State v. Buccini
| Citation | 167 Ariz. 550,810 P.2d 178 |
| Decision Date | 18 April 1991 |
| Docket Number | No. CR-90-0124-PR,CR-90-0124-PR |
| Parties | , 59 USLW 2726 STATE of Arizona, Appellee, v. Richard Joseph BUCCINI, Appellant. |
| Court | Supreme Court of Arizona |
Richard Buccini petitioned for review, asserting that the court of appeals erred in reversing a superior court order suppressing evidence seized on a search warrant. State v. Buccini, 165 Ariz. 108, 796 P.2d 910 (Ct.App.1990). We granted review to clarify the appropriate standard to be used by an appellate court in reviewing the sufficiency of a redrafted search warrant affidavit under the procedure established in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See Rule 31.19, Ariz.R.Crim.P., 17 A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
Shortly after midnight on May 8, 1988, a pipe bomb exploded in the carport of Howard Moore's Tucson home. Although Moore heard a loud explosion, he did not realize that his property had been damaged until the following morning. Moore then telephoned the police, and Officer Karn was dispatched to Moore's home to secure the area and make a report. 1 The bomb damaged the carport and Moore's automobile. Moore called Karn's attention to a note that read "drop it," which was stuck to the car window on the driver's door.
Karn asked Moore who could have been responsible. Moore replied that he had been involved in a minor traffic accident six weeks earlier with a van owned by Canyon Ranch. The driver of the van, Richard Buccini, apologized and offered to pay for the damage himself. He asked Moore not to report the accident to the police, as he was afraid that a citation would jeopardize his job. However, a bystander had already called the police. When the police arrived, Buccini claimed that Moore was partially at fault. The officer wrote a report on the accident but did not cite Buccini or Moore. Moore told Karn that his own insurance company had paid him for the damage but planned to ask for reimbursement from Canyon Ranch. Moore did not say that Buccini knew this or that he had lost his job as a result of the incident, nor did he report any further contact with Buccini. Moore also told Karn that the threat might relate to his position as president of the Veterinarian Association because it was part of his job to investigate claims against veterinarians. Moore could not, however, identify any particular situations that could relate to this threat.
Karn then called the Bomb Unit at the Tucson Police Department, and Detectives Kadous and Weadock responded. Kadous and Weadock spoke with Moore, photographed the scene, and collected the evidence, while Karn interviewed the surrounding neighbors. Several neighbors had heard the noise of the explosion. Most estimated that it had occurred between 12:00 and 12:30 the previous night. One neighbor stated that the noise had occurred at 11:56 p.m. and that he had been alarmed and immediately telephoned 911. Karn's report includes the fact that the call was made, along with its documenting number.
At about noon on May 12, 1988, Kadous went to Buccini's apartment to interview him. Kadous was aware only that Buccini and Moore had been involved in an automobile accident in March and that Moore could not think of anyone but Buccini who could have had a reason to threaten him. At the time of the interview, Kadous was apparently still uncertain about the exact time of the bombing, although he had spoken with Karn and possibly read her report disclosing the existence of the 911 call at 11:56. (Transcript of Hearing on Motion to Suppress--Kadous' statement (HT).)
Buccini was cooperative when Kadous approached him, and invited him in. Kadous conducted a "pretape interview," the content of which is disputed, and a taped interview. It is undisputed that Buccini denied having any involvement in the bombing and stated that he was at the Harp and Shamrock Bar until between 12:00 and 12:30 that night, giving the names of at least two witnesses who could verify this. (HT at 26.) Buccini then stated that after he left the bar, he went to his parents' house, where he had a sandwich and spoke with his sister and father. He left his parents' house at approximately 1:00 a.m. and went home.
After telling Kadous about the events of May 8, Buccini signed a form giving Kadous consent to search his apartment. During the search, Kadous found gun powder and certain types of fuses. Buccini explained that he was formerly an employee of Jensen's Custom Ammunition and that he had a hobby of reloading ammunition. Buccini also mentioned, apparently even before the search, that he had used cannon fuse obtained at Jensen's to try to detonate bleach and mothballs, and that he and a friend, Carl Weisel, at one time used to go out to dirt caves and set off grenade simulators.
Buccini was still employed at Canyon Ranch and had to be at work at 2:00 p.m. that day, so the search terminated after Kadous took possession of the gun powder and fuses. Kadous admits that Buccini was completely cooperative and even assisted Kadous as he searched. (HT at 44.)
Following the consent search and Buccini's departure for work, Kadous made a telephonic request for a search warrant. 2 He sought to search Buccini's apartment and car for any "materials," "tools," or "equipment" that could be used to "construct an explosive device." Kadous described the March car accident and the May bombing incident. He explained that he had interviewed Buccini and that Buccini told him "he was out around at night at the time of the bombing and did not do it but did not have any other people to provide an alibi where he was at." He said that Buccini had consented to a search, during which he discovered the fuses and gunpowder. He concluded that "while searching the residence Mr. Buccini was definitely in a hurry and was inferring that I leave the residence so that he could go to work at 1400 hours." He stressed that a complete search had not been done and that he believed that evidence would be concealed or destroyed if the residence was not searched immediately. 3
A superior court judge, sitting as a magistrate (see A.R.S. § 1-215(13)), issued the search warrant, and Kadous conducted a search of Buccini's apartment and car, which yielded several items of evidence. Following Detective Kadous' testimony before a Pima County grand jury, Buccini was indicted on several counts.
Buccini filed a motion to suppress the evidence seized pursuant to the search warrant on the ground that Kadous omitted or misrepresented material facts in the affidavit. Specifically, Buccini claimed the affidavit omitted material facts as to Buccini's alibi, falsely stated there were no alibi witnesses, and falsely implied that Buccini attempted to terminate the search before all the evidence was uncovered, thus giving Kadous reason to think that Buccini would later conceal or destroy evidence. Buccini claimed that if Kadous had not made these material omissions and misrepresentations, the magistrate would not have found probable cause to issue the search warrant.
The trial court ordered an evidentiary hearing on the motion to suppress. Buccini and Kadous testified extensively at the hearing. At the conclusion of the testimony, the trial court granted the motion to suppress. The trial judge found that Kadous falsely stated in the affidavit that Buccini did not have anyone to confirm his alibi. The trial judge also found that the affidavit omitted the information about where Buccini claimed to have been on the night of the bombing and the names of his alibi witnesses. The judge believed that including this additional information would have prompted the magistrate issuing the warrant to inquire whether Kadous had attempted to verify the alibi. The trial judge also found that the affidavit falsely implied that Buccini was uncooperative. Instead, the affidavit should have included the truthful statement that Buccini was cooperative throughout the investigation. The judge concluded that once the false information was eliminated and the omitted material information added, the affidavit was insufficient to show probable cause. 4
Upon the state's motion, the case was dismissed without prejudice. The state then appealed from the suppression order (see A.R.S. § 13-4032(7)), alleging that the trial court used an incorrect standard to judge the contents of the affidavit and therefore abused its discretion in suppressing the evidence.
The court of appeals correctly noted that a defendant may challenge the veracity of factual statements contained in an affidavit supporting the issuance of a warrant. Buccini, 165 Ariz. at 110, 796 P.2d at 912 (citing Franks, 438 U.S. 154, 98 S.Ct. 2674). Applying Franks' two-pronged test, the court first assumed, without deciding, that Buccini had proved the existence of a falsehood made with the requisite mental state, i.e., with knowledge, intent, or reckless disregard. Turning to Franks' second prong, the court held that even after the affidavit was redrafted to exclude the false information and include the omitted material information, "it is clear that probable cause existed to believe that these items would be found in Buccini's apartment and automobile." Id. Concluding, therefore, that the trial court had abused its discretion, the court vacated the suppression order and remanded the case. Id. 165 Ariz. at 111, 796 P.2d at 913.
Buccini then petitioned for review, asserting that the court of appeals erred in disregarding the findings of the trial court judge, which were based on her assessment of the "facts and witness credibility," and improperly substituted its own judgment on the facts to find...
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