State v. Bolt
| Citation | 142 Ariz. 260,689 P.2d 519 |
| Decision Date | 26 September 1984 |
| Docket Number | No. 6139-PR,6139-PR |
| Parties | STATE of Arizona, Appellee, v. Walter Thomas BOLT, Appellant. |
| Court | Supreme Court of Arizona |
Hirsh & Fines by Robert J. Hirsh, Michael B. Bernays, L. Anthony Fines, Tucson, for appellant.
Walter Thomas Bolt (defendant) was convicted by a jury of sale of marijuana, unlawful possession of marijuana and conspiracy. The court of appeals affirmed. State v. Bolt, 142 Ariz. 284, 689 P.2d 543 (App.1983) . Defendant raised four issues before the court of appeals but only a single issue was raised in the petition for review filed in this court:
Did the court of appeals err when it affirmed the trial court's refusal to suppress evidence that was seized from the defendant's house pursuant to a warrant when, absent exigent circumstances, the police had entered and "secured" the defendant's house prior to obtaining that warrant?
We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24. We granted review in order to examine and further clarify the limits under which law enforcement agencies in this state may "secure" a residence without violating fundamental rights guaranteed under the Arizona Constitution, art. 2, § 8.
The complete facts are set out in the opinion of the court of appeals. So far as relevant to the issue on which we granted review, it is sufficient to note that defendant was suspected of being a "wholesaler" of marijuana. His house was under surveillance and the officers had been reliably informed that defendant had supplied marijuana to an individual they had just arrested. The officers were in the process of preparing an affidavit in order to obtain a telephonic search warrant for defendant's home when they were called by one of the agents who had the house under surveillance and were told that defendant had just left in a pick-up truck. The officer in charge ordered one detail of officers to stop the truck and another to "secure" the house until the warrant was obtained. This was done; the defendant's truck was stopped some distance from the house while, at the same time, other officers entered and "secured" the house and its occupants. The telephonic warrant arrived We adverted to the problem of "securing" a residence in State v. Martin, 139 Ariz. 466, 679 P.2d 489 (1984). We noted there that the phrase "securing the premises" had no precise technical meaning. Id. at 474, 679 P.2d at 498. Defendant moved here for a stay of proceedings so that evidence could be taken under Rule 32.1(g) Ariz.R.Crim.P., 17 A.R.S., to show the details of the "normal or standard police practice" with regard to "securing" homes. We have denied that motion. The meaning of the phrase is documented by the record in this case. The supervising officer testified that his instruction to the officer on the scene "to secure the premises" meant that officers were to enter the residence without a warrant, search the home for people who might be there, advise them that a warrant would be forthcoming, and put them "together" to "wait for the agent to arrive with the warrant." According to the supervisor, "securing" the house entailed looking into each room or space in which a person might be hiding, including closets, under the bed, or wherever else someone might be found. So far as we can determine from this case and from Martin, the usual police "securing" practice includes holding in one room everyone found in the house, permitting them neither to leave nor to have communication with the outside. The purpose of this is to keep those in the house isolated from whatever evidence might be present and to prevent them from giving or receiving warnings. The testimony indicates that the officers disclaim any intent of looking for evidence until the warrant arrives.
sometime after the truck had been stopped and the house "secured." Search was then made under the warrant and large quantities of marijuana were found in both truck and house
Defendant argues the illegality of such entries made under the guise of "securing the premises" and urges application of the exclusionary rule to deter such activity. Defendant argues, in other words, that the independent source rule which we recognized in Martin is inappropriate and that the exclusionary rule is needed to deter what defendant claims, and the record indicates, is a fairly common police practice.
In commencing our analysis, we note that if contraband or other evidence was seized during, or obtained as a result of, a warrantless entry of defendant's home without the excuse of exigent circumstances, the seizure would have been illegal and the evidence suppressed as the fruit of the illegal entry. State v. Cook, 115 Ariz. 188, 564 P.2d 877 (1977). However, if the contraband or evidence is seized as a result of knowledge "attributed to an independent source", it is not the "fruit of the poisonous tree," and exclusion is not required. Id. at 198, 564 P.2d at 887 (Struckmeyer, J., dissenting); 1 see also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). State v. Martin, supra. In Martin we rejected the applicability of the exclusionary rule in circumstances similar to this case, but here we approach the question under the assumption, which we could not make in Martin, that the procedure followed is one commonly used by state officers under facts similar to those presented in the case at bench. We thus examine whether the procedure is permitted by the federal or state constitutions and, if not, whether application of an exclusionary rule is required for deterrence. We answer both questions in the negative.
Our constitutional provision reads as follows:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
Ariz. Const., art. 2, § 8. The Fourth Amendment to the United States Constitution proscribes unreasonable search and A recent opinion raises some question regarding the position of the United States Supreme Court on the legality of the warrantless entry. In Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) the Supreme Court affirmed two convictions in a case very similar to the case at bench. In Segura, officers had made a warrantless entry in the absence of exigent circumstances. Arresting the two occupants of the apartment, the officers "secured" the apartment from "within," instead of using a perimeter stakeout. In the course of the "securing" operation, they noticed incriminating evidence in plain view. They remained at the apartment for eighteen to twenty hours until a warrant, procured by information independent of the entry, arrived. They then searched the apartment pursuant to the warrant, discovering further incriminating evidence. The trial court suppressed both the evidence which had been in plain view before the warrant arrived and that discovered upon execution of the warrant. The court of appeals reversed with respect to the evidence obtained by the search under warrant, and the Supreme Court affirmed that decision. Part IV of the majority decision, written by the Chief Justice, contains a discussion of the propriety of the warrantless entry. It argues that the entry constituted a seizure of the "entire apartment and its contents," but that such a seizure was not unreasonable because it affected only the possessory interests of the occupants and was a reasonable means of preserving evidence and protecting it from destruction. The Chief Justice indicates that "securing of premises under these circumstances does not violate the Fourth Amendment, at least when undertaken to preserve the status quo while a search warrant is being sought." Id. at ----, 104 S.Ct. at 3388. At the same time, however, he concedes that warrantless entry to secure from within as an occasion for a warrantless search, would violate the Fourth Amendment. Id. at ----, 104 S.Ct. at 3389.
seizure. We commented in Martin that unlawful entry of homes was the chief evil which the Fourth Amendment was designed to prevent. 139 Ariz. at 473, 679 P.2d at 496; See also Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984). Justice Potter Stewart notes that it was the use of "general warrants," equivalent to warrantless entry at the will of the officer, which the Fourth Amendment sought to remedy. Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum.L.Rev. 1365, 1371 (1983). 2
While four members of the court joined with the Chief Justice in parts I, II, III, V and VI, only Justice O'Connor joined in part IV. We do not conclude, therefore, that a majority of the court has yet held that warrantless entry and inspection short of search is permitted by the Fourth Amendment absent exigent circumstances, but we must certainly conclude that the Court may soon reach that view. 3 We think it appropriate, therefore, to reconsider the views expressed in Martin to the effect that such an entry would in and of itself violate Article 2, § 8 of the Arizona Constitution.
While we are cognizant of the need for uniformity in interpretation, we are also aware of our people's fundamental belief in the sanctity and privacy of the home and the consequent prohibition against warrantless entry. We believe that it was these considerations that caused the framers of our constitution to settle upon the specific wording in Article 2, § 8. While Arizona's constitutional provisions generally were intended to incorporate the federal protections, Malmin v. State, 30 Ariz. 258, 261, 246 P. 548, 549 (1926), they are specific in preserving the sanctity of The facts here preclude any claim of necessity or exigent circumstances for a warrantless entry. The defendant was arrested some blocks...
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