State v. Fisher, 5611

CourtSupreme Court of Arizona
Citation686 P.2d 750,141 Ariz. 227
Docket NumberNo. 5611,5611
PartiesSTATE of Arizona, Appellee, v. James Clifford FISHER, Appellant.
Decision Date14 June 1984
Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Linda A. Akers, Asst. Attys. Gen., Phoenix, for appellee

Thornton W. Price, III, Phoenix, for appellant.

GORDON, Vice Chief Justice:

This is an appeal from a conviction of murder in the first degree, A.R.S. § 13-1105, for which defendant, James Fisher, has been sentenced to death. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031.

The body of Marguerite Bailey was discovered in an alley in the early morning hours of Sunday, September 13, 1981. Her car was found that evening in the parking lot of Uptown Plaza at Central Avenue and Camelback Road in Phoenix. On September 14, Sergeant Dennis Keith and Detective Larry Jennings of the Phoenix Police Department went to Bailey's condominium in search of investigative leads. While there, Sgt. Keith answered a telephone call from Curtis Griffith. Griffith was the Fishers' friend and neighbor, and a tenant at 716 E. Turney, the apartment complex owned by Bailey and managed by the defendant. Griffith was calling Bailey to ask her if she knew where the defendant and his wife, Ann Fisher, were. When Sgt. Keith told him that Bailey had been murdered over the weekend, he became alarmed. In response to Griffith's concern for the safety and well-being of the Fishers, Sgt. Keith and Det. Jennings entered the Fishers' apartment. Based on what they saw at that time, they obtained a search warrant and seized evidence that was introduced at trial.

On September 17, defendant and his wife were arrested at his mother's home in Davenport, Iowa by Detective Kenneth Rexroth of the Moline (Illinois) Police Department and Detective Ron VanFossen of the Davenport Police Department. Interrogation by the two officers produced a statement by Ann Fisher, inculpating the defendant, and a statement by the defendant.

The defendant made a pre-trial motion requesting suppression of the physical evidence removed from his home on September 14 and of the confession made on September 17 on the grounds that they were obtained pursuant to a warrantless, illegal search. The motion was denied.

On April 28, 1982, a jury found defendant guilty of first degree murder. He was sentenced to death. Defendant raises the following issues on appeal:

(1) Did the trial court err in denying defendant's motion to suppress?

(2) Did the trial court err by admitting a handwritten map and a rent receipt book found in defendant's apartment?

(3) Did the trial court abuse its discretion in refusing to admit into evidence two letters written by Ann Fisher to defendant?

(4) Did the trial court err in failing to admit the plea agreement between Ann Fisher and the state?

(5) Did the trial court erroneously admit evidence of the victim's habit of carrying large sums of money?

(6) Was defendant denied a fair trial by the introduction of evidence concerning the victim's bank account through the testimony of an undisclosed witness?

(7) Did the trial court err in refusing to instruct the jury on the crimes of negligent homicide and hindering prosecution?

(8) Did the trial court violate Ariz. Const. art. 2, § 12 by excusing two jurors who told the court they could not be fair and impartial because of their religious beliefs?

(9) Was the death penalty proper given the fact that a venire member with scruples against the death penalty had been excused?

(10) Did the trial court err in denying defendant's motion for a new trial based on Ann Fisher's post trial confession?

(11) Was the death penalty properly imposed?


The defendant challenges the trial court's denial of his motion to suppress the physical evidence seized from his apartment on the grounds that the initial warrantless entry violated his fourth amendment right to privacy. In response, the state claims that the trial court's denial was proper on one of the following grounds: (1) defendant lacked standing to challenge entry into his apartment because he had abandoned it; (2) "exigent circumstances" justified the entry; (3) the entry was a good faith welfare check; and (4) even if the entry did not satisfy the requirements of the fourth amendment, the fact that the evidence would have been inevitably discovered justified its admission.

It is well established in this state that a trial court's ruling on a motion to suppress will not be disturbed absent a clear abuse of discretion. State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983); State v. Ferreira, 128 Ariz. 530, 627 P.2d 681 (1981).

Though the trial court did not include in the record its reasons for denying the defendant's motion to suppress, we affirm its decision. 1 We find that the police officers' initial entry and survey of defendant's apartment for persons in need of aid was reasonable, that their subsequent search of the apartment and seizure of evidence was proper, and that the defendant cannot claim a right to privacy in the evidence seized because he had abandoned it.

The fourth amendment to the United States Constitution provides that

"The right of the people to be secure in their persons, houses, papers, and effects Warrantless searches are per se unreasonable under this amendment, subject only to a few specifically established, "jealously and carefully drawn" exceptions. Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514, 1519 (1958); see Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The burden is on the party seeking the exemption to show the need for it. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); State v. Wright, 125 Ariz. 36, 607 P.2d 19 (App.1979). Because physical entry of one's home is the chief evil against which the fourth amendment is directed, Payton, supra, any invasion into the privacy of the home must be given careful scrutiny. State v. Martin, 139 Ariz. 466, 679 P.2d 489 (1984); State v. Warren, 121 Ariz. 306, 589 P.2d 1338 (1978).

against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The emergency aid exception to the warrant requirement, which provides that officers of the state may enter a dwelling without the benefit of a warrant where they reasonably believe there is someone within in need of immediate aid or assistance, has been recognized by numerous state and federal courts. See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) and cases cited therein; State v. Mincey, 130 Ariz. 389, 636 P.2d 637 (1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1982); State v. Wright, supra; People v. Reynolds, Colo., 672 P.2d 529 (1983); United States v. Booth, 455 A.2d 1351 (D.C.App.1983); People v. Mitchell, 39 N.Y.2d 173, 347 N.E.2d 607, 383 N.Y.S.2d 246, cert. denied, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 (1976); State v. Jones, 45 Or.App. 617, 608 P.2d 1220 (1980). This exception is justified, if not required, by the fact that "the preservation of human life is paramount to the right of privacy protected by search and seizure laws and constitutional guaranties [sic]," Patrick v. State, 227 A.2d 486, 489 (Del.1967); Johnson v. State, 386 So.2d 302 (Fla.App.1980); see also People v. Mitchell, supra. Because it is not unreasonable for police to enter a dwelling for the purpose of providing emergency aid or assistance, such entries are not proscribed by the fourth amendment. Mitchell, supra. Furthermore, "[t]he right of the police to enter [a dwelling] and investigate in an emergency * * * is inherent in the very nature of their duties as peace officers," United States v. Barone, 330 F.2d 543, 545 (2d Cir.), cert. denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (1964); see also A.B.A. Standards for Criminal Justice § 1-2.2 (1982). Several courts, including our Court of Appeals, have recognized a general obligation of police officers to assist persons whom they reasonably believe are in distress. State v. Sainz, 18 Ariz.App. 358, 501 P.2d 1199 (1972); People v. Gallmon, 19 N.Y.2d 389, 227 N.E.2d 284, 280 N.Y.S.2d 356 (1967), cert. denied, 390 U.S. 911, 88 S.Ct. 832, 19 L.Ed.2d 884 (1968). Austin v. Scottsdale, 140 Ariz. 579, 684 P.2d 151 (1984).

Whether a warrantless entry was justified under the emergency aid exception is difficult for a court, detached from the on-the-scene pressures and emotions, to determine. In an effort to provide guidance for the courts of New York, the New York Court of Appeals has set forth the following as basic facts which a court must find in order to uphold a search based on the exception:

"(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.

"(2) The search must not be primarily motivated by intent to arrest and seize evidence.

"(3) There must be some reasonable basis, approximating probable cause, to Mitchell, supra, 39 N.Y.2d at 177-178, 347 N.E.2d at 609, 383 N.Y.S.2d at 248. 3 The reasonableness of a police officer's response in a given situation is a question of fact for the trial court. Its ruling will not be disturbed on appeal absent clear and manifest error. See State v. Boyer, 106 Ariz. 32, 470 P.2d 439 (1970); State v. Lloyd, 61 Hawaii 505, 606 P.2d 913 (1980). Because there is sufficient evidence on the record from which the trial court could have found each of these...

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1 books & journal articles
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