One 1970 Chevrolet Motor Vehicle, Identification No. 13670L125718 Bearing Nevada License No. CL 4947 v. Nye County

• Decision Date: 17 January 1974
• Docket Number: No. 7133,7133
• Citation: 90 Nev. 31,518 P.2d 38
• Parties: ONE 1970 CHEVROLET MOTOR VEHICLE, IDENTIFICATION NO. 13670L125718 BEARING NEVADA LICENSE NO. CL 4947, Appellant, v. The COUNTY OF NYE, State of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 38

518 P.2d 38

90 Nev. 31

ONE 1970 CHEVROLET MOTOR VEHICLE, IDENTIFICATION NO.

13670L125718 BEARING NEVADA LICENSE NO. CL 4947, Appellant, v. The COUNTY OF NYE, State of Nevada, Respondent.

No. 7133.

Supreme Court of Nevada.

Jan. 17, 1974.

Goodman & Snyder and Douglas G. Crosby, Las Vegas, for appellant.

William P. Beko, Dist. Atty. and Peter L. Knight, Asst. Dist. Atty., Tonopah, for respondent.

OPINION

MOWBRAY, Justice:

Nye County filed forfeiture proceedings against a Chevrolet automobile being used in violation of NRS 453.145 of the Uniform Narcotic Drug Act. ¹ This appeal is from an order adjudging forfeiture.

1. Prior to the seizure of the car, Nye County officers had maintained a loose surveillance of the activities of several persons in the Pahrump Valley, including appellant's owner (Harold Dittmer) and a juvenile. On June 28, 1971, the juvenile was taken into custody. She readily admitted using dangerous drugs and marijuana. She confirmed the officers' suspicions that she had been receiving pills, which she believed to be illegal drugs, from Dittmer during his visits to Pahrump Valley. She advised the officers of the locations in Dittmer's car and on his person where the drugs were normally concealed. She also advised the officers that she expected Dittmer to be in Pahrump on June 29, 1971, as he had called her just prior to her arrest and she had asked him to come to Pahrump the night of June 29. Further information given to the officers was that Dittmer was to meet the juvenile at the Pahrump Restaurant and that she expected him to have some pills, as he usually did. The juvenile testified at the trial that she had known Dittmer for some time, both in Las Vegas and in Pahrump, and that he had furnished her with pills on a number of trips to Pahrump.

A lieutenant and a deputy sheriff of the Nye County Sheriff's office were on patrol south of Pahrump on the eveing of June 29, 1971, when they observed the vehicle being driven on a public highway headed toward Pahrump. They followed the car to the Pahrump Restaurant, and when Dittmer came out of the restaurant and returned to the car, one of the officers advised him they were going to search his car. The officer testified that he exhibited the original of a search warrant to Dittmer and handed him a copy. The search of the car disclosed a number of items, some of which were later identified by an expert witness as secobarbital, a derivative of barbituric acid; amphetamines; and leaf marijuana or Cannibis Sativa L. Dittmer was placed under arrest and given a receipt for the items taken in the search. Further testimony disclosed that the search warrant was issued by a justice of the peace of Pahrump Township, predicated on an affidavit signed by the officer who was the resident deputy sheriff in Pahrump and who had taken the juvenile into custody.

The trial judge admitted into evidence, over appellant's objection, the narcotics obtained in the search. Appellant assigns error, claiming that Nye County was required to produce the search warrant and the supporting affidavit as a condition to offering in evidence the fruits of the search.

2. Evidence illegally obtained in contravention of the Fourth and Fourteenth Amendments of the United States Constitution is excluded in forfeiture proceedings as well as in criminal prosecutions. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.ed.2d 170 (1965). It is uncontradicted that a search warrant was issued in this case. Castle v. United States, 287 F.2d 657 (5th Cir. 1961); United States v. Burkhart, 347 F.2d 772 (6th Cir. 1965).

In Schnepp v. State, 82 Nev. 257, 260, 415 P.2d 619, 621 (1966), this court stated:

'Ordinarily, the burden of showing an illegal search and seizure is on the moving party. Lyles v. State, 330 P.2d 734 (Okl.App.1958). . . .'

The court then noted a distinction in this burden that it has always observed where the evidence was obtained by means other than a search warrant. In such cases, the burden is on the State to prove the evidence was lawfully obtained, as where the search was incident to an arrest, as was the case in Schnepp, supra, or where there is a claimed consent to search, as in Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965).

It is a well established principle that the party seeking to impeach a search warrant has the burden of establishing the matters complained of and that, if the warrant is regular on its face, it will be presumed that the magistrate properly discharged his duties in issuing it. United States v. Thompson, 421 F.2d 373 (5th Cir. 1970); State v. Yates, 202 Kan. 406, 449 P.2d 575 (1969), cert. denied, 396 U.S. 996, 90 S.Ct. 496, 24 L.Ed.2d 461 (1969); State v. Kelly, 99 Ariz. 136, 407 P.2d 95 (1965). Cf. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Contrary to appellant's contention on appeal, it was its burden to prove the illegality of the search and seizure, and it was not the obligation of the respondent to prove affirmatively that the warrant was regularly issued on the basis of an affidavit showing probable cause.

3. Additionally, appellant asserts a disregard of the best evidence rule as error, claiming that the search warrant itself must be produced to establish the authority of the seizure.

The best evidence rule is designed to prevent the proof of the contents of a writing by secondary evidence. NRS 52.235. The testimony of the officers that they obtained a search warrant, exhibited it to Dittmer, gave him a copy, and conducted a search does not amount to testimony proving what was in the warrant. To make reference to a document by its common designation is not a violation of the best evidence rule. Chicago & N.W. Ry. Co. v. Green, 164 F.2d 55 (8th Cir. 1947). The testimony of the officers that they had a warrant is sufficient to prove its existence. Castle v. United States, supra; United States v. Burkhart, supra.

4. After the respondent, Nye County, rested its case in the proceedings below, appellant sought to introduce copies of the search warrant and the officer's affidavit that was the predicate for the warrant in an effort to prove that the affidavit did not establish probable cause for the issuance of the warrant and that the warrant itself was improperly issued. The trial judge rejected the offer, on the grounds that it amounted to a motion to suppress evidence, which had not been made prior to trial, and that no good cause was shown for failure to make a timely motion. Appellant claims the rejected offer constitutes reversible error.

The issuance of search warrants in Nevada is governed by NRS 179.015 to NRS 179.115. NRS 179.085 controls the procedure to be followed to suppress evidence or to recover property that was illegally seized. ²

Here, the motion to suppress was not made before trial. Appellant made no showing to the trial court that it had no opportunity to make the motion before trial, or that it was unaware of the grounds for the motion, though given an opportunity to do so. Actually, the main thrust of the appellant's approach below was that the petitioner-plaintiff had the burden to prove the legality of the search and that appellant was under no duty to take any affirmative action in this regard.

Since appellant made no factual representation to the trial court that it did not have an opportunity to make a pretrial motion to suppress or that it was not aware of the grounds for the motion, we are unable to hold that the trial court abused its discretion in refusing to entertain the motion at the trial. United States v. Romero, 249 F.2d 371 (2d Cir. 1957); United States v. Di Donato, 301 F.2d 383 (2d Cir. 1962).

5. Finally, appellant challenges the sufficiency of the evidence upon which the trial judge predicated his finding that appellant was used to violate a provision of the then existing Uniform Narcotic Drug Act. NRS 453.145 of the Uniform Narcotic Drug Act then in effect provided in part: 'No vehicle, boat or aircraft shall be forfeited unless the owner thereof authorized or knowingly permitted its use in violation of NRS 453.010 to 453.240, inclusive.' Appellant makes much of the fact that the trial judge, in his written decision, stated in part: 'The evidence supports an inference that Dittmer had knowledge of the presence of such substances (marijuana and dangerous drugs); . . .' Appellant argues that a mere 'inference' is insufficient to support the requisite knowledge required by the statute. An inference is a deduction which the trier of facts may determine from proven facts. It is often used in evaluating circumstantial evidence. The trial judge did not characterize the case as one in which there was only an inference that a crime had been committed. Rather, the court found that a crime had been committed, the proof of some of the elements of which were deduced from proven facts supported by the record. ³

Substantive violations of the Uniform Narcotic Drug Act, which require proof of knowledge of the presence of the drugs and knowledge of their narcotic character, do not demand proof of these elements by direct evidence. This court said in Fairman v. Warden, 83 Nev. 332, 336, 431 P.2d 660, 663 (1967):

'In order to hold one for narcotics possession, it is necessary to show dominion and control over the substance (Doyle v. State, 82 Nev. 242, 415 P.2d 323 (1966)) and knowledge that it is of a narcotic character (Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962), citing Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961)). These elements may be shown by direct evidence or by circumstantial evidence and reasonably drawn inferences. People v. Lunbeck, 146 Cal.App.2d 539, 303 P.2d 1082 (1956). . . .' See also Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969).

The forfeiture order of the district court is affirmed.

THOMPSON, C.J., and ZENOFF, J., concur.

BATJER, Justice (concurring):

I concur in the result reached by the...