Terrano v. State

• Citation: 91 P.2d 67,59 Nev. 247
• Decision Date: 05 June 1939
• Docket Number: 3258.
• Parties: TERRANO v. STATE.
• Court: Nevada Supreme Court

91 P.2d 67

59 Nev. 247

TERRANO v. STATE.

No. 3258.

Supreme Court of Nevada

June 5, 1939

Appeal from Second Judicial District Court, Washoe County; B. F Curler, Judge.

Sol J Terrano was convicted of having narcotic drugs in his possession, and he appeals.

Affirmed.

W. M Kearney and Robert Taylor Adams, both of Reno, for appellant.

Gray Mashburn, Atty. Gen., W. T. Mathews, and Alan Bible, Deputy Attys. Gen., and Ernest S. Brown, Dist. Atty., and Nash P Morgan, Asst. Dist. Atty., both of Reno, for the State.

TABER Chief Justice.

On the evening of January 30th, 1938, about seven miles west of Reno, in Washoe County, appellant and one Leon Hansen, riding eastward in appellant's automobile on highway No. 40, were stopped and arrested by a party of Washoe County and federal officers. The officers had been waiting for this particular car and were "looking for narcotics," but did not know whether any narcotics were in the car. Terrano and Hansen, as well as the front part of Terrano's automobile, were searched at the place they were stopped, but no narcotics were found. Terrano, Hansen and the former's car were then taken to the sheriff's office in Reno, where the car was driven into the sheriff's garage. John B. Parks, deputy sheriff of Washoe County, pursuant to orders from Ray J. Root, sheriff of said county, proceeded, according to his testimony, to search the Terrano automobile, and found, in the rear compartment thereof, a package containing four cans of opium. At this search neither of the defendants was present. The arrests and searches of Terrano, Hansen and the car were made without any warrant of arrest or search warrant. The county and federal officers suspected that the Terrano car was transporting narcotics, but the evidence is insufficient to show probable cause. The evidence indicates that there was ample time, had there been legal basis, for obtaining a search warrant. Less than six weeks after the arrests and searches, and nearly three months before the trial, Terrano moved the district court to suppress the use of said four cans of opium as evidence. This motion was denied.

After a joint trial in Department No. 2 of the Second Judicial District Court, County of Washoe, appellant was found guilty of having narcotic drugs in his possession, an offense which constitutes a felony under the provisions of the Uniform Narcotic Drugs Act (Stats. of Nevada, 1937, Chap. 23, pp. 35-46). The court advised the jury to acquit defendant Leon Hansen, and he was found not guilty. This appeal is from the judgment against Terrano, and from the order refusing to grant him a new trial.

The first three assignments of error are: "(a) The court erred in refusing to suppress the use of the evidence obtained by federal officer McGuire assisted by the county officers. (b) The court erred in permitting the federal officer, Thomas E. McGuire, to testify with relation to any matter or evidence obtained by him in the illegal search complained of by the defendant. (c) The court erred in admitting the testimony of federal officer David F. Carpenter while acting as a federal officer." These assignments may properly be considered together.

Respondent relies upon the case of State v. Chin Gim, 47 Nev. 431, 224 P. 798. In that case cocaine and opium were seized by peace officers pursuant to a search warrant issued on an affidavit made on information and belief. The case was fully argued by able counsel, and this court unanimously held, in a carefully considered opinion prepared by Ducker, C.J., that the drugs were properly admitted in evidence regardless of whether they had been found in the course of a search made in violation of the state and federal constitutions.

Appellant strongly urges that this court abandon the rule laid down in State v. Chin Gim, and adopt what is frequently referred to as the federal rule. It is pointed out that judicial officers, as well as other officers of this state, subscribe to an official oath that they will, among other things, support, protect and defend the constitution and government of the United States, and the constitution and government of the State of Nevada, against all enemies, whether domestic or foreign, and that they will bear true faith, allegiance and loyalty to the same, any ordinance, resolution or law of any state notwithstanding. We are also referred to that provision in Section 2 of Article I of the Constitution of Nevada, which provides that "the paramount allegiance of every citizen is due to the federal government, in the exercise of all its constitutional powers, as the same have been, or may be, defined by the supreme court of the United States, and no power exists in the people of this or any other state of the federal union to dissolve their connection therewith, or perform any act tending to impair, subvert, or resist the supreme authority of the government of the United States."

Appellant contends that in recent years there has been a marked tendency on the part of state courts which in the past adhered to the admissibility rule to change over to the federal or inadmissibility rule. Six state jurisdictions, counsel assert, have aligned themselves with the federal courts on this question since State v. Chin Gim was decided.

There are few questions upon which the courts are more sharply divided than that relating to the admissibility or inadmissibility of evidence illegally obtained. Annotation, 88 A.L.R. 348-369; Underhill's Criminal Evidence, Fourth Edition, §§ 796-798, pp. 1447-1455; Wharton's Criminal Evidence, Eleventh Edition, Vol. 1, § 373, pp. 590-595; Wigmore on Evidence, Second Edition, Vol. IV, §§ 2183, 2184; Wigmore on Evidence, Supplement to Second Edition, 1934, pp. 920-946.

At pages 348 and 349 of 88 A.L.R. the annotator says: "An examination of the earlier annotations, in connection with this annotation, discloses that there are at present twenty-six states which definitely follow the rule of admissibility, and eighteen which follow the rule of inadmissibility, with Alaska and the Federal courts following the latter. *** It appears from the cases subsequent to the annotation in 52 A.L.R. 477, where a summary of jurisdictions revealed twenty-eight states following the rule of admissibility and sixteen following the rule of inadmissibility, that Pennsylvania and Vermont have definitely adopted the rule of admissibility, while South Dakota has changed to the rule of inadmissibility, and Washington, where the question had not been settled, has likewise adopted the rule of inadmissibility."

In People v. Defore, 242 N.Y. 13, 150 N.E. 585, 588, the Court of Appeals, in a unanimous decision, refused to adopt the rule of inadmissibility. The opinion was written by Justice Cardozo who, after pointing out the conflict among both the courts and law writers, said: "With authority thus divided, it is only some overmastering consideration of principle or of policy that should move us to a change. The balance is not swayed until something more persuasive than uncertainty is added to the scales."

The people of the State of New York recently adopted a new constitution. A strenuous but unsuccessful effort was made in the constitutional convention to have a provision incorporated to the effect that any evidence secured or obtained in violation of the unlawful search and seizure provisions should be inadmissible upon any trial, civil or criminal, or in any proceeding whatsoever. See People v. La Combe, 170 Misc. 669, 9 N.Y.S.2d 877.

If it were perfectly apparent that the decision of this court in State v. Chin Gim was manifestly erroneous, we would feel justified in overruling it. Linn v. Minor, 4 Nev. 462. But we think the conclusion reached in the Chin Gim case was correct. And here it may be observed that no attempt has been made in this state, either by way of constitutional amendment or legislative enactment, to change the rule of admissibility enunciated in that case.

Appellant contends, however, that conceding State v. Chin Gim to have been correctly decided, there are other considerations requiring reversal of this case. One of these is that the 1937 Narcotic Drugs Act, Stats. of Nevada, 1937, Chap. 23, pp. 35-46, gives Nevada a new narcotics law similar to the federal statute, and different from the law as it existed in Nevada at the time of the Chin Gim case. Particular attention is directed to the first paragraph of Section 14 of said 1937 act, which reads: "Warrant to search any store, shop, office, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, where there is reasonable ground to believe that narcotic drugs are manufactured, possessed, had under control, sold, prescribed, administered, dispensed, or compounded, in violation of this act, may issue in the same manner and under the same restrictions as provided by law for other personal property, or implements used, or evidences of crime."

We find nothing in said paragraph which forbids the admission in evidence of narcotic drugs seized in an illegal search. State v. Chin Gim was decided in 1924, and if the legislature of 1937 had desired to change the law as laid down in that case, it could easily have done so by the addition of a few words forbidding the reception in evidence of narcotic drugs seized in the course of an unlawful search.

Appellant further points out that in the Chin Gim case no federal officers participated in the search and seizure. He contends that in admitting evidence secured by illegal search and seizure the district court condoned and utilized not only the illegal acts of the state officers, but also those of federal narcotic officer McGuire, which were in violation of the fourth amendment to the United States Constitution, U.S.C.A. With...