State v. Branham

• Decision Date: 23 December 1997
• Docket Number: No. 1,CA-CR,1
• Citation: State v. Branham, 952 P.2d 332, 191 Ariz. 94 (Ariz. App. 1997)
• Parties: , 259 Ariz. Adv. Rep. 44 STATE of Arizona, Appellee, v. William Lee BRANHAM, Appellant. 97-0246.
• Court: Arizona Court of Appeals

Page 332

952 P.2d 332

191 Ariz. 94, 259 Ariz. Adv. Rep. 44

STATE of Arizona, Appellee, v.William Lee BRANHAM, Appellant.

No. 1 CA-CR 97-0246.

Court of Appeals of Arizona Division 1, Department A.

Dec. 23, 1997.

Review Denied March 17, 1998. ^*

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Ginger Jarvis, Assistant Attorney General, Phoenix, for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Lawrence S. Matthew, Deputy Public Defender, Phoenix, for Appellant.

OPINION

WEISBERG, Judge.

William Lee Branham("defendant") appeals from his conviction on one count of possession of dangerous drugs.We must decide whether a police officer making a legitimate traffic stop may conduct a limited search for the vehicle registration card based solely on the driver's failure to produce it.Because we hold that such a search is not permissible under the Fourth Amendment, we remand with instructions.

Facts and Procedural History

Officer Johnson stopped defendant for speeding.Upon the officer's request, defendant tendered his driver's license, but indicated that he had recently cleaned out his car and left the vehicle registration at home.After twice instructing defendant to search for the registration, Officer Johnson ordered defendant and his wife to step out of the car so he could search it himself.The officer testified that defendant said "okay."

Officer Johnson later testified that the failure to produce the vehicle registration, by itself, justified his limited search and that he had no other basis for searching the car.He indicated that he conducted similar searches in approximately eighty-five percent of those cases in which a driver could not produce registration.

During his limited search, Officer Johnson found some methamphetamine and drug paraphernalia.Based on this evidence, defendant was charged with possession of dangerous drugs.Defendant filed a motion to suppress, which was denied by the trial court.After his conviction by a jury, defendant timely filed this appeal.

Discussion

Generally, a search without a warrant is per se unreasonable and in violation of the Fourth Amendment.SeeState v. Castaneda, 150 Ariz. 382, 389, 724 P.2d 1, 8(1986).Several exceptions to the warrant requirement exist, however, and the state argued that two of these applied: the automobile exception and consent.

A.Automobile Exception

When the trial court denied defendant's motion to suppress, it made the following observation:

It seems to me that if I went and stole a car and then got stopped for speeding while driving that car and the police officer asked me for driver's license, registration and insurance, I might give him my driver's license, but I wouldn't show him the registration and insurance because it's going to show somebody else's names that I've never heard of before.Therefore, the rule of law that says a police officer can conduct a limited search for the purpose of finding evidence of registration is reasonable, and it appears that that's exactly what Officer Johnson did in this case.I find no abuse of process.

The rule of law to which the trial court referred is found in State v. Taras, 19 Ariz.App. 7, 504 P.2d 548(1972).In Taras, officers spotted a car parked in a desert area where stolen cars were often abandoned.When they slowly approached the car in a police vehicle, Taras drove off rapidly into the desert without turning on the headlights.The police pursued and, after a short distance, Taras abandoned the car and fled on foot.The officers apprehended Taras after a brief chase.Taras told the officers that the car belonged to him and that the registration was not in it.One of the officers got into the vehicle and searched the dashboard and visor area for the registration, and found some marijuana and drug paraphernalia.Id. at 8-9, 504 P.2d at 549-50.

Taras moved to suppress the marijuana and paraphernalia as fruit of an illegal search.The Taras court held that the search was reasonable under the circumstances.Seeid. at 10, 504 P.2d at 551.The court noted that it was obvious that Taras had wished to avoid the police.Seeid. at 11, 504 P.2d at 552.Furthermore, the car was found in a location known by officers to be a place where stolen cars were abandoned.The officers therefore suspected that the car was stolen, and the court held that "if a driver is unable to produce proof of registration, the officer may conduct a limited search of the car for evidence of automobile ownership."Id.This broad language appears to be the presumed rule of law upon which the trial court based its ruling and upon which the officer based his search.

The Taras court premised its decision on the automobile exception to the search warrant requirement as articulated in Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419(1970)(search warrant unnecessary where there is probable cause to search automobile stopped on the highway).The United States Supreme Court indicated that, because of the particular mobility of a car, an exception to the general warrant requirement exists so long as officers have probable cause to believe there is evidence "that the officers are entitled to seize."Id. at 48, 90 S.Ct. at 1979.

In Taras, the court specifically listed the facts that supported the officers' belief that the car might have been stolen: (1) the car was parked in an area where stolen cars were typically abandoned, (2) Taras tried to elude the police, and (3) Taras could not produce registration of the vehicle.Seeid. at 10-11, 504 P.2d at 551-52.On its facts, therefore, Taras simply applied Chambers and held that, under all of the circumstances, including the failure to produce registration, the officers had probable cause to believe that the car was stolen.Id.

Other cases have reached the same conclusion on similar facts.SeeState v. Acosta, 166 Ariz. 254, 801 P.2d 489(App.1990);English-Clark v. City of Tucson, 142 Ariz. 522, 525, 690 P.2d 1235, 1238(App.1984).In Acosta, the state attempted to justify a search of a car on the basis that the driver failed to produce proof of ownership.Seeid. at 258, 801 P.2d at 493.But, as in Taras, there were other factors that supported the search, specifically, that the driver did not have a driver's license and that he did not know the name of either the car's owner or the person who had loaned it to him.Seeid.Considering these facts, this court concluded that the "officer certainly could have a reasonable suspicion that the car was stolen...."Id.The determinative fact, again, was whether there was probable cause to believe that the car was stolen.

In English-Clark, a police officer observed a truck towing a trailer without turn signals or brake lights.The driver resisted the officer's attempts to stop the truck and, after the truck was finally halted, acted in a disruptive and obscene manner.When the officer approached the truck, he observed a shotgun, shotgun shells, and drugs on the seat.The driver, who could not produce the truck's registration, explained that the truck belonged to his mother.The driver was then placed under arrest for fleeing from a law enforcement vehicle.After searching the truck, the officer found more guns and drugs.The English-Clark court cited Taras and concluded that all of the facts, including the failure to produce the registration, gave the officer "the articulable facts necessary to justify a search of the truck."Id. at 525, 690 P.2d at 1238.Although not expressly set forth, these facts clearly provided probable cause to believe that the truck was stolen and that the persons in the truck illegally possessed drugs and guns.

In each of these cases, there was probable cause to believe that the vehicle was stolen, in part based upon the driver's failure to produce registration.In the instant case, the search was based solely on the driver's failure to produce proof of registration.The officer even testified that he had no reason to believe that defendant's car was stolen and that he did not need such evidence; instead, the search was pursuant to his policy to search most vehicles when the drivers could not produce registration.¹

Defendant relies on People v. Superior Court, 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205(1972).On facts similar to the instant case, the California trial court granted a motion to suppress and the state appealed.The California Supreme Court analyzed the failure to produce registration as follows:

It would not be unreasonable for a thief to...