State v. Cootz

• Decision Date: 21 April 1986
• Docket Number: No. 14787,14787
• Citation: 718 P.2d 1245,110 Idaho 807
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Gerald R. COOTZ, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1245

718 P.2d 1245

110 Idaho 807

STATE of Idaho, Plaintiff-Respondent, v. Gerald R. COOTZ, Defendant-Appellant.

No. 14787.

Court of Appeals of Idaho.

April 21, 1986.

Petition for Review Denied June 18, 1986.

Stewart A. Morris, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., for plaintiff-respondent.

SWANSTROM, Judge.

Gerald Cootz was convicted of robbery, aggravated battery and possession of a firearm during commission of each crime. Cootz received sentences totaling a fixed thirty year prison term. From these convictions and sentences Cootz appeals. He alleges numerous errors which, for convenience, can be grouped into (1) suppression issues; (2) trial errors; and (3) illegal and excessive sentencing. We affirm the convictions and the sentences.

I

We begin with the suppression issues. Cootz claims that evidence was illegally seized and cites as error the denial of his motion to suppress (1) money taken from his pocket; (2) hair fibers taken from his car; and (3) the contents of bags taken from the residence of a third party. He also contends his car was illegally seized.

On the evening of August 26, 1982, the Boisean Motel was robbed at gunpoint. Cash, including a $100 bill, was taken and the robber fled on foot. Just before the robbery, the manager of the motel observed a white sedan parked around back at a spot not normally used by the public or motel patrons. This car was gone shortly after the robbery. Gary Fost, an intern-officer candidate with the Boise Police Department, was on routine patrol in the vicinity. He observed a white sedan speed past him in the opposite direction. Fost turned around and followed, intending to cite the driver for speeding. The white sedan led Fost into a residential area where it came to a stop. The driver fled on foot. Fost gave chase. The suspect went over a fence. When Fost peered over the fence he was hit in the face by bird-shot fired from a pistol. The suspect returned to his car and drove away.

The next morning Jim Davis, Cootz's father-in-law, contacted the authorities. He told investigators that Cootz came to the Davis residence on the evening of the robbery, appeared excited and wanted to talk to his wife, who was then living with her parents. Davis said he and his wife overheard Cootz tell their daughter he was in trouble and had shot a policeman. Cootz finally left; but not before trying to give his wife some money and giving her and Mrs. Davis guns, ammunition, clothing and makeup to hide.

After receiving this information, investigators learned where Cootz worked. The police went there and observed a white sedan similar to the car witnesses had described as being used in the shooting. The officers learned that the car was registered to Cootz's wife. Detective Anderson obtained a warrant authorizing the detention of Cootz in order to procure identifying physical characteristics. As Cootz left work and approached his car, several police officers, with guns drawn, confronted him. He was searched, handcuffed and taken away. The officers took money from his pocket, including a $100 bill. His keys were also taken and his car seized. Cootz was taken to the police department, given his Miranda rights and interrogated by Detective Killeen. Approximately two hours after Cootz was detained he was formally arrested. Officers then went to the Davis residence. Mr. Davis signed a consent to search form and led the officers to a dog kennel where the items given to his wife and daughter were found. Some of these items were contained in two closed brown paper bags. These bags were opened and the contents seized.

Initially Cootz attacks the validity of the detention warrant and the officers' actions in executing it. Cootz asserts that the detention warrant was a sham. The affidavit of Detective Anderson is said to contain false and unsupported information, and to have been a deception upon the issuing magistrate. Alternatively, Cootz argues that even if the warrant was valid the search of his pockets and the seizure of his car exceeded the scope of the warrant requiring suppression of the resulting evidence. The state submits that the use of the detention warrant was a guise to protect the Davises. The officers hoped that identification evidence could be obtained to connect Cootz to the crime so that the information provided by Mr. Davis could remain anonymous for as long as possible. The state asserts that Cootz, in fact, was arrested with probable cause when he left his place of employment and that the search of his pockets was incident to that arrest.

The warrant was issued pursuant to I.C. § 19-625 which authorizes the temporary detention of a person to obtain physical evidence such as fingerprints and photographs. To obtain the warrant the police must show that

(A) Probable cause for belief that a specifically described criminal offense which is a felony has been committed.

(B) Reasonable grounds exist, which may or may not amount to probable cause, to believe that the identified or particularly described individual committed the criminal offense.

(C) Procurement of evidence of identifying physical characteristics from the identified or particularly described individual may contribute to the identification of the individual who committed such offense.

(D) Such evidence cannot otherwise be obtained by the investigating officer.

This statute authorizes a form of "Terry stop," a limited intrusion into a person's privacy on grounds which may not amount to probable cause for arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Hobson, 95 Idaho 920, 523 P.2d 523 (1974). When an investigative Terry detention exceeds the limited purposes for which it is allowed, the permissibility of the intrusion is determined by the same standard as a warrantless arrest. State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct.App.1984); People v. Tooker, 198 Colo. 496, 601 P.2d 1388 (1979). We believe the same is true when the authority granted by a detention warrant is exceeded, as it was in this case. A police officer may make a warrantless arrest "[w]hen a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it." I.C. § 19-603(3). "Reasonable or probable cause has been defined as information that 'would lead a man of ordinary care and prudence to believe or entertain an honest and strong suspicion that such person is guilty.' " State v. Alger, 100 Idaho 675, 677, 603 P.2d 1009, 1011 (1979).

We need not decide the validity of the warrant because we agree with the state that the detention of Cootz amounted to a valid warrantless arrest. The element of custody is essential to an arrest. There must be "some action or intent evidencing police custody before an arrest occurs." State v. Hobson, 95 Idaho at 923, 523 P.2d at 526. There is no doubt that the "actions" in detaining Cootz evidenced police custody consistent with an arrest. Even if the detention warrant was invalid, it, like an arrest warrant that turns out to be defective, cannot invalidate an arrest where the police possess probable cause to make the arrest. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) (in event of new trial the government could try to justify arrest without relying on the warrant); United States v. Rose, 541 F.2d 750 (8th Cir.1976); Soolook v. State, 447 P.2d 55 (Alaska, 1968). It is clear that the officers had reasonable cause to arrest Cootz at the time he was detained. They also had authority, under I.C. § 19-603(3), to make a warrantless arrest. Thus, the arrest was valid and the roll of money found in Cootz's pocket was lawfully acquired in a search incident to that arrest.

Cootz submits that the protection of the Davis family was merely an afterthought by the police, justifying their decision to obtain a detention warrant rather than simply to arrest Cootz. He points to testimony of Detective Anderson that indicates doubt as to probable cause to arrest Cootz at the time. Whether an arrest has occurred is determined from the objective evidence and not by the subjective belief of the arrestee or of the arresting officers. State v. Winegar, 147 Ariz. 440, 711 P.2d 579 (1985); United States v. McCambridge, 551 F.2d 865 (1st Cir.1977). Since the objective evidence shows that probable cause did exist to arrest Cootz and that an arrest did in fact occur at the time Cootz was initially confronted, Detective Anderson's subjective doubts concerning probable cause are not material. Klingler v. United States, 409 F.2d 299 (8th Cir.1969); State v. Vaughn, 12 Ariz.App. 442, 471 P.2d 744 (1970).

Cootz next raises suppression issues regarding his car. When Cootz was detained his car was seized and impounded. Officer McPheters measured the tires and stance of the car. This information was used at trial to link Cootz's car to skid marks found near the scene of the shooting. A few days later, a search warrant was obtained and hair fibers were found in the car. On appeal, Cootz asserts: (1) the officers had no authority to seize his car; (2) since the seizure was illegal, the measurements taken before the warrant was obtained should have been suppressed; and (3) the hair fibers found in the car should have been suppressed because the warrant was invalid.

We find no violation of Cootz's constitutional rights from the seizure of his car. Because of the inherent mobility of an automobile, an exception to the warrant requirement has developed allowing the warrantless search of a car when officers have probable cause to conduct the search. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In this case the police had probable cause to search the car. At that point there is "no difference between on the one hand seizing and...