State v. Eminowicz
| Decision Date | 12 March 1974 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 21 Ariz.App. 417,520 P.2d 330 |
| Parties | STATE of Arizona, Appellee, v. Thadeus L. EMINOWICZ, Appellant. 562. |
| Court | Arizona Court of Appeals |
This appeal necessitates a determination as to whether or not there are any exceptions to the statutory requirement of announcement of purpose in execution of a search warrant (A.R.S. § 13--1446). In essence, the question is whether a 'noknock' warrant may be issued and executed in Arizona.
Appellant-defendant, Thadeus L. Eminowicz was charged with illegal possession of both heroin and marijuana. After the trial court denied defendant's motion to suppress evidence as a result of the execution of a search warrant, the matter was submitted to the court for trial without a jury on stipulated facts. Defendant was found guilty of possession of heroin only. He now appeals the trial court's denial of his motion to suppress.
The facts pertinent to the determination of this case are as follows: On January 26, 1972, Phoenix police officers secured a warrant to search a certain house in the City. The affidavit supporting the search warrant contained the following Information: 1
'On the date of January 26, 1972, at approximately 6 p.m., the affiant learned the following information in the following manner: The informant states that all of the named suspects do possess firearms and do at many times conceal the firearms on their person. The informant also related to affiant that these listed suspects keep their firearms near their person when asleep. Also suspects have told informant that they would shoot anyone who comes into the house uninvited, including cops. On one occasion when suspect John Ornett was arrested he had a loaded 380 caliber pistol on the seat beside him in the car.
'I, therefore, request that I receive a no-knock search warrant for the protection of both the officers and the subjects.'
The warrant was executed at 7:30 the following morning by the officers who proceeded to the residence where one officer was stationed at the door with his shoulder to it. Another officer called out, 'State Narcotics Officers, search warrant.' Simultaneously, or at least prior to any time for a response, the officers broke the door down and rushed into the residence and into the bedroom where all persons were found asleep. Narcotics were found in the subsequent search of the residence.
On this appeal, defendant questions the reasonableness of the search on constitutional grounds and also on the basis that the search was conducted in violation of A.R.S. § 13--1446. Because we find that the search and seizure is controlled by A.R.S. § 13--1446 we do not reach the constitutional issues.
Arizona, as most jurisdictions, has enacted a statute which sets forth the requirements of announcement of purpose and authority prior to a forcible entry when executing a warrant. A.R.S. § 13--1446 (as amended) sets forth the following standards:
'B. An officer may break into a building, premises, or vehicle or any part thereof, to execute the warrant when:
'1. After notice of his authority and purpose, he receives no response within a reasonable time.
Under the facts of this case there can be no serious contention that this clear and unambiguous statute was complied with, by allowing a reasonable time for response to the announcement of authority. The state argues however that there are exceptions to this statute and that the facts of this case fall within one of those exceptions.
The contention that exceptions to this statute exist is based upon the Arizona Supreme Court dictum in State v. Mendoza, 104 Ariz. 395, 454 P.2d 140 (1969), which stated:
'. . . to justify an exception to this section of the Arizona Code (A.R.S. § 13--1446(B)) providing for an announcement of the presence and purpose of the officers, there must be substantial evidence to cause the officers to believe that the evidence which they are seeking would be destroyed if their presence and purpose were announced . . ..' 104 Ariz. at 400, 454 P.2d at 145.
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Davis v. State
...("No statutory authority exists under Florida law for issuing a no-knock search warrant," citing Parsley); State v. Eminowicz, 21 Ariz.App. 417, 520 P.2d 330, 331-32 (1974) (holding that justice of the peace "had no authority, statutory or judicial, to issue a "no-knock" search warrant," ob......
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State v. Cook
...a statute--that is the province of the Legislature * * * we decline now to engage in judicial legislation.' State v. Eminowicz, 21 Ariz.App. 417 at 419, 520 P.2d 330 at 332 (1974). Cases dealing with A.R.S. § 13--1446 have applied the exclusionary rule to evidence seized following an unlawf......
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State v. Carroll, 25
...9 Cal.3d 934, 109 Cal.Rptr. 563, 513 P.2d 611, 615 (1973); State v. Bamber, 630 So.2d 1048, 1050-51 (Fla.1994); State v. Eminowicz, 21 Ariz.App. 417, 520 P.2d 330, 332 (1974); State v. Acre, 83 Or.App. 185, 730 P.2d 1260, 1262 (1987), holds that statutory authority is a prerequisite to the ......
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State v. Gutierrez
...to be that such warrants are invalid absent statutory authorization. See 2 W. LaFave, Search & Seizure Sec. 4.8(g); State v. Eminowicz, 21 Ariz.App. 417, 520 P.2d 330 (1974); compare State v. Cleveland, 118 Wis.2d 615, 348 N.W.2d 512 (1984). However, we note that in Sanchez, the supreme cou......