State v. Aikins, 1
| Decision Date | 28 November 1972 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 503 P.2d 398,18 Ariz.App. 440 |
| Parties | STATE of Arizona, Appellee, v. Virgil LeRoy AIKINS, Appellant. 416. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., by William P. Dixon, Asst. Atty. Gen., Phoenix, for appellee.
Flynn, Kimerer, Thinnes & Galbraith, by Thomas A. Thinnes, Phoenix, for appellant.
In this appeal from the judgments of conviction and sentences for possession of cocaine and heroin, the defendant questions the search for and the seizure of the narcotics in question based upon an informant's tip.
The defendant, Virgil LeRoy Aikins, was formally charged in Yavapai County Superior Court with possession and possession for sale of cocaine and heroin and the transportation of cocaine and heroin. A writ of habeas corpus and a pretrial motion to suppress evidence were presented to the trial court and denied. At the time of trial the possession for sale charges and the transportation charge were dismissed and the remaining count was presented to the trial court on the basis of the transcript of the preliminary hearing, the writ of habeas corpus hearing and the motion to suppress hearing. No additional evidence was presented. On April 12, 1971, the defendant was found guilty of possession of cocaine and heroin and was sentenced to six to eight years on each possession charge, the sentences to commence upon defendant's release from the Federal penitentiary where he was serving time on another conviction.
On appeal, defendant presents the following questions:
(1) Was the warrantless arrest of defendant valid;
(2) If the defendant's arrest was valid, was the subsequent warrantless search of his automobile so remote in time as to be invalid and to constitute a violation of defendant's constitutional rights.
The defendant also raised and argued in his briefs before this court the question of whether the trial court's original sentence which was made to run consecutive with a previously imposed Federal jail sentence was valid. However, during the pendency of this appeal and upon motion to revest the trial court with jurisdiction to modify the defendant's sentence, this court granted this motion. The trial court's modified sentence suspended imposition of sentence for a period of eight years upon conditions. It thus appears that the consecutive nature of the sentence complained of by the defendant has been deleted by the modified sentence imposed and this issue is now moot.
The facts giving rise to these questions are as follows. On September 27, 1970, at approximately 11:30 a.m., Officer Long of the Phoenix Police Department received a telephone call from a confidential informant that the defendant and his wife were going to transport a large amount of narcotics from Phoenix, Arizona, to Las Vegas, Nevada. The informant was uncertain as to exactly when the trip was to be made or the mode of transportation, however, he thought that the defendant and his wife would be driving a 1965 Buick automobile and supplied Officer Long with the license number of this vehicle. Officer Long immediately ordered a surveillance of the defendant's residence which commenced at approximately 12:30 p.m. that same afternoon. Officer Long testified that prior to this tip involving the defendant, he had received other information from this same informant involving the narcotics traffic in and around Phoenix, Arizona, and based upon this information had made several narcotic arrests. While the prior information did not specifically involve this defendant, Officer Long had received information from other law enforcement officers that the defendant was a known trafficker in narcotics. On appeal, the defendant does not question that the informant was reliable.
Following the ordering of the surveillance, Officer Long again talked to his informant who advised him that the basis of his information was that on numerous occasions prior to the tip the informant had purchased narcotics from the defendant and that he had last purchased narcotics from the defendant within 48 hours of his telephone call.
Officer Jonovich, who was conducting the surveillance at the defendant's residence, testified that he had observed the defendant at his home for approximately six and one-half hours during which time the defendant appeared to be working on his 1965 Buick, that the defendant left the residence on two occasions driving the Buick and was followed on these occasions and in general kept the residence, the defendant, and particularly the 1965 Buick under surveillance. Five officers were involved in this surveillance procedure.
At approximately 7:30 p.m. on the evening of September 27, 1970, the defendant was observed loading the 1965 Buick with clothing as if preparing for a trip. The defendant, his wife and small child then entered the 1965 Buick in question and drove to a service station where gasoline was obtained. The vehicle left the service station and proceeded north on Black Canyon Freeway where the following officers lost contact with the Buick.
After contact was lost, the officers proceeded to Wickenburg, Arizona, where Agent Joseph of the Department of Public Safety issued, at approximately 9:00 p.m., an all-points bulletin requesting that defendant's vehicle and occupants be detained. These officers then proceeded to Kingman, Arizona.
At approximately 10:00 p.m., a special deputy of the Yavapai County Sheriff's office, stationed at Ash Fork, Arizona, received through police channels, a description and license number of the Buick in question. At approximately 1:00 a.m. upon September 28, 1970, the defendant and the 1965 Buick were located at a service station in Ash Fork. At approximately 1:20 a.m. on that date, the special deputy and a regular deputy of the Yavapai County Sheriff's office arrived at the service station and advised the defendant of the detention request and...
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State v. Lewis
...probable cause is established. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Aikins, 18 Ariz.App. 440, 503 P.2d 398 (1972). The actions of appellant in speaking with her teeth clenched and in swallowing when asked to open her mouth, together with the ti......
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