State v. Harris
| Decision Date | 26 February 1982 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 642 P.2d 485,131 Ariz. 488 |
| Parties | The STATE of Arizona, Appellant/Cross Appellee, v. James Alan HARRIS, Appellee/Cross Appellant. 2449. |
| Court | Arizona Court of Appeals |
This is an appeal from the partial granting of a motion to suppress and a cross-appeal from the partial denial of a motion to suppress. We vacate the order granting the partial suppression and affirm the partial denial. The witness who testified at the motion to suppress was Herbert Bay, a detective with the Tucson Police Department. His testimony reveals that in May 1980, a construction site in Tucson was burglarized and four construction companies and Pima County lost a substantial amount of valuable property.
On October 6, 1980, James Edwards telephoned the Tucson Police Department and indicated that he had information about the burglary. Detectives Bay and Ormsby met with Edwards who told them that he knew there had been a burglary at the construction site of the waste water management facility. Furthermore, he told them that nine days earlier he had seen a large quantity of property taken in the burglary in the possession of appellee and that appellee had bragged to him about having stolen the property.
Edwards described this property in great detail. He stated that he had seen a Motorola walkie-talkie radio inscribed with the words "Newberry Mechanical Division, No. 7" at appellee's residence. Detective Bay asked Edwards to try to bring the radio to him so that the serial number could be checked to determine if the radio had been stolen.
After speaking with Edwards, Detective Bay confirmed the fact that the Newberry Construction Company had lost property in the May burglary. He then contacted the mechanical division of Newberry and spoke to Don Laurant who confirmed the fact that the company had lost a Motorola radio inscribed with the words "Newberry Mechanical Division, No. 7" in the burglary.
The following morning, Edwards brought the Motorola radio to the police station. He said appellee had given the radio to one Morris Brown who in turn gave it to him. The same day, Detective Ormsby took the Motorola radio to Newberry where it was examined by Laurant who confirmed that the radio belonged to Newberry and had been stolen in the May burglary.
Detective Bay then contacted each company that had been victimized in the burglary and obtained from each a written list of items taken. These lists were compared to the list of property that Edwards reported seeing at appellee's residence. Every item that Edwards saw at appellee's residence also appeared on the lists provided by the companies.
That same day the detectives, accompanied by Edwards, drove to appellee's address to get an idea of the layout of the premises. Appellee's residence is located on a large lot where there are several other buildings, including other residences, a carport and a garage. A large tree growing on the property and a car sitting up on blocks prevented the detectives from seeing at this time a small shed located about 50 feet east of appellee's residence.
After viewing the premises, the detectives drew up an affidavit based on the information provided by Edwards and obtained a warrant to search appellee's residence as well as the garage located there. The search warrant was served and during the search Detective Bay located the shed. He asked appellee about it and appellee told him that it was just a crumbling facility and that the landlord and other people in the area used it to store things that were not wanted. He told Detective Bay that he did not have anything in the shed. Detective Bay walked over to the shed and noticed that the door was unlocked and partially open. A rock placed in front of the door prevented it from opening further but in looking into the shed through the partially-opened door, Bay saw some construction tripods matching the description of tripods stolen in the May burglary.
Believing that the shed contained stolen property, Bay telephoned the justice of the peace who issued the original search warrant and told him about the shed. The justice of the peace amended the search warrant to include the shed. The shed was searched and stolen property recovered. Stolen property was also recovered from appellee's residence. The parties stipulated that the state could file its written opposition to the motion to suppress after the hearing. The state did so and in its opposition attacked the standing of appellee to raise a Fourth Amendment violation. The trial court, in granting the motion to suppress, concluded that appellee had standing by virtue of the fact that the original search warrant was directed against appellee and the search of the shed was conducted by virtue of an amendment to the original search warrant and not under a new search warrant. We are unable to agree with the trial court's...
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