State v. Hein

• Decision Date: 02 December 1983
• Docket Number: No. 5696,5696
• Citation: State v. Hein, 138 Ariz. 360, 674 P.2d 1358 (Ariz. 1983)
• Parties: STATE of Arizona, Appellee, v. Edward Ronald HEIN, Appellant.
• Court: Arizona Supreme Court

Page 1358

674 P.2d 1358

138 Ariz. 360

STATE of Arizona, Appellee, v.Edward Ronald HEIN, Appellant.

No. 5696.

Supreme Court of Arizona, In Banc.

Dec. 2, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schaefer, III and Robert S. Golden, Asst. Attys.Gen., Phoenix, for appellee.

Paul E. Hunter, Yuma, for appellant.

HAYS, Justice.

On April 16, 1982appellantEdward Hein, Jr., and his codefendant Daniel Crivellone attempted to rob a Circle K convenience store in Ehrenberg, Arizona.During the attempt, Crivellone shot and killed the store clerk.Both Crivellone and appellant Hein were convicted of felony-murder, attempted armed robbery, and conspiracy to commit armed robbery.Both were sentenced to life imprisonment without possibility of parole for twenty-five years for the first degree murder convictions, fifteen years imprisonment for the attempted armed robbery convictions, and fourteen years imprisonment for the conspiracy convictions.All sentences for both defendants were ordered to run concurrently.Hein appeals his conviction, alleging that the arresting officers did not have probable cause to arrest, that his Miranda rights were violated, that his confessions were involuntary, and that he received ineffective assistance of counsel.We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3),A.R.S. § 13-4031, andA.R.S. § 13-4035.

PROBABLE CAUSE

Hein first alleges that he was arrested without probable cause and that the fruits of that arrest--the gun with which the crime was committed, ammunition, and confessions--should have been suppressed.Hein and Crivellone were arrested in Las Vegas, Nevada on April 18, 1982, two days after the shooting at the Ehrenberg Circle K. The Las Vegas officers acted pursuant to an "attempt to locate"("A.T.L.") request issued by Officer Michael Newman of the Yuma County Sheriff's Department.No one questions that the Las Vegas officers were entitled to act based upon the A.T.L.See, e.g., State v. Everett, 110 Ariz. 429, 431, 520 P.2d 301, 303, cert. denied, 419 U.S. 880, 95 S.Ct. 144, 42 L.Ed.2d 120(1974);State v. Richards, 110 Ariz. 290, 291-92, 518 P.2d 113, 114-15(1974).The question is whether the information known by Officer Newman at the time of the arrest amounted to probable cause.We conclude that it did.

Officer Newman arrived at the Ehrenberg Circle K on April 16, 1982, at approximately 6:30 a.m., shortly after two deputies of the Riverside County(California) Sheriff's Department had arrived at the scene.Officer Newman learned that one of those deputies, Deputy Luis Ferreira, had spoken to the victim during his last moments of consciousness.The victim had indicated there were two suspects, both young Caucasians.Deputy Ferreira showed Officer Newman a .22-caliber shell casing found on the floor near one of the cash registers.This shell had an "F" mark on it, indicating it was a Federal brand.

In addition to these facts, the Riverside deputies informed Officer Newman that between one and one-half hours before the shooting, a suspicious circumstance involving two young white males had been reported from a Circle K store in Blythe, California, only a few miles from the Ehrenberg store.Upon inquiring with Blythe authorities, Newman learned that the Blythe incident involved two young white males who entered the store and began to play video games.When the store clerk and store owner noticed one of the persons had what appeared to be a gun barrel or tire iron sticking out of his sleeve, the clerk called the police.Upon seeing the clerk on the telephone, the suspects left the store.The clerk observed the car as it was leaving and noted the license plate number.Newman received from the Blythe authorities the store clerk's description of the suspects and the automobile, and the license plate number (OregonKTA-548).

By checking the national crime computer, Officer Newman shortly thereafter learned that the automobile with Oregon license number KTA-548 was listed as a missing vehicle with missing juveniles as occupants.The computer missing persons report identified the juveniles as Edward Hein and Daniel Crivellone.The report, combined with a discussion with a Detective Peterson of the Clackamas County(Oregon) Sheriff's Department, revealed that the descriptions of Hein and Crivellone matched those of the persons seen at the Blythe Circle K.These sources also revealed that the youths had stolen a Sterling automatic .22-caliber handgun from Hein's father.

In early afternoon of the 16th, Newman contacted appellant Hein's father.The resulting conversation revealed that in addition to the gun, the suspects had taken .22-caliber "F" Federal brand ammunition.Newman then spoke to Crivellone's father and received a more detailed description of the automobile.That same afternoon Newman learned the autopsy of the victim showed a .22-caliber bullet caused the death.

Finally, Newman contacted a Mr. Griffith.Mr. Griffith delivers the Los Angeles Times to several locations in the Ehrenberg area, including the Ehrenberg Circle K.Mr. Griffith stated that when delivering papers that morning (the morning of the shooting)he arrived at the Ehrenberg Circle K at about 5:30 and observed a car with Oregon plates parked in the Circle K parking lot.Mr. Griffith's description of the vehicle basically matched the description of the vehicle seen at the Blythe store.

We conclude that this information, known by Officer Newman at the time of the arrest, was sufficient to support a warrantless arrest.To be lawful a warrantless arrest must be based on probable cause.The arresting officers must have probable cause to believe a felony has been committed and that the person to be arrested committed it.A.R.S. § 13-3883.Probable cause exists when the facts and circumstances known at the time of the arrest are sufficient to lead a reasonable person to believe a felony was committed by the person to be arrested.State v. Sardo, 112 Ariz. 509, 515, 543 P.2d 1138, 1144(1975).

At the time of the arrest, Officer Newman knew the following information: death was caused by a .22-caliber bullet, and the suspects were carrying a .22-caliber gun; a .22-caliber Federal brand casing was found at the scene of the crime, and the suspects had in their possession Federal brand .22-caliber ammunition; the description of the persons seen at the Blythe Circle K matched the description in the Oregon missing persons report, and both descriptions were consistent with the information given by the victim; the description of the vehicle at the Blythe Circle K matched the description in the Oregon report and the description of the vehicle seen at the Ehrenberg Circle K the morning of the shooting; the license plate number of the automobile seen at the Blythe Circle K matched that of the vehicle listed in the Oregon missing vehicle report.This information is sufficient to lead a reasonable person to believe the suspects were the ones who had committed the felony.

MIRANDA WARNINGS

Hein next asserts that at the arrest his Miranda warnings were not timely given.On the day of the arrest, Las Vegas Officer Martin Lehtimen spotted the suspects' vehicle.When Lehtimen recognized the vehicle to be one listed on the police department "hotsheet," and one about which he had been briefed that morning, he called for assistance.Three officers--Bechtol, Hefner and Brunz--arrived and helped Lehtimen stop the car.The officers ordered Hein and Crivellone to leave the car and lie face down on the ground.Hein and Crivellone complied, lying within a few feet of the car doors, which remained open.Officer Lehtimen took care of Crivellone and Officer Hefner frisked Hein.Officer Bechtol first assisted Lehtimen and then Hefner.

During the frisk, when it appeared that no weapon would be found on Hein's person, Officer Hefner posed the following question to Hein: "Where is the gun?"Hein answered that it was in the car under the seat.Hefner finished frisking Hein and secured (handcuffed) him.Hefner then gave Hein his Miranda warnings.During the frisk, Officer Bechtol assisted in controlling Hein, standing a few feet from Hein with his (Bechtol's) shotgun pointed toward Hein's head.

Upon Hein being secured, Bechtol started searching for the gun.Hefner joined in the search after giving Hein the Miranda warnings.Officer Bechtol, who testified that the statement he heard from Hein in response to Officer Hefner's question was merely that the gun was "in the car," found Federal brand ammunition in the glove box.The gun, however, was not found during this quick initial search.Officer Bechtol then asked Hein where the gun was.Hein responded that it was under the passenger seat.Bechtol then went directly to the passenger seat and found the weapon.All these events took place within a minute or so of the stop.

Hein asserts that his fifth and sixth amendment rights were violated in that custodial interrogation began and a damaging statement was given before the Miranda warnings were provided.The state argues that on-the-scene questioning for safety, not interrogation, purposes is permissible without first giving the Miranda warnings, and that therefore the question "Where is the gun?" and Hein's reply were properly admitted at trial.The state asserts that the safety purpose of the question is demonstrated by the fact that the question was asked before Hein was handcuffed and while he was lying only a few feet from the open car door.The state urges that there was a chance Hein could have reached into the car and retrieved the gun.Further, Officer Hefner testified that when he asked the initial question he was concerned for his safety.

The facts of this case cannot allow us to agree that the officers' safety was in jeopardy when the question was asked.When Officer Hefner approached Hein he was lying face down on the ground with his arms outstretched.The officers at the scene had their shotguns...