d 424 (1967); Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966). Here the officers testified to facts known to them from Harrison's account and their own observations about...