State v. Caldwell

• Decision Date: 26 July 1973
• Docket Number: No. 2,CA-CR,2
• Citation: 20 Ariz.App. 331,512 P.2d 863
• Parties: The STATE of Arizona, Appellant, v. Robert CALDWELL, Jr., and Judith Lynne Caldwell, Appellees. 317.
• Court: Arizona Court of Appeals

Page 863

512 P.2d 863

20 Ariz.App. 331

The STATE of Arizona, Appellant, v. Robert CALDWELL, Jr., and Judith Lynne Caldwell, Appellees.

No. 2 CA-CR 317.

Court of Appeals of Arizona, Division 2.

July 26, 1973.

Rehearing Denied Sept. 4, 1973.

Gary K. Nelson, Atty. Gen., Phoenix, Dennis DeConcini, Pima County Atty., by Jerry Schmidt, Deputy County Atty., Tucson, for appellant

Messing, Hirsh & Franklin, P.C. by Robert J. Hirsh, Tucson, for appellees.

KRUCKER, Judge.

This is an appeal by the State from an order of the Pima County Superior Court granting a motion to suppress a portion of evidence. The defendants were indicted and charged with having committed the crime of possession of marijuana for sale in violation of A.R.S. § 36--1002.06. They were arraigned in the Superior Court of Pima County on February 3, 1972, at which time they entered a plea of not guilty. In August, 1972, defendants filed a motion to suppress certain evidence, and in September, 1972, the following order was entered:

'. . . that said Motion to Supress be, and hereby is, denied as to all of the evidence involved in said motion, except the evidence discovered north of the residence at 11651 Calle Aurora, Tucson, Arizona, and as to this evidence the Motion to Supress is granted.'

The rather bizarre facts leading up to this appeal are as follows. Judith L. Caldwell rented a 1972 Chevrolet automobile from Dollar-A-Day Rent-A-Car Systems on or about November 5, 1971, for a period of 24 hours. When the vehicle was not returned after approximately five days, the rental agency attempted to locate Mrs. Caldwell. They contacted the Tucson Police Department to file a theft report, which could not be accepted. However, the police said they would contact the agency if the car or other information was discovered.

The police did contact the rental agency and spoke with Mr. Burns, the agent, telling him that Mrs. Caldwell, or information about her, could be found at an address known as 11651 Calle Aurora. Mr. Burns went to that address, knocked on the door, and received no answer. He walked to The car was returned to the rental agency. Mr. Burns asked the clean-up man to check the trunk for missing tools and accessories. When the trunk was opened, brick-shaped objects were found and narcotics officers were called. An examination of the objects found in the trunk disclosed 110 bricks of marijuana, identified by the narcotics officers. While still at the rental agency, narcotics officer Lugo was informed by the deputies who had been at the Caldwell residence in the morning that they and Mr. Burns had smelled marijuana while in the house. Officer Lugo prepared an affidavit for a search warrant, referring to the marijuana found in the automobile rented to Judith Caldwell and the odor of 'burnt marijuana' in the house. ¹ A warrant to search 'the premises known as 11651 Calle Aurora and the surrounding sheds' and 'a 1971 Porsche' was obtained or that same date, November 12. The officers, pursuant to the search warrant, went to the premises where they found a kilo brick press with marijuana debris, which was seized. The press was found sitting against the north side of the house. The officers also seized from within the house two cancelled checks signed by Judith Caldwell.

the rear of the house in an attempt to locate the vehicle and found it under a tree at the back of the house. He then went to a neighbor's home and called the sheriff's department as he did not want to appear to be stealing the car. When the sheriff's deputies arrived, Mr. Burns called the agency for an extra set of keys for the vehicle. The deputies went to the house, knocked, and when Mrs. Caldwell answered, they called Burns over to the house. He and Mrs. Caldwell engaged in a conversation as to her failure to return the car. She offered to pay up the rental and stated that she would like to keep the car, which request was refused. The vehicle was inspected, mileage computed and the bill was paid.

The following day the sheriff's office received a phone call from a Mrs. Shubert, who lived near the searched premises, who stated that her 12-year-old son had found what appeared to be a brick of marijuana in the desert behind the Shubert home. A deputy was dispatched to investigate and upon arriving at the Shubert home identified the brick as marijuana. The Shubert boy led the deputy and narcotics officer to where he had found the bricks, an area approximately 100 yards north and behind the searched premises. There they observed approximately four boxes, each with 12 or 13 kilos to a box. Three boxes were under a tree and the fourth was approximately 25 yards away. In addition to the marijuana, the boxes contained pots, pans, containers, and a substance that appeared to be hashish. The house was separated The questions presented to us for decision are:

from the desert area by a barbed wire fence and a fenced corral.

(1) Whether the seizure of the marijuana brick press was lawful pursuant to the issuance of the search warrant and

(2) Whether the seizure of the four boxes in the desert was lawful.

MARIJUANA BRICK PRESS

Appellees complain of overbreadth of the warrant. We do not agree. A large quantity of marijuana had been found in the car rented to Judith Caldwell, and one could reasonably believe that defendants were storing other large quantities for sale. Certainly another automobile is a possible storage place as well as surrounding sheds. ²

Appellees also contend the search exceeded the scope of the warrant. A search of premises, however, may include all property necessarily a part of the premises and so inseparable as to constitute a portion thereof. Massey v. Commonwealth, 305 S.W.2d 755 (Ky.Ct.App.1957) (a search of an automobile at rear door of service station described in affidavit); Ingram v. Commonwealth, 200 Ky. 284, 254 S.W. 894 (1923) (search of garden located 15 feet from house described in warrant). The area behind the house in the instant case where the brick press was found is reasonably within the meaning of the word 'premises'.

It is well settled that objects falling in the plain view of an officer who has a right to be in a position to have that view are seizable. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Musgrove v. Eyman, 435 F.2d 1235 (9th Cir. 1971); State v. Pine, 8 Ariz.App. 430, 446 P.2d 940 (1968). Instrumentalities of a crime, such as the marijuana brick press herein, may be seized because there is a nexus between the item and criminal behavior. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

Here, the offense was possession of marijuana for sale. The fact that marijuana debris was found on the press at the time of seizure serves to strengthen the connection of the item with criminal activity.

Of course, the plain view doctrine operates only when the officers have prior justification for an intrusion and come inadvertently upon a piece of evidence. Coolidge v. N.H., 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Since there was probable cause in the instant case to justify issuance of the search warrant, the officers were lawfully on the premises at 11651 Calle Aurora. Appellees claim that the smell of marijuana is not sufficient to establish probable cause and that appellant's attempt to establish a nexus between the odor and the marijuana found in the rental car is without merit. However, although odors may not be sufficient to conduct a warrantless search, Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961),...