State v. Johnson

• Decision Date: 27 January 2000
• Docket Number: No. 31368.,31368.
• Citation: 116 Nev. 78,993 P.2d 44
• Parties: The STATE of Nevada, Appellant, v. Jessie JOHNSON and Lashawn Johnson, Respondents.
• Court: Nevada Supreme Court

993 P.2d 44

116 Nev. 78

The STATE of Nevada, Appellant, v. Jessie JOHNSON and Lashawn Johnson, Respondents.

No. 31368.

Supreme Court of Nevada.

January 27, 2000.

Rehearing Denied March 1, 2000.

Frankie Sue Del Papa, Attorney General, Carson City, Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Gerald J. Gardner, Deputy District Attorney, Clark County, for Appellant.

John M. Turco, Las Vegas, for Respondent Jessie Johnson.

Morgan D. Harris, Public Defender, and Daren B. Richards and Elizabeth M. Quillin, Deputy Public Defenders, Clark County, for Respondent Lashawn Johnson.

BEFORE THE COURT EN BANC.

OPINION

LEAVITT, J.

Nevada Highway Patrol Trooper Lt. Todd Ellison and an investigator from the Nevada Division of Investigation were riding together on patrol as part of "Desert Hoax," a multi-agency criminal interdiction operation. Ellison received a call from another investigator from the division that a vehicle had failed to stop at a stop sign at the bottom of the northbound overpass off-ramp of Interstate 15 in Clark County. Ellison was in full uniform and driving a marked Nevada Highway Patrol vehicle.

Ellison stopped the 1988 Buick with California plates and approached the driver, respondent Jessie Johnson. Respondent Lashawn Johnson was the sole passenger in the automobile. The trooper asked Jessie for his driver's license, registration and insurance. He ran a check on the license, examined the other documents given to him by respondent Jessie Johnson, and gave him a verbal warning rather than a citation.

The trooper asked the purpose of Jessie's trip. He replied that he was going to Montana to do carpentry work with some of his relatives and stated that he had his tools in the trunk and that Ellison could go ahead and look in the trunk to see the tools. Ellison asked Jessie whether he had any guns in the vehicle. Jessie made eye contact with Ellison and stated, "No." Jessie was asked if he had any alcohol, and Jessie continued making eye contact and said, "No." Ellison asked Jessie if he had any drugs in the car. Jessie averted his gaze, looked back to the car, dropped his head, and said, "No, you can go ahead and look." The trooper also testified that he asked Jessie if he could search the vehicle and Jessie replied, "Yes."

Russell Owens, a trooper with twenty-one years experience as an officer and who had conducted thousands of vehicle searches, arrived to conduct the search of the vehicle. He was in full uniform and driving a Nevada Highway Patrol vehicle. He began by searching the trunk where he observed a toolbox and some tools. He searched the backseat area by pulling the backseat out of the car and placing it on the passenger side of the front seat. He then pulled up the carpet in the backseat area.

Owens searched the front seat and the dashboard areas. On the dashboard area just below the glove box, Owens noted that the screws on a panel were not the type of black screws that are normally used in automobiles, but were shiny, non-factory screws. He removed three screws directly below the hinge of the glove box, a panel dropped and Owens recovered three bindles of narcotics. Owens then searched the rest of the car but did not find any other area which would indicate any concealment. The entire search took less than ten minutes. The sole issue before this court is whether the district court erred in determining that the search in this case exceeded the scope of consent and in granting the motion to suppress evidence.¹

The district court granted a motion to suppress the evidence on the grounds that a reasonable person would not have understood his general consent to search a car for drugs, alcohol or weapons would authorize the officer to remove screws and pry a panel from the vehicle.

Findings of fact in a suppression hearing will not be disturbed on appeal if supported by substantial evidence. See Rice v. State, 113 Nev. 425, 427, 936 P.2d 319, 320 (1997)

(citing Tomarchio v. State, 99 Nev. 572, 575, 665 P.2d 804, 806 (1983)). Further, a district court's findings are reviewed under a deferential standard. See Hayes v. State, 106 Nev. 543, 550 n. 1, 797 P.2d 962, 966 n. 1 (1990).

"[A] waiver and consent, freely and intelligently given, converts a search and seizure which otherwise would be unlawful into a lawful search and seizure." State v. Plas, 80 Nev. 251, 254, 391 P.2d 867, 868 (1964). "[T]he voluntariness of [a] consent must be proved by the [s]tate by clear and convincing evidence." Lightford v. State, 90 Nev. 136, 139, 520 P.2d 955, 956 (1974). "[A] court must distinguish between the peaceful submission by the arrested suspect to the authority of a law enforcement officer, from an intelligent and intentional waiver of a constitutional right." Thurlow v. State, 81 Nev. 510, 515, 406 P.2d 918, 921 (1965). "Whether in a particular case an apparent consent to search without a warrant was voluntarily given is a question of fact." Plas, 80 Nev. at 253, 391 P.2d at 868.

Any search must be limited to the terms of the consent and "[w]hether the scope of consent has been exceeded is a factual question to be determined by examining the totality of the circumstances." Canada v. State, 104 Nev. 288, 291, 756 P.2d 552, 553 (1988). "This court is not a fact finding tribunal; that function is best performed by the district court." Zugel v. Miller, 99 Nev. 100, 659 P.2d 296 (1983). The trial court is much better equipped to resolve the weight and credibility of witnesses.

The district court examined the scope of the consent and concluded the consent to search did not include the right to dismantle the car, citing State v. Arroyo-Sotelo, 131 Or.App. 290, 884 P.2d 901, 905 (1994). If Jessie did voluntarily consent to a search, would he have consented to the dismantling of his automobile? Innocent citizens must not be stopped on the pretext of a traffic violation and have their automobiles dismantled when a police officer has nothing more than a "hunch" that contraband may be present. Should we allow law enforcement to treat the Fourth Amendment as an obstacle to overcome rather than recognizing the rights of our citizens to be free from unreasonable searches and seizures?

There was no clear and convincing evidence Jessie consented to the dismantling of the car or that he voluntarily gave up his constitutional right. Instead, he merely submitted to authority.

There was substantial evidence to support the district court's ruling and we defer to the court's findings. The order of the district court suppressing the evidence obtained during the search is affirmed.

ROSE, C.J., concurs.

AGOSTI, J., with whom BECKER, J., agrees, concurring:

I write separately to underscore my opinion that Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), supports the majority view and is misapplied by the dissent. The rule enunciated in Jimeno requires an inquiry as to whether it is objectively reasonable to construe the consent to search the vehicle in this case to include consent to dismantle the vehicle. See id. at 249, 111 S.Ct. 1801. I conclude that no reasonable police officer could expect that by being told that he can "go ahead and look" for drugs and by hearing "yes" in response to the officer's request for permission to search, the officer is entitled to take apart the vehicle. Nor would any reasonable person expect such a search when giving that consent.

The facts, holding and dictum of Jimeno apply to the search of closed containers inside a vehicle. In Jimeno, the officer received consent to search a vehicle for narcotics. The officer opened a folded brown paper bag on the vehicle's passenger floorboard and found cocaine inside. The United States Supreme Court concluded from these simple facts that "it was objectively reasonable for the police to conclude that the general consent to search respondent's car included consent to search containers within that car which might bear drugs." Id. at 251, 111 S.Ct. 1801. "A reasonable person may be expected to know that narcotics are generally carried in some form of a container." Id. In so finding, the Court distinguished Jimeno from State v. Wells, 539 So.2d 464 (Fla.1989),aff'd on other grounds, Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990)

.²

Jimeno, 500 U.S. at 251-52,

111 S.Ct. 1801. In Wells, the warrantless search of a locked briefcase in a vehicle's trunk was found to be unreasonable despite a consent to search the trunk. The Jimeno Court stated that "[i]t is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag." Id. at 251-52, 111 S.Ct. 1801. If the Jimeno Court believed that breaking open a locked briefcase was unreasonable, it would certainly conclude that dismantling the structure of a vehicle is also unreasonable.

The dissent concludes that "upon noting previous tampering, ... [i]t would have been clear to the officer that a part of the vehicle, not ordinarily accessible, had been previously opened and was a compartment which easily could have contained drugs." This may very well be true, given the officer's training and expertise in crime detection, but it is not the standard set forth in Jimeno. Rather than analyze the vehicle search from the officer's perspective of where contraband may be hidden, we are required to judicially determine "what would the typical reasonable person have understood by the exchange between the officer and the suspect." Jimeno, 500 U.S. at 251, 111 S.Ct. 1801.

The dissent would extend the conclusion of Jimeno well beyond folded paper bags, to the very structure of the vehicle itself. In my opinion, this defies the standard of objective reasonableness required by Jimeno and as applied by the district court below.

All the cases cited by the dissent involve searches...