State v. Bates, 4376

• Decision Date: 13 November 1978
• Docket Number: No. 4376,4376
• Citation: 120 Ariz. 561,587 P.2d 747
• Parties: STATE of Arizona, Appellee, v. Ronald Edward BATES, Appellant.
• Court: Arizona Supreme Court

Page 747

587 P.2d 747

120 Ariz. 561

STATE of Arizona, Appellee, v. Ronald Edward BATES, Appellant.

No. 4376.

Supreme Court of Arizona, In Banc.

Nov. 13, 1978.

John A. LaSota, Jr., Atty. Gen. by William J. Schafer, III, and Bruce M. Ferg, Asst. Attys. Gen., Phoenix, for appellee.

Gene R. Stratford, Phoenix, for appellant.

HAYS, Justice.

This is an appeal from a conviction for possession of marijuana in violation of A.R.S. § 36-1002.05 and § 36-1002.10. Only one question is presented: did a forced entry made three to five seconds after the police knocked and announced their purpose and authority to execute a search warrant comply with the requirements of A.R.S. § 13-1446(B)? We hold that it did not, and reverse and remand for entry of judgment of acquittal.

Defendant Ronald Edward Bates was arrested at the home of Waldo Diaz on May 19, 1977 when the Phoenix police executed a search warrant pertaining to Diaz' apartment. Charged by information with the possession of marijuana, Bates filed a motion to suppress the evidence, which was denied. Thereafter, Bates submitted the case to the court for trial without a jury on the basis of the preliminary hearing transcript, departmental reports, and the tape recording made by the police officers during the execution of the search warrant. Bates was convicted of unlawful possession of marijuana and placed on two years probation. Appeal was timely filed and we have jurisdiction pursuant to 17A A.R.S. Supreme Court Rules, rule 47(e).

There is little disagreement on the facts of this case. On May 19, 1977 officers of the Phoenix Police Department obtained a lawfully issued warrant to search the apartment of Waldo Diaz for heroin. Prior to entry, the officers placed the residence under surveillance to ascertain whether anyone was home, and they observed Bates and a female companion enter the residence. The police then positioned themselves with some of the officers at the front and back doors, and others at a window on the side of the building. The curtains at the window were open, allowing the officers positioned there visual access to the interior of the residence where they observed Bates sitting by the front door.

One of the officers knocked at the door and identified himself to the occupants as "Jim." A male voice, inside the residence, responded "Jim who?" The officer then replied "Jim, you know." None of the occupants said anything further or made any discernible movement toward the door. When no response was received, the officer stated that they were the police, that they had a search warrant, and that the door should be opened. After waiting three to five seconds without answer or action from inside, the police forcibly opened the door. Bates was arrested for possession of a marijuana cigarette he had been observed through the window to be smoking.

The statutory basis for a forcible entry to execute a warrant is found in A.R.S. § 13-1446(B) which states:

"An officer may break into a building, premises, or vehicle or any part thereof, to execute the warrant when:

1. After notice of his authority and purpose, he receives no response within a reasonable time.

2. After notice of his authority and purpose, he is refused admittance."

Bates contends that the executing officers failed to comply with these provisions, because there was no refusal of admittance, and because a reasonable time had not elapsed. As a consequence, he alleges, the marijuana found during the search and used as evidence against him, and all evidence connected with it, should have been suppressed.

Under the first clause of the statute, forcible entry to execute a warrant is permitted when an officer, having announced his authority and purpose, "receives no response within a reasonable time." The second clause authorizes forcible entry upon refusal of admittance. It too requires that notice of the police officer's authority and purpose be given before forcible entry may be had. In the instant case, it is clear that the notice component of the statute has been complied with.

In State v. Brady, 105 Ariz. 592, 595, 469 P.2d 77, 80 (1970), we cited with approval language from McClure v. United States, 332 F.2d 19, 22 (9th Cir. 1964) and held that what constitutes a refusal of admittance under A.R.S. § 13-1446(B) depends upon the circumstances of each case. We think that logic equally applicable to a determination of what constitutes a reasonable time under the first clause of A.R.S. § 13-1446(B).

In State v. Dudgeon, 13 Ariz.App. 464, 468, 477 P.2d 750, 754 (1970), the Court of Appeals held that police officers executing a search warrant were justified in waiting less than five or six seconds before entering when they heard sounds which militated against delay. No such sounds were heard at all in the instant case. The testimony of one of the officers stationed at the window illustrates that, after the announcement, he observed no one coming to the door, no movement by any of the occupants during the course of the entry, nor did he hear anything at all suspicious or unusual.

"Q How long a time took place then from the time that Sergeant Warden said, 'Jim, you know,' until he ordered Mavromatis to push the door in?

"A Couldn't be totally sure, but a few seconds after that.

"Q And in fact, it was the very next thing after saying, 'Jim, you know,' and not getting any answer that Warden said, 'Police officers. We are here we have a serach (sic) warrant.' It was the very next thing he said, wasn't...