Johnson v. State

• Decision Date: 30 December 1981
• Docket Number: No. 12262,12262
• Citation: 637 P.2d 1209,97 Nev. 621
• Parties: Kenneth David JOHNSON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1209

637 P.2d 1209

97 Nev. 621

Kenneth David JOHNSON, Appellant, v. The STATE of Nevada, Respondent.

No. 12262.

Supreme Court of Nevada.

Dec. 30, 1981.

[97 Nev. 622] Jeffrey D. Sobel, Las Vegas, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

SPRINGER, Justice.

Appellant Johnson appeals from convictions of burglary and robbery with a deadly weapon claiming the trial court erred in admitting evidence obtained in violation of his fourth amendment rights. Appellant also assigns as error the admission into evidence of certain extrinsic evidence to impeach an alibi witness.

The crime was committed at a convenience store. Because the robber's face was covered, positive identification of the suspect was impossible. Witnesses did, however, obtain the robber's car license number as he fled and recalled that the robber wore a blue bandana and a black, western-style hat which had a distinctive turquoise and silver band. The weapon used was believed to be a small calibre revolver.

Using the vehicle license number, police quickly ascertained the name and address of the owner and within ten minutes of the robbery arrived at appellant's home. There they found Johnson leaving from a side door. Johnson was stopped by the police, advised of the nature of the investigation and given his Miranda rights. Thereafter Johnson agreed that he and the police officers would go into his house and "discuss the situation."

Inside Johnson's home officers found Johnson's brother, Ronald Johnson, who bore a certain fraternal resemblance to Johnson. The officers immediately made a sweep search "to secure the house to see if there was any subjects there." In the hallway one officer was able to see on a nightstand in a bedroom off the hall a black western-style hat with a turquoise and silver band. The hat was later retrieved. The officer then knocked on a closed bedroom door and discovered therein a third subject, Johnson's father, who had been sleeping.

The police and the three men, Johnson, his brother and his father, discussed the matter together in the living room. During the discussion Johnson's father admitted owning a gun, which Johnson then produced. The brothers agreed to join the officers in a visit to the store, where the clerk positively identified the black hat. The clerk also indicated that the gun was similar, if not identical, to that used in the robbery.

On returning to appellant's home, the officers obtained the signed permission of all three occupants to make further search of the home.

The officers found under Johnson's mattress some R.C. Cola caps which had been taken in the robbery and some currency in the approximate amount and denominations reported to have been stolen from the store. Police also found a blue bandana which matched the description given by the store clerk. At this point officers placed Johnson under arrest.

The first issue to be decided is whether under the circumstances of this case a warrantless seizure of the hat found on the premises was a violation of Johnson's fourth amendment rights against unlawful search and seizure. We hold that under the facts of this case there was no such constitutional violation.

Respondent claims first that the hat was in "plain view" and hence subject to seizure. We note that "plain view" by itself is never sufficient to justify a warrantless seizure. The plain view doctrine requires (1) that officers be lawfully present at the point of observation and (2) that the discovery be inadvertent. Barnato v. State, 88 Nev. 508, 512, 501 P.2d 643, 645-46 (1972); see Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971) (plurality opinion). Since the officers were invited inside only to "discuss the situation," appellant did not initially consent to a warrantless search of the premises. The only possible justification for warrantless search in this case is the so called "emergency doctrine." Under exigent circumstances, law enforcement officers may enter and search private premises without a warrant and prior to arrest. One exigent circumstance is the reasonable belief that there is an urgent need to pursue an investigation which involves a substantial and imminent threat of death or bodily injury. The search, however, must not be a planned warrantless search with an accompanying intent either to arrest or obtain evidence. Banks v. State, 94 Nev. 90, 575 P.2d 592 (1978); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975); ...