State v. Ault, 6539

• Court: Supreme Court of Arizona
• Citation: 724 P.2d 545,150 Ariz. 459
• Docket Number: No. 6539,6539
• Parties: STATE of Arizona, Appellee, v. Gary Michael AULT, Appellant.
• Decision Date: 23 June 1986

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724 P.2d 545 150 Ariz. 459 STATE of Arizona, Appellee,
v.
Gary Michael AULT, Appellant. No. 6539. Supreme Court of Arizona, In Banc. June 23, 1986.
Supplemental Opinion Sept. 18, 1986.

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[150 Ariz. 461] Robert K. Corbin, Atty. Gen., William Schafer, III, Chief Counsel, Crim. Div., Greg A. McCarthy, Asst. Atty. Gen., Phoenix, for appellee.

Robert J. Roberson, Yuma, for appellant.

GORDON, Vice Chief Justice.

Defendant, Gary Michael Ault, was indicted on January 3, 1985, for the crimes of second degree burglary, A.R.S. § 13-1507, and child molestation, A.R.S. § 13-1410. The state alleged prior convictions for six offenses from the State of California. Defendant was convicted on March 21, 1985, of both counts and sentenced to life imprisonment for child molestation and a concurrent 11.25 year term for burglary. We

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[150 Ariz. 462] have jurisdiction pursuant to Ariz. Const. art. 6 § 5(3) and A.R.S. § 13-4031.

At approximately 2 a.m. on December 27, 1984, a six year old girl was sexually molested while sleeping in her home. The victim woke her parents with screams. Her mother rushed into the bedroom the victim shared with her one year old brother. The victim told her mother that a man had come into her room, unzipped her pajamas and fondled her genitals. Apparently the assailant entered the house through an unlocked door and left when the victim began screaming.

The police arrived at the scene and muddy footprints were found on the interior floors and outside the home. The footprints were unusually large and were in a distinctive "duck walk" pattern. The prints measured approximately 14 inches long and the stride of the person was estimated to be 28 to 36 inches. It had rained that night which accounted for the clarity of the prints.

The victim, who spoke only Spanish, told Deputy Salazar that her assailant wore a cap, Levis and a red shirt. She also said her assailant had a long mustache and was taller than Officer Sproul, who is six feet tall, and was young like Salazar, who was 26 years old. Based on the description and the distinctive footprints, two officers at the scene suspected defendant, who lived approximately a quarter of a mile from the victim's house. The victim was taken to the hospital for an examination. There she was shown a photographic lineup of six men. She picked defendant as the man in her room who molested her.

While the victim was at the hospital, Officer Schmidt went to defendant's home. He knocked on the door and no one answered. Schmidt waited outside for approximately two hours until a porch light came on around 5 a.m. Schmidt again knocked on the door and Charles Robertson, defendant's roommate, told Schmidt that defendant was not present and authorized a search of the apartment for verification. Shortly after Schmidt left defendant returned home. At approximately 6:45 a.m. Deputies Salazar and Kehl went to defendant's home. Defendant came to the door wearing just a pair of shorts or a towel. Defendant was advised by Salazar that he was investigating a trespass incident and requested that defendant accompany the deputies to the police station for questioning.

Defendant initially refused to go to the station indicating that he had to go to work. Salazar told defendant that if he did not cooperate he would be arrested. At that point defendant agreed to cooperate, turned from the door and headed back toward the bedroom to put on some clothes. The two deputies followed defendant inside without seeking permission to enter. Defendant told the deputies twice that they were not invited into the premises, but Salazar stated that the deputies were present for their own protection.

While inside, Salazar saw a pair of large, muddy tennis shoes on an oven door. He seized them and asked defendant if the shoes belonged to him. Defendant replied negatively. Nevertheless, Salazar brought the shoes back to the police station where defendant was formally arrested. Salazar testified that defendant was not under arrest at his home. However, he stated that regardless of whether defendant cooperated, it was Salazar's intention to ultimately place defendant under arrest.

A search warrant was served upon defendant's apartment at approximately 3 p.m. on December 27, 1984. The warrant authorized a search for the clothing defendant had worn the previous morning and for shoes owned by him. Deputies found a pile of damp clothes in defendant's bedroom which included a pink sport shirt, blue jeans, a blue cap and a blue jacket. Both Robertson and defendant testified that the clothes seized were worn by defendant on the night of December 26, 1984.

Defendant raises the following issues:

1. Did the trial court commit reversible error by permitting the tennis shoes seized by Deputy Salazar to be introduced at trial?

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[150 Ariz. 463] 2. Did the trial court err by not suppressing the evidence seized pursuant to the search warrant?

3. Did the trial court err in not suppressing references to the photographic lineup?

4. Did the trial court abuse its discretion by allowing the six year old victim to testify?

I.

Defendant argues that the tennis shoes seized by Deputy Salazar prior to his arrest should have been suppressed at trial. This is so, he asserts, because Salazar did not have permission to enter the apartment, he was not under arrest, no exigent circumstances existed and no search warrant had been issued. The state, conversely, argues that Salazar's entrance was supported by exigent circumstances because of an alleged danger that defendant might reach for a weapon inside the apartment or try to escape. Alternatively, the state claims the shoes were properly seized under the inevitable discovery doctrine since they would have been seized pursuant to a search warrant executed later in the day.

It is clear that the Fourth Amendment to the United States Constitution and art. 2 § 8 of the Arizona Constitution ¹ proscribe unreasonable search and seizure by the state. Unlawful entry of homes was the chief evil which the Fourth Amendment was designed to prevent. Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984); United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972). The Arizona Constitution is even more explicit than its federal counterpart in safeguarding the fundamental liberty of Arizona citizens. State v. Martin, 139 Ariz. 466, 473, 679 P.2d 489, 496 (1984). As a matter of Arizona law, officers may not make a warrantless entry into a home in the absence of exigent circumstances or other necessity. State v. Bolt, 142 Ariz. 260, 265, 689 P.2d 519, 524 (1984); State v. Martin, 139 Ariz. at 474, 679 P.2d at 497.

At the time Deputies Salazar and Kehl went to defendant's apartment they were aware of the footprint evidence, defendant's distinctive walk, the description given by the victim, the result of the photographic lineup and defendant's prior criminal background. We believe there was probable cause to arrest defendant based on this information. However, the deputies chose not to legally arrest defendant at his home but requested that he accompany them to the police station. The exigent circumstances alleged on behalf of the state were created by the arresting deputies. An arrest warrant could have been obtained and defendant apprehended at his home. This was not done.

The recognized exceptions to the warrant requirement, aside from consent, which can be considered exigent are 1) response to an emergency, 2) hot pursuit, 3) probability of destruction of evidence, and 4) the possibility of violence. See State v. Cook, 115 Ariz. 188, 193, 564 P.2d 877, 882 (1977); Note, Exigent Circumstances for Warrantless Home Arrests, 23 Ariz.L.Rev. 1171 (1981). In the present case the deputies were not responding to an emergency and fear of escape was virtually nonexistent. The deputies were positioned at the only operable door to the apartment and defendant had just volunteered to accompany the deputies to the station. There clearly was no hot pursuit or grave risk of violence articulated by the state which would allow warrantless entry.

While we believe the safety of law enforcement personnel is of utmost importance, we cannot allow the creation of exigent circumstances in order to circumvent the warrant requirement. The mere incantation of the phrase "exigent circumstances" will not validate a warrantless search of one's home. State v. Martin,

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[150 Ariz. 464] 139 Ariz. at 474, 679 P.2d at 497. Since the deputies were not lawfully inside defendant's apartment, the tennis shoes could not lawfully be seized under the guise of "plain view". Prior to seizure of evidence under the "plain view" exception to the warrant requirement, the officer must 1) have prior justification to be in a position to view the evidence; 2) the discovery must be inadvertent, and 3) its evidentiary value must be immediately apparent. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Cook, 115 Ariz. at 194, 564 P.2d at 883.

We also believe that, in spite of the warrantless entry into defendant's home, he was also illegally arrested inside his home. This court has had occasion to recently discuss when a person is under arrest. See State v. Winegar, 147 Ariz. 440, 711 P.2d 579 (1985); State v. Leslie, 147 Ariz. 38, 708 P.2d 719 (1985). Both cases stated, "an arrest is complete when the suspect's liberty of movement is interrupted and restricted by the police," 147 Ariz. at 447-48, 711 P.2d at 586-87; 147 Ariz. at 43, 708 P.2d at 724. Whether the defendant has been arrested is to be tested by the objective evidence and not by the subjective belief of the parties. Id.; see also State v. Green, 111 Ariz. 444, 532 P.2d 506 (1975). It is clear that the subjective intent of the officer is not controlling on the issue of whether an arrest occurred; rather, the issue...