Casey v. State
Decision Date | 08 September 1971 |
Docket Number | No. 6366,6366 |
Citation | 488 P.2d 546,87 Nev. 413 |
Parties | John Jay CASEY, Jr., Appellant, v. The STATE of Nevada, Respondent. |
Court | Nevada Supreme Court |
Harry E. Claiborne and Annette R. Quintana, Las Vegas, for appellant.
Robert List, Atty. Gen., Carson City, William P. Beko, Dist. Atty., Tonopah, for respondent.
Convicted of 'Grand Larceny of Livestock' in violation of NRS 205.225, appellant contends inter alia: (1) that his Fourth Amendment right to privacy was invaded when state cattle inspectors surreptitiously conducted surveillance and search of the place appellant slaughtered the cattle in question, inside fences of his uncle's ranch, but separated by another fence from the ranch dwelling some 500 to 700 yards away; and (2) that the court erroneously limited impeachment of the state cattle inspectors.
1. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), decided evidence obtained through unauthorized entry upon open land is admissible. 265 U.S., at 59, 44 S.Ct., at 446. Since Hester, the courts have quite consistently held the Fourth Amendment's protection of privacy does not extend to open land, at least when the 'curtilage' of a home is not breached or invaded in some way. 1 This rule has been applied even though the land was fenced, Stark v. United States, 44 F.2d 946 (8th Cir. 1930); Janney v. United States, 206 F.2d 601 (4th Cir. 1953); even though the land was posted with 'no trespassing' signs, McDowell v. United States, 383 F.2d 599 (8th Cir. 1967); and even though the evidence discovered was not in plain view, Care v. United States, 231 F.2d 22 (10th Cir. 1956). See also: Dulek v. United States, 16 F.2d 275 (6th Cir. 1926); Edwards v. United States, 206 F.2d 855 (10th Cir. 1953); Constitutional Law--Constitutionally Protected Areas--Search and Seizure, 18 Mercer L.Rev. 447 (1967).
As appellant contends, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), may require us to accord some search issues different analysis than in the past; however, we find nothing in Katz signaling demise of the principle that an individual ordinarily has no constitutionally protected right to expect privacy in open fields. 2 Post-Katz cases involving open field situations continue to apply the historic rule. Fullbright v. United States, 392 F.2d 432 (10th Cir. 1968); State v. Brown, 461 P.2d 836 (Or.App.1969); cf. United States v. Capps, 435 F.2d 637 (9th Cir. 1970). Post-Katz cases upon which appellant relies do not involve open field situations. 3 The burden of establishing an unconstitutional search was, of course, on the appellant, cf. Fullbright v. United States and Care v. United States, supra; and we cannot hold the lower court erred in deciding this burden was not met, when the record justifies a determination that the area in question was not shown to be more than an open field.
2. Regarding appellant's contention that 'the trial court deprived defendant of a fair trial by refusing to allow impeachment of state witnesses on a matter in issue,' the record shows the witnesses in question testified for the state, and were cross-examined. Later, during his own case, appellant sought to recall then as 'adverse witnesses' for impeachment by reference to an affidavit executed to obtain a search warrant. The prosecuting attorney pointed out this procedure was inappropriate; however, the trial court offered and did permit defense counsel to 'call him for a little additional cross-examination,' specifying 'it will have to relate to prior testimony.' The court limited impeachment to matters it deemed material, and not collateral.
We need not decide whether such limitations on cross-examination would have been error, if imposed when the witnesses first testified. 3 Wharton's Crim.Ev., § 900 (12th Ed. (1955). On the record in this case, we could not find that the lower court abused its discretion, even had it refused any additional cross-examination whatever.
Appellant's other assignments of error have been considered, and we perceive no prejudicial error. 4
Affirmed.
1 A singular exception appears to be the Supreme Court of Mississippi. See: Davidson v. State, ...
To continue reading
Request your trial-
Loguidice v. State
...is true, since "an individual ordinarily has no constitutionally protected right to expect privacy in open fields," Casey v. State, 87 Nev. 413, 488 P.2d 546 (1971). I merely conclude, as have many courts, that "Hester no longer has any independent meaning but merely indicates that open fie......
-
Merica v. State
...States, 328 F.2d 361 (5th Cir. 1964); Polk v. United States, 314 F.2d 837 (9th Cir. 1963). As we recently pointed out in Casey v. State, 87 Nev. ---, 488 P.2d 546 (1971), the United States Supreme Court's holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), m......
-
State v. Aragon, 2175
...does not apply. Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974); United States v. Brown, 473 F.2d 952 (5th Cir. 1973); Casey v. State, 87 Nev. 413, 488 P.2d 546 (1971). Even if the constitutional prohibition should apply, under the circumstances of this case, it was not unreasonable to seiz......
-
State v. Story
...v. Boyster, 436 F.3d 986, 991 (8th Cir.2006) ; Fullbright v. United States, 392 F.2d 432, 434–36 (10th Cir.1968) ; Casey v. State, 87 Nev. 413, 415, 488 P.2d 546, 548 (1971). See also State v. Kirchoff, 156 Vt. 1, 13, 587 A.2d 988, 996 (1991) (“Federal law places the burden on the defendant......