State v. Hadd
| Decision Date | 23 September 1980 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 127 Ariz. 270,619 P.2d 1047 |
| Parties | The STATE of Arizona, Appellee, v. Charles Frederick HADD, Appellant. 1952. |
| Court | Arizona Court of Appeals |
On December 6, 1979, the appellant, Charles Frederick Hadd, was convicted of unlawful possession of a narcotic drug for sale and unlawful possession of marijuana for sale, with a prior conviction for unlawful possession of marijuana for sale. From these convictions and a sentence of imprisonment in the Arizona State Prison for five to six years, he appeals.
The facts pertinent to this appeal are as follows. On the evening of July 6, 1978, a group of law enforcement officials from a variety of agencies, acting on an informant's tip, met in Tucson to conduct a "buy-bust" operation on a suspected marijuana dealer, Robert Gartmann. The agents set up surveillance of Gartmann's residence, and two undercover agents as well as the informer drove up to the apartment. The informant talked with Gartmann briefly, then returned to the agents' car. After the undercover agents drove away, Gartmann entered his vehicle and was followed by another surveillance unit to a local convenience market, where he made a phone call. After returning to his residence for a few minutes, he again entered his car and drove to appellant's residence. He parked in appellant's driveway and appeared to go into appellant's house. Several minutes later, Gartmann left and drove back to his apartment.
A few minutes later, the undercover agents and the informant drove back to Gartmann's apartment, and Gartmann joined them in their unmarked car. Gartmann presented a small bag of marijuana to the agents and said he could sell them approximately one-half pound for $280. After negotiations, the parties agreed on a price and parted company. Gartmann was then observed driving to a pay telephone, making a phone call, and returning to appellant's residence. After 15 to 20 minutes, Gartmann returned directly to his apartment, where he was arrested. A search of his vehicle revealed a package which contained marijuana.
Some of the agents then proceeded to the Department of Public Safety headquarters where they obtained a telephonic search warrant for both Gartmann's and appellant's residences. Armed with the warrant, the agents went to appellant's home, arrested him and others in the house, and after a thorough search confiscated a quantity of marijuana, as well as cocaine, weighing scales and narcotics paraphernalia.
Appellant raises a variety of issues on appeal, which will be discussed in the following order:
1. Did the failure of the agent and the justice of the peace to strictly comply with the statutory requirements for a telephonic search warrant violate appellant's due process rights?
2. Did consideration of a tape recording of the telephonic search warrant not in evidence by the judge at the suppression hearing violate appellant's due process rights?
3. Did alleged misrepresentations in the search warrant affidavit vitiate the warrant, and was the warrant supported by probable cause?
4. Was the search of appellant's residence a general search, prohibited by the Fourth Amendment?
5. Does a violation of Rule 9.3 by the deputy county attorney and state's witnesses require reversal?
6. Did the trial court abuse its discretion in allowing the state to allege a prior conviction on the date of trial?
The affidavit for the search warrant in this case was prepared by Louis Chaboya, a criminal investigator for the Department of Public Safety. Chaboya phoned a justice of the peace late in the evening on July 6 and read the prepared affidavit to him. He was instructed that probable cause existed for a search and that he should complete a duplicate original search warrant. Chaboya did so, signing the warrant in the magistrate's name. The following day, he gave the tape recording of the phone call to a DPS secretary for transcription. Eventually this transcript was returned to the justice court, although it was originally misfiled. An affidavit of inventory seized at appellant's residence, signed by the magistrate, was also filed, along with the duplicate original search warrant. Apparently, no original search warrant was ever prepared or signed by the magistrate. The magistrate also failed to certify the transcription of the telephone conversation, as Agent Chaboya maintained possession of the tape recording up until the date of the suppression hearing.
The statutory provisions concerning telephonic search warrants in effect when the warrant herein was executed included:
Sec. 13-1444 (currently § 13-3914):
"A. The magistrate may, before issuing the warrant, examine on oath the person or persons, seeking the warrant, and any witnesses produced, and must take his affidavit, or their affidavits, in writing, and cause the same to be subscribed by the party or parties making the affidavit. The magistrate may also, before issuing the warrant, examine any other sworn affidavit submitted to him which sets forth facts tending to establish probable cause for the issuance of the warrant.
B. The affidavit or affidavits must set forth the facts tending to establish the grounds of the application, or probable cause for believing they exist.
C. In lieu of, or in addition to, a written affidavit, or affidavits, as provided in subsection A, the magistrate may take an oral statement under oath which shall be recorded on tape, wire, or other comparable method. This statement may be given in person to the magistrate, or by telephone, radio, or other means of electronic communication. This statement shall be deemed to be an affidavit for the purposes of issuance of a search warrant. In such cases if a recording of the sworn statement has been made, the magistrate shall direct that the statement be transcribed and certified by the magistrate and filed with the court."
Sec. 13-1445 (currently § 13-3915):
Sec. 13-1448 (currently § 13-3918):
Appellant contends that because certain provisions of these statutes were not followed, the warrant authorizing the search of his residence was invalid and all evidence seized thereunder must be suppressed.
When a question is raised in regard to a search warrant, we must determine whether statutory procedure has been substantially followed and whether the court issuing the warrant had sufficient grounds upon which to base its decision. State v. Kelly, 99 Ariz. 136, 407 P.2d 95 (1965). There is a presumption in favor of the validity of a search warrant. Id. Arizona's statutes authorizing telephonic search warrants were adopted from the California Penal Code, and we may look to decisions of that state in interpreting them. State v. McMann, 3 Ariz.App. 111, 412 P.2d 286 (1966). These statutes should be interpreted to promote rather than defeat the general policies of the law and to produce a result that is reasonable. People v. Peck, 38 Cal.App.3d 993, 113 Cal.Rptr. 806 (1974). The emphasis should be upon substance, not form, in the issuance of a telephonic search warrant. People v. Chavez, 27 Cal.App.3d 883, 104 Cal.Rptr. 247 (1972).
The issuing magistrate failed to certify the contents of the transcribed recording in this instance pursuant to former § 13-1444(C). Although the duplicate original warrant was filed with the court, the magistrate did not file an original warrant pursuant to former § 13-1445(C). Agent Chaboya neglected to include citations in his duplicate warrant, and failed to enter the exact time of execution on the warrant, in violation of former §§ 13-1445(B) and 1448(B).
Neither our courts nor those of California have considered the effect of violations of this nature. In Yuma County Attorney v. McGuire, 109 Ariz. 471, 512 P.2d 14 (1973), it was held that an issuing judge's inadvertent failure to sign a warrant did not affect its validity. In State v. Smith, 112 Ariz. 531, 544 P.2d 213 (1975), the failure of the state to produce the search warrant affidavit was held not to invalidate a search warrant. Technical violations such as failure to record the administration of the oath (State v. Mead, 120 Ariz. 108, 584 P.2d 572 (App.1978)), failure to return the warrant within the prescribed period (State v. Tillery, 107 Ariz. 34, 481 P.2d 271 (1971), cert. den. 404 U.S. 847, 92 S.Ct. 151, 30 L.Ed.2d 84 (1971)), and use of a copy rather than the original search warrant at trial. (State v. Sherrick, 98 Ariz. 46, 402 P.2d 1 (1965), cert. den. 384 U.S. 1022, 86 S.Ct. 1938, 16 L.Ed.2d 1024 (1966)), have been held not fatal to the validity of a warrant. On the other hand, the failure to record the statements made to obtain a telephonic search warrant or to make them under oath will render the warrant invalid. State v. Boniface, 26 Ariz.App. 118, 546 P.2d 843 (1976). The failure to execute any writing before...
To continue reading
Request your trial
-
State v. Fierro
...that a trial judge, aware of the rules of evidence, will not consider inadmissible evidence in making his ruling. State v. Hadd, 127 Ariz. 270, 619 P.2d 1047 (Ct.App.1980). In State v. Beaty, we held that "[a]bsent proof to the contrary, the trial judge in a capital case must be presumed to......
-
State v. Brewer
...will not consider inadmissible evidence in making his ruling." Fierro, 166 Ariz. at 548, 804 P.2d at 81, citing State v. Hadd, 127 Ariz. 270, 275, 619 P.2d 1047, 1052 (App.1980). "Absent proof to the contrary, the trial judge in a capital case must be presumed to be able to focus on the rel......
-
State v. Gulbrandson
... ... at 294-95, 686 P.2d at 1264-65. In this case, defendant does not allege that the prosecutor talked to the witnesses jointly. Moreover, even if rule 9.3 were violated, defendant must show he was prejudiced, which he has not done. State v ... Page 597 ... [184 Ariz. 64] Hadd, 127 Ariz. 270, 277, 619 P.2d 1047, 1054 (App.1980) ... Furthermore, defendant alleges that the prosecutor talked to these witnesses about the manner of Irene's death, but the testimony of these witnesses involved subjects unrelated to the manner of her death. Elaine Randall was ... ...
-
State v. Read
...The authority the Court of Appeals relied on, State v. Melton, 63 Wash.App. 63, 68, 817 P.2d 413 (1991) and State v. Hadd, 127 Ariz. 270, 275, 619 P.2d 1047 (Ct.App.1980), is inapposite because in both cases the reviewing court concluded there was no error. Read, 106 Wash.App. at 147 n. 1, ......