State v. Luchetti, 6358

• Decision Date: 13 July 1971
• Docket Number: No. 6358,6358
• Parties: STATE of Nevada, Appellant, v. Leo Joseph LUCHETTI et al., Respondents.
• Court: Nevada Supreme Court

Page 1189

486 P.2d 1189

87 Nev. 343

STATE of Nevada, Appellant, v. Leo Joseph LUCHETTI et al., Respondents.

No. 6358.

Supreme Court of Nevada.

July 13, 1971.

Robert List, Atty. Gen., Carson City, Howard McKibben, Dist. Atty. William J. Crowell, Jr., Deputy Dist. Atty., Minden, for appellant.

Manoukian & Manoukian, Zephyr Cove, Jack Christensen, Yerington, for respondents.

OPINION

THOMPSON, Justice:

This appeal by the State is from an order of the district court dismissing the information filed against the respondents which charged them with the unlawful possession of marijuana. Before dismissal, that court had granted the defendants-respondents' motion to suppress the physical evidence of marijuana seized by the arresting officer. We affirm the dismissal and the interlocutory suppression order. ¹

The relevant facts are these: On March 9, 1970, thirteen young people, ages sixteen to twenty, were simultaneously arrested at a private home for the possession of marijuana. Some two hours earlier the arresting officer had received an anonymous tip that a pot party was there is progress. He forthwith made an initial check of the house, noticed several cars and youngsters there, and left to summon assistance. He did not attempt to secure warrants for arrest or search. Upon his return two hours later he approached the house and as he reached the open front door he smelled what he believed to be the odor of marijuana. Cf. Zampanti v. Sheriff of Clark County, 86 Nev. 651, 473 P.2d 386 (1970). He entered the living room, noticed a grassy substance on the table in front of the sofa, and immediately placed all occupants under arrest and searched them individually. Cf. Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969). When arrested, some of the young people were in the kitchen, some in the living room--who was where is not disclosed. None was smoking marijuana and the search of each produced nothing incriminating. None was in actual possession of marijuana. Some of the youngsters were then transported to the station and booked. The arresting officer searched the entire house in the absence of some but not all of the arrestees and seized from the bedroom and living room substances later identified by an expert to be marijuana. The owner of the home was absent when this entire incident occurred.

The officer had no justification for his warrantless search of any room other than that in which the arrest occurred. Chimel v. California,395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Accordingly, the incriminating evidence seized in the bedroom was properly suppressed for none of the defendants was arrested in that room. Moreover, since the record does not disclose the arrestees who were present in the living room and those who were absent when the search and seizure of evidence in that room took place, it cannot be said that the search and seizure was incident to the arrest of any particular, identifiable defendant. It is equally clear that the search and seizure was not incident to the arrest of those youngsters who had already been transported to the station. Obviously, those absent youths could not have endangered the officer's safety, or have concealed or destroyed evidence. The underlying rationale is expressed in Chimel. 'When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

'There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs--or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The 'adherence to judicial processes' mandated by the Fourth Amendment requires no less.' Id. at 762, 763, 89 S.Ct. at 2040.

Consequently, all evidentiary items produced by the officer's search of the home were properly suppressed. However, the grassy substance in plain view on the table in the living room was subject to seizure, Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969), and was constitutionally admissible evidence. Although admissible, the record does not establish constructive possession of that substance in any defendant having the right to control the contraband. People v. Showers, 68 Cal.2d 639, 68 Cal.Rptr. 459, 440 P.2d 939 (1968). Accordingly, the dismissal was correctly entered.

Affirmed.

ZENOFF, C.J., and GUNDERSON, J., concur.

BATJER, Justice (concurring):

I agree that all the items suppressed were properly suppressed and that a dismissal must be granted, but I cannot agree that the dismissal was correctly entered by the trial court. The proper result was reached, but for the wrong reason. Wyatt v. State, 86 Nev. 249, 468 P.2d 338 (1970).

The district court judge said: 'I think the crux of the matter is that there was evidence seized without any warrant issued at any time.' It is apparent that he granted the motion to suppress because he was of the opinion that a search warrant should have been obtained before the officers returned and entered the residence, and because that procedure was not followed, the entire subsequent search and seizure was illegal.

Within the authority of Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969), the officers had a duty, upon smelling the odor of marijuana smoke coming from the house, to enter the open door, and upon gaining entry and observing a marijuana like substance on the living room table to seize that evidence and arrest everyone in that room for possession of narcotics. An immediate search of those arrested and a search of their immediate surroundings was permissible. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The authority of Woerner does not permit the blanket arrest of persons in other parts of the house. Here the record is silent about the physical location of the arrestees at the time of arrest, therefor the dismissal as to all defendants must be affirmed, but not for the reason announced by the trial court.

MOWBRAY, Justice (dissenting).

I respectfully dissent.

The principal issue presented for our consideration on this appeal is centered about the admissibility in evidence of marijuana and other alleged narcotic paraphernalia that were seized when the respondents were arrested in a Kingsbury Grade, Douglas County, residence on the charge of the unlawful possession of narcotics. All the respondents, adults and juveniles, filed in the appropriate form in the court below, timely motions to suppress the seized evidence. After the district judge ruled in their favor in ordering the evidence suppressed, they moved to dismiss the complaint, and the district judge dismissed the complaints against all the respondents. The State has appealed from the lower court's orders suppressing the evidence and dismissing the complaints. I would reverse and remand all the cases to the lower court for trial.

1. The Facts.

The Sheriff of Douglas County received an anonymous telephone call on March 9, 1970, that, 'If you want to bust a pot party, go to 187 Pine (Kingsbury Grade area, Tahoe Township).' The Sheriff directed one of his deputies, John Allmett, to drive by the premises and conduct an eyeball investigation. The deputy did so, and he reported that there were numerous persons entering and leaving the house and that five to eight cars were parked in the street near the home. The deputy returned to the area with several other officers about 2 hours later and observed the same activity underway. The officers parked their police cars, which were marked as such, and Allmett and another officer proceeded on foot to the premises. Immediately they noticed two boys leave the building. Upon seeing the officers, the boys promptly retreated to the house, leaving the front door open. As the officers approached the steps leading to the front door, Allmett detected a strong odor of burning marijuana. Without further ado, he walked through the open doorway and told all therein to 'freeze.' The respondents did so.

In the living room, which was in the immediate area of the entrance way, Allmett saw on a small table in open view a grassy substance that he recognized as marijuana. He placed all the respondents under arrest for the unlawful possession of narcotics, gave them the Miranda warning and then searched the respondents and the premises. In the immediate room, which was the living room, the officer found in plain view the following: On a table in front of a sofa, an amount of grassy substance that the officer recognized as marijuana. ¹ In front of the sofa and in plain view he also found a brown wooden smoking pipe, two containers of partially used cigarette papers, burnt matches, burnt ashes, and used cigarette papers. Underneath and near the front part of the sofa, the officer found two plastic bags containing a grassy substance and, next to the two bags, two cigarettes. ² When the officer made his recovery, one of the...