State ex rel. Berger v. Cantor

• Decision Date: 28 December 1970
• Docket Number: CA-CIV,No. 1,1
• Citation: 479 P.2d 432,13 Ariz.App. 555
• Parties: The STATE of Arizona ex rel. Moise BERGER, Maricopa County Attorney, Petitioner, v. The Honorable Irwin CANTOR, Judge of the Superior Court of Maricopa County, and Carlos Carrizoza, and Ernesto Carrizoza, real parties in interest, Respondents. 1450.
• Court: Arizona Court of Appeals

Page 432

479 P.2d 432

13 Ariz.App. 555

The STATE of Arizona ex rel. Moise BERGER, Maricopa County Attorney, Petitioner, v. The Honorable Irwin CANTOR, Judge of the Superior Court of Maricopa County, and Carlos Carrizoza, and Ernesto Carrizoza, real parties in interest, Respondents.

No. 1 CA-CIV 1450.

Court of Appeals of Arizona, Division 1, Department A.

Dec. 28, 1970.

Rehearing Denied Jan. 21, 1971.

Review Denied Feb. 23, 1971.

Moise Berger, Maricopa County Atty. by William F. Bennett, Deputy County Atty., Phoenix, for petitioner.

Estrada & Estrada by Lionel C. Estrada, Phoenix, for respondents.

CAMERON, Judge.

This a petition for a special action to review an order of the respondent Superior Court Judge suppressing evidence in a criminal trial for possession of marijuana. The order was entered after a hearing held before trial.

After informal hearing before this Court, the matter was taken under advisement and the record of the Superior Court ordered transmitted to this Court. It was also ordered that additional briefs be filed on the questions raised in the petition.

In determining whether or not the trial court was correct in suppressing the evidence, we must answer two questions:

1. Whether the officer had the right to stop the motor vehicle, and

2. having stopped the motor vehicle did he have a right to seize the evidence upon which the complaint was founded.

The facts necessary for a determination of the matter on appeal are substantially as follows. On 3 April 1970, at approximately 7:15 a.m., a highway patrolman observed a 1959 Ford stationwagon bearing California plates and occupied by what appeared to be two juveniles going west on U.S. 80 near Wickenburg, Arizona. According to the testimony of the patrolman, the vehicle did not appear to be in a satisfactory condition and the patrolman therefore stopped the vehicle in order to conduct a driver's license, registration, and safety equipment inspection. The defendant, Carlos A. Carrizoza, was the driver of the vehicle. He stepped outside the automobile and upon request he showed the officer his driver's license. When asked for his automobile registration the defendant returned to the vehicle, got into the drive's seat, and reached across to the glove compartment of the automobile. Upon opening the door of the glove compartment, Officer Hale observed a bricklike cellophane covered object that appeared to be a kilo of marijuana. Immediately the defendant slapped the door of the glove compartment shut. The officer was standing behind the defendant staring into the glove compartment when he observed the object. The officer had just received training in narcotics identification and had reason to believe that the object was marijuana.

The officer advised both defendants to get out of the vehicle, and after frisking them placed them under arrest for possession of marijuana. After advising the defendants of their Miranda rights in Spanish as well as English, the officer advised the driver that he had probable cause to believe the object in the glove compartment was marijuana and wanted to look at it. The defendant did not object and the officer examined the object, placed it back in the glove compartment, and closed the door.

The vehicle was taken to the Wickenburg Police Department where the officer removed the object from the glove compartment. The object was determined to be marijuana. Based upon this information another officer, a narcotic's officer with the Department of Public Safety, obtained a search warrant for the vehicle and a search of the vehicle produced 99 kilos of marijuana.

In the Superior Court, defendants filed a motion to suppress the evidence. After a hearing, at which time testimony was taken, the court issued an order suppressing the evidence, stating in part as follows:

'1. Assuming the officer had the right to stop the vehicle and ask its driver for his motor vehicle license and automobile registration, the officer did not, as a finding of fact, have probable cause to search the glove compartment of the automobile because he had seen a cellophane wrapped package inside the glove compartment when one of the Defendants opened the glove compartment.

'2. The officer did not, as a finding of fact, have probable cause to search the glove compartment because one of the Defendants hurriedly closed the compartment after opening it.

'3. The officer did not, as a finding of fact, have probable cause to search said automobile because of any alleged furtive gestures by the Defendants or any one of them.

'4. The Defendants, nor either of them, as a finding of fact, did not voluntarily consent to the search of the automobile in question nor its glove compartment.

'5. As a finding of fact, the search of the automobile and the glove compartment by the officers was not incident to a lawful arrest.'

WAS THE STOP LAWFUL?

The trial court assumed that the stopping of the vehicle was lawful and concerned itself only with the search after the detention of the automobile. We feel that we must first cross the hurdle of the reasonableness of the stopping of the automobile. The officer testified:

'I observed westbound a 1959 Ford stationwagon bearing California plates. The vehicle was occupied by what appeared to be two juveniles. It turned out they were adults. The subjects in the vehicle, one was in the back seat, and one was driving. The one of them in the back appeared to be--he was doing something with his hands for a couple of miles. I was curious as to what he was doing, whether he was trying to hide something, or if he was simply reading a book, or something like that. The vehicle did not appear to be in a satisfactory condition. I stopped the vehicle at Milepost 121 in Morristown to conduct a driver's license, registration, and safety equipment inspection.'

On cross-examination he testified that with the exception of one bald tire on the right rear there was no other specific safety problem with the automobile. He further testified:

'Q So then your assumption that the car was not well kept was based on the fact that it was dirty, Officer?

'A Dirty, unwaxed, et cetera.

'Q Do you stop every dirty unwaxed car you see for vehicle inspection, Officer, if you can?

'A Yes, sir, if I'm not busy doing something else.

'Q And in your estimation is a dirty unwaxed car enough excuse for stopping a vehicle?

'A If it is 10 or 11 years old.'

The United States Court of Appeals, 9th Circuit, has upheld a temporary stop of a motor vehicle for the purposes of checking for a driver's license. The court stated as follows:

'On June 18, 1964, Bakersfield, California, motorcycle police patrol officer Snow while on traffic control duty observed appellant, a youth 18 or 19 years old, driving on a city street in Bakersfield a 1951 Chevrolet automobile with Arizona state license plates. Snow was a traffic control motorcycle patrolman whose main duty pertained to traffic control work. Pursuant to his assigned duty and utilizing the red light on his motorcycle, officer Snow stopped the Chevrolet driven by appellant to see if the driver had a driver's license.

'Since appellant's car was subject to the licensing provisions of the California Vehicle Code, it...