State v. Fassler

• Decision Date: 28 November 1972
• Docket Number: No. 2069,2069
• Citation: 108 Ariz. 586,503 P.2d 807
• Parties: The STATE of Arizona, Appellee, v. Larry FASSLER, Appellant.
• Court: Arizona Supreme Court

Page 807

503 P.2d 807

108 Ariz. 586

The STATE of Arizona, Appellee, v. Larry FASSLER, Appellant.

No. 2069.

Supreme Court of Arizona, In Banc.

Nov. 28, 1972.

Gary K. Nelson, Atty. Gen., Phoenix, by Carl Waag, Former Asst. Atty. Gen., Louis A. Moore, Jr., John S. O'Dowd, Asst. Attys. Gen., Tucson, for appellee

O'Dowd, Fahringer & Diamos, by Clay G. Diamos, Tucson, for appellant.

Larry Fassler, in pro. per.

CAMERON, Vice Chief Justice.

This is an appeal from a jury verdict and judgment of guilty to the crime of unlawful transportation of marijuana, § 36--1002.07 A.R.S. and a sentence of not less than fifteen nor more than eighteen years in the Arizona State Penitentiary.

We are called upon to answer the following questions:

1. Did the trial court err in admitting in evidence testimony as to statements made by defendant during a traffic stop?

2. Was it errot to admit into evidence marijuana seized as the result of a warrantless search of containers in a New York City airport?

3. Was the admission into evidence of an adress book seized at the time of the arrest error?

4. Was it proper to admit into evidence burlap sacks found in defendant's garbage can on the date of his arrest?

5. Was it error to admit into evidence items seized in a search conducted with the permission of defendant's mortgagee?

6. Did the trial court commit error in denying defendant's motion for an order requiring discovery of police reports and other evidence in the State's possession?

7. Was the trial court in error in failing to give an entrapment instruction?

8. Did the trial court err in denying the defendant the opportunity to poll the jury concerning its knowledge or prejudicial articles that appeared in the newspapers during the trial?

9. Was it an abuse of the trial court's discretion to deny the defendant access to the presentence report?

The facts necessary for a determination of this matter on appeal are as follows. On 12 February 1968, at approximately 7:00 p.m., the defendant, Larry Fassler, arrived at the American Airlines Freight Office at Tucson (Arizona) International Airport. Fassler and an employee of American Airlines, Mr. Blas Maldonado, unloaded four crates from the car in which the defendant had arrived. The crates were metal with wooden strips, not the usual kind of container used for shipment. Two of the containers were shipped to New York, New York, care of Tanker Reisman, and two were consigned to San Francisco, California. Two airline employees received the shipment for the airline and prepared the air bills involved in the transaction. The air bills were signed by Larry Fassler using the name of 'Jay Lynn' of 105 South Irving in Tucson, Arizona.

A New York City police officer, Detective Michael Tobin, received information from American Airlines on 14 February 1968 concerning the shipment. Detective Tobin arrived at the airline's hangar shortly after midnight on the morning of 15 February, where he observed the two metal containers shipped by the defendant from Tucson. Detective Tobin bent down and smelled one of the containers detecting the odor of marijuana. He then proceeded to open the cartons which contained marijuana.

Patrolman Joseph Roman and Detective Light of the City of Tucson, acting pursuant to information received concerning the seizure of the two cartons containing marijuana in New York, went to 105 South Irving and attempted to contact 'Jay Lynn' at 105 South Irving. An individual at that address informed the police officers that Mr. Lynn was not there. Noting that there were two vehicles in the driveway A short time later, the vehicle, which was in the driveway, backed out and proceeded in a northerly direction on Irving. The officers followed the vehicle and while so doing ascertained that it was going over the speed limit. The vehicle was stopped and the driver was identified as Larry Fassler, the defendant. Detective Light read the defendant his 'Miranda' rights, following which a conversation ensued. During this conversation the defendant revealed that he used the name 'Jay Lynn' in his exporting business. The defendant was issued a traffic citation for speeding at this time and was allowed to go.

the officers waited until the other individual they suspected might be within came out.

The defendant was later arrested on the transportation charge by members of the Tucson Police Department at the rear of the premises at 105 South Irving. He was advised of his 'Miranda' rights and was allowed to telephone his attorney and Captain Ralph McMillan of the Arizona Department of Liquor License and Control. Fassler invited the police officers into his office while he made the calls.

During this time, Detective Wolfe found an address book on the desk in Fassler's office. The address book contained the name 'Tanker Reisman' and a telephone number. At the same time, Officer Bernal discovered two gunny sacks with fragments of marijuana in them in the garbage cans outside the house.

Over a year later, on 29 April 1969, the premises at 105 South Irving was the subject of a search by Tucson Police Officer Bernal which revealed a telephone bill which was introduced into evidence as tending to impeach testimony of the defendant. This search was conducted with permission of Mr. Henry F. Nelson of the Associated Mortgage and Investment Company. The premises at 105 South Irving had been repossessed by the mortgage company as the defendant had failed to make the payments.

In his defense, defendant Fassler testified that he was working with Captain Ralph McMillan of the Arizona Department of Liquor License and Control, in attempting to procure the arrests of drug traffickers, although on cross-examination he admitted that Captain McMillan knew nothing about the shipment in question. Captain McMillan testified that although he had asked Fassler to help him, Fassler was not an officer of the department. Captain McMillan was asked:

'Q Was Larry Fassler an employee of your department at any time?

'A He was not.'

During the trial, news articles were published in the Tucson, Arizona, newspapers concerning the case. The story in the Arizona Daily Star quotes Sergeant Bernal as saying that Fassler was 'one of the biggest suppliers of narcotics in Arizona and parts of California.'

ADMISSION OF STATEMENTS MADE DURING THE TRAFFIC STOP

Defendant's first assignment of error concerns the admissibility of the statements made by Fassler when he was stopped on or about 15 February 1968 for speeding. The traffic ticket and complaint in evidence indicates that the defendant was cited for 45 m.p.h. in a 25 m.p.h. zone. It is defendant's contention that the reason for stopping the defendant was to determine the relationship of Fassler to 'Jay Lynn' and that the stop for speeding was in fact a pretext and a sham for the real reason for the stop. While it is apparent that one of the reasons the police officers were following Fassler's vehicle was to determine if he was in fact 'Jay Lynn', there is nothing to indicate that the traffic stop was not in fact lawful. We are not concerned with an arrest or a search and seizure, but a stop for a traffic violation at which time the officers took advantage of the opportunity to determine the driver's identity.

Defendant further contends, however, that the 'Miranda' warnings, given in the context of a traffic violation stop, were insufficient to insure the knowing and intelligent waiver of his rights as to the facts concerning the transportation of marijuana violation actually being sought by the officers. We do not agree. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) does not require that police officers notify the suspect as to the nature and seriousness of each and every crime the police may be investigating. See State v. Lucero, 151 Mont. 531, 445 P.2d 731 (1968); State v. McKnight, 52 N.J. 35, 243 A.2d 240 (1968). We find no error in the admission of the statement made by defendant when he was stopped for speeding.

THE ADMISSION OF MARIJUANA SEIZED AS A RESULT OF THE SEARCH IN THE NEW YORK CITY AIRPORT

On 12 February 1968, in an unrelated transaction, officers of the Los Angeles Police Department discovered two large cartons of marijuana in the Los Angeles airport consigned to Tanker Reisman of New York City. The Los Angeles authorities notified Detective Michael Tobin of the New York City Police Department that the shipment was on the way. Detective Tobin arrested Tanker Reisman when he attempted to claim the shipment upon arrival in New York.

On 15 February 1968, Detective Tobin was notified by airline officials at La Guardia Airport in New York City that two large containers had arrived from Tucson, Arizona, consigned to Tanker Reisman. Detective Tobin went to the airport, made an inspection of the parcels and according to his testimony leaned down near the crate and detected the odor of marijuana. He then opened the crates and without a warrant searched them and found the marijuana in question.

It is the contention of the defendant that this was an unconstitutional search and seizure and that the motion to suppress should have been granted.

The courts have tended to treat differently warrantless searches or seizures of items in transit or capable of being spirited away before a warrant can be obtained. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Doyle, 456 F.2d 1246 (5th Cir. 1972). Also, if a police officer is in a place where he is legally entitled to be at the time, the courts should not deny him the privilege of observing what is present on the premises. Mr. Justice White has written of this distinction:

'The case before us concerns the protection offered by the Fourth Amendment of 'effects' other than personal papers or documents. It is clear that effects may not be seized without probable cause but the law as to when a warrant is required to validate their seizure is confused and...