State v. Benge

• Decision Date: 04 April 1974
• Docket Number: No. 2545,2545
• Citation: 110 Ariz. 473,520 P.2d 843
• Parties: STATE of Arizona, Appellee, v. William R. BENGE, Jr., et al., Appellants.
• Court: Arizona Supreme Court

Page 843

520 P.2d 843

110 Ariz. 473

STATE of Arizona, Appellee, v. William R. BENGE, Jr., et al., Appellants.

No. 2545.

Supreme Court of Arizona, In Banc.

April 4, 1974.

Gary K. Nelson, Atty. Gen., Phoenix, William Michael Smith, Yuma County Atty., Yuma, for appellee.

Ronald McKelvey, Yuma, for appellants.

LOCKWOOD, Justice:

Appellants, William Benge, Patrick Gregory and Felipe Sanchez, were tried and convicted of possession of marijuana for sale in violation of A.R.S § 36--1002.06 and transportation of marijuana in violation of A.R.S. § 36--1002.07. All three appellants were sentenced to serve six to twelve years in the Arizona State Prison. From both their sentences and convictions the appellants appeal.

The facts in this case are as follows. On December 1, 1970 Officer Capp of the Arizona Department of Public Safety received a phone call from Sgt. McNight of the Narcotics Division of the Los Angeles Police Department who informed Capp that he had received information from an informant that a large marijuana transaction would occur in Yuma, Arizona that night. McNight further related that the informant said that the two Yuma residents involved were known to the informant as 'Pat' and 'Bill', gave their physical description, a telephone number, and that they would be driving a blue Plymouth car. Officer Capp and Officer Barcus of the Narcotics Division of the Arizona D.P.S. then contacted a confidential and reliable informant in Yuma who told them that the phone number furnished to Officer McNight was that of Patrick Gregory who was a Marine then stationed in Yuma at the Marine Corps Air Station. Officer Capp then contacted the Naval Intelligence Officer of the Marine Corps Air Station who informed him that he had received past information which implicated Gregory with one Felipe Sanchez in smuggling marijuana. He further stated that Agent Land of the United States Customs Bureau had considerable information on the operation. Officer Capp then contacted Agent Land and was given further information concerning the two suspects.

Officer Capp then contacted the U.S. Customs and the Yuma City-County Narcotics Task Force and requested surveillance of the homes of both suspects. Later that day it was learned that the transaction involving 75 kilograms of marijuana would take place that night at the Yuma International Airport at approximately 7:00 P.M. and that Sanchez and Gregory would be involved.

During the afternoon while the suspects were under surveillance, they were observed by Officer Capp at the Yuma International Airport where they approached a private aircraft. They received a number of suitcases from the aircraft which they placed in their automobile, a 1970 Dodge Super Bee.

At approximately 7:00 P.M. that night the same Dodge followed by Gregory's blue Plymouth were observed entering the Yuma International Airport. The two cars drove behind the F.A.A. building where Officer Capp lost sight of them. Meanwhile, Sgt. Burke who had flown in to take part in the operation was maintaining surveillance of the Burch Aviation Building and maintaining radio contact with the other officers taking part in the surveillance of the suspects. Burke radioed the other officers involved and informed them that the suspects had gotten out of the car and had talked with another suspect and that the three defendants were examining kilogram-sized bricks of what appeared to be marijuana in the trunk of the Dodge. The suspects were then seen to replace the suitcases in their automobile and leave by the same route which they had come.

At that point Officer Capp gave the order to stop the vehicle in question and arrest the suspects. The suspects were taken into custody and their vehicle was searched. The search turned up 75 kilogram bricks of marijuana which were packed in suitcases and a duffle bag. Also seized were two pistols from inside the automobile.

At the trial Officers Burke and Capp testified for the state as to the events which they had witnessed. The defendants did not present a defense in their own behalf. The defendants were convicted on both counts by the jury. Appellants first contention is that the trial court erred in refusing to order the state to reveal the identity of the informant. It should be noted that the state was ordered to and did comply with the court's order that the prosecution provide the names of all witnesses to the crime. Therefore the error cited by the appellants is the refusal of the state to furnish the defense with the identity of the informant rather than the names of all the witnesses. Subject to certain limitations, the general rule is that the state is privileged to withhold from disclosure, notwithstanding its relevance, the identity of persons who furnish information to law enforcement officers of criminal acts. The privilege is founded upon public policy. It seeks to further and protect the public's interest in effective law enforcement. By recognizing the obligations of citizens to inform the police of their knowledge of crimes and by preserving their anonymity citizens are encouraged to fulfill their obligations.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court set out the basic principles for determining when a defendant is entitled to require the prosecution to name the informant. There is no fixed rule as to when disclosure is required. Rather a balancing test must be utilized. Disclosure depends upon the circumstances of each case taking into account the crime charged, the possible defenses, the possible significance of the informant's testimony, and any other relevant factors. In short, where it appears that the disclosure of the name is necessary or desirable to show the defendant's innocence or that nondisclosure would deprive defendant of a fair trial then the privilege must give way.

We have held that a defendant seeking to overcome the basic policy of preserving the informant's identity has the burden of proving that the informant is likely to give evidence bearing on the merits of the case. State ex rel. Berger v. Sup. Ct., 106 Ariz. 470, 478 P.2d 94 (1970). In his brief counsel for the appellants raises five grounds for showing what would be served by disclosing the identity of the informant. After examining the record we can find no merit to any of the reasons set forth by the appellants. It is undisputed that the appellants were arrested while carrying large quantities of marijuana. This fact alone would furnish prima facie evidence of guilt. Based upon the facts of this particular case we find that the disclosure of the name of the informant could serve no useful purpose.

Appellants next contend that it was error for the trial court to refuse to grant a continuance to enable the defense to subpoena the informer after the defense learned his identity and whereabouts during the trial. A motion for a continuance is not granted as a matter of right. Such a matter is solely within the sound discretion of the trial judge whose decision will not be disturbed unless there is a clear abuse of discretion and unless denial of the motion is shown to be prejudicial to the defendant. State v. Guthrie,108 Ariz. 280, 496 P.2d 580 (1972). The appellants failed to show how they were prejudiced and made no offer of proof. Under these circumstances we find that there was no error on the part of the trial judge to deny appellants' motions for a continuance.

Appellants also contend that there was insufficient probable cause to make a warrantless search of their automobile. Based upon the record in this case we find appellants' argument wholly frivolous. We note that the arresting officers had the information of two reliable informants, they had the benefit of information gathered by numerous law enforcement agencies, two of the suspects were positively linked to dealings in marijuana traffic, the Yuma area is well known as a center of marijuana smuggling, both suspects were under constant surveillance, they had been seen earlier that day to have received a number of suitcases from a private aircraft, and they were seen by an officer to have examined the contents of the suitcases in their automobile and the packages appeared to be kilogram bricks of marijuana. In light of these circumstances there can be no doubt but that probable cause to arrest the appellants and search their car for contraband existed.

Appellants also raise the issue that the search and seizure of the contraband was illegal notwithstanding the existence of probable cause where there was sufficient time to procure a warrant.

For constitutional purposes, there is no difference between on the one hand seizing and holding an automobile before presenting the issue of probable cause to a magistrate, and on the other hand, carrying out an immediate search without a warrant; and that given probable cause to search either course was reasonable under the Fourth Amendment. In Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931) the court rejected the argument that since sufficient time had elapsed between the officer's receipt of the information and the search of the automobile to have enabled him to procure a search warrant, the search was unreasonable.

It is well established that if law enforcement officers have probable cause for searching an automobile, such probable cause furnishes sufficient constitutional justification for their searching the automobile without obtaining a search warrant, and that in this respect the right to search an automobile is different from and broader than the right to search premises such as home, store, or office. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)...