MICHAEL MILLER, Appellant, v. SHERIFF, CARSON CITY, NEVADA, Respondent
Miller v. Sheriff
Mowbray, C. J., and Thompson, J., concur.
MICHAEL MILLER, Appellant, v. SHERIFF, CARSON CITY, NEVADA, Respondent.
MICHAEL MILLER, Appellant, v. SHERIFF, CARSON CITY, NEVADA, Respondent.
No. 11594
April 6, 1979
592 P.2d 952
[Rehearing denied June 14, 1979]
Norman Y. Herring, Nevada State Public Defender, and Michael Ross, Deputy Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Edwin E. Taylor, Jr., Deputy Attorney General, Carson City, for Respondent.
OPINION
By the Court,
Manoukian, J.:
Michael Miller, an inmate at the Northern Nevada Correctional Center, was charged, and ordered to stand trial for the felonious possession of marijuana (NRS 453.336). Thereafter, he filed a petition for a writ of habeas corpus, challenging the sufficiency of the evidence adduced at the preliminary examination. Habeas was denied and on appeal Miller contends we are compelled to reverse. We disagree.
A correctional officer at the institution testified that, inter alia, while on duty on August 8, 1978, he observed appellant "ducking down" in a dormitory restroom and contemporaneously heard a noise which sounded like "something being thrown in a garbage can." The officer further testified that he immediately opened the restroom door, observed appellant rising from a crouched position next to the garbage can whereupon Miller hurriedly exited down the hallway. Noting that no one else was in the bathroom, the officer searched a "galvanized steel 30 gallon garbage can" and retrieved a "vitamin bottle" which was located on top of the assorted trash. The contents of the bottle included assorted pills, hand rolled cigarettes and a balloon. A chemist's report subsequently confirmed that there were 21 cigarettes containing marijuana, and that the balloon contained marijuana as well.
The officer later confronted Miller in appellant's dormitory. The dormitory is accessible only through the restroom in which the marijuana was found. His suspicion was further aroused when he asked appellant for his identification card, and he denied knowing where it was, although the officer observed it lying on his locker, in "plain open view." Miller's locker was later inventoried, and a bottle identical to that found in the restroom trash can was found among his property. In five years, the officer had never seen a bottle of that type at the correctional facility.
Although entry to and exit from the restroom was through a connecting door to one of the facility's dormitories which housed numerous inmates, here, the totality of the circumstances, including appellant's being alone in the restroom, his crouching and ducking, the contemporaneous noise heard by the officer, appellant's hasty exit from the restroom, the finding of the similar bottle unlike any other observed by the officer in his five years at the institution, in our view, satisfies the requisite probable cause test delineated in NRS 171.206. Cf. Glispy v. Sheriff, 89 Nev. 221,510 P.2d 623 (1973) where, in a similar institutional setting, we held that appellant's access to a common area alleged crime scene was not exclusive and the evidence did not meet the probable cause test to warrant a trial on the basis of constructive possession. Here, unlike Glispy, the magistrate was entitled to conclude that Miller exercised dominion and control over the contraband. See Alsup v. State, 87 Nev. 500, 489 P.2d 679 (1971).
The evidence presented meets the degree of proof required for binding a defendant over' for trial. See State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970). "[W]e are not now concerned with the prospect that the evidence presently in the record may, by itself, be insufficient to sustain a conviction." McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973).
The order of the trial court is affirmed.
Mowbray, C. J., and Thompson, J., concur.