State v. Allen

• Decision Date: 24 February 1969
• Docket Number: CA-CR,No. 1,1
• Citation: 450 P.2d 708,9 Ariz.App. 196
• Parties: The STATE of Arizona, Appellee, v. Billy Morris ALLEN, Appellant. 185.
• Court: Arizona Court of Appeals

Page 708

450 P.2d 708

9 Ariz.App. 196

The STATE of Arizona, Appellee, v. Billy Morris ALLEN, Appellant.

No. 1 CA-CR 185.

Court of Appeals of Arizona.

Feb. 24, 1969.

Gary K. Nelson, Atty. Gen., by Carl Waag and Thomas M. Tuggle, Asst. Atty. Gen., for appellee

Sheldon Stern, Phoenix, for appellant.

DONOFRIO, Chief Judge.

Appellant, Billy Morris Allen, hereinafter referred to as defendant, was charged with the crime of illegal possession of narcotic drugs for sale. Defendant was convicted of the crime and put on probation for five years. A motion for a new trial and/or an arrest of judgment and for a directed verdict of acquittal, notwithstanding the jury verdict, was made and denied.

On the 19th of November, 1965, an officer of the Phoenix Police Department, working on a narcotics detail, received information from a confidential informer that the informer had purchased some heroin from one Alfreda White, and that Alfreda White was running a 'shooting gallery', a place where narcotics are sold to be consumed on the premises. The officer applied for a search warrant to search Alfreda White's residence. He signed an affidavit deposing that he had just and probable cause to believe, and that he did believe that narcotics were in the possession of Alfreda White at Apartment 4, 644 South Second Street, Phoenix, Maricopa County, Arizona. He then set forth all the facts which were the basis for his belief. These facts included the information from the confidential informant that Alfreda White had a narcotics record; that she was known to be involved with illegal narcotics in the past; that she was living with a man just recently convicted of a narcotics charge; and that known addicts were frequenting the residence of Alfreda White. The Justice of the Peace issued the search warrant.

With the warrant in their possession, the police entered the premises described in the warrant. In one of the bedrooms they found the defendant and a woman companion lying in a bed. The defendant was wearing only his shorts. In the bedroom where the defendant was found, there was also found a small bottle containing 29 capsules of opiates, a wooden jewelry box containing two hypodermic needles, two one-pound cans of milk sugar, a substance used to dilute heroin, and under the mattress where the defendant was lying, on the same side as that previously occupied by defendant, there was found one blue and white cardboard box and one black wallet containing $250 in cash. Defendant admitted that the wallet belonged to him. Inside the cardboard box there was found 26 individually wrapped paper packets of a gray powdered opiate. No opiates, narcotics or paraphernalia used to administer narcotics were found on the person of the defendant, or in the clothes later worn by defendant.

The defendant raises two issues on appeal. First, was the search warrant valid, and if not, should the lower court have granted defendant's motion to suppress the evidence obtained by use of the search warrant? Second, defendant raises the question as to whether there was sufficient evidence against him upon which the jury could find him guilty of the charge of illegal possession of narcotics for sale.

VALIDITY OF THE SEARCH WARRANT AND MOTION TO SUPPRESS

The State contends that the defendant, being only an invitee in the premises and claiming no control over those premises, has no standing to raise the issue of legality of the search. The United States Supreme Court, in the case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960), made a major liberalization in the rules applied to standing to object in the field of search and seizure.

In the Jones case the defendant was prosecuted for illegal possession of narcotics. At the hearing on the motion to suppress, the uncontroverted evidence showed that the apartment in which defendant and the narcotics were found belonged to a friend who had given defendant permission to use the apartment. Defendant had a suit and shirt at the apartment, and had not slept there for more than a night. The court pointed out that in order to qualify as a person aggrieved by an unlawful search and seizure, and thus have standing to object to the admission of the fruits of such a search, the plaintiff must have been a victim of the search and seizure. It must be shown that the search was directed against the defendant as distinguished from merely being 'prejudiced only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.' 362 U.S. 257, 261, 80 S.Ct. 725, 731.

We find no meaningful distinction between the defendant in the Jones case and the defendant in the case presently before this Court. Jones was found to be in fact a person aggrieved by an unlawful search and seizure and as such he had a right to question the validity of the search and seizure which resulted in a criminal charge for the unlawful possession of narcotics. It is this Court's feeling that the law should not preclude the defendant in this case from attempting to suppress the evidence for lack of standing.

While there are many state cases to the contrary, the following was clearly pointed out by the United States Supreme Court in a recent case:

'* * * For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Ex Parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877.'

Katz v. United States, 389 U.S. 347, 351, 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967).

It has been accepted without question that the holding in the Jones case gives an invitee standing to question the validity of a search warrant and a search. In the case of Texas v. Gonzales, 5 Cir., 388 F.2d 145 (1968), the court felt that a guest at an apartment of another had standing to question the lawfulness of a search and seizure. It was pointed out that any other contention would clearly fly in the face of the law espoused in the Jones case. This doctrine was recently reiterated by the United States Supreme Court in Katz v. United States, supra, as a general rule, citing no other authority than the Jones case.

Once it is determined that the defendant has standing to question the search warrant, it is then necessary for this Court to determine whether the procedure for a valid search has been substantially followed, and whether there were sufficient grounds on which a search warrant could be issued. It must be kept in mind that there is a presumption in favor of the validity of a search warrant. State v. Kelly, 99 Ariz. 136, 407 P.2d 95 (1965).

The defendant in his motion to suppress depended entirely on the transcript at the preliminary hearing, rather than on any evidence which could have been introduced in a hearing on a motion to suppress. On appeal there was no objection that the procedure established in A.R.S. § 13--1441 to § 13--1454 was not followed. A reading of the transcript evidences no prejudicial deviation from the prescribed procedure.

We now reach the question of whether there was a lack of showing of probable cause to issue a search warrant. A lack of probable cause would require This Court is of course bound by decisions of the Supreme Court of the United States interpreting the Constitution of the United States. State v. Sherrick, 98 Ariz. 46, 402 P.2d 1 (1965). It is also quite clear that evidence obtained in violation of rights guaranteed by the Constitution of the United States is not admissible in a prosecution by the state, in a state court, against an individual whose rights have been violated. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961); State v. Pina, 94 Ariz. 243, 383 P.2d 167 (1963). The United States Supreme Court has spelled out with some particularity the prerequisites for a valid search warrant. This is so as not to violate the right of an individual to be free from unreasonable searches and seizures. The case of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), sets out the tests to determine if probable cause was shown to the magistrate to validate a search warrant.

this Court to find an unreasonable search and seizure. We reiterate that we are limited to the affidavit filed and the testimony at the preliminary hearing since this is what the defendant relied upon in his motion to suppress.

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, (78 A.L.R.2d 233), the...