State v. Eliason

• Decision Date: 08 January 1976
• Docket Number: CA-CR,No. 1,1
• Citation: 544 P.2d 1124,25 Ariz.App. 523
• Parties: STATE of Arizona, Appellee, v. Terry James ELIASON, Appellant. 1095.
• Court: Arizona Court of Appeals

Page 1124

544 P.2d 1124

25 Ariz.App. 523

STATE of Arizona, Appellee, v. Terry James ELIASON, Appellant.

No. 1 CA-CR 1095.

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

Jan. 8, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div., and Stanley L. Patchell, Asst. Attys. Gen., Phoenix, for appellee

Rose P. Lee, Maricopa County Public Defender by Rudolph J. Gerber, Deputy Public Defender, Phonix, for appellant.

OPINION

HAIRE, Chief Judge, Division 1.

Pursuant to A.R.S. § 13--621 the defendant was convicted of receiving stolen property, and was placed n probation for five years. One of the conditions of probation was that he serve one year in the county jail. He has filed this appeal, contending that the evidence which led to his conviction was inadmissible because it was obtained as a result of an unlawful search and seizure.

The defendant filed a motion to suppress which was submitted to the trial court on the record made at defendant's preliminary hearing. At a motion to reconsider the denial of the motion to suppress, it was stipulated that if the trial court should uphold its original denial of defendant's motion, then defendant's guilt or innocence should be determined from the preliminary hearing record and the police reports. The facts pertinent to defendant's contention that his initial detention and subsequent search were violative of his Fourth Amendment rights are as follows.

On July 16, 1974, at 3:00 a.m., as Phoenix police officer Willard Reger pulled into the parking lot of a convenience market located at 9019 North 19th Avenue, he observed a man standing in the shadows near the building. Officer Reger recognized this man and thought that there was a traffic warrant outstanding against him. He also observed the defendant who was standing inside the store at the counter. The officer noted the license of a vehicle parked in the lot and observed both men run to the car and leave the lot in such a manner that the vehicle's tires made a screeching noise. The officer went into the store to determine whether a robbery had occurred. He observed that the clerk was all right, and in response to his inquiry the clerk informed him that the man the officer had seen standing at the counter had offered the clerk a turquoise ring in exchange for an after-hours sale of a six-pack of beer. The defendant had told the clerk that the ring was worth $20, but the clerk said he belived it to be much more valuable. These observations, combined with the officer's knowledge of recent turquoise jewel thefts in the area, caused him to pursue the vehicle.

The officer stopped the pursued vehicle on Dunlap Avenue, several blocks from the store. At that time both occupants quickly got out of the car and approached him. He ordered them to place their hands in view and had them stand near a block wall. The officer then shined his flashlight into their vehicle to determine whether it contained other occupants. While looking into the car, he observed two wristwatches and a jewelry case between the front seats.

The officer then approached the occupants to discuss their actions at the store. He observed that the defendant, who was shirtless, was wearing several items of turquoise jewelry, including a necklace. He questioned the defendant's companion about the transaction at the convenience market and was informed they were only trying to make a purchase. They were then read their Miranda rights by the officer. Pursuant to subsequent questioning, the defendant's companion produced the turquoise ring from his pocket that had been used in the attempt to purchase beer at the market and told the officer he had purchased it for $20. The officer then requested the keys to the vehicle. Defendant refused and both men were placed in the police vehicle. The officer went to defendant's vehicle, opened the driver's door and observed the keys in the ignition. He also observed various items of jewelry in the car and then proceeded to open the trunk which contained numerous items of turquoise jewelry.

Defendant's argument that the initial detention was unreasonable is without merit. The facts observed by the officer and information related to him by the store clerk clearly gave rise to a rational and reasonable suspicion on his part that criminal activity might be afoot. Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Ruiz, 19 Ariz.App. 84, 504 P.2d 1307 (1973); State v. Baltier, 17 Ariz.App. 441, 498 P.2d 515 (1972). The reasonableness of the governmental invasion of the citizen's personal security is the central inquiry in an investigatory stop such as this, State v. Ruiz, supra. The observed behavior of the defendant and his companion, coupled with the officer's information concerning the ring and his knowledge of recent turquoise jewel thefts, is clearly sufficient to furnish a rational foundation for the initial detention.

Defendant next argues that the search of his car was unlawful because not made upon probable cause. While warrantless searches of automobiles are more readily upheld than similar searches of homes, offices or buildings, because of the mobility of automobiles, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Benge, 110 Ariz. 473, 520 P.2d 843 (1974), such searches, nevertheless, must be supported by probable cause. An officer has probable cause to make a warrantless search of a vehicle when he has a reasonable belief, arising out of circumstances known to him, that the vehicle contains contraband. Chambers v. Maroney, supra; State v. Lawson, 107 Ariz. 603, 491 P.2d 457 (1971); State v. Williamson, 20 Ariz.App. 397, 513 P.2d 686 (1973). Here, there is substantial evidence supporting the trial court's conclusion that Officer Reger had probable cause to believe, prior to beginning his warrantless search, that he would find contraband from a recent jewel theft. Immediately after stopping defendant's vehicle the officer observed a jewelry box and wristwatches in the vehicle. He observed defendant wearing numerous artcles of turquoise Indian jewelry and was given a suspicious explanation as to the acquisition of the ring in light of the clerk's evaluation of the ring. These additional facts which became known to the officer after the stop, coupled with his previous observations of the defendant and his companion at the store, the information obtained from the store clerk, and the officer's knowledge of recent turquoise burglaries created a substantial evidentiary basis in support of the trial court's determination that probable cause for the search existed. When the trial court's determination is supported by substantial evidence, this Court will not substitute its evaluation of the evidence in an attempt to reach or justify a different conclusion. Compare State v. Ballinger, 19 Ariz.App. 32, 504 P.2d 955 (1973); State v. McMann, 3 Ariz.App. 111, 412 P.2d 286 (1966); Burke v. Superior Court in and for the County of Sonoma, 39 Cal.App.3d 28, 113 Cal.Rptr. 801 (1974); With Navajo Freight Lines, Inc. v. Liberty Mutual Ins. Co., 12 Ariz.App. 424, 471 P.2d 309 (1970). We therefore hold that the trial court properly denied defendant's motion to suppress and that therefore, the evidence which led to his conviction was properly admitted.

Under A.R.S. § 13--1715, this Court is required to search the record for fundamental error, regardless of defendant's failure to object at trial or to raise the issue on appeal. State v. Mendiola, 112 Ariz. 165, 540 P.2d 131 (1975); State v. Hanley, 108 Ariz. 144, 493 P.2d 1201 (1972); State v. James, 10 Ariz.App. 394, 459 P.2d 121 (1969). Reversal is required where the fundamental error was prejudicial to the defendant. State v. Anderson, 110 Ariz. 238, 517 P.2d 508 (1973); State v. Mendiola, supra. After reviewing the record, it is evident that there were two instances in which fundamental error may have occurred. As a result we are confronted by two issues. First, following the defendant's request for submission of the issue of guilt based upon the preliminary hearing transcript and police report, did the defendant comprehend the significance of the submission, and knowingly waive his rights? Second, was the judgment rendered absent evidence in the record of one of the elements of the offense of felonious receipt or purchase of stolen property? Both the State and the appellant, at the request of the court, have filed supplemental memoranda on these issues.

In State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974), the Supreme Court, faced with a defendant who had also submitted the issue of guilt based upon the preliminary hearing record, stated that:

'The trial court must determine, and the record must reflect, that the defendant understood the significance and consequences of submitting the case on the basis of the preliminary hearing transcript. It must affirmatively appear in the record that the defendant knew that he was giving up the right to trial by jury, to testify in his own behalf, to call any witnesses, ot to offer any further evidence. The record must reflect that the defendant understood that the whole issue of his guilt or innocence of the offense charged was to be made upon the preliminary hearing transcript.' 528 P.2d at 837.

The Supreme Court declared that the defendant-Crowley's signing of a document entitled 'WAIVER OF RIGHT TO TRIAL BY JURY AND AGREEMENT TO SUBMIT CASE ON TRANSCRIPT' was not sufficient, in and of itself, to indicate a knowledgeable waiver of those rights enumerated by the court.

This Court has concluded that the following dialogue between the trial judge and defendant, which occurred subsequent to the defendant's request for submission, when coupled with his signing of a document similar to that signed by the defendant in Crowley, indicates that the defendant did knowingly waive his rights:

'THE COURT: . . . your lawyer mentioned to me...