Lee v. State , 86 Nev. 794 ( 1970 )

OPINION

By the Court,

Collins, C. J.:

This is an appeal from a conviction for possession of dangerous drugs. We affirm the conviction.

On the night of July 27, 1969, Deputy Sheriff August Knudsen of the Clark County Sheriff’s Office and Patrolman Alvin Anglen of the Nevada Highway Patrol observed an automobile strike a telephone pole. Both officers went immediately to the assistance of the two occupants. When Officer Anglen arrived at the wrecked auto, appellant was sitting behind the steering wheel. The other person, whose mouth was badly injured, was sitting in the open door on the passenger side of the vehicle. Officer Anglen observed appellant alight from the driver’s seat and approach his injured companion on the opposite side of the car. He saw the companion take some pills or capsules from his shirt pocket and hand them to appellant. Appellant Lee then walked to a nearby house and asked the woman owner for a drink of water. Unknown to Lee he was followed by Officer Anglen, who, while Lee was inside the house getting a drink of water, observed Lee take off his shoes and place reddish capsules in each shoe. Lee did not observe the officer in the house watching him until he turned'to depart. The officer testified Lee appeared nervous.

When Lee and Officer Anglen retened to the wrecked car, Officer Anglen told Deputy Sheriff Knudsen what he had observed. At that point, Knudsen approached Lee and asked him to remove his shoes. Lee complied with the request without verbal or other objection, and inside the shoes were found the capsules which proved to contain seconal, a narcotic drug. He was found guilty of possessing dangerous drugs, a violation of NRS 454.220 and 454.395, and appeals this conviction.

Lee contends that the conviction is constitutionally infirm, since it rests upon the reception of evidence secured in violation of the Fourth Amendment to the United States Constitution prohibiting unlawful searches and seizures.

Admittedly, Lee was not placed under arrest prior to seizure of the capsules, and if the seizure and admission into evidence of the contraband is constitutionally permissible it must be sustained on the basis of Lee’s voluntary consent to the search. The lower court so ruled, and we affirm.

1. Lee’s peaceable submission to the request of the officer to be searched must amount to the intelligent and intentional waiver of a constitutional right. Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965). Proof of voluntariness is a question of fact, State v. Plas, 80 Nev. 251, 391 P.2d 867 (1964), and must be proven by clear and convincing evidence, McIntosh v. State, 86 Nev. 133, 466 P.2d 656 (1970), and the mere fact it was given while in the custody of a police officer (or here the presence, because Lee was not yet placed under arrest) does not render the consent involuntary. State v. Plas, supra; McIntosh v. State, supra.

2. The circumstances preceding and surrounding the search and seizure do not indicate that force or threat of force, either physical or psychological, was exerted by either officer upon Lee, State v. King, 209 A.2d 110 (N.J. 1965), nor was there any indication or testimony that Lee resisted or objected, either verbally or physically, to the request of Officer Knudsen to remove his shoes. This amounts to affirmative assistance on his part and may be considered on the question of voluntariness of consent to waiver of a constitutional right. United States v. Smith, 308 F.2d 657 (2d Cir. 1962).

Silence, where there is a duty to speak or act, can amount to intelligent waiver of a constitutional right. Here, there is not the slightest evidence of discernible resistence to the officer’s request nor claim or assertion of a constitutional right by Lee objecting to the search or seizure.

The conviction is affirmed.

Zenoff, Batjer, and Mowbray, JL, concur.