Barnato v. State

• Decision Date: 04 October 1972
• Docket Number: No. 6901,6901
• Citation: 88 Nev. 508,501 P.2d 643
• Parties: Cheryle Louise BARNATO and Michael Jay Barnato, Appellants, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 643

501 P.2d 643

88 Nev. 508

Cheryle Louise BARNATO and Michael Jay Barnato, Appellants, v. The STATE of Nevada, Respondent.

No. 6901.

Supreme Court of Nevada.

Oct. 4, 1972.

Noel E. Manoukian, Zephyr Cove, for appellants.

Robert List, Atty. Gen., Carson City, Howard D. McKibben, Dist. Atty., Minden, for respondent.

OPINION

GUNDERSON, Justice:

Charged in two counts with possession and cultivation of marijuana, Cheryl and Michael Barnato have appealed from an interlocutory order of the district court denying their motion to suppress evidence. ¹ They contend, inter alia, that the district court should have suppressed marijuana plants seized from their home and garden under a search warrant, because that seizure was the fruit of prior seizures accomplished in violation of the Fourth Amendment as interpreted by the United States Supreme Court. We are constrained to agree.

On August 13, 1971, the Animal Control Officer of Douglas County obtained a cat trap from a neighboring county and took it to the residence of the Barnatos' neighbor, Mrs. Giordano, who had complained about a domestic cat that had gone wild. When the Control Officer returned on August 24, Mrs. Giordano informed him the trap had been placed in the Barnatos' garage, apparently because the cat had been seen there. The Control Officer went to the Barnato home with Mrs. Giordano, was introduced to Mrs. Barnato, inspected the trap, and according to his testimony 'didn't think it was a good spot to set it, so I said maybe down on the ground someplace where the cat could get to it.' He testified Mrs. Barnato then suggested the other side of her house as a possible site, which he found satisfactory and utilized. While setting the trap, he saw plants he believed might be marijuana. The following day, on August 25, the Control Officer described the plants to a deputy sheriff, and together they surreptitiously entered the Barnatos' enclosed yard, where they took a leaf from one of the plants. Chemical testing showed it to be marijuana.

The District Attorney's deputy recognized the surreptitious entry of August 25 as unlawful, having been made without the Barnatos' consent; therefore, he suggested that the Control Officer arrange to return 'lawfully' and then purloin another leaf, apparently being unaware he was counseling conduct that was also unconstitutional reasons hereinafter discussed. ² On August 27, the Control Officer telephoned Mrs. Barnato, obtained her consent to his entering the Barnato yard for the ostensible purpose of checking the cat trap, and while walking behind her in the Barnato yard, surreptitiously took another leaf. Testing indicated this, too, was marijuana.

Later on August 27, affidavits were prepared, omitting reference to the Control Officer's surreptitious entry on August 25, reciting he had taken a leaf while checking the cat trap August 27, and setting forth the results of testing the leaf thus 'legally' seized. On the basis of this circumscribed recitation of the facts, a magistrate issued a warrant authorizing a search of the Barnato home and yard, which revealed the evidence appellants have moved to suppress.

1. The federal 'exclusionary rule' is applicable to the States. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Hence, if State action here culminated in a search and seizures at the Barnato premises that were 'unreasonable' when tested by federal standards, then this court must apply the 'exclusionary rule.'

2. Under decisions of the United States Supreme Court, the fact that the final search and seizures were made under a warrant does not make then lawful, if that warrant was issued on knowledge the State obtained in violation of appellants' Fourth Amendment rights. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Furthermore, even if the Control Officer himself may be considered a private citizen, State action clearly was involved when he surreptitiously seized plant samples from the Barnato garden on August 25 and 27. Raymond v. Superior Court, County of Sacramento, 19 Cal.App.3d 321, 96 Cal.Rptr. 678 (1971). Thus, our tesk is to decide if those seizures were reasonable or unreasonable under announced federal standards.

3. The United States Supreme Court's recent pronouncements in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), are controlling in the case before us. In Coolidge, which involved seizure of a car reasonably believed to be evidence, parked in plain view on the defendant's driveway, the Court considered the circumstances in which warrantless seizures may be justified as reasonable under the 'plain view' doctrine. The High Court held police may seize an item in lawful 'plain view,' believed on probable cause to be an 'instrumentality of the crime' or 'mere evidence' (id. at 464, 91 S.Ct. 2022), subject to two limitations:

'The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances.' Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Jones v. United States, 357 U.S. 493, 497--498, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663.' 403 U.S., at 468, 91 S.Ct., at 2039; emphasis in original.

'The second limitation is that the discovery of evidence in plain view must be inadvertent. The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a 'general' one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a begal system that regards warrantless searches as 'per se unreasonable' in the absence of 'exigent circumstances." 403 U.S., 469--471, 91 S.Ct., 2040.

The situation concerned in the instant case is no different in principle from that in Coolidge, and is indistinguishable from that in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), on which the High Court relied most heavily in deciding Coolidge. ³ Thus under holdings of the United States Supreme Court it is unimportant if one concludes that the Control Officer, through his subterfuge, obtained a lawful 'plain view' of the Barnato garden on August 27. His seizures of a plant sample on August 27, and before that on August 25, both constituted 'unreasonable' seizures under the rule of Coolidge, because the criteria of exigency and inadvertence were absent. ⁴

4. Of course, Mrs. Barnato's consent to entry of her garden on August 27 was not tantamount to a waiver of the Barnatos' Fourth Amendment rights. In Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), a business acquaintance of the defendant, acting for the government, gained access to the defendant's office under the guise of making a friendly call. While there, he surreptitiously seized papers having 'evidential value only.' The High Court suppressed these papers as unlawfully seized, and also suppressed other evidence discovered as a result thereof, saying it was 'impossible to contend' that because entry was 'obtained by stealth instead of by force or coercion' the seizure was reasonable. Id., at 305, 41 S.Ct. at 263; cf. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), citing Gould with approval.

The order appealed from is reversed.

ZENOFF, C.J., and BATJER and THOMPSON, JJ., concur.

MOWBRAY, Justice (dissenting).

Respectfully, I dissent.

The Barnatos, who were charged in the district court with the unlawful possession of marijuana and the cultivation of marijuana, have appealed from an interlocutory order of the district court denying their motion to suppress as evidence the marijuana juana seized in the Barnatos' garden and home. They assert that the search and the seizure of the marijuana, pursuant to a search warrant issued by the magistrate, violated their Fourth Amendment rights. The district judge rejected their claim and denied their motion to suppress the marijuana as evidence. I agree with the ruling of the district judge, and I would deny the Barnatos' appeal.

On August 24, 1971, accompanied by a neighbor of the Barnatos' and with the permission of Mrs. Barnato, the Animal Control Officer of Douglas County set a trap underneath the Barnatos' house to catch a domestic cat that had become wild. Upon leaving, the Officer noticed several plants gorwing in the garden and asked Mrs. Barnato what they were. She replied that she didn't know. The Officer remarked that they looked like marijuana plants and then left the premises.

The following day the Animal Control Officer described the plants to a deputy sheriff. They decided to go to the Barnato home and inspect the plants....