DuFrane v. Sheriff, Washoe County

• Decision Date: 02 February 1972
• Docket Number: No. 6718,6718
• Citation: 88 Nev. 52,495 P.2d 611
• Parties: Joseph P. DuFRANE, Appellant, v. SHERIFF, WASHOE COUNTY, Nevada, Respondent.
• Court: Nevada Supreme Court

Page 611

495 P.2d 611

88 Nev. 52

Joseph P. DuFRANE, Appellant, v. SHERIFF, WASHOE COUNTY, Nevada, Respondent.

No. 6718.

Supreme Court of Nevada.

Feb. 2, 1972.

H. Dale Murphy, Public Defender, and William N. Dunseath, Deputy Public Defender, Washoe County, for appellant.

Robert List, Atty. Gen., Robert E. Rose, Dist. Atty., and Keith L. Lee, Deputy District Atty., Washoe County, for respondent.

OPINION

PER CURIAM:

The appellant petitioned for a writ of habeas corpus, contending that his confinement was unlawful, first for want of sufficient evidence to constitute probable cause to believe that a crime had been committed and that he committed it, and second, for violation of his constitutional rights due to a prejudicial pre-arrest delay.

He had been charged by indictment with sale of narcotics in violation of NRS 453.030. The grand jury heard the testimony of a police informer that he contracted the appellant for the purpose of purchasing narcotics; that on October 12, 1970, after being searched by a police officer to determine that he had no narcotics on his person, he and an officer went to the prearranged location to make the purchase; that when the appellant objected to the presence of a third person the officer returned to his car; that the informer and the appellant discussed the transaction, during which discussion the appellant referred to the substance interchangeably as heroin, 'smack' and 'stuff', he described it as 'good stuff', and that the heroin was brown in color; that the informer gave the appellant $50.00 for a quantity of the substance; that the appellant then walked to a nearby telephone booth where he left the substance; that when the informer retrieved the substance the appellant returned to see if any of it was being 'pinched' because he wanted some for himself; that on his way back to the car where the officer was waiting the informer saw a person believed to be the appellant's main supplier; and that the informer had been talking with the appellant previously about making a big deal with him. The informer also testified that he had been equipped with a radio transmitter which he wore under his clothes.

That testimony was corroborated by another police officer whose assignment was to observe the transaction between the informer and the appellant. He testified that he had searched the informer to ascertain that he had no narcotics, that the observed the informer's meeting with the appellant and listened to their conversation by means of a receiver he had for the transmitter carried by the informer.

On the proof thus presented to them, the grand jury returned an indictment against the appellant on May 13, 1971, some seven months after the transaction between the informer and the appellant. The appellant had been arrested on April 1, 1971.

The appellant's first assignment of error, which is directed to the sufficiency of the evidence to constitute probable cause, is without merit. While proof that the substance sold was in fact a narcotic is required to be shown beyond a reasonable doubt at trial, that quantum of proof is not required before a grand jury. Glosen v. Sheriff, 85 Nev. 145, 451 P.2d 841 (1969). In that case we said '(T)he standard of probable cause is satisfied if the person against whom an indictment is sought either directly, or by necessary implication, represents that the substance he is selling is (a narcotic).' In this case the testimony of the informer, previously described, was corroborated by the testimony of a police officer who observed the transaction and who...