Barnato v. State , 88 Nev. 508 ( 1972 )

OPINION

By the Court, Gunderson, J.:

Charged in two counts with possession and cultivation of marijuana, Cheryl and Michael Barnato have appealed from an interlocutory order of the district court denying their motion to suppress evidence.¹ They contend, inter aha, that the district court should have suppressed marijuana plants seized from their home and garden under a search warrant, because that seizure was the fruit of prior seizures accomplished in violation of the Fourth Amendment as interpreted by the United States Supreme Court. We are constrained to agree.

On August 13, 1971, the Animal Control Officer of Douglas County obtained a cat trap from a neighboring county and took it to the residence of the Barnatos’ neighbor, Mrs. Giordano, who had compláined about a domestic cat that had gone wild. When the Control Officer returned on August 24, Mrs. Giordano informed him the trap had been placed in the Barnatos’ garage, apparently because the cat had been seen there. The Control Officer went to the Barnato home with Mrs. Giordano, was introduced to Mrs. Barnato, inspected the trap, and according to his testimony “didn’t think it was a good spot to set it, so I said maybe down on the ground some place where the cat could get to it.” He testified Mrs. Barnato then suggested the other side of her house as a possible site, which he found satisfactory and utilized. While setting the trap, he saw plants he believed might be marijuana. The following day, on August 25, the Control Officer described the plants to a deputy sheriff, and together they surreptitiously entered the Barnatos’ enclosed yard, where they took a leaf from one of the plants. Chemical testing showed it to be marijuana.

The District Attorney’s deputy recognized the surreptitious entry of August 25 as unlawful, having been made without the Barnatos’ consent; therefore, he suggested that the Control Officer arrange to return “lawfully” and then purloin another leaf, apparently being unaware he was counseling conduct that was also unconstitutional for reasons hereinafter discussed.² On August 27, the Control Officer telephoned Mrs. Barnato, obtained her consent to his entering the Barnato yard for the ostensible purpose of checking the cat trap, and while walking behind her in the Barnato yard, surreptitiously took another leaf. Testing indicated this, too, was marijuana.

Later on August 27, affidavits were prepared, omitting reference to the Control Officer’s surreptitious entry on August 25, reciting he had taken a leaf while checking the cat trap August 27, and setting forth the results of testing the leaf thus “legally” seized. On the basis of this circumscribed recitation of the facts, a magistrate issued a warrant authorizing a search of the Barnato home and yard, which revealed the evidence appellants have moved to suppress.

1. The federal “exclusionary rule” is applicable to the States. Mapp v. Ohio, 367 U.S. 643 (1961); Ker v. California, 374 U.S. 23 (1963). Hence, if State action here culminated in a search and seizures at the Barnato premises that were “unreasonable” when tested by federal standards, then this court must apply the “exclusionary rule.”

2. Under decisions of the United States Supreme Court, the fact that the final search and seizures were made under a warrant does not make them lawful, if that warrant was issued on knowledge the State obtained in violation of appellants’ Fourth Amendment rights. Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); Wong Sun v. United States, 371 U.S. 471 (1963). Furthermore, even if the Control Officer himself may be considered a private citizen, State action clearly was involved when he surreptitiously seized plant samples from the Barnato garden on August 25 and 27. Raymond v. Superior Court, County of Sacramento, 96 Cal.Rptr. 678 (Cal.App. 1971). Thus, our task is to decide if those seizures were reasonable or unreasonable under announced federal standards.

3. The United States Supreme Court’s recent pronouncements in Coolidge v. New Hampshire, 403 U.S. 443 (1971), are controlling in the case before us. In Coolidge, which involved seizure of a car reasonably believed to be evidence, parked in plain view on the defendant’s driveway, the Court considered the circumstances in which warrantless seizures may be justified as reasonable under the “plain view” doctrine. The High Court held police may seize an item in lawful “plain view,” believed on probable cause to be an “instrumentality of the crime” or “mere evidence” (id. at 464), subject to two limitations:

“The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrant-less seizure. Taylor v. United States, 286 U.S. 1; Johnson v. United States, 333 U.S. 10; McDonald v. United States, 335 U.S. 451; Jones v. United States, 357 U.S. 493, 497-498; Chapman v. United States, 365 U.S. 610; Trupiano v. United States, 334 U.S. 699.” 403 U.S., at 468; emphasis in original.

“The second limitation is that the discovery of evidence in plain view must be inadvertent. The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a ‘general’ one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ” 403 U.S. 469-471.

The situation concerned in the instant case is no different in principle from that in Coolidge, and is indistinguishable from that in Trupiano v. United States, 334 U.S. 699 (1948), on which the High Court relied most heavily in deciding Coolidge.³ Thus, under holdings of the United States Supreme Court it is unimportant if one concludes that the Control Officer, through his subterfuge, obtained a lawful “plain view” of the Barnato garden on August 27. His seizures of a plant sample on August 27, and before that on August 25, both constituted “unreasonable” seizures under the rule of Coolidge, because the criteria of exigency and inadvertence were absent.⁴

4. Of course, Mrs. Barnato’s consent to entry of her garden on August 27 was not tantamount to a waiver of the Barnatos’ Fourth Amendment rights. In Gouled v. United States, 255 U.S. 298 (1921), a business acquaintance of the defendant, acting for the government, gained access to the defendant’s office under the guise of making a friendly call. While there, he surreptitiously seized papers having “evidential value only.” The High Court suppressed these papers as unlawfully seized, and also suppressed other evidence discovered as a result thereof, saying it was “impossible to contend” that because entry was “obtained by stealth instead of by force or coercion” the seizure was reasonable. Id., at 305; cf. Lewis v. United States, 385 U.S. 206 (1966), citing Gouled with approval.

The order appealed from is reversed.

Zenoff, C. L, and Batjer and Thompson, JL, concur.

1 The appeal is authorized. NRS 177.015(2).

2 Officer Redford’s testimony establishes that the District Attorney’s deputy recognized the surreptitious- entry of August 25 was made without the Bamatos’ consent, and was therefore unlawful:

“Q. Why didn’t you go for a warrant then?

“A. I checked with the Deputy District Attorney, Bill Crowell, and he didn’t want to do it right then.

“Q. Did Mr. Crowell tell you that you had to get material like that when you were lawfully on the premises?

“A. Yes.

“Q. Isn’t that why you sent Bud Markle [the Control Officer] back to get rightfully on the premises?

“A. That’s right.”

It is also noteworthy that when appellants’ counsel offered the leaf seized on August 25 into evidence at appellant’s preliminary hearing, the District Attorney’s deputy said: “Objected to on the grounds it’s the fruit of an illegal search.” Then, he “withdrew” this objection, no doubt recognizing its implications.

3 In Trupiano, federal officers infiltrated an agent into a group engaged in manufacturing illegal liquor, aided by the owner of the premises who had originally informed them of the operation. The agent reported a description of the layout and equipment of the illegal distillery; yet, as in the instant case, although they had ample opportunity, the investigators failed to procure any warrant. Instead, they staged a warrantless nighttime raid, driven onto the premises by the owner, who had a right to bring them there. Looking through the doorway of a shed, one of the officers saw one of the criminals standing beside the illegal distillery; he entered, made a legal arrest, and seized the contraband still, mash vats containing fermenting mash, other distillery equipment, and cans containing illicit alcohol — all of which were in plain view, and all unquestionably contraband. The Supreme Court held this evidence was inadmissible at trial, because there was no excuse for the agents’ failure to obtain a warrant, authorizing seizure of the property. Coolidge makes it clear that this part of the Trupiano ruling remains viable.

The Court also held in Trupiano that even though the property was in “plain view” at the time of a lawful arrest, its seizure was unjustified in view of the officer’s preconceived intention to seize it. While this aspect of Trupiano is no longer the law, our own court recognized in Wright v. State, 88 Nev. 460, 499 P.2d 1216 (1972), that Trupiano still is viable on the principle for which it was cited in Coolidge. In Wright, we noted:

“United States v. Rabinowitz, 339 U.S. 56 (1950), held: ‘To the extent that Trupiano . . . requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled.’ 339 U.S., at 66. However, this seemingly left Trupiano viable, except for its requirement of ‘exigent circumstances’ even to seize property in plain view at the time of a lawful arrest. In Chapman v. United States, 365 U.S. 610 (1961), Justice Frankfurter, concurring, noted: ‘While the Court does not explicitly rely on it, underlying the present decision is the approach of Trupiano.’ Id., at 618.

“Then, in Chimel v. California, 395 U.S. 752 (1969), the Court said that Rabinowitz was ‘hardly founded on an unimpeachable line of authority,’ that ‘the approach taken in cases such as Go-Bart, Lefkowitz, and Trupiano was essentially disregarded by the Rabinowitz Court’ (id. at 760), and that Rabinowitz was ‘no longer to be followed’ (id. at 768).

“Finally Coolidge, involving facts parallel to Trupiano, removed any doubt of Trupiano’s viability; for Trupiano was one of the authorities on which rhe Court in Coolidge most heavily relied.” 88 Nev., at 466, 499 P.2d at 1220.

Coolidge did not totally “reinstate” Trupiano; for as the Court noted, Trupiano’s incident search aspect is inconsistent with Chimel v. California, 395 U.S. 752 (1969), and in the special area of auto search, Trupiano is arguably inconsistent with Cooper v. California, 386 U.S. 58 (1967), and Chambers v. Maroney, 399 U.S. 42 (1970). However, the Court made it abundantly clear that Trupiano is still viable as precedent in the area that concerns us, expressly stating:

“Our discussion of ‘plain view’ in Part C above corresponds with that given in Trupiano. Here, as in Trupiano, the determining factors are advance police knowledge of the existence and location of the evidence, police intention to seize it, and the ample opportunity for obtaining a warrant.” 403 U.S., at 482.

4 Some mention should be made of the two state court decisions on which Justice Mowbray’s dissent relies.

In our view, the California Supreme Court’s four-to-three split decision in the 1969 case of People v. Bradley, 460 P.2d 129 (Cal. 1969), has no significance as precedent in the instant case. First of all, Bradley preceded Coolidge, in which the United States Supreme Court clearly formulated the test that must control our decision. Any lesser authority like Bradley that applies some different formula, to reach a result contrary to Coolidge, obviously must be disregarded. Moreover, Bradley involved facts more like those in Merica v. State, 87 Nev. 457, 488 P.2d 1161 (1971), than those in the case before us. In Bradley, like the situation in Merica, contraband was found in an area the tenant apparently shared in common with his landlord, who lived on the premises too, and was within 20 feet of a door to which tradesmen regularly came. In the instant case, we are concerned with plants in the enclosed side yard of a single-family dwelling, only two to five feet from the house. As one officer testified, the house is “secluded,” and when one approaches its door, “there was nothing in your plain or clear view to indicate that there was anything of a marijuana nature or substance on the property.” Thus, even before Coolidge was decided, application of the Bradley approach to vindicate a seizure like that in the instant case would have been questionable in light of the Ninth Circuit Court of Appeals’ holding in Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968).

Blincoe v. People, 494 P.2d 1285 (Colo. 1972), is not authority contrary to Coolidge; nor could authority contrary to Coolidge be credited in any event. In Blincoe, officers inadvertently discovered contraband while legitimately on the defendant’s premises, and want of a prior opportunity to obtain a warrant gave rise to “exigent circumstances.” Thus, the Colorado Supreme Court decided the seizure met the test of Coolidge, saying: “Suppression was not required in this case primarily because the record failed to support the defendant’s contention that the officers were engaged in a search when they observed the adding machine and cash register in plain view. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).” Id. at 1286. Obviously, quite the opposite is true of the two surreptitious seizures that preceded the issuance of a warrant in the case before us.