State v. Piller, 2

Citation129 Ariz. 93,628 P.2d 976
Decision Date28 April 1981
Docket NumberCA-CR,No. 2,2
PartiesThe STATE of Arizona, Appellant, v. Daniel W. PILLER and Denise Flatt Piller, Appellees. 2069.
CourtCourt of Appeals of Arizona
Beverly H. Jenney, Cochise County Atty. by James L. Riley, Deputy County Atty., Bisbee, for appellant

Goldbaum & Goetz, P. C. by Dean A. Sipe, Tucson, for appellee Daniel W. Piller.

Frederick S. Chapman, Sierra Vista, for appellee Denise Flatt Piller.

OPINION

HATHAWAY, Chief Judge.

Appellees were indicted on four counts of narcotics violations. The trial court granted their motion to suppress evidence seized at their residence pursuant to a search warrant. The state appeals the suppression order, presenting the following question:

"Did the trial court err in suppressing evidence due to a claimed violation of A.R.S. Sec. 13-3891, where officers executing warrants of arrest knocked and announced their purpose and authority, then due to the exigencies then present only waited five to ten seconds, received no response, although they heard movement within, and effected a forced entry into the residence?"

The trial court's ruling on a motion to suppress will not be disturbed on appeal absent clear and manifest error. State v. Smith, 123 Ariz. 231, 599 P.2d 187 (1979); State v. Wright, 125 Ariz. 36, 607 P.2d 19 (App.1979). Viewing the evidence most favorably to support the ruling below, the trial court's conclusion that exigent circumstances did not exist is justified.

On January 23, 1980, at approximately 9:40 a. m., two teams of officers arrived at appellees' residence. One team had a warrant for the arrest of Daniel and the second team had a warrant for the arrest of Denise. Upon their arrival at the residence, three of the officers proceeded up the stairs to the front entrance, one officer stayed with the patrol cars and the other three officers surrounded the residence. The three officers who approached the front door, Peterson, Guthrie and Rodriguez, had to stand single file on the steps leading to the front entrance as the front porch permitted only one person to stand in front of the door. There was no room on the porch on either side of the door to move in the event of trouble and several windows of the residence faced towards the front porch area.

When all officers were in place, Peterson knocked on the front door and when he received no response, knocked again about 25 seconds later. After no response to the second knock within 10 seconds, Rodriguez called out Denise's name several times. A male voice from within responded: "Who's there?" Rodriguez again asked to speak to Denise. There was no response and after 15 to 20 seconds, the officers heard movement in the house which sounded like someone walking rapidly. Peterson then announced that they were police officers, had an arrest warrant, and asked that the door be opened. After five or six seconds had elapsed, Peterson forcibly broke open the front door and the three officers entered, ran through the living room with their guns drawn, and found Denise and Daniel in the bedroom. Denise was standing there nude and Daniel was in bed with a blanket pulled up under his chin. While arresting appellees, marijuana was observed. The officers obtained a search warrant which they executed later that day and seized the items sought to be suppressed.

The narcotics seized pursuant to the search warrant were not the basis for appellees' arrest. The arrests of appellees and about 10 others ended a lengthy narcotics investigation of Manuel Marusich. The investigation included a court-authorized wire tap of Marusich's telephone and another court-authorized wire tap of appellees' phone.

On the morning of appellees' arrest, a large group of law enforcement officers met at the Narcotics Strike Force building in Bisbee. A briefing session was conducted during which the officers assigned to arrest appellees were informed that a .357 magnum handgun might be in the Piller residence. This information was derived from a monitored phone conversation between Marusich and Daniel in which they had discussed arrangements for purchase of the gun for Daniel. The evidence which was the subject of the arrest had been seized in San Francisco three days before and was under the control of the San Francisco Police Department.

The trial court, in granting the motion to suppress, found that there was no evidence suggesting that appellees would use a weapon against the police or that they had violent or assaultive propensities, and that there was no compliance with the requirements of A.R.S. Sec. 13-3891, in that there was insufficient evidence to support a belief that the officers would be refused admittance at the time they entered appellees' residence.

The right of an officer to force entry into a building in order to effect an arrest is set forth in A.R.S. Sec. 13-3891:

"An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such an arrest for a felony without a warrant, as provided in Sec. 13-3883, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if the officer is refused admittance after he has announced his authority and purpose."

There is no question that Officer Peterson announced his authority and purpose. Appellees did not expressly deny admittance. However, refusal may be implied from the circumstances. State v. Brady, 105 Ariz. 592, 469 P.2d 77 (1970); State v. Bates, 120 Ariz. 561, 587 P.2d 747 (1978). In Brady, our supreme court approved the reasoning in McClure v. United States, 332 F.2d 19 (9th Cir. 1964), cert. den. 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 (1965), in which the Ninth Circuit laid down the test to be applied to determine whether there was a refusal of admittance:

"... the circumstances were such as would convince a reasonable man that permission to enter had been refused." 332 F.2d at 22.

There is no fixed rule as to the time an officer must wait after announcing his authority and purpose before he may use force to break into a residence. Proper action depends upon the particular circumstances in each case. State v. Bates, supra; United States v. Cruz, 265 F.Supp. 15 (W.D.Tex.1967). 1

The purposes for requiring notice before officers make forcible entry into an area are generally held to be (1) protecting both occupants and law enforcement officers by preventing violent confrontations which may occur upon unannounced intrusions, (2) protecting individuals' rights of privacy in their homes as well as preventing unexpected exposure of occupants' private activities, and (3) preventing the destruction of property resulting from forced entry. State v. Sanchez, 128 Ariz. ---, 627 P.2d 676 (1981).

The state does not seriously contend that the passage of five to six seconds from the time the officers announced their purpose was, under the circumstances presented here, a reasonable time from which a refusal of admittance could be...

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    • United States
    • Supreme Court of Michigan
    • 26 Octubre 1999
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