State v. Crutchfield

• Decision Date: 23 August 1979
• Docket Number: CA-CR,No. 1,1
• Citation: 601 P.2d 333,123 Ariz. 570
• Parties: STATE of Arizona, Appellee, v. Larry CRUTCHFIELD, Appellant. 3233.
• Court: Arizona Court of Appeals

Page 333

601 P.2d 333

123 Ariz. 570

STATE of Arizona, Appellee, v.Larry CRUTCHFIELD, Appellant.

No. 1 CA-CR 3233.

Court of Appeals of Arizona, Division 1, Department B.

Aug. 23, 1979.

Rehearing Denied Oct. 4, 1979.

Review Denied Oct. 23, 1979.

Charles F. Hyder, Maricopa County Atty. by James R. Minter, Deputy County Atty., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Edward C. Voss, Deputy Public Defender, Phoenix, for appellant.

OPINION

JACOBSON, Judge.

The standing of a criminal defendant to raise fourth amendment search and seizure issues figures prominently in this appeal.

On September 9, 1976, the defendant/appellant, Larry Crutchfield, was charged with transportation of marijuana in violation of A.R.S. § 36-1002.07.Following a denial of a motion to suppress, the matter was tried to a jury and ended in a mistrial as a result of the jury's inability to agree.

Following the mistrial, the defendant again made a motion to suppress based upon the then recent decision of the United States Supreme Court in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538(1977).The trial court denied the motion to suppress based primarily upon a finding that the defendant lacked standing to question the search and seizure which resulted in the discovery of the marijuana which defendant was charged with transporting.

The marijuana was subsequently introduced into evidence and the second jury convicted the defendant.He was sentenced to not less than five years nor more than nine years in the Arizona State Prison.He appeals, questioning the denial of his motion to suppress; the introduction of evidence taken from a rental vehicle; and the propriety of evidence introduced at his aggravation/mitigation hearing on sentencing.

The facts are not in material dispute.At 12:20 a. m., the morning of August 17, 1976, the defendant and a "hippie-type" young man, claimed by the defendant to be his nephew, arrived at Sky Harbor Airport in Phoenix, Arizona, preparatory to the nephew catching a flight to South Bend, Indiana.Each was carrying a suitcase.Because they were late, they were directed by the ticket agent to go directly to the loading area or they would miss their flight.At the check-in area was a baggage inspection area and the defendant and his nephew each put one suitcase on the table which is the staging area for a conveyor belt that passes objects through an x-ray machine.As the suitcases moved through the x-ray machine, the security operator observed that both suitcases contained brick-shaped objects in a row.Since the operator was unable to determine the contents of the suitcases, she requested two of her co-workers to conduct a visual search of the contents.Also at the security area were two Phoenix police officers who had observed the brick-type images on the x-ray screen.Upon being told that the suitcases would have to be opened, the defendant, although the testimony at this point is confusing apparently advised airport security that if he had to open the suitcases, he would cancel his flight and leave.Apparently, at this point defendant's nephew disappeared.

As the defendant retrieved the suitcases and attempted to leave the check-in area, one of the police officers who observed the entire sequence of events stopped the defendant and inquired about the defendant's reluctance to have the suitcase searched.Again, the defendant reiterated that he would not be going anyplace and wished to leave the area.As the defendant again attempted to leave, he was detained by the police officer, and advised of his rights.The police officer then took physical custody of the luggage and removed the defendant and the baggage to a security area at the airport.

At the security area, the defendant called his attorney, and the police officer called a narcotics officer of the Phoenix Police Department.Apparently, the narcotics officer, who had with him a narcotics sniffing dog, and the defendant's attorney arrived at the security office at approximately the same time.The defendant was again advised of his rights.The narcotics dog gave a positive reaction to the suitcases.The luggage was again passed through the x-ray machine to check for booby-trap devices.The bags were then forcibly opened, revealing bricks of marijuana and a newspaper which contained latent fingerprints of the defendant.

The defendant's attorney, prior to leaving the scene, and following the arrest of his client, specifically advised the police officers present not to question the defendant"pertaining to his involvement in the case."As the defendant was being transported to jail, he was asked by one of the officers whether he had a car at the airport.The defendant responded in the affirmative, and stated that it was a rental car parked at the curb, gave the officers the keys and requested that it be returned to the car rental agency.The police conducted an inventory search of the rental vehicle which revealed a loaded pistol on the front seat and a rental agreement for the vehicle showing the defendant as an authorized driver.

The marijuana, the newspaper, the pistol and the rental agreement were all introduced into evidence at time of trial.

The defendant throughout the proceedings consistently maintained that he had no knowledge of the contents of the suitcase.His testimony was basically as follows.On the evening of August 16, 1976, he received a telephone call at his home in Tucson from his nephew at the Tucson airport advising him that he had missed his flight from Tucson to South Bend, Indiana, but that he could catch a connecting flight in Phoenix.The defendant then went to the Tucson airport and picked up his nephew who placed the two suitcases in question in the trunk of defendant's vehicle.They then drove to Phoenix, where the defendant assisted his nephew in carrying the suitcases to the check-in area with the events then transpiring as previously stated.He consistently urged that the suitcases belonged to his nephew and that he had no knowledge of their contents.

Following conviction and at the mitigation aggravation hearing on sentencing, the state presented the testimony of a federal agent who was the investigating officer in a case entitled United States v. Becker.This officer testified that he was present and participated in the trial of Becker, at which trial Becker testified that certain drugs found in his possession did not belong to him but belonged to the defendant.Becker was subsequently convicted of the possession charge.

On appeal, the defendant contends that:

(1) the warrantless search of the suitcases at the airport was in violation of the fourth amendment of the United States Constitution;

(2) the search of the rental car was improper as being in disregard of his attorney's instructions under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966); and

(3) the introduction of the federal agent's hearsay testimony at the sentencing hearing was improper.The state, as to the first issues, urges that the warrantless search was proper, but contends that in any event, given the defendant's disavowal of any interest in the suitcases, he lacks standing to question their search and seizure.We will deal with the standing issue first.

The state's standing argument is predicated upon the general view that rights under the fourth amendment are personal and may be asserted only by those whose rights have been violated.As stated in Alderman v. United States, 394 U.S. 165, 171-174, 89 S.Ct. 961, 965-967, 22 L.Ed.2d 176, 185-187(1969):

"The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who were aggrieved solely by the introduction of damaging evidence.

"We adhere . . . to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted."

From this premise, the state urges that since the defendant claims the suitcases belonged to his nephew, only the nephew can assert fourth amendment rights attributable to those suitcases and thus the defendant lacks standing to assert these rights.In addition, the state contends that the crime with which the defendant was charged, transporting marijuana, does not have possession as one of its essential elements, and therefore the "automatic" standing rationale espoused in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697(1960) is not applicable.

The Arizona Supreme Court has had occasion recently to review the leading United States Supreme Court decisions on standing in the case of State v. Walker, 119 Ariz. 121, 579 P.2d 1091(1978).In that case, the court concluded:

"The latest pronouncement on the general requirement of standing is Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208(1973).(Additional citations omitted.)In Brownthe Supreme Court held that a person would not have standing if: 1) he was not on the premises at the time of the contested search and seizure; 2) he alleged no proprietary or...