Harper v. State

• Decision Date: 29 March 1968
• Docket Number: No. 5356,5356
• Parties: Leroy HARPER, Appellant, v. STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 893

440 P.2d 893

84 Nev. 233

Leroy HARPER, Appellant, v. STATE of Nevada, Respondent.

No. 5356.

Supreme Court of Nevada.

March 29, 1968.

James D. Santini, Richard H. Bryan, Public Defenders, Leonard I. Gang, Earle W. White, Deputy Public Defenders, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., James L. Buchanan, II, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

BATJER, Justice:

Harper was convicted of first degree burglary. His appeal asserts a violation of his rights protected by the Fourth Amendment of the Constitution of the United States. The trial court received evidence obtained from the search of a stolen automobile in which Harper had been riding as a passenger. When the original search was made the patrolman did not have a search warrant or a warrant for the arrest of the appellant. However, the initial search of the stolen vehicle was with the permission of the driver who claimed ownership, and the subsequent search and seizure of the evidence was reasonable and incidental to the arrest of the appellant upon probable cause. It is our opinion that there is no violation of the Fourth Amendment's proscription against unreasonable searches and seizures. We affirm the judgment of the district court.

Shortly before midnight on October 11, 1966, patrolman Patrick Charles Stevens, of the Las Vegas Police Department, observed a 1961 bronze Chevrolet automobile pull out of a gas station. Two men were in the front seat. The patrolman and his shift partner, reserve police officer G. H. Body, started to follow in the patrol car, noting that the automobile had no license plates, but it did have a dealer's sticker on the rear window which could not be read because of its position. Both driver and passenger kept furtively looking back, and the automobile then began changing lanes, from left to right and then back to left again; at this point it signaled for a left-hand turn, but the turn was not made and the car pulled back into the right lane. At that point officer Stevens stopped the Chevrolet automobile, approached the driver's side of the car, and asked to see the driver's license. Officer Body went to the passenger's side where Leroy Harper, the appellant, was sitting. The driver, Homer Washington, looked through his wallet, could not produce a driver's license, and said he must have left it at home. In the wallet, officer Stevens noticed a Las Vegas police citation for failure to have a driver's license.

When asked whose car it was, Washington stated that it was his, and that he had purchased it three days before from Country Boy Auto Sales. However, there was no dealer's report of sale affixed to the front window (as required by law if there are no license plates on the car) and Washington said that he had apparently also left this at home. Officer Stevens informed him that he was going to issue a citation for driving without a license, returned to the patrol car to write the citation and to radio the station to check with Country Boy Auto Sales in regard to the alleged sale. During this interval Harper got out of the passenger side of the car and was sitting on the ground near the curb.

It took from ten to twenty minutes for the call to come back from police control, at which time the patrolman learned that the car had not been sold by the auto agency, and that no one had been given permission to take it from the lot. Officer Stevens then told the driver that he was under arrest for grand larceny auto, and after a brief talk with Harper, arrested him on the same charge, since his story was at variance with Washington's. A citation for a moving traffic violation was never issued, although the citation to Washington for operating a motor vehicle without a driver's license was delivered to him after he was booked at the jail.

At some point in time prior to the arrest of either Harper or Washington for grand larceny and burglary, officer Stevens had observed a typewriter case and a receipt book in the back seat of the car. Washington told the patrolman that he worked as a mechanic and carried tools in the car, at which time he gave officer Stevens permission to look in the trunk. In addition to the tools, the trunk also contained a number of dealer's stickers and a pair of coveralls.

Subsequent to the larceny arrest, a second call came from police control relaying information that one of the owners of the auto agency and a police officer had proceeded to the auto sales office, found it burglarized of a typewriter receipt book, checkbook, tools and dealer's stickers. Washington was then placed under arrest for burglary.

A third call came in shortly thereafter from detective Brown who had been sent to Country Boy Auto Sales, to photograph and process the scene of the crime. He stated that he had found a piece of gray yarn, or thread, apparently from a sweater caught in one of the doors that had been broken open, and inquired if either suspect was wearing a sweater of that color. Harper was wearing a gray sweater, and he was immediately arrested on the burglary charge. Following the felony arrests, the Chevrolet was again searched and the items found were taken as evidence. All of the items found in the stolen automobile were received in evidence and identified by one of the agency owners as being either his or his partner's personal property. A checkbook recovered from Harper during the booking-in process was also introduced into evidence as were the piece of yarn found at the scene, and the sweater Harper was wearing at the time of his arrest. The yarn and the sweater were tied together by expert testimony. The burglary conviction of Harper resulted.

As one of his assignments of error the appellant contends that the trial court erred when it found that he was without standing to claim the protection of the Fourth Amendment and refused to suppress the evidence obtained by the patrolman when he searched the stolen vehicle.

The appellant further contends that the stopping of the Chevrolet automobile in which appellant was a passenger was without probable cause, that all proceedings in the case thereafter were illegal and invalid, and that the trial court erred in its refusal to dismiss the case.

We find that the appellant is without standing to claim the protection of the Fourth Amendment. On two previous occasions this court has ruled on the matter of standing. Dean v. Fogliani, 81 Nev. 541, 407 P.2d 580 (1965), and Osborne v. State, 82 Nev. 342, 418 P.2d 812 (1966). Osborne involved the search of a stolen automobile. In that case, we held that since the accused did not own, nor have the right to possess the automobile, he was without standing to claim the protection of the Fourth Amendment. The rule announced in Osborne is controlling in this case.

In the case of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the court considered the problem of a search of an automobile without a warrant and it said: 'The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.' However, in the case of Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), decided a few months after Carroll v. United States, supra, the court said: 'One's house cannot be searched without a search warrant, except as an incident to lawful arrest.'

The Carroll case indicates that the search of an automobile, while still subject to some restrictions, may be conducted much more freely than the search of a house, store or other fixed piece of property. This position is based on the common sense approach that a speeding automobile would be long gone before a search warrant could be obtained. Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Preston v. United States, infra.

The Supreme Court's holding in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), regarding the question of standing to claim the protection of the Fourth Amendment was premised on two separate and distinct grounds. First, it was decided that if a person is legitimately on the premises when the search was made, the Fourth Amendment protects him, and secondly, that standing arises in those offenses in which the allegation of ownership or possession usually required for the motion to suppress the evidence would be an admission of the sole essential element necessary to establish guilt. In holding that Jones was legitimately on the premises and was an aggrieved person who had standing to raise the constitutional issue, the court said: '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 way of a motion to suppress when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.' (Emphasis added).

The holding in Jones precludes Harper from having any standing to raise the constitutional protection of the Fourth Amendment and from suppressing the evidence found by the patrolman when he searched the stolen automobile. Not being legitimately in the automobile, and not asserting any ownership therein, Harper was not an aggrieved person.

Within the holding of Jones v. United States, supra, Harper was one of that class who 'by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.' Nor does Harper have standing by virtue of the offense charged. The mere possession of an automobile, even though it is stolen, is not a crime, nor does possession standing alone establish guilt.

In the case of Simmons v. United States...