State v. Grijalva

• Citation: 533 P.2d 533,111 Ariz. 476
• Decision Date: 24 March 1975
• Docket Number: No. 2986,2986
• Parties: STATE of Arizona, Appellee, v. Frank Ares Daniel GRIJALVA, Appellant.
• Court: Supreme Court of Arizona

Page 533

533 P.2d 533

111 Ariz. 476

STATE of Arizona, Appellee, v. Frank Ares Daniel GRIJALVA, Appellant.

No. 2986.

Supreme Court of Arizona, In Banc.

March 24, 1975.

Rehearing Denied April 22, 1975.

N. Warner Lee, Former Atty. Gen., Bruce E. Babbitt, Atty. Gen., by Thomas A. Jacobs and Georgia Butcher, Asst. Attys. Gen., Phoenix, for appellee.

John M. Neis, Pima County Public Defender, by Charles E. Babbitt and Lindsay Brew, Asst. Public Defenders, Tucson, for appellant.

HAYS, Justice.

Frank Ares Danied Grijalva was found guilty by a jury and sentenced on the following counts: (1) first degree armed burglary in violation of ARS § 13--302, not less than 5 nor more than 10 years in the Arizona State Prison; (2) first degree rape, ARS § 13--611, not less than 20 nor more than 30 years; (3) first degree armed burglary, ARS § 13--302, not less than 5 nor more than 10 years; (4) assault with intent to commit rape, ARS § 13--252, not less than 13 nor more than 14 years. All sentences are to run concurrently.

These counts arose from two separate incidents in which the defendant entered the home of the victim at night and raped or attempted to rape her. In neither case could the victim make an in-court identification of the defendant as the assailant.

Prior to trial, the defense sought to suppress certain evidence taken pursuant to ARS § 13--1424, including photographs of the defendant, his fingerprints, and six hairs from his head. The evidence was taken from Grijalva at the Tucson Police Department one week prior to his arrest. The motion to suppress the evidence was denied. At the trial, there was testimony to the effect that the defendant's fingerprints matched the latent prints found at the home of each of the victims and that hairs found on the pantyhose of one of the women matched those of Grijalva.

On appeal, Grijalva contends that ARS § 13--1424 is violative of the Fourth Amendment to the United States Constitution on its face and as applied in this instance. He also maintains that a person cannot be convicted of armed burglary if the evidence shows that the assailant armed himself after entering the victim's house.

ARS § 13--1424 provides for the temporary pre-arrest detention of an individual for the purpose of obtaining evidence of physical characteristics such as photographs, fingerprints and hair samples. The detention is pursuant to a magistrate's order which is in force for 15 days and the period of detention cannot exceed three hours at a time and place directed by the court. In addition, the order must include the alleged criminal offense which is the subject of the investigation, the specific type of identifying physical characteristic evidence sought, the relevance of such evidence to the investigation, the identity or description of the individual detained, and the name and official status of the investigative peace officer authorized to effectuate the detention and obtain the evidence. It is the duty of this court to uphold statutes if the language will permit although the statute in question may not be 'artfully drawn.' Peterson v. Sundt, 67 Ariz. 312, 195 P.2d 158 (1948). We uphold the statute at issue here.

A search can be defined as an examination of one's person 'with a view to the discovery of . . . evidence of guilt to be used in prosecution of a criminal action.' Haerr v. United States, 240 F.2d 533, 535 (5th Cir. 1957). A search of one's person is obviously predicated on a seizure. The Fourth Amendment protects persons from unreasonable searches and seizures and further provides that warrants shall issue only on probable cause. A temporary detention order is not, however, of the stature of a warrant necessitating probable cause. An arrest is a uniquely harsh restriction of liberty with severe consequences for the one arrested; a detention for no more than three hours is a significantly lesser invasion.

'Substantial considerations favor the recognition of a carefully limited right of brief police detention on less than probable cause to believe the person detained has committed a felony. If even slight interference with freedom of personal movement is invariably conditioned upon a showing of prior probable cause, then either the standard of probable cause will be lowered and with it the protection against formal arrests and substantial interferences with liberty; or police activity which appears perfectly proper when measured against a standard of reasonableness will nonetheless be forbidden.' Gilbert v. United States, 366 F.2d 923, 928 (9th Cir. 1966).

The United States Supreme Court recognized the distinction between a detention and an arrest in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court developed the analysis of Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), of reasonableness as the primary inquiry of the Amendment, reasonableness in considering 'all the circumstances of the particular governmental invasion of a citizen's personal security.' Terry v. Ohio, 392 U.S. at 19, 88 S.Ct. at 1878--79. The necessity of the search is balanced against the invasion of the privacy of the citizen that the search entails. Terry v. Ohio, Supra; Camara v. Municipal Court, Supra.

The Terry court suggested that an officer may make an intrusion upon an individual short of an arrest when lacking 'facts sufficient to warrant a belief that the person has committed or is committing a crime . . .' 392 U.S. at 26, 88 S.Ct. at 1882. This was elaborated upon in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

In Davis, the only issue before the Court was whether the fingerprints obtained from one later accused should have been excluded as the product of a pre-arrest detention without a warrant and without probable cause.

The rape victim in Davis could only describe her assailant as a Negro youth. The local police over a period of ten days took at least 24 youths, including Davis, to headquarters where they were questioned, fingerprinted and released. The police also questioned another 40 or 50 persons of the same general description. Eventually, Davis was fingerprinted a second time and confined overnight. The State conceded that the police were acting without probable cause, but in defending its actions, contended that the Fourth Amendment was not applicable to the investigatory process.

'Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrests' or 'investigatory detentions.' We made this explicit only last Term in Terry v. Ohio (supra) . . .

'Detentions for the sole purpose of obtaining fingerprints are no less subject to the constraints of the Fourth Amendment. It is arguable, however, that, because of the unique nature of the fingerprinting process, such...