State v. Bolt

• Decision Date: 31 October 1983
• Docket Number: CA-CR,No. 2,2
• Citation: 689 P.2d 543,142 Ariz. 284
• Parties: The STATE of Arizona, Appellee, v. Walter Thomas BOLT, Appellant. 2723.
• Court: Arizona Court of Appeals

Page 543

689 P.2d 543

142 Ariz. 284

The STATE of Arizona, Appellee, v. Walter Thomas BOLT, Appellant.

No. 2 CA-CR 2723.

Court of Appeals of Arizona Division 2.

Oct. 31, 1983.

Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Tucson, for appellee.

Hirsh & Fines, P.C. by Robert J. Hirsh and Michael B. Bernays, Tucson, for appellant.

OPINION

HOWARD, Chief Judge.

Appellant, convicted by a jury of sale of marijuana, unlawful possession of marijuana and conspiracy to commit a class 2 felony (sale of marijuana), was placed on concurrent three-year terms of probation. He contends the trial court erred in (1) denying his motion to suppress the evidence; (2) failing to grant him an evidentiary hearing on his claim that the affidavit in support of the search warrant contained a material falsehood, and (3) refusing to give certain instructions on the credibility of witnesses. He also contends there was insufficient evidence to support his conviction for conspiracy. We affirm.

The evidence, including that of Dale Warner who was granted immunity and testified at trial, discloses the following. After making several small marijuana purchases from a young girl, Pam Warner, undercover agents arranged to meet her supplier, her brother Dale. The agents arranged with Dale Warner to buy seven pounds of marijuana for $4,900. During the negotiation, Dale let it slip out that the name of his supplier was a person called Walter. Dale called appellant to make arrangements to pick up the marijuana and then went to appellant's house where he secured the seven pounds, putting it into an ice chest which he loaded into his vehicle. Dale did not pay appellant for the marijuana at that time but it was understood that appellant was to be paid. When Dale left appellant's house, several of the agents, who had been following Dale without his knowledge, stayed behind and placed appellant's residence under surveillance.

Dale took the marijuana to a park where he met the agents. They arrested him at which time Dale became very cooperative. He told the agents he got the marijuana from "Walter." The agents found a notebook in Dale's possession which contained appellant's name and address. Dale told the agents that there was more marijuana in appellant's home and that appellant was going to make a delivery.

The agents were in the process of preparing an affidavit for a telephonic search warrant when they received word from the agents watching appellant's house that a pickup truck had left. The case agent ordered that the truck be stopped and the house secured until the warrant could be obtained. This was done, and when the house and vehicle were searched pursuant to the warrant, large quantities of marijuana were found in both.

Relying principally upon the case of United States v. Allard, 634 F.2d 1182 (9th Cir.1980), appellant contends that the entry into his house and the stopping of his vehicle were illegal and that evidence subsequently obtained was inadmissible as "fruit of the poisonous tree."

To solve this issue we must treat the evidence found in the house and the evidence found in appellant's vehicle separately. As far as the seizure of appellant's vehicle was concerned, earlier in the day the agents had observed a blue and white pickup truck at appellant's house and a check of the license plate number revealed that appellant owned it. If the agents had probable cause to believe that the pickup truck contained contraband when it left the house, they had the right to search and seize it without a warrant. State v. Million, 120 Ariz. 10, 583 P.2d 897 (1978). Probable cause is information sufficient to justify belief by a reasonable man that an offense has been committed. State v. Heberly, 120 Ariz. 541, 587 P.2d 260 (App.1978). Probabilities are not certainties but, rather, are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. State v. Heberly, supra. The agent here who ordered the stop of the vehicle knew that Dale had gone to appellant's house, without an ice chest, and had left appellant's house with an ice chest filled with marijuana. Dale told him he got the marijuana from "Walter", a declaration against Dale's penal interest. The agents stressed Dale's assertion that there was still marijuana in the house and that appellant was going to make a delivery. Although the officers did not know who was driving the pickup truck prior to the time it was stopped, they did know it was registered in appellant's name and discovered when it was stopped that appellant was driving. We believe the totality of the circumstances demonstrate that the officers had probable cause to stop and search the pickup truck. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Although the police subsequently obtained a search warrant for the pickup truck, it was not necessary since the officers could have searched the vehicle after they first stopped it.

We next come to the question of the search of the house which we treat differently since there were no exigent circumstances, as existed in the case of the automobile, which justify dispensing of the necessity of the search warrant.

Appellants recognize that Arizona has already decided that the securing of a residence while waiting for a search warrant is not illegal. State v. Broadfoot, 115 Ariz. 537, 566 P.2d 685 (1977); State v. Smith, 112 Ariz. 531, 544 P.2d 213 (1975). Appellant contends these cases, however, are not applicable since the police here actually entered inside his home in the process of securing it while they did not do so in either Broadfoot or Smith.

The validity of the distinction made by appellant does not determine the outcome of this issue. Appellant is contending that the alleged illegal entry and securing of his house mandates suppression of the marijuana found therein under the "fruit of the poisonous tree" doctrine. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The chief authority for this contention is the Ninth Circuit case of United States v. Allard, supra, where the court held that acts of securing an apartment constituted a seizure of the apartment and everyone and everything therein. Thus, the court in Allard reasoned that a nexus was established between the entry and the subsequently seized evidence, and it held that a search, pursuant to a valid warrant was tainted by the mere fact that there was an illegal entry. We are unable to agree with Allard. In order for the...