State v. Luchetti

486 P.2d 1189, 87 Nev. 343, 1971 Nev. LEXIS 425

• Court: Nevada Supreme Court
• Decided: July 13, 1971
• Docket: 6358
• Status: Published

Opinions

OPINION

By the Court,

Thompson, J.:

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 in 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 and 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 (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.

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, 440 P.2d 939 (Cal. 1968). Accordingly, the dismissal was correctly entered.

Affirmed.

Zenoff, C. J., and Gunderson, J., concur.

1 Our decision in this case also disposes of cases Nos. 6359, 6360, 6361 and 6362 involving juvenile defendants who were arrested and charged with the same crime arising out of the same incident.