Arterburn v. State

• Citation: 111 Nev. 1121,901 P.2d 668
• Decision Date: 24 August 1995
• Docket Number: No. 23447,23447
• Parties: James Lee ARTERBURN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 668

901 P.2d 668

111 Nev. 1121

James Lee ARTERBURN, Appellant, v. The STATE of Nevada, Respondent.

No. 23447.

Supreme Court of Nevada.

Aug. 24, 1995.

Frederick B. Lee, Jr., Public Defender, Elko County, for appellant.

[111 Nev. 1122] Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District Attorney and John S. McGimsey, Deputy District Attorney, Elko County, for respondent.

OPINION

PER CURIAM:

In this appeal, appellant contends that the state elicited his confession and seized a controlled substance in violation of his Fourth Amendment rights. We agree and therefore reverse the judgment of conviction.

Facts

On the morning of December 16, 1991, Deputy Brian Bate of the Elko County Sheriff's Department learned from a fellow deputy that a person named Dewey Wilder possessed a stolen vehicle. Wilder, who was also suspected of dealing in narcotics, had borrowed the car from his parents in Idaho on the condition that he return it the same day. His parents reported the vehicle as stolen when Wilder failed to return it. The vehicle was parked at the Horseshu Motel in Jackpot.

As Deputy Bate observed the allegedly stolen vehicle, appellant James Lee Arterburn approached within ten feet of it. Arterburn then went to the motel's registration desk, where, according to the motel receptionist, he called Wilder's room. After calling Wilder's room, Arterburn left the motel and walked to the Horseshu Club, where he waited for approximately fifteen minutes. Arterburn then walked back to and entered Wilder's room at the Horseshu Motel, where he remained for another fifteen minutes. Upon leaving Wilder's room, Arterburn walked to the nearby Chevron parking lot, where he got into a pickup truck and drove away.

Deputy Bate followed the truck in his patrol car and subsequently initiated a traffic stop by activating the patrol car's overhead lights. When he approached Arterburn's truck, Deputy Bate had his hand on his gun. According to Deputy Bate, Arterburn was not free to leave at this time and was considered under detainment until released. After asking Arterburn's name, Deputy Bate asked Arterburn if he had met Wilder at the motel. Arterburn answered "yes," and Deputy Bate then asked Arterburn if he knew anything about the car that Wilder was driving. Arterburn allegedly stated that he was with Wilder when Wilder's mother gave Wilder the keys to the car. Deputy Bate then asked Arterburn if he "would allow [Deputy Bate] to take him to the sheriff's department, or if he would come with [Deputy Bate] to the sheriff's department to do an interview." According to Deputy Bate, Arterburn agreed to the interview, and Deputy Bate asked him if he wanted to drive his own vehicle or ride in the patrol car. Arterburn purportedly responded that he would ride in the patrol car.

At the station, Deputy Bate allegedly informed Arterburn that he was not under arrest. Although at one point during pretrial proceedings, Deputy Bate testified that he had told Arterburn (at the station) that he was free to leave at any time, Deputy Bate later testified that "[a]t no point in time did I ever tell him that he was free to leave, no. I told him that he had--that this was a voluntarily [sic] thing and that he was not under arrest. I don't recall ever telling him, Mr. Arterburn, that he was free to leave in those exact words, no." Deputy Bate also gave Arterburn Miranda warnings at the station; Arterburn then agreed to the questioning and signed a written waiver of rights form.

Deputy Bate first asked Arterburn why Wilder was in the area, and Arterburn explained that he had only gotten a ride with Wilder from Idaho to Jackpot so that Arterburn could visit a woman friend. Deputy Bate then asked Arterburn if he was involved in taking the vehicle, and Arterburn answered "no." According to Deputy Bate, Arterburn's association with Wilder, and Wilder's alleged involvement in narcotics, led Bate to suspect that Arterburn might possess controlled substances. When Deputy Bate asked Arterburn if he possessed controlled substances, Arterburn responded that he did. After Deputy Bate asked Arterburn if he could search for the drugs, Arterburn told him that they were in his jacket pocket. Deputy Bate asked Arterburn if he could take them from the jacket pocket, and Arterburn said that he could. Deputy Bate then retrieved a plastic baggie containing 1.7 grams of marijuana (enough for a small cigarette) and some rolling papers.

Arterburn was subsequently charged with possession of a controlled substance. Prior to trial, he filed a motion to suppress evidence of the marijuana, in which he asserted that Deputy Bate had violated his Fourth Amendment rights by pulling him over, taking him to the station, and then retrieving the marijuana from him. The district court denied this motion and concluded that Deputy Bate had "testified to some articulable facts that would allow him to stop and question Mr. Arterburn concerning the car, the possible stolen vehicle." In addition, the district court determined that Arterburn "voluntarily went to the substation and gave his statement, and that he did consent to the deputy reaching in, told the deputy the items were in his pocket, and that [Deputy Bate] could reach in and get the item of narcotics."

On March 12, 1992, the jury found Arterburn guilty of possession of a controlled substance. On April 29, 1992, the district court entered a judgment of conviction and sentenced Arterburn to three years in the Nevada State Prison. This sentence was suspended, and Arterburn was placed on a maximum of two years' probation. ¹

Discussion

Courts have acknowledged that three categories of police interactions exist: (1) the "consensual encounter," which is completely voluntary and for which a police officer needs no justification; (2) the "detention," which is a seizure strictly limited in length, scope and purpose, and for which a police officer must have an articulable suspicion that the civilian has committed or will commit a crime; and (3) the "arrest," for which a police officer must have probable cause. U.S. v. Hooper, 935 F.2d 484, 490 (2d Cir.), cert. denied, 502 U.S. 1015, 112 S.Ct. 663, 116 L.Ed.2d 754 (1991); People v. Brueckner, 223 Cal.App.3d 1500, 273 Cal.Rptr. 292 (1990).

Here, Deputy Bate pulled Arterburn over for questioning and therefore seized him under the Fourth Amendment: "It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). Deputy Bate admitted that after he stopped Arterburn, Arterburn was not free to leave. In addition, Deputy Bate admitted that he placed his hand on his gun when approaching Arterburn.

During the time that Arterburn was subject to this seizure, and was clearly not free to leave, Deputy Bate asked him if he would go to the station. Although Arterburn did agree to go to the station, we conclude that under the circumstances, Arterburn had...