Brown v. Superior Court of Maricopa County, Heineman

• Decision Date: 07 June 1978
• Docket Number: No. 13541,13541
• Citation: 119 Ariz. 205,580 P.2d 343
• Parties: Moscoe J. "Buck" BROWN, Petitioner, v. SUPERIOR COURT OF the State of Arizona, COUNTY OF MARICOPA, Frederic HEINEMAN, Judge thereof, State of Arizona, Real Parties in Interest, Respondents.
• Court: Arizona Supreme Court

Page 343

580 P.2d 343

119 Ariz. 205

Moscoe J. "Buck" BROWN, Petitioner, v. SUPERIOR COURT OF the State of Arizona, COUNTY OF MARICOPA, Frederic HEINEMAN, Judge thereof, State of Arizona, Real Parties in Interest, Respondents.

No. 13541.

Supreme Court of Arizona,In Banc.

June 7, 1978.

Stewart & McLean by Harry A. Stewart, Jr., Phoenix, for petitioner.

Charles F. Hyder, Maricopa County Atty. by Thomas E. Collins, Deputy County Atty., Phoenix, for respondents.

STRUCKMEYER, Vice Chief Justice.

This special action arises out of the refusal of the Superior Court of Maricopa County to grant Petitioner's motion to Suppress in Cause No. CR 97693. The order of the Superior Court denying Petitioner's Motion to Suppress is vacated with directions to suppress the evidence concerning petitioner's pickup truck and the items found in it.

On February 19, 1977, officers of the Arizona Department of Public Safety arrested several persons who had met an airplane at an airstrip near Wintersberg, Arizona. The plane had just arrived from Mexico and contained a substantial quantity of marijuana. Immediately thereafter, the officers went to a bar approximately four miles from the airstrip where they found Buck Brown, the petitioner. The officers thought they had previously seen Brown in the vicinity and knew that Brown was the person who had arranged with the pilot to fly the plane from Mexico. Brown was outside the bar when the officers arrived and was somewhere between thirty and fifty feet from his pickup truck. The officers immediately arrested and handcuffed him, and placed him in their police vehicle.

After the arrest, an officer entered Brown's pickup truck and drove it to where the suspects from the airstrip were being held. Brown was driven to the same location in the police vehicle. At the airstrip, Brown was told to take any valuables from his truck because the officers were going to use the truck to transport the marijuana. Following these instructions, either Brown or an officer opened a locked steel toolbox installed in the bed of the pickup truck. A foil-wrapped package with a diamond ring attached to the outside was taken from the toolbox. Brown stated that the package contained $20,000.00 and the ring belonged to his wife. The officers seized the package of money and the ring.

Brown was subsequently charged with attempt to import marijuana and conspiracy in the first degree. He filed a motion to suppress in connection with the search and seizure of his pickup truck and the seizure of the $20,000.00 and the diamond ring. The Superior Court denied the motion.

Petitioner asserts that this search and seizure conducted by the officers without the aid of a warrant was unreasonable. The basic principle in this area is that a warrantless search is per se unreasonable unless it falls within one of a few well-delineated exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The State argues that the search and seizure come within several of the exceptions, but we do not find any exception applicable.

It is well settled that a police officer, when he has probable cause, may search a motor vehicle and seize contraband without a warrant if exigent circumstances are present. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Sardo, 112 Ariz. 509, 543 P.2d 1138 (1975); State v. Dupuy, 116 Ariz. 151, 568 P.2d 1049 (1977). In this case, the State does not argue, nor is there any evidence, that the officers had probable cause to believe that Brown's pickup contained contraband or seizable evidence.

The State attempts to justify the search of the pickup as being an incident to the arrest. The search occurred almost four miles from where the arrest was made and while Brown was in custody. Therefore, the search itself cannot be viewed as incident to the arrest as it was remote in time and place from the arrest and no exigency existed. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Moreover, in order for the seizure of the truck to have been an incident to the arrest, the truck must have been either under Brown's immediate control at the time of the arrest or within easy access had he been able to break free from restraint. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In this case, the truck was not under Brown's immediate control at the time of arrest, nor do we think that it was within easy access under all the circumstances.

The State also argues that Brown's pickup truck was originally impounded for safekeeping and that if the officers had conducted an inventory search the seized evidence would have been discovered anyway. See generally, State v. Lamb, 116 Ariz. 134, 568 P.2d 1032 (1977). The first essential element for conducting an inventory search is that "the law enforcement officials must have lawful custody or possession of the automobile." In re One 1965 Econoline, Etc., 109 Ariz. 433, 435, 511 P.2d 168, 170 (1973). It is beyond challenge that the police have the authority to seize and remove from the streets vehicles impeding traffic or threatening the safety and convenience of the public. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3095, 49 L.Ed.2d 1000 (1976). But whether the officers had lawful custody of the petitioner's pickup requires consideration as to the reasonableness of impounding petitioner's vehicle under the circumstances of the case. Id.; In re One 1965 Econoline, Etc., supra.

Here, the petitioner was neither driving nor occupying the truck when he was arrested; rather, he was thirty to fifty feet away. Nor can it be said that it had been abandoned. Cf. State v. Bradford, 25 Ariz.App. 518, 544 P.2d 1119 (1976) (impoundment upheld where defendant had fled...