State v. Sherrick

• Decision Date: 14 May 1965
• Docket Number: No. 1325,1325
• Citation: 402 P.2d 1,98 Ariz. 46
• Parties: STATE of Arizona, Appellee, v. Warren Carl SHERRICK, Appellant.
• Court: Arizona Supreme Court

Page 1

402 P.2d 1

98 Ariz. 46

STATE of Arizona, Appellee, v. Warren Carl SHERRICK, Appellant.

No. 1325.

Supreme Court of Arizona, In Banc.

May 14, 1965.

Rehearing Denied July 6, 1965.

Darrell F. Smith, Atty. Gen., Robert F. Pickrell, former Atty. Gen., Philip M. Haggerty, Asst. Atty. Gen., Charles N. Ronan, former County Atty., Maricopa County, for appellee.

Robert K. Corbin, Phoenix, for appellant, on appeal only.

UDALL, Justice.

This is an appeal by Warren Carl Sherrick from his conviction of first degree murder for which the death penalty was assessed.

The victim of this homicide was a bar owner whose body was discovered lying face down on the floor of the back room of his bar at 4:30 A. M., May 24, 1962, by his brother-in-law, James Felling. The victim had been shot twice in the back of the head. All the currency had been removed from the cash register along with an unusual shapted 'tip glass' which was kept beside the cash register and in which were kept bent coins and those marked with fingernail polish that some establishments use in coin-operated devices. It was discovered that Mr. Felling's billfold which he had loaned to the victim the afternoon before was also missing. This billfold had Felling's signature on it in gold leaf.

On May 28, 1962, a glass resembling the 'tip glass' was found by the landlady while cleaning the apartment appellant had rented for a week. This apartment was about one block from the scene of the homicide. The rental period had expired two days before and appellant had moved out. In the glass was a quarter with red fingernail polish on it. She turned these over to the police who then apprehended appellant in a bar at about 3 p. m. the following day, May 29, 1962. He was taken to the police station and interrogated, during the course of which he allegedly consented to a search of the apartment at 4205 East Thomas Road, where he was then living, and he confessed to the crime. At 4:47 p. m. a court reporter took down his confession to the commission of this crime. The police also obtained a warrant to search the apartment at 4205 East Thomas Road. In the course of such search the police seized the alleged murder weapon and Mr. Felling's billfold. In addition they found loot from a Phoenix mortuary which had been burglarized, as well as a purse and identification of an alleged homicide victim in Ohio.

Prior to trial appellant filed two motions to suppress evidence; a hearing was held and the motions were overruled. A plea of insanity was entered but later withdrawn by appellant and the matter went to trial on a plea of not guilty. When the evidence was offered during trial, objection to the same was again made and overruled. No defense evidence was presented and a verdict of guilty was rendered.

The first alleged error raised by appellant is the introduction into evidence of the gun and billfold which he maintains were obtained as a result of an illegal search and seizure. Both motions to suppress the evidence were supported by affidavits of defense counsel. They were to the same general effect; that the original search warrant could not be located in the offices of the appropriate public officials. A hearing was held on the motions at which it became apparent that the original search warrant had been lost or misplaced; however, the landlord of the apartment in question brought in the copy of such warrant that had been given to him by the officer at the time of the search. The magistrate who issued it testified and identified it as a copy of the one he issued to Sergeant Evan Wilson. This matter was cleared up after the trial when the original search warrant was found by the trial court in a box of newspapers and magazines submitted by appellant in support of another motion. Appellant was not prejudiced by this slight irregularity as it did not affect the validity of the warrant.

It is apparent from the record that the hearing on the motions to suppress was not limited merely to the disappearance of the original search warrant but also covered both the facts leading up to the issuance of the warrant and the alleged consent to a search without a warrant. As the motions contained general allegations that the search and seizure was illegal and in violation of appellant's rights under the United States Constitution, and the Constitution and Statutes of Arizona, these facts were pertinent. No reasons were set forth by the Court for overruling the motions. We further note that during the trial when appellant again objected to the introduction of the gun and billfold as having been secured through an illegal search and seizure the trial court overruled such objection on the grounds that this had been disposed of by the court's previous ruling on the motions to suppress.

At the hearing on the motions to suppress Sergeant Wilson, who obtained and executed the search warrant, testified that he saw appellant for a split second through the doorway into the interview room in the detective bureau while the interrogation was being conducted. He further stated that he secured the search warrant on the basis of information he received from Sergeant Seymour Nealis, one of the officers who conducted the interrogation of appellant.

Sergeant Nealis testified at this hearing that he told Wilson to get a search warrant for the following reasons:

'Mr. Sherrick had told me he had been living at that address under the name of Myers, and I asked him if he would care if we went out there and searched it. He said he had no objection. I said I would get a search warrant, or have somebody get a search warrant, and go out and search it. Mr. Sherrick said he would accompany me out there to search it. However I felt better of it and had Sgt. Wilson get a search warrant.'

Sergeant Nealis was further cross-examined as to his reasons that he felt justified in the obtaining of a search warrant at that time, and answered thusly:

'He told us he had been living at 508 North 7th Avenue, and we had in our possession a glass and a coin, and he admitted * * * and he identified this glass as having been in his possession at that address, and we had previously had this identified as coming from the Green Goose Tavern--this glass and coin ___ where the ___ homicide ___.'

In addition Sergeant Nealis stated specifically that he was given unqualified permission by appellant to search his apartment. It was also brought out that when appellant was first taken to the interrogation room he emptied his pockets and a key he had indicated the address of the East Thomas Road apartment and the name Jim Meyers. Later interrogation revealed appellant was living there under that name. The facts herein clearly indicate that at the time he was apprehended, 'probable cause' existed for appellant's arrest for the homicide, with or without a warrant. This discovery of his address and alias through the key found in his pocket was therefore the result of a search incident to a lawful arrest. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Cf. Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652.

Both Sergeant Wilson and Magistrate Roy Carson also testified at the hearing on the motions to suppress regarding the events immediately preceding the issuance of the warrant. The Sergeant first discussed the problem with the City Prosecutor and then gave the information to the stenographer who made up the search warrant. He then took it to Magistrate Carson who questioned him. This was corroborated by the Magistrate, who testified:

'First I examined the officer under oath, to see if there's probable cause, to determine if there's probable cause for the warrant to issue. Then I had him sign in my presence under oath.'

It is apparent, therefore, that the investigating officers did not rely solely upon the claimed oral consent to search but sought and received a determination of probable cause 'by a neutral and detached magistrate'. Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436. This is the procedure strongly recommended, if not required, by the United States Supreme Court. See, e. g., United States v. Ventresca, 85 S.Ct. 741 (Decided March 1, 1965).

This Court is, of course, bound by the decisions of the United States Supreme Court interpreting the Federal Constitution. State v. Kananen and Hill, 97 Ariz. 233, 399 P.2d 426 (Feb. 25, 1965); State v. Pina, 94 Ariz. 243, 383 P.2d 167. In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, it was decided that evidence obtained in violation of rights guaranteed by the Fourth Amendment to the Constitution of the United States was not admissible in a state court in a prosecution against the individual whose rights had been violated. State v. Pina, supra.

The Supreme Court of the United States has spelled out quite clearly the right of an individual to be free from unreasonable searches and seizures, and they have specified with great particularity the prerequisites for a valid search warrant. e. g., United States v. Ventresca, supra, and Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Both of these decisions involved a determination by that Court of the sufficiency of the affidavits for a search warrant. In Aguilar it was stated:

'It is elementary that in passing on the validity of the warrant, the reviewing court may consider only information brought to the magistrate's attention.

Giordenello v. United States, 357 U.S. 480, 486 [78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503].' 378 U.S., at 109, ftn. 1, 84 S.Ct. at 1511.

The testimony of the police officers and the magistrates indicates that information was given to the magistrate under oath in addition to the affidavit. ¹ This procedure differs from that under Rule 41(c) Federal Rules of Criminal Procedure...