Schnepp v. State, 5030

• Decision Date: 22 June 1966
• Docket Number: No. 5030,5030
• Parties: Donald James SCHNEPP, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 619

415 P.2d 619

82 Nev. 257

Donald James SCHNEPP, Appellant, v. The STATE of Nevada, Respondent.

No. 5030.

Supreme Court of Nevada.

June 22, 1966.

David R. Hoy, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., and David G. Parraguirre, Deputy Dist. Atty., Reno, for respondent.

OPINION

ZENOFF, District Judge:

At approximately 9:00 P.M., April 23, 1965, the manager of Jimmy's Motel, Reno, Nevada, observed a man leaving an unoccupied room in the motel carrying a large object. The manager ran to the room and found the television set missing and called the police.

The police dispatcher immediately broadcast the reported burglary, gave the location of the crime, stated that a television set had been taken, and reported that the culprit had left in an automobile. An officer in the immediate vicinity respondend. Some two to five minutes after the broadcast, the officer arrived at the scene and observed defendant's automobile approximately one-half block west of the motel moving at a slow speed. This was the only car on the street at the time, had an Oregon license plate tied loosely on by wire, and its occupants were seated crowded against their respective doors. After radioing for assistance, the officer stopped defendant's car. The defendant came running back to the police car, but the officer worked his way up to defendant's car to get a better look at the passenger. When alongside, the officer observed a television set partially covered with a sweater on the front seat. Defendant stated, 'I don't know who it belongs to.'

Two other officers came to the aid of the officer who stopped the car, and they requested the passenger in defendant's automobile to remove himself from the car. At that time, one of the officers also observed the TV set on the seat.

The defendants were then arrested for first degree burglary. They were subsequently tried and convicted. Appellant Schnepp here appeals his conviction.

1. Prior to the trial appellant moved to suppress as evidence, the TV set, certain tools, and personal clothing and effects, contending there was no probable cause for his arrest, which arrest was made without a warrant. At the hearing the trial court placed the burden of proceeding upon the appellant.

Ordinarily, the burden of showing an illegal search and seizure is on the moving party. Lyles v. State, 330 P.2d 734 (Okl.Cr.1958). However, when a defendant proves that he was arrested without a warrant, he establishes a prima facie case and the burden rests on the state to show proper justification. Badillo v. Superior Court, 46 Cal.2d 269, 294 P.2d 23 (1956); People v Dewson, 150 Cal.App.2d 119, 310 P.2d 162 (1957); See Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

Thus, the trial court erred in placing the burden on the defendant when it was that of the prosecution to show probable cause for the arrest. The error was harmless, however, because the defendant, in carrying the responsibility erroneously placed on him, established probable cause himself by examining the arresting officers. No prejudice is shown by appellant, who contends his procedural inability to cross-examine the police officers prevented his impeachment possibilities. ¹

2. Reasonable cause for arrest has been defined as such a state of facts as would lead a man of ordinary care and prudence to believe or entertain an honest and strong suspicion that the person is guilty. People v. Dewson, supra. This includes suspicious conduct of the defendant in the presence of the officers. Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36, 38 (1956). The probable cause upon which the police officers testified consisted of the following facts: (1) They had heard the report of the burglary, (2) a television set had been taken, (3) the suspect left in an automobile, (4) defendant's car was the only car seen by them minutes after the report near the scene of the crime, (5) the car was moving very slowly, (6) the car had an Oregon license plate wired on, (7) the two passengers were crowded against their respective doors, and (8) the car was going away from the scene of the crime. Upon these circumstances the officer stopped the car for a check. When the defendant was stopped, he aroused the officer's suspicion further by running back to the police car. When the officer was able to see into the defendant's car, he observed a television set on the front seat. Since looking through a window does not constitute an unreasonable search the officers were entitled to act upon what they saw and arrest the defendant. People v. Martin 45 Cal.2d 755, 290 P.2d 855 (1955); Whitley v. State, 79 Nev. 406, 386 P.2d 93 (1963).

3. Appellant assigns as error the following instruction given by the court:

'Every person who shall unlawfully enter any room shall be deemed to have entered the same with intest to commit a crime therein, unless such unlawful entry shall be explained by testimony satisfactory to a jury to have been made without criminal intent.'

Appellant complains that this instruction is a comment by the court on the defendant's refusal to testify.

This instruction is in the same language of NRS 205.065. The statute and instruction given in the languae of this statute has been held constitutional. McNeeley v. State, 81 Nev. 663, 409 P.2d 135 (1965).

4. It is further contended by appellant that Instruction No. 18 also is comment by the court on defendant's failure to testify. ² As we read it, the instruction refers to the conduct or comments of the defendant at or before the time of his arrest or even thereafter, but not to testimony in the courtroom. People v. McFarland, 58 Cal.2d 748, 26 Cal.Rptr. 473, 376 P.2d 449 (1962); People v. Russell, 34 Cal.App.2d 665, 94 P.2d 400 (1939); People v. Giffis, 218 Cal.App.2d 53, 32 Cal.Rptr. 215 (1963); See Griffin v. State of...