State v. Carroll

• Decision Date: 10 October 1974
• Docket Number: No. 2922,2922
• Citation: 526 P.2d 1238,111 Ariz. 216
• Parties: STATE of Arizona, Appellee, v. William Edmond CARROLL, Appellant.
• Court: Arizona Supreme Court

Page 1238

526 P.2d 1238

111 Ariz. 216

STATE of Arizona, Appellee, v. William Edmond CARROLL, Appellant.

No. 2922.

Supreme Court of Arizona, In Banc.

Oct. 10, 1974.

Rehearing Denied Nov. 13, 1974.

N. Warner Lee, Atty. Gen., by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.

J. R. Babbitt and F. M. Aspey, Flagstaff, for appellant.

HAYS, Chief Justice.

The defendant was charged and convicted of a violation of ARS § 36--1002.07, transportation of marijuana. The facts and issues are as follows:

On April 27, 1973, a Tucson narcotics officer received a call from an informant indicating that two suitcases at the Continental Bus Depot had a suspicious smell. The officer investigated and detected the odor of marijuana. He then took the two bags into his possession fearing that otherwise they would be shipped to the indicated destination of Flagstaff. A search warrant was sought and issued by a justice court. Although the warrant stated that the property was at the bus depot, the suitcases were at the time at the police station. Citing ARS § 13--1443, the defendant states as his first issue on appeal that this error made the warrant fatally defective and maintains that his motion to suppress evidence derived from this search was improperly denied.

Pursuant to the warrant, the officer opened the bags and found marijuana. Removing some as evidence, he returned the cases to the depot to be sent to Flagstaff. He also notified the Flagstaff police that a person of defendant's general description with baggage claim checks matching those of the suitcases would be arriving on a particular bus. The Flagstaff police met the bus, asked the defendant for his claim checks and, after finding that the numbers on the claim checks matched the numbers on the suitcase tags, arrested the defendant. Defendant assigns as the second error that this procedure was contrary to the dictates of the Fourth Amendment to the United States Constitution. Lastly, defendant raises a third issue that Coconino County was without jurisdiction to try the case.

Dealing with the jurisdictional argument first, we hold that Coconino County had jurisdiction in this matter. The defendant argues that because the police were aware of defendant's possession of marijuana in Pima County, the charge of transportation is without basis, the Tucson police having practical custody of the contraband. This argument is without merit. In allowing the transportation to take police, the government did not initiate the crime but only monitored it until such time as the participants could be absolutely identified. Chapman v. United States, 443 F.2d 919 (10th Cir. 1971). Without the intervention of the police, the offense would have been committed but the crime gone undetected. Chapman v. United States, Supra. The court in People v. Rogers, 5 Cal.3d 129, 95 Cal.Rptr. 601, 486 P.2d 129 (1971), said in discussing a statute like that of Arizona that the essential element of the crime of transportation is the knowledge of the defendant of the presence of a narcotic.

'Possession may be either actual or constructive; the latter is established by showing that defendant maintained some control or right to control over contraband in the physical possession of another.' 95 Cal.Rptr. at 603, 486 P.2d at 131.

Exclusive, immediate and personal possession is not necessary to establish constructive possession; possession of a baggage claim check is sufficient. State v. Trowbridge, 157 Mont. 527, 487 P.2d 530 (1971). The crime being complete in Coconino County, that court properly had jurisdiction.

With regard to the search and seizure of the luggage in Tucson, a common carrier has the right to protect itself and not be an unwitting carrier of contraband. State v. Fassler, 108 Ariz. 586, 503 P.2d 807 (1972). Because common carriers may search parcels entrusted to them when they have reason to believe that they contain contraband, the carrier may call upon the police to search and seize such. State v. Fassler, Supra. When the police have probable cause to believe that something consigned to a common carrier contains contraband, they must be entitled to search it without a warrant or to seize and hold it until they get a warrant. People v. McKinnon,7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097 (1972). The Tucson police officer in this case followed the appropriate procedure. Although a fuller description of the situation would have been preferred, the search warrant was not fatally defective; it gave the proper description of the property and the place from which the property was taken. This is adequate when the circumstances of the case are that the property was taken from the premises in temporary police custody for its preservation until a search warrant could be obtained.

'(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation.

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