Creps v. State
| Decision Date | 28 June 1978 |
| Docket Number | No. 9798,9798 |
| Citation | 94 Nev. 351,581 P.2d 842 |
| Parties | Terry Bruce CREPS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
John Ohlson, Jr., Reno, for appellant.
Larry R. Hicks, Dist. Atty., and John L. Conner, Deputy Dist. Atty., Reno, for respondent.
Terry Creps has appealed from his conviction and sentence for the sale of a controlled substance, alleging four errors: 1) that his motion to suppress a quantity of cocaine purchased by an undercover police agent was improperly denied; 2) that his motion to dismiss, based upon an allegedly improper continuance granted to the State, was improperly denied; 3) that the trial court relied upon improper evidence in determining the sentence to be imposed, and 4) that the trial court exceeded both its constitutional and statutory powers when it imposed as a condition of probation a term of sixty days in the county jail. For the reasons that follow, we affirm both his conviction and the validity of the sentence imposed upon him.
Creps was arrested by officers of the Reno Police Department upon a prearranged signal from an undercover agent to whom Creps had just sold a quantity of cocaine. This agent had previously arranged with a third party to be introduced to Creps, met him at his residence where an agreement to buy was struck, and returned two hours later, wired for sound, with $1,000.00 in marked bills to consummate the sale. Creps argues that upon these facts, his motion to suppress the purchased cocaine, based upon the absence of a warrant, was improperly denied.
Creps' Fourth Amendment argument must fall under the authority of Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) 1 and its progeny. Under Lewis, a government agent may properly pose as a willing buyer to gain consensual entry into a private home to purchase narcotics, and thereafter use the purchase as evidence against the seller without vitiating an otherwise lawful prosecution. United States v. Raines, 536 F.2d 796, 799 (8th Cir. 1976). An agent's misrepresentation of his identity does not render invalid the seller's consent to the entry. As stated in United States v. Glassel, 488 F.2d 143, 145 (9th Cir. 1973), cert. den. 416 U.S. 941, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974):
Further, when a purchase of an illegal substance has been consummated after a consensual entry obtained through misrepresentation of identity, there has occurred neither a search for nor a seizure of the contraband. United States v. Dono, 428 F.2d 204, 209 (2nd Cir.), cert. den. sub nom., Bonaguro v. United States, 400 U.S. 829, 91 S.Ct. 57, 27 L.Ed.2d 59 (1970). Creps "willingly entered into the transaction meaning it to be what it was, an illegal sale . . . to a willing buyer." id. See also, State v. Hollins, 533 S.W.2d 231, 233 (Mo.App.1975); State v. Leppanen,253 Or. 51, 453 P.2d 172 (1969). The purchased cocaine was therefore not inadmissible under the Fourth Amendment.
Trial was originally scheduled for Monday, December 6, 1976. On Friday, December 3, the State filed a motion for continuance, alleging the unavailability of an essential witness, the undercover police agent. Over Creps' objection, the motion was granted. On January 3, 1977, Creps' motion to dismiss the proceedings against him, based upon the allegedly improper grant of the State's motion for continuance, was denied.
District Court Rule 21 requires that a motion for continuance be supported by an affidavit stating:
"(a) The names of the absent witnesses and their present residences, if known.
(b) What diligence has been used to procure their attendance or their depositions, and the causes of a failure to procure the same.
(c) What the affiant has been informed and believes will be the testimony of each of such absent witnesses, and whether or not the same facts can be proved by other witnesses . . . .
(d) At what time the applicant first learned that the attendance or depositions of such absent witnesses could not be obtained.
(e) That the application is made in good faith and not for delay merely."
Under D.Ct.Rule 21(3), "no continuance will be granted unless the affidavit upon which it is applied for conforms to this rule . . . ."
The State's affidavit offered in support of its Dec. 3 motion for continuance is set out in the margin below. 2 Analysis of this affidavit under D.C.R. 21 reveals the following possible deficiencies: a) no address is given for the agent, although the agent's present whereabouts is given; b) the description of the probable content of the agent's testimony is decidedly vague: the "events that transpired between her and Terry Creps," which only the agent could testify to, are not set forth in detail.
In applying the requirements of D.C.R. 21 at the appellate level, we have held that McNair v. Sheriff, 89 Nev. 434, 436, 514 P.2d 1175, 1176 (1973). Nonetheless, we went on in McNair to observe at 89 Nev. 438, 514 P.2d 1177:
"(O)ur aim being that criminal accusations should proceed or terminate on principles compatible with judicial economy, fair play, and reason, we have attempted to apply DCR 21 in the criminal realm firmly, consistently, but realistically."
In keeping with this policy of interpretation, we held in Rainsberger v. State, 76 Nev. 158, 160, 350 P.2d 995, 996 (1960), that it is within the discretion of the trial court to grant a motion for a continuance upon the support of an affidavit "not in strict compliance with Rule 21 . . . upon the showing that the application for continuance was made in good faith and not merely for delay." See also, Giorgetti v. Peccole, 69 Nev. 76, 241 P.2d 199 (1952).
When viewed in the light of the chain of events leading to the filing of the motion for continuance, the affidavit's deficiencies are clearly of the type which the trial court, acting within the scope of its discretion under Rainsberger, might well choose to overlook. The record reveals that the Deputy District Attorney first became aware that the agent would be unable to travel at 1:20 p. m. on the Friday preceding a Monday 10:00 a. m. trial date. The motion and supporting affidavit were filed one hour later, after a hurried conference in chambers with the trial judge and Creps' attorney, during which the Deputy District Attorney was instructed by the judge to "hurry and get some papers up so we'(ll) have some sort of written record here." Upon the filing of the motion and affidavit, a hearing was held, at which the Deputy District Attorney offered to be sworn, and orally supplemented the affidavit with a more complete description of the agent's anticipated testimony and a description of a telephone call he had made to the agent's doctor in Arkansas to verify the agent's condition.
Clearly, the record reveals that the Deputy District Attorney acted with all possible dispatch. Moreover, the deviations from the dictates of D.C.R. 21 are both explainable under the particular circumstances of the motion and not of the type which would prejudice the defendant or subject him to avoidable delay. The court did not err in granting this continuance.
Creps was sentenced to five and one-half years in the Nevada State Prison, suspended, probation for a period of five years conditioned upon payment of a fine, submission to warrantless searches, and a term of incarceration of sixty days in the Washoe County Jail. The trial judge apparently fashioned this sentence with the thought "in the back of (his) mind" that Creps "was heavily involved in drug traffic." Creps argues that because there was no admissible evidence of other transactions in which he had participated and no evidence of any other contraband at his residence, the trial judge must have relied upon "impalpable or highly suspect evidence", in violation of Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159 (1976).
However there was ample evidence properly admitted at the trial for the judge to have concluded that Creps, although a first offender, was more than a casual seller. The transaction for which he was prosecuted involved an ounce of cocaine with a street value of $1,800 and an offer to sell 10,000 amphetamines. Creps offered to do business on a regular basis. Upon this evidence, we find no abuse of discretion in the trial judge's sentence. Silks v. State, supra.
Under NRS 176.185(1), it is within the power of the trial court to "suspend the execution of the sentence imposed and grant probation to the convicted person as the judge thereof deems advisable." In granting probation, "the court may fix the terms and conditions thereof," NRS 176.185(3), and is authorized to "impose . . . any conditions of probation or suspension of sentence." NRS 176.205. (Emphasis supplied.) Despite the ostensibly unlimited nature of the power granted to the trial court to set conditions, Creps argues that a term of incarceration in the county jail is beyond the power of the trial court to impose as a condition of probation. 3
Creps' challenge to the validity of the use of a short term of incarceration as a condition of probation is essentially twofold: first, that the imposition of such a condition impermissibly impinges upon the pardon and parole powers of the Executive Branch; and second, that even if no such...
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Igbinovia v. State
...(1977). However, a district court judge enjoys wide discretion under grants of authority to impose such conditions. Creps v. State, 94 Nev. 351, 360, 581 P.2d 842, 848 (1978). The general statutory grant of authority to fashion and impose probation conditions in Nevada is broad. NRS 176.185......
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...[a] sentence and grant probation springs from legislative grant rather than from the inherent powers of the court." Creps v. State, 94 Nev. 351, 360, 581 P.2d 842, 848 (1978). So too does the power to place a defendant in a deferred sentencing program. See Savage v. Third Judicial Dist. Cou......
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