State v. Dean

• Decision Date: 03 December 1975
• Docket Number: No. 3246,3246
• Citation: 543 P.2d 425,112 Ariz. 437
• Parties: The STATE of Arizona, Appellee, v. Johnny Soto DEAN, Appellant.
• Court: Arizona Supreme Court

Page 425

543 P.2d 425

112 Ariz. 437

The STATE of Arizona, Appellee, v. Johnny Soto DEAN, Appellant.

No. 3246.

Supreme Court of Arizona, In Banc.

Dec. 3, 1975.

Bruce E. Babbitt, Atty. Gen., by William J. Schafter III and Grove M. Callison, Asst. Attys. Gen., Phoenix, for appellee.

Lindauer & Logan, P.A., by George Logan III, Phoenix, for appellant.

CAMERON, Chief Justice.

This is an appeal by Johnny Soto Dean from a jury verdict and judgment of guilt to the crime of burglary, second degree, A.R.S. §§ 13--301 and 302, with a sentence of not less than four and a half years nor more than five years.

Defendant asks that the following questions be answered on appeal:

1. Did the police have reasonable suspicion to justify stopping defendant's car?

2. Was it necessary to give defendant his Miranda warnings before asking whether he would consent to a search of his car?

The facts necessary for a determination of this matter are as follows. In March of 1974, City of Phoenix police officers David Nay and William Neill were assigned to a plainclothes selective enforcement detail. The function of these officers is to drive through residential areas in unmarked cars looking for suspicious activity which might include burglaries and robberies. On the afternoon of 23 March 1974, Officer Nay and Officer Neill were in an unmarked pickup truck driving north on Randolph Road when they observed Dean sitting in a parked car in front of a small apartment complex. A number of facotrs concerning Dean and his vehicle aroused the suspicion of the police officers. The location of the parked car in front of the apartment complex, its close proximity to three different roads if the driver were required to leave in a hurry, and the fact that Dean appeared very nervous and was moving his head very rapidly from side to side as if he was attempting to watch all directions at one time caused Nay and Neill to conclude that something was amiss and that further observation was warranted.

After passing Dean's car the officers pulled into an empty church parking lot in order to continue their surveillance. Approximately two minutes later a marked patrol car approached Dean's car and he immediately left the area. Officers Nay and Neill followed Dean but got held up in traffic and momentarily lost the vehicle. However, within three minutes Nay and Neill spotted the car heading west on Thomas Road with another male passenger.

Because the officers were in an unmarked truck, they roadoed their dispatcher to get a marked unit to stop Dean's car. Patrolman Letcher stopped defendant's car and asked Dean and his passenger, Salas, to get out of the car. One of the officers asked Dean and Salas for identification. Officer Neill observed a pair of channelock pliers on the passenger seat and a screwdriver on the floor of the car. Officer Letcher then asked Dean if he could search the vehicle and check the trunk. Dean consented to the search and handed his keys to Officer Neill who conducted the search with the assistance of Officer Letcher. The officers discovered a color television in the trunk. As soon as the officers discovered the television, they read Dean and Salas their Miranda rights.

Both Dean and Salas were then taken to the police station. Salas was arrested when it was discovered that there were two outstanding felony warrants for his arrest, and Dean was released. Dean was arrested about two hours later and charged with second degree burglary when it was discovered that an apartment on North Randolph had been burglarized that afternoon.

On 10 July 1974 the jury found the defendant guilty of second degree burglary. From this judgment defendant appeals.

DID THE POLICE HAVE REASONABLE SUSPICION?

A limited field investigation and detention, not amounting to an arrest, is justified if from the totality of the surrounding circumstances it appears that the detaining officers had reasonable grounds for their action.

Our Court of Appeals has stated:

'The California Supreme Court, since Terry (Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889), has adopted the following test to determine whether a forced stop for interrogation or investigative purposes is justified: There must be a rational suspicion by the police officer that some activity out of the ordinary is or has taken place, some indication to connect the person under suspicion with the unusual activity, and some suggestion that the activity is related to crime. (citation omitted) We believe that the above is a well founded test in that it allows valid field investigation by the police while at the same time protects the individual citizen's Fourth Amendment rights.

'In light of the above we believe that Officers Bright and Crum were justified in stopping defendant for the purpose of conducting a limited field interrogation. His action in going to abnormal extremes to avoid uniformed police officers was not only suspicious conduct but also more consistent with criminal than innocent behavior.' State v. Baltier, 17 Ariz.App. 441, 448, 498 P.2d 515, 522 (1972). See also Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.E.2d 889 (1968); State v. Taras, 19 Ariz.App. 7, 504 P.2d 548 (1973); State v. Ream, 19 Ariz.App. 131, 505 P.2d 569 ...