State v. Clevidence

• Decision Date: 08 January 1987
• Docket Number: Nos. 1,CA-CR,s. 1
• Citation: State v. Clevidence, 153 Ariz. 295, 736 P.2d 379 (Ariz. App. 1987)
• Parties: STATE of Arizona, Appellee, v. Raymond L. CLEVIDENCE, Appellant. 9533, 1 9534.
• Court: Arizona Court of Appeals

Page 379

736 P.2d 379

153 Ariz. 295

STATE of Arizona, Appellee, v. Raymond L. CLEVIDENCE, Appellant.

Nos. 1 CA-CR 9533, 1 CA-CR 9534.

Court of Appeals of Arizona Division 1, Department A.

Jan. 8, 1987.

Review Denied May 5, 1987.

[153 Ariz. 296] Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., John B. Barkley, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by James H. Kemper, Carol Carrigan, Deputy Public Defenders, Phoenix, for appellant.

OPINION

BROOKS, Judge.

Appellant (defendant) appeals from the convictions and sentences imposed on one count of Possession of Dangerous Drugs, a class 4 felony, with one prior felony conviction, and one count of Misconduct Involving Weapons, a class 6 felony, with one prior conviction. The trial court found defendant guilty of both charges after submission of the cases upon the record. Defendant was sentenced to the presumptive terms of six years imprisonment on the drug charge and 2.25 years on the weapons charge, to be served concurrently. We affirm.

Two issues are raised on appeal:

1. Did the trial court err in denying defendant's motion to suppress evidence?

2. Did the trial court err in finding defendant guilty of misconduct involving weapons?

FACTS

Considered in the light most favorable to upholding the judgment of the trial court, the facts are as follows. On December 7, 1984, Phoenix Police Officer Bassett received radio notification that an armed robbery suspect was believed to be riding as a passenger in a certain 1971 Mercury Cougar. Bassett located the vehicle and began to follow it. Meanwhile, other officers notified Bassett of the possibility that a weapon might be in the vehicle. Bassett stopped the vehicle and asked to see the driver's operator's license. The driver (defendant) removed his license from a "trucker's wallet" [an oversized wallet approximately 5 1/2 inches by 3 1/2 inches in size] which was attached to his belt with a chain. Bassett examined the license and at that point recognized defendant as a recently released felon from Arizona State Prison. From a recent police flier, Bassett knew defendant as a reported member of the Aryan Brotherhood, a prison gang, and had information that defendant should be considered dangerous. The robbery suspect (Hicks) was seated on the front passenger side of the vehicle.

At that point, three other police officers arrived and the two subjects were removed from the vehicle for investigation. Immediately thereafter, a .357 Magnum revolver was found beneath the passenger seat. Hicks was placed under arrest and defendant was handcuffed by Bassett as a safety precaution. Concurrent with the handcuffing of defendant, Bassett conducted a protective "pat-down" or "frisk" for weapons and found none. Bassett then moved defendant to the vicinity of his patrol car to be watched by Officer Martin. At this point, defendant asked Martin to place his wallet, which was dangling from the chain, in his back pocket. Martin agreed to do so but stated that he would have to first check it for weapons. Defendant did not object or otherwise respond to Martin's statement.

Martin then proceeded to feel the defendant's wallet, noted an unidentifiable bulge and opened the zippered compartment. Martin observed drug paraphernalia and called to Bassett. Bassett took the wallet, conducted a further search of it, and discovered a small amount of illegal drugs.

Both subjects were transported to jail. Defendant was "booked" for Possession of a Dangerous Drug and was apparently released on bail.

On May 7, 1985, defendant was formally indicted for Possession of Dangerous Drugs in violation of A.R.S. § 13-3404. (Maricopa County Cause No. CR-148217.) An arrest warrant was issued. At the time of his subsequent arrest on May 22, 1985, defendant was found to be in possession of a knife. This resulted in a second indictment charging Misconduct Involving Weapons in violation of A.R.S. § 13-3102. (Maricopa County Cause No. CR-148633.) An allegation of a prior felony conviction for Second Degree Murder was filed in both cases. Following the trial court's denial of defendant's motion to suppress evidence, defendant waived trial by jury and both matters were submitted to the court based upon the police departmental reports, the exhibits, and the record previously made on the motion to suppress. Defendant was found guilty of both offenses and the allegation of a prior felony conviction was found to be true. Following imposition of sentence, the cases were consolidated for purposes of this appeal.

DENIAL OF DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

Defendant filed a motion to suppress the drugs and drug paraphernalia seized in the warrantless search of his wallet. Following a suppression hearing, the trial court found:

Based upon what has been presented and the Court not having the opportunity to feel or view the wallet in order to decide the issue; the Court views the evidence presented with a great deal of scrutiny and does not find that the officers' version of what they believed or what they observed is flawed in any way. The Court accepts their version of the circumstances that existed and concludes that under the circumstances presented, there was legal justification for the officer having gone into the Defendant's wallet and removing the contents that were found.

The trial court denied defendant's motion to suppress the evidence and, after reconsideration of its ruling, affirmed its order. Defendant again moved for reconsideration and, after a further hearing which included an examination of the wallet, the trial court again denied the motion to suppress. Defendant now contends that the trial court committed reversible error in denying the motions. We disagree.

Initially, it must be noted that a trial court's ruling on a motion to suppress will not be reversed on appeal absent clear and manifest error. State v. Jarzab, 123 Ariz. 308, 599 P.2d 761 (1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1069, 62 L.Ed.2d 789 (1980).

[153 Ariz. 298] --DEFendant does not contend that the initial stop of his vehicle was invalid, nor does he argue that Officer Bassett's initial frisk was unreasonable. Bassett was apprised of a potentially dangerous situation and the possible presence of a weapon. Under such circumstances, his actions were reasonable and pass the Terry standard for a justifiable stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because the initial stop of defendant was proper under Terry, Bassett and Martin could then conduct a limited search for weapons reasonably related to the scope of the stop. Id. The fact that defendant was a companion to the suspected robber, instead of the primary suspect, does not negate the validity of the stop or frisk due to the totality of the circumstances. See United States v. Tharpe, 536 F.2d 1098, 1100 (5th Cir.1976). The right to a limited search for weapons extends to a suspected criminal's companions at the time of arrest. United States v. Berryhill, 445 F.2d 1189 (9th Cir.1971). Thus, we find no violation of defendant's constitutional rights in the initial stop or the pat-down search for weapons.

Defendant contends, however, that given the right to pat-down, the officers nevertheless acted unreasonably and exceeded the scope of a Terry investigatory stop. In other words, defendant argues that his detention was not merely an investigative stop but constituted an arrest without probable cause.

Defendant relies on Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) and Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) as support for his argument that the officers' conduct amounted to an illegal seizure in the absence of any basis for suspecting him of misconduct. Under the facts here, defendant's reliance is misplaced. In Brown, the officers had no reasonable basis to stop the defendant whom they observed simply walking away from another man in an alleyway. The defendant there had exhibited no specific misconduct and there was no reason to believe that the defendant was armed. Here, however, Bassett had considerable prior information concerning suspected criminal activity as well as the presence of a weapon, the defendant's reputation for violence, and his status as a recently released felon.

In Royer, the defendant's conviction was reversed when the police exceeded the limits of an investigative stop by taking the defendant to a police room at the airport, retaining his ticket and driver's license, and indicating he was not free to leave. The court in Royer was careful to state that there is no litmus-paper test for determining when a seizure exceeds the bounds of an investigative stop.

[T]here will be endless variations in the facts and circumstances, so much variation that it is unlikely that the courts can reduce to a sentence or paragraph a rule that will provide unarguable answers to the question whether there has been an unreasonable search or seizure in violation of the Fourth Amendment.

Id. at 506-507, 103 S.Ct. at 1329, 75 L.Ed.2d at 242. However, the Court also stated that reasonable suspicion of criminal activity warrants a temporary detention for questioning on less than probable cause "where the public interest involved is the suppression of illegal transactions in drugs or of any other serious crime." Id. at 498-99, 103 S.Ct. at 1324, 75 L.Ed.2d at 237. Judgment must be rendered absent a bright line rule and, as our supreme court recently stated, "we will not attempt to delineate the precise moment at which a valid Terry stop is transformed into an arrest." State v. Winegar, 147 Ariz. 440, 447, 711 P.2d 579, 586 n. 5 (1985). Such a determination necessarily depends on the particular circumstances and we think that here, unlike Royer or Winegar, the trial court cannot be faulted in concluding that the limits of a Terry stop were not exceeded.

In State v....