Dean v. Fogliani

• Citation: 407 P.2d 580,81 Nev. 541
• Decision Date: 09 November 1965
• Docket Number: No. 4855,4855
• Parties: Robert Francis DEAN, Petitioner, v. Jack FOGLIANI, Warden, Nevada State Prison, Respondent.
• Court: Supreme Court of Nevada

Page 580

407 P.2d 580

81 Nev. 541

Robert Francis DEAN, Petitioner, v. Jack FOGLIANI, Warden, Nevada State Prison, Respondent.

No. 4855.

Supreme Court of Nevada.

Nov. 9, 1965.

Milton Manoukian, Zephyr Cove, for petitioner.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., Herbert F. Ahlswede and Gene Barbagelata, Deputy Dist. Attys., Washoe County, Reno, for respondent.

ZENOFF, District Judge.

This case presents the problem of who has the right to object to the admission of evidence when there has been an unlawful search and seizure.

On April 13, 1963, a robbery was committed at Brickie's Tavern, in Reno, Nevada. In the early morning hours of April 14, 1963, both petitioner and Roy Peter Hansen were arrested at Hansen's home in Reno. Police officers acted upon a tip from one Jerry Scott, who gave them a key to the rear door of the Hansen house. Scott is identified only as an 'occupant' of the Hansen house. The officers entered the house via the back door, without knocking, using the key.

The police found the petitioner lying on the floor asleep. Hansen and his wife were asleep in another room. The officers arrested petitioner and Hansen and took both to the city jail for booking. The house was searched at this time but nothing was found. A short time later the officers returned with a defective search warrant and searched the house and garage. This time they seized a gun and jacket which were admitted at the trial as Exhibits A and B. It is the seizure and admission of these two pieces of evidence which petitioner questions.

Petitioner and Hansen were initially co-defendants, but a motion for severance was secured by the petitioner. Hansen was then tried separately. At Hansen's trial, the seized evidence was excluded on the ground that it was illegally obtained and contrary to the requirements of the Fourth Amendment of the United States Constitution and Article 1, Section 18, of the Nevada Constitution. ¹

Later at his trial, petitioner moved to exclude the jacket and gun from evidence contending that the search and seizure, having been unlawful as to Hansen, were likewise inadmissible as to himself because he was a lawful occupant of Hansen's home at the time of the search and seizure despite the fact petitioner was not physically present when the search actually took place. At Dean's trial, the prosecutor and defense counsel stipulated that the search warrant was defective and thus the search and seizure illegal.

The trial court denied petitioner's motion to suppress and the evidence was admitted. Petitioner was found guilty, a new trial denied, and he was sentenced to not less than five years and not more than fifteen years in the Nevada State Prison.

In his petition Dean asks this court to release him from the Nevada State Prison and to expunge his conviction for robbery.

1. The proposition that one must have standing to invoke the Fourth Amendment proscription against an unreasonable search and seizure still persists in the opinions of our nation's Highest Court. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Realizing the dual purposes of the Constitutional mandate--to protect one's personal right of privacy and to curtail unlawful activity by law enforcement officials--that court has eroded the standing requirement considerably.

The question of who has 'standing' to invoke the constitutional protection of the Fourth Amendment of the United States Constitution and Article 1, Section 18, of the Nevada Constitution, was to a considerable extent resolved in Jones v. United States, supra. That case provides that in order for a person to have the right to claim an unlawful invasion of privacy, he

(1) must be one of the persons against whom the search was directed; or

(2) must be one who is charged with illegal possession of the property to be suppressed; or

(3) must be anyone who was legitimately on the premises where a search occurs and the fruits of the search are proposed to be used against him.

'We are persuaded * * * that it is unnecessary and ill advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinction, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in the homeland of the common law. * * * Distinctions such as those between 'lessee,' 'licensee,' 'invitee' and 'guest,' often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.' Jones, supra, 362 U.S. at 266, 80 S.Ct. at 733.

'No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by a motion to suppress, when its fruits are proposed to be used against him.' Id., at 267, 80 S.Ct. at 734.

Hair v. United States, 110 U.S.App.D.C. 153, 289 F.2d 894 (1961), recognizes another ground for exclusion, holding that a co-defendant (as here), against whom illegally seized evidence is sought to be used, may raise the objection regardless af his status as guest or occupant of the invaded premises. The court cites McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), in support of that proposition and it might well be that the first test enunciated in Jones applies to that state of facts as well.

However, it is unnecessary for us to look to other than Jones. We view Jones as giving an absent guest of a household the same dignity as the absent homeowner who has been a victim of an illegal search and seizure. Henzel v. United States, 296 F.2d 650, 653 (5th Cir. 1961). His possessory interest derives where the search is made, not when. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), (decided prior to the Jones case). The accused now need only establish that he was legitimately on the premises when he placed the fruits of the search there and where the search later occurred. His personal presence at the time of the search is not a necessary ingredient. Such a person has a right of privacy to be protected, and, of course, the purpose of discouraging unlawful police activity is also advanced. However, the accused who was not legitimately on the premises when he placed the items of evidence there and where the search later occurred has no standing to complain. Petitioner, occupying the premises at the time of the arrest (he was asleep on the floor), was absent therefrom only because he was removed by the arresting officers. In Burge v. United States, 342 F.2d 408 (9th Cir. 1965), under similar circumstances 'standing' was conceded although the court held the search itself reasonable.

To hold otherwise would create a situation where law officers, in order to circumvent the requirement of occupany 'when' the search takes place, might be...