State v. Baca, 1

• Decision Date: 09 February 1965
• Docket Number: CA-CR,No. 1,1
• Citation: 1 Ariz.App. 16,398 P.2d 924
• Parties: The STATE of Arizona, Appellee, v. Rupert BACA, Appellant. * 1.
• Court: Arizona Court of Appeals

Page 924

398 P.2d 924

1 Ariz.App. 16

The STATE of Arizona, Appellee, v. Rupert BACA, Appellant. ^*

No. 1 CA-CR 1.

Court of Appeals of Arizona.

Feb. 9, 1965.

Rehearing Denied March 3, 1965.

Review Denied March 16, 1965.

Robert W. Pickrell, former Atty. Gen., Darrell F. Smith, Atty. Gen., by Jerry W. Lawson, Asst. Atty. Gen., for appellee.

Skousen, McLaws & Skousen, by Richard E. Skousen, Mesa, for appellant.

DONOFRIO, Judge.

Appellant Rupert Baca was convicted of two counts of Burglary. On this Appeal he contends that the Court erred in permitting the introduction of evidence which he claims was obtained by an illegal search and seizure.

On the evening of January 21, 1963, a physician parked his car on the Y.M.C.A. parking lot in Phoenix, leaving exposed in the car a physician's bag. The next morning he discovered his car had been broken into and the bag as well as other items were missing. On the night of January 22, 1963, the Capitol School in Phoenix was also burglarized of two typewriters and a radio.

Officer Newton, of the Phoenix Police Department testified that on the evening of January 22, 1963, he received a telephone call at about 10:00 P.M. from an informer whose name was disclosed at the trial, whose information the officer had acted upon in the past and had proven to be reliable. Said informer told Officer Newton that the defendant and two other men had shortly before been at a local bar, and had told the informer they had burglarized a school and that they had two typewriters and a radio. Said informer advised the officer that the defendant had also told him that he had a doctor's bag that had been stolen from a car. The informer further informed the officer that he had accompanied the three men to the defendant's house and the items had been placed in a storage room at the rear of the house. The informer also told the officer that the men would attempt to sell the items next morning in second hand stores, and the defendant would be in a blue 1950 or 1951 Chevrolet car with red wheels.

On the way to work the next morning (January 23, 1963) at approximately 8:30 A.M. Officer Newton heard a report on his car radio that a police car was being dispatched to investigate a burglary at the Capitol School. Later he learned that two typewriters and a radio were taken from the school. Upon receipt of the last information Officer Newton and two others went to the defendant's house and were met by a young lady who identified herself. They then made an unproductive search, without a warrant, of the storage room in the rear of his house. This was about 10:00 A.M. They then proceeded to downtown Phoenix, where they saw defendant and two others getting out of a blue Chevrolet car with red wheels. The officer questioned the defendant about the possible possession of certain stolen articles in his car, to which the defendant denied all knowledge; that he asked the defendant if he could look into his car, to which the defendant replied 'yes'; that he found nothing in the seats. The officer then asked if he would open the car trunk, ot which the defendant replied that he could not; that it would not work. The officer then walked to the trunk, pulled the latch and the trunk opened, revealing the stolen items. The defendant, with the others, was then placed under arrest and taken to the Police Station. The property seized from the automobile was later admitted (over timely objection and a motion to suppress) in evidence at the trial.

The prior decisions of our Supreme Court permitting evidence obtained in violation of the constitutional guarantees were overruled and we are now committed to the law that evidence obtained in violation of these rights is not admissible in our Courts in prosecutions against individuals whose rights have been violated. State v. Pina, 94 Ariz. 243, 383 P.2d 167 (1963), Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The State defends the search of defendant's automobile upon the grounds that the circumstances were such that the police officer had probable cause to search the automobile without a warrant.

The Constitution of the United States (Amendment IV) and the Arizona Constitution (Article II, Sec. 8, A.R.S.) do not prohibit all searches and seizures, but only those that are unreasonable. What constituted a reasonable search and seizure must be decided on the facts and circumstances of each particular case, rather than by a fixed standard or formula. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1946) reh. den. 331 U.S. 867, 67 S.Ct. 1527, 91 L.Ed. 1871. Much of the evidence relied upon by the arresting officer prior to the search and seizure was in the nature of hearsay through an informer.

For years the federal courts adhered to the rule that only evidence which would be competent in the trial of the offense before a jury was sufficient as a basis for probable cause. The authority chiefly cited for this proposition was the dictum in Grau v. United States, 287 U.S. 124, 53 S.Ct. 38, 77 L.Ed. 212 (1932). But the principles underlying that proposition were thoroughly discredited in Brinegar v. United States, 338 U.S. 160 at 172-174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), cited in Draper v. United States, 358 U.S. 307 at 312, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In the Draper case, ante, it was held that hearsay corroborated by other knowledge the officer possessed as sufficient...