Wright v. State

• Decision Date: 01 August 1972
• Docket Number: No. 6482,6482
• Citation: 88 Nev. 460,499 P.2d 1216
• Parties: Ferman Wayne WRIGHT, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1216

499 P.2d 1216

88 Nev. 460

Ferman Wayne WRIGHT, Appellant, v. The STATE of Nevada, Respondent.

No. 6482.

Supreme Court of Nevada.

Aug. 1, 1972.

Robert G. Legakes, Public Defender, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty., and Charles L. Garner, Chief Deputy of Appeals, Las Vegas, for respondent.

OPINION

GUNDERSON, Justice:

Convicted of committing burglary by entering the Henderson Bowling Alley with intent to commit larceny, appellant contends officers who originally arrested him for displaying stolen license plates on his car, in violation of NRS 482.545, infringed his Fourth Amendment rights by warrantless 'searches' of his person and vehicle that produced evidence linking appellant to the burglary. This contention has no merit, in the factual context of this case.

About 2:00 a.m. on April 17, 1970, two Las Vegas patrol car officers, through a routine check with central control, learned the 1964 Oldsmobile ahead of them bore stolen Texas license plates. As the Oldsmobile turned into a motel parking lot, the officers pulled in '(a)pproximately ten to fifteen feet behind it.' The Oldsmobile's driver, George Watts, got out and walked toward the motel office. Officer Jones approached him, said he wanted to talk to Watts, and asked him to 'step back to the police vehicle.' When appellant Wright ignored repeated requests to get out of the car, Officer Gates ordered him out at gunpoint, and took him to the police vehicle also.

Returning to make sure the Oldsmobile was now unoccupied, Officer Gates saw a gun protruding from under the front seat, visible because appellant had not closed the door as he debarked. The officers then 'frisked' appellant and Watts by patting down the exterior of their clothing, found no more weapons, but discerned a large bulge inside appellant's shirt. Officer Jones asked what the bulge was; appellant said it was money hd had taken by force from a man in California to satisfy a debt; and, since it seemed soft, the officers did not remove it from his person.

When appellant and Watts asked why they were being detained, the officers explained plates on the Oldsmobile were reported stolen. Appellant claimed ownership of the ear, saying he had borrowed the plates from a friend he would not name, for a purpose he would not disclose. The officers then arrested appellant and Watts for 'fictitious license plates'; they gave the 'Miranda warning,' and radioed for a tow truck to impound appellant's car. ¹ Appellant and Watts continued to talk, each saying Watts was 'hitch-hiker' appellant had picked up on the way from California, but stating their meeting place differently. While awaiting the tow truck's arrival, the officers 'inventoried' the Oldsmobile's contents; on the back seat, they found a case of assorted whiskey 'with a crowbar sitting on top of it'; on the floor behind the driver's seat, they found a bowling bag that bore the name of Elvis Russell, 346 Tungston, Henderson, Nevada. Inside the bowling bag, which was closed but not zipped, Officer Gates discovered a large quantity of rolled coins. Gates testified: 'When I pushed the front seat forward, I could spread the top apart and look inside the bowling bag.' On their inventory sheet, the officers also listed suitcases found in the trunk, but apparently did not look inside. The tow truck came; appellant's car was impounded at a private storage yard with all property, except the gun and the bowling bag containing rolled coins. Those valuables were taken to police headquarters. When appellant was 'booked' into the jail, the bulge in his clothes proved to be currency, as he had said.

The officers notified police agencies in Clark County to check bars and bowling alleys for signs of forced entry. Henderson police discovered a burglary at the Henderson Bowling Alley. Appellant was charged with the crime; and evidence at his trial showed the currency on his person, the whiskey, the bowling bag, and the coins it contained, were proceeds of that crime, committed within two hours of appellant's apprehension. The gun had been fired to break the locking mechanism of the bowling alley's safe.

During trial, appellant acknowledged he, his wife, Watts and Watts' girlfriend had been in the Henderson Bowling Alley the day before the crime. However, he said they had 'found' the property that linked him to the burglary there. He denied making incriminating oral admissions while in jail, as two Henderson policemen testified he did, after again being advised of his rights. Not surprisingly, the jury found him guilty; the court sentenced him to 10 years in prison; this appeal follows.

1. Appellant contends only the Nevada Highway Patrol has a duty to enforce NRS 482.545, and concludes Las Vegas police may not investigate when an evident misdemeanor involving possession and use of stolen license plates is committed in their presence. Assuming his premise, his conclusion is a non sequitur; for any peace officer may act when a public offense is committed or attempted in his presence. NRS 171.124(1)(a). Indeed, even a private person may arrest in such circumstances. NRS 171.104; NRS 171.126(1). ²

We might agree the officers could not properly have arrested appellant under NRS 482.545, if he or his companion had shown the information from central control was incorrect. However, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.' Id., at 22, 88 S.Ct. at 1880; in accord, Robertson v. State 84 Nev. 559, 445 P.2d 352 (1968). Indeed, before Terry, this court upheld the right of a Las Vegas police officer to stop a vehicle that was without a regular plate, saying: 'It is recognized that an officer need not and, in fact, should not ignore evidence of a crime which comes to his attention.' Harper v. State, 84 Nev. 233, 239, 440 P.2d 893, 897--898 (1968). After Terry, our legislature declared: 'Any peace officer may detain any person whom such officer encounters under circumstances which reasonably indicate that such person has committed, is committing or is about to commit a crime.' NRS 171.123(1). Thus, we think the officers acted properly when they stopped, and approached appellant and Watts.

2. While automobiles are subject to search under certain other rules discussed later, a police officer may sumarily seize personal property in the possession of another, wherever it may be, if probable cause exists to believe it is the instrumentality or evidence of a crime, if it has come inadvertently into the officer's lawful 'plain view,' and if inadequate opportunity to obtain a warrant gives rise to genuinely 'exigent circumstances.' See: Coolidge v. New Hampshire, 403 U.S. 443, 464--469, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). ³ In accord: Chapman v United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); ⁴ Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932). Here, appellant apparently contests application of the 'plain view' doctrine to seizure of his gun, only on the theory that Officer Gates' view was unlawfully obtained by ordering appellant from his car when, appellant says, 'no independent ground existed for the officer to question or detain Appellant.'

As indicated, Gates Actions were not dependent on cause to arrest. Terry v. Ohio, cited above, recognized that a policeman making a reasonable investigatory stop has the right to protect himself when he 'is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous.' 392 U.S., at 24, 88 S.Ct. at 1881. See also: NRS 171.1232(1). In our view, when police see two adult males in a car bearing stolen out-of-state license plates, they may reasonably fear either passenger or driver is armed and dangerous. ⁵ Hence, we think Gates properly ordered appellant from the car; and, particularly after Gates discovered a gun where appellant had been sitting, the officers had a clear right to conduct a limited protective search for weapons on appellant's person. Terry v. Ohio, cited above; Adams, Warden v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Therefore, Gates' discovery of appellant's weapon, and initial discovery of currency on appellant's person, need not be justified on the basis of probable cause to arrest. ⁶

3. However, on at least two grounds, appellant contends Gates' subsequent discovery of the whiskey and bowling bag cannot be sustained as an 'inventory,' related to and occasioned by a proper impound of the vehicle. First, relying particularly on Mozzetti v. Superior Court of Sacramento County, 4 Cal.3d 699, 94 Cal. Rptr. 412, 484 P.2d 84 (1971), appellant contends the 'inventory' was exploratory in nature, and thus an unjustified and unconstitutional search. ⁷ Second, appellant contends that since his vehicle was lawfully parked on private property, there was no justification for an impound, hence no justification for an 'inventory' to protect its contents during impound. ⁸

On at least two grounds, appellant further contends that this 'search,' as he styles it, may not be justified as incidental to an arrest under NRS 482.545. First, relying on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), appellant contends the 'search' took place so far distant from where he was arrested, at the police car, that it was...