State v. Bertram

• Decision Date: 26 December 1972
• Docket Number: CA-CR,No. 1,1
• Citation: 18 Ariz.App. 579,504 P.2d 520
• Parties: STATE of Arizona, Appellee, v. Carroll Eugene BERTRAM, Appellant. 422. . Department B
• Court: Arizona Court of Appeals

Page 520

504 P.2d 520

18 Ariz.App. 579

STATE of Arizona, Appellee, v. Carroll Eugene BERTRAM, Appellant.

No. 1 CA-CR 422.

Court of Appeals of Arizona, Division 1. Department B.

Dec. 26, 1972.

Gary K. Nelson, Atty. Gen. by William P. Dixon and Ronald L. Crismon, Asst. Attys. Gen., Phoenix, for appellee.

George M. Ireland, Prescott, for appellant.

EUBANK, Judge.

The sole question for our determination on appeal is whether the trial court erred in denying defendant's motion to suppress the evidence obtained as a result of a warrantless search of the defendant's automobile.

On May 12, 1970, the defendant was arrested for several crimes, including the possession of marijuana in violation of A.R.S. § 36--1002.05. Preliminary hearing was held before the justice of the peace and the defendant was held to answer the possession of marijuana charge only. On October 16, 1970, appellant moved to suppress evidence relating to the possession charge. The trial court denied the motion and the issue of guilt or innocence was submitted to the court, sitting without a jury, on the basis of the transcripts of the preliminary hearing and motion to suppress. The court found defendant guilty of the crime of possession of marijuana and sentenced him to pay a fine in the amount of $250.00.

The facts are as follows: During the evening hours of May 12, 1970, the defendant and a companion arrived at a steak house in Black Canyon City, Arizona, after having spent the afternoon target shooting in the locality. On entering the restaurant, the defendant 'checked' at least one rifle with the manager. This weapon remained in the manager's possession until the defendant's arrest later that night. The parties stayed at the steak house for several hours, drinking and talking with the manager. Sometime later defendant left the premises for a short time. During his absence the manager heard shots fired in the area and immediately notified the sheriff's office. In response to a police radio message describing the alleged shooting, several law enforcement officers from different agencies arrived on the scene. In the interim the defendant had returned to the restaurant. Both he and his companion were subsequently arrested while still inside the steak house for being 'drunk and disorderly' in public, in violation of A.R.S. § 13--379, as amended in 1959. Following their arrest, the officers determined that the defendant's vehicle, an open convertible automobile, which was parked immediately outside the steak house, should be inventoried and impounded. The automobile was parked on private property and was not in the immediate proximity of the defendant. The keys were obtained from defendant's person by one of the officers and the locked trunk was opened. Among the items discovered in the trunk was an attache case, which the officers opened. Inside the attache case the officers found a paper sack which they opened; inside the sack they found a small closed tin box which they opened and found a quantity of marijuana. This marijuana is the subject of the defendant's motion to suppress which was denied by the trial court.

The State seeks to justify the search of the trunk, the attache case, the closed in box, and the seizure of the marijuana as incident to a lawful arrest or within the scope of a lawful inventory preparatory to storing the vehicle. Defendant contends, however, that the initial arrest for drunk and disorderly conduct was not lawful in that it was for a misdemeanor committed wholly outside the presence of the arresting officer. He further maintains that the inventory was invalid because the vehicle was in a private parking lot, not on a public highway, at the time of the search, and was in no way connected with the offense for which the defendant was initially arrested.

Absent either a knowing and intelligent consent to the search, which is not urged by the State here, or the discovery of incriminating evidence within the 'plain view' of an officer legally entitled to be where he is, there may be circumstances under which warrantless searches, which would otherwise be unreasonable under the Constitutions of the United States and the State of Arizona, may be justified. Such warrantless searches may be justified where exigent circumstances exist; where the search is incident to a lawful arrest; or perhaps where a valid 'inventory' search is conducted.

Under the 'exigent' circumstances, an automobile may be searched when there is probable cause to believe that the car contains articles which the police officers are entitled to seize, providing the automobile is readily movable and the occupants have been alerted by the presence of the officers. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Lawson, 107 Ariz. 603, 491 P.2d 457 (1971); State v. Gerry, 15 Ariz.App. 441, 489 P.2d 288 (1971).

The record before us on appeal clearly shows that neither exigent circumstances nor probable cause to believe that the automobile contained contraband were present so as to justify the search conducted here. The officers testified that they had no reason to believe, nor did they believe, that the automobile contained contraband. The vehicle was immobilized, the occupants were in custody, and the officers had possession of the keys. Obviously the automobile was not going anywhere.

Under the 'search incident to arrest' circumstance which is delineated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), a search of the immediate area of the arrest, is permitted to protect the police officer from harm and to prevent destruction of evidence on or near the arrestee's person. If the arrest is made in an automobile, however, the scope of the permissible search is broader than that of an immobile structure such as a house. See Chambers v. Maroney, supra; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); State v. Kelley, 107 Ariz. 8, 480 P.2d 658 (1971).

Assuming that appellant's arrest inside the steak house for 'drunk and disorderly' was valid, and that there could be fruits and implements of that particular crime, it is apparent that the search of the contents of the attache case locked in the trunk of the vehicle parked outside of the steak house is beyond the scope of a permissible search incident thereto under Chimel, supra. This is made clear by the U.S. Supreme Court in a case factually similar to the one at bar: Coolidge v. New Hampshire, supra. Coolidge was arrested inside his house, and removed to the police station while his automobile, containing the incriminating evidence, was parked outside in the driveway. Later the police returned to the house and then seized the automobile. It was taken to the police station where it was searched two days later. No search warrant was obtained for the search. The court after citing a number of pre-Chimel decisions said:

'. . . These cases make it clear beyond any question that a lawful Pre-Chimel arrest of a suspect outside his house could never by...