Seim v. State

• Decision Date: 07 February 1979
• Docket Number: Nos. 9927,10146,s. 9927
• Citation: 590 P.2d 1152,95 Nev. 89
• Parties: Allan Conrad SEIM, Appellant, v. The STATE of Nevada, Respondent (Two cases.)
• Court: Nevada Supreme Court

Page 1152

590 P.2d 1152

95 Nev. 89

Allan Conrad SEIM, Appellant, v. The STATE of Nevada, Respondent (Two cases.)

Nos. 9927, 10146.

Supreme Court of Nevada.

Feb. 7, 1979.

Rehearing Denied April 18, 1979.

Newel B. Knight, Sparks, Edwin S. Saul, Encino, Cal., for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Calvin R. X. Dunlap, Washoe County Dist. Atty. and John L. Conner, Deputy Dist. Atty., Reno, for respondent.

OPINION

MANOUKIAN, Justice:

These are consolidated appeals from a conviction of possession of stolen property, a felony, NRS 205.275, and from a revocation of probation predicated on a prior felony conviction.

Appellant's prior conviction was entered on a plea of guilty to the felony charge of attempted possession of a stolen vehicle, to-wit: a 1974 Porsche. Judgment was entered May 14, 1976, and appellant was sentenced to a term of three years, suspended, and placed on probation. As a special condition of probation, the court ordered that "(Seim) will submit his person, vehicle and residence to a search and seizure without a warrant by any parole, probation or peace officer to determine the presence of stolen property."

Subsequently, on October 19, 1976, an informant contacted appellant's probation officer with information that there were two new 1975 Porsches stored in a Reno warehouse leased by appellant. Dennis Balaam, a detective with the Washoe County Sheriff's Office, was contacted. Balaam went to the Mini-Maxi Storage yard where he spoke with Sam Rosenberger, the manager. Rosenberger informed Balaam that the unit in question, No. 12, was rented to one Rodney Flournoy, whose rental payments were in arrears. In fact, it was appellant, posing as Flournoy, who had leased the storage unit. The real Flournoy was a customer of appellant's antique automobile restoration business and had never authorized appellant to use his name for any purpose.

Suspecting a probation violation, Balaam returned to Mini-Maxi Storage that afternoon, accompanied by a Washoe County probation officer. Mr. Rosenberger removed the lock from the storage unit and allowed the officers to enter. Inside they observed the two automobiles, the subject of Seim's subsequent conviction.

A warrant issued, and appellant was arrested by the local police in Nevada City, California. Also present at the time of the arrest were Balaam and appellant's probation officer. Appellant was advised of his rights, and during a search incidental to the arrest, a key to the padlock on the storage unit was found and taken from his person.

Appellant made several pretrial motions and renewed them at trial: to suppress the key to the storage unit, together with the contents discovered therein; to restrain respondent from impeaching appellant by the use of a prior felony conviction; to exclude evidence of his prior conduct (embodied in the conviction), and to dismiss the indictment or, alternatively, to convene a postindictment preliminary hearing. Following hearings on the motions, the state agreed to refrain from the use of appellant's prior criminal conduct in its case in chief; the other motions were denied.

At trial, appellant denied having any knowledge concerning the stolen vehicles or where they were found. While he admitted that he had used Flournoy's name to rent the storage unit, he claimed that he took most of his property, including the contents of the unit, with him when he moved to Nevada City in June, 1976. He testified that several of his former employees had access to the warehouse.

The jury returned a verdict of guilty. Appellant was sentenced to a consecutive three year term, and probation relating to his prior conviction was subsequently revoked. From this conviction and revocation of probation Seim perfected these appeals.

We recognize three issues as meriting discussion. They are: (1) Whether the trial court erred in denying appellant's motion to suppress the evidence discovered as a result of the warrantless search of the storage unit? (2) Whether the admission of evidence of appellant's prior criminal conduct was reversible error? (3) Whether the Nevada grand jury system violates the right of an accused to due process and equal protection? We answer each question in the negative.

1. The warrantless search. Appellant contends the trial court erred in denying his motion to suppress the evidence discovered as a result of the search of the storage unit. Essentially, he maintains that there was no probable cause to justify the warrantless search and, absent consent, his Fourth Amendment rights were violated. The state argues that the requirement of a warrant was dispensed with in view of the special condition of appellant's probation. Himmage v. State, 88 Nev. 296, 496 P.2d 763 (1972); see Annot., 32 A.L.R.Fed. 155 (1977).

Before reaching the issue of whether appellant's Fourth Amendment rights have been violated, it is important to remember the function of probation in our correctional process.

Probation is an integral part of the penal system, calculated to provide a period of grace in order to assist in the rehabilitation of an eligible offender; "to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable. (Citations omitted.)" Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932). It is clear then that the broad objective of probation is rehabilitation with incidental public safety, and that the conditions of probation should further provide this objective. See People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630 (1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478; Logan v. People, 138 Colo. 304, 332 P.2d 897 (1958). Nevada's legislation relating to probation confers an authority commensurate with its objectives ¹ and empowers our parole and probation officers, Inter alia, to "keep informed concerning the conduct and condition of all persons under their supervision and use all suitable methods to aid and encourage them . . . to bring about improvement in their conduct and conditions." NRS 213.1096.

In Nevada, as elsewhere, probation officers have long enjoyed extensive powers to search probationers under their supervision. See Himmage v. State, supra ; People v. Hernandez, 229 Cal.App.2d 143, 40 Cal.Rptr. 100 (1964), sets forth the traditional view of a Parolee's Fourth Amendment rights, and we perceive no material distinctions between parolees and probationers. Neither probationers nor parolees can assert, save in a limited number of circumstances (see, for example, United States v. Follette, 282 F.Supp. 10 (S.D.N.Y.1968), aff'd, United States ex rel. Randazzo v. Follette, 418 F.2d 1319 (2d Cir. 1969), cert. denied, 402 U.S. 984, 91 S.Ct. 1672, 29 L.Ed.2d 150, search by parole officer held invalid where made for the purpose of harassing or oppressing the parolee; United States v. Hallman, 365 F.2d 289 (3rd Cir. 1966), police, as distinguished from parole officers, could not initiate search of parolee where they could not search ordinary citizen; Annot., 32 A.L.R.Fed., Supra, at 165), Fourth Amendment guarantees against correctional authorities who supervise them. Compare Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130.

Appellant does not challenge the validity of the condition of his probation. Cf. United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975); State v. Page, 115 Ariz. 131, 564 P.2d 82 (App.1976). Indeed, he recognizes that a probationer has no reasonable expectation of traditional Fourth Amendment protection. Himmage v. State, supra ; People v. Mason, supra ; Annot., 32 A.L.R.Fed., Supra, at 159. Instead, he challenges the reasonableness of the search as being conducted outside the presence of the defendant or his probation officer, without probable cause, and beyond the scope of the probation order. We disagree.

To justify a warrantless search by a parole or probation officer, the officer must have reasonable grounds to believe that a violation of the parole or probation has occurred. People v. Anderson, 536 P.2d 302 (Colo.1975); Annot., 32 A.L.R.Fed., Supra, at 160. Thus, it has been said that even a "hunch," if reasonable and held in good faith, would justify a search of a parolee's home. Latta v. Fitzharris, supra ; cf. United States v. Smith, 395 F.Supp. 1155 (W.D.N.Y.1975).

Here, information that two stolen Porsches were being stored in a warehouse rented to appellant under a fictitious name was communicated to appellant's probation officer. This, coupled with the fact that his prior conviction was based upon a theft of the same model car, surely supplied reasonable cause to believe that a search was necessary to detect a possible probation violation. It has been held that such information is Per se sufficient, dehors a probation context, to sustain a finding that a search and seizure were made with probable cause. See People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1 (1959).

The fact that neither appellant nor his probation officer was present at the time of the search of the storage unit is not decisive. ² We note that a probation officer, familiar with appellant, was present.

The condition of appellant's probation read that he Shall submit to a search of his person, vehicle or residence Without a warrant, by any parole, probation or peace officer to detect the presence of stolen property. In Latta v. Fitzharris, supra, at 250, the court stated, "the parole officer ought to know more about the parolee than anyone else but his family. He is therefore in a better position than anyone else to decide whether a search is necessary." Here, the search condition contemplated the prospective involvement of any peace officer, there was probable cause to search, and appellant's probation officer had been consulted respecting appellant's alleged violative conduct prior to the search. Although the search...