Cunningham v. Sheriff

OPINION Per Curiam: An indictment charged James Cunningham with the felonious sale of cocaine, a controlled substance (NRS 453.321 and NRS 453.171). A pretrial petition for a writ of habeas corpus contended there was insufficient evidence to establish probable [66] cause to believe Cunningham committed the charged offense. Habeas was denied and the same contention is reasserted in this appeal. The transcript of the grand jury proceedings reflects that the only evidence relating to Cunningham was given by an undercover police officer. The officer testified that on September 26, 1977, when he arrived at the residence where he ultimately negotiated a purchase of cocaine from another person, a stranger departed the residence. The stranger, who at a later date was identified as Cunningham, allegedly made the statement: “Your timing is just about perfect. I just dropped the stuff off.” While it is conceivable that the recited facts might establish probable cause that Cunningham committed some transgression of the law, they are “insufficient to establish probable cause that [he] made a ‘sale’ ” of cocaine. Egan v. Sheriff, 88 Nev. 611, 614, 503 P.2d 16, 18 (1972). Accordingly, we reverse and remand this case to the district court with instructions to grant the petition for the writ of habeas corpus.