State v. Cofhlin

• Decision Date: 12 April 1966
• Docket Number: CA-CR,No. 2,2
• Citation: 412 P.2d 864,3 Ariz.App. 182
• Parties: STATE of Arizona, Appellee, v. Charles Willard COFHLIN, Appellant. 34.
• Court: Arizona Court of Appeals

Page 864

412 P.2d 864

3 Ariz.App. 182

STATE of Arizona, Appellee, v. Charles Willard COFHLIN, Appellant.

No. 2 CA-CR 34.

Court of Appeals of Arizona.

April 12, 1966.

Rehearing Denied May 12, 1966.

Review Denied June 7, 1966.

Darrell F. Smith, Atty. Gen., Richard J. Riley, Cochise County Atty., Bisbee, for appellee.

Russell Russo, by J. M. Murphy, Tucson, for appellant.

KRUCKER, Chief Judge.

Appellant, Charles Willard Cofhlin, was charged with six counts of burglary, first degree, and convicted by a jury on two counts. From denial of a motion to suppress evidence, from the verdict and judgment thereon, and from denial of a motion for a new trial, the appellant has appealed.

On March 31, 1965, Cofhlin was hitchhiking from Phoenix to Sierra Vista and was picked up in the vicinity of Tucson by several soldiers stationed at Fort Huachuca. Cofhlin told the soldiers he was a carnival worker and was going to Sierra Vista to join a carnival located there. During the journey to Bisbee, several stops were made for beer and sandwiches. The soldiers paid for these purchases since Cofhlin told them he had no money. Upon reaching Bisbee, Cofhlin in the company of one of the soldiers named Jorgenson, and the soldier's wife, went to Naco, Sonora, had more beer and returned to Bisbee about 1:05 a.m. Cofhlin assisted Jorgenson's wife get her husband to bed and was asked to leave. He went outside the apartment building and claimed that he slept in Jorgenson's car until, because of the cold, he went back into the apartment building and fell asleep in the hallway.

About 5:00 a.m., April 1, 1965, another soldier living across the hall from Jorgenson saw Cofhlin sleeping in the hall. He noticed that Cofhlin was wearing a new khaki shirt and trousers and suspected that Cofhlin had stolen the khakis from Jorgenson's foot locker in the hall. Hearing a commotion in the hall, Jorgenson and his wife appeared and all three checked the label in Cofhlin's shirt. The shirt had a Penney's Department Store label and was not Jorgenson's. Cofhlin was ordered to leave the premises and did so.

During the early morning hours of April 1, 1965, six business establishments in Bisbee were forcibly entered. One of the six establishments was the Penney's Department Store from which a special order khaki shirt, khaki trousers and a cowboy belt were stolen. Another establishment burglarized was the Sugar Bowl, from which approximately $78.00 in change was stolen. Local newspapers carried the story of the burglaries and Jorgenson, seeing the story, went to the police and reported the foregoing facts.

Chief Malley, of the Bisbee Police Department, drove to Sierra Vista with Jorgenson and two other soldiers and talked with a Mr. Capell of the Capell Brothers Circus. Capell told Chief Malley that Cofhlin had sought employment with him, that he obtained a room in Sierra Vista, that he 'had eating money on him' and that he was wearing a clean new khaki shirt and trousers with a cowboy belt. Chief Malley and a Sierra Vista police officer went to the apartment, the landlady pointed out Cofhlin's apartment, Chief Malley went to the rear of the apartment, the officer went to the front and knocked on the door. Cofhlin opened the door, both officers entered, searched Cofhlin finding approximately $48.00 in change, and took him to the Sierra Vista police station where he was identified by the soldiers. Cofhlin was taken to Bisbee where he was charged with commission of the six burglaries.

Appellant assigns three errors allegedly committed by the lower court. The first assignment of error concerns an instruction regarding the definition of reasonable doubt. The court gave a standard stock instruction on reasonable doubt. We see no fundamental error in the instruction and need not review the merit of appellant's contention, since the record discloses that the instruction is appellant's requested instruction number 11. Having requested the instruction, he cannot now be heard to object to such instruction on appeal. State v. Bird, 99 Ariz. 195, 407 P.2d 770 (1965); State v. Evans, 88 Ariz. 364, 356 P.2d 1106 (1960); State v. Serna, 69 Ariz. 181, 211 P.2d 455 (1949), cert. denied Serna v. Walters, 339 U.S. 973, 70 S.Ct. 1031, 94 L.Ed. 1380 (1950).

The next two issues raised challenge the constitutionality of the search and seizure, largely based on the contention that it preceded the appellant's arrest. We cannot agree that such an unequivocal distinction should be made; i.e., that a search and seizure subsequent to a lawful arrest may be constitutional whereas a search and seizure made prior to a lawful arrest cannot. The distinction appears academic and hypertechnical when confronted with the established test of reasonableness.

In a long line of cases the United States Supreme Court has held that only unreasonable searches and seizures are proscribed by the Fourth Amendment to the United States Constitution. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The Mapp decision noted that the prohibitions of the Fourth Amendment are enforceable against the states through the Fourteenth Amendment due process clause. Arizona has acknowledged the applicability of the Mapp rule in State v. Quintana, 92 Ariz. 267, 376 P.2d 130 (1962), and recognized in accordance with Mapp that the test for lawful searches and seizures was the reasonableness of the search under the circumstances. In Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 1232, 92 L.Ed. 1663, 1669 (1948), the United States Supreme Court established that '(i)t is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.' (Citing cases.) However, in United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653, 660 (1950), the same court stated:

'To the extent that Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances--the total atmosphere of the case.'

In the subsequent case of Rios v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688, 1693 (1960), the United States Supreme Court stated that '(t)he seizure can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant.' (Citing cases.) The exception urged in that case was that the seizure was incident to a lawful arrest but the court found that no probable cause existed on which to base the arrest and the conviction was reversed. However, implicit in the language of the opinion is the fact that a search and seizure incident to a lawful arrest, based upon probable cause, is at least 'one of the exceptions to the rule that a search must rest upon a search warrant.'

The exception as to searches and seizures incident to a lawful arrest is firmly established and beyond dispute. However, in cases of searches and seizures incident to a lawful arrest, probable cause to justify the arrest and search and seizure without a warrant is requisite, and such is based on reasonable grounds in the belief of guilt. In Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 1310--1311, 93 L.Ed. 1879, 1890 (1949), which case involved an automobile and the issue of probable cause to support the arrest of Brinegar, the United States Supreme Court defined probable cause as follows:

'In dealing with probable cause, however, as the very name implies, we deal with a probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

"The substance of all definitions' of probable cause 'is a reasonable ground for belief of guilt.' (Citing cases.) And this 'means less than evidence which would justify condemnation' or conviction, * * *. Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.' (Citing case.)

In cases subsequent to the Brinegar decision, the U.S. Supreme Court has effectively avoided any precise definition of probable cause. In Ker v. State of California, supra, ...