State v. Herber
| Decision Date | 09 May 1979 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 123 Ariz. 214,598 P.2d 1033 |
| Parties | The STATE OF Arizona, Appellee, v. Peter Mendoza HERBER, Appellant. 1259. |
| Court | Arizona Court of Appeals |
This court originally reversed appellant's conviction of unlawful possession of marijuana for sale on the ground that his arrest on the Papago Indian Reservation by agents of the Arizona Department of Public Safety and the subsequent search of his vehicle were illegal under Francisco v. State, 113 Ariz. 427, 556 P.2d 1 (1976). On motion for rehearing, however, we are convinced that the Francisco case is inapposite. Consequently, we affirm and this opinion is substituted in place of our former opinion, which shall remain unpublished.
Appellant is a non-Indian whose arrest followed a series of events beginning with a telephone call informing the Department of Public Safety that a green two-and-one-half-ton stakebed truck traveling approximately 40 miles from Sells, Arizona, might be transporting contraband. The caller had obtained his information by monitoring a citizens band radio transmission from a Radio Emergency Associated Citizen Team center in San Antonio, Texas, which in turn had picked up the information from a mobile CB operator in Arizona.
A DPS officer relayed the information to the Sells Police Department, a tribal Indian authority, and asked if they could locate the vehicle. He also contacted his supervisor, who arranged for a search of the area in a state plane and subsequently located the truck on State Highway 86. By flying over it, he was able to observe boxes and light-colored burlap bags containing rectangular shapes which in his experience might be marijuana.
Appellant, after observing the plane, turned off highway 86 onto San Pedro Road on the Papago reservation, proceeded some distance and stopped, ran from the truck and hid under some trees. When the DPS ground units arrived he was arrested and a look into the open top truck revealed what later proved to be more than 9,000 pounds of marijuana. 1
After appellant had waived his right to a jury trial and the case had been submitted to the court on the testimony at a suppression hearing, he was found guilty of unlawful possession of marijuana for sale and sentenced to a prison term of not less than two nor more than five years. On appeal he challenges the legality of his arrest and the search on two grounds. In addition to his argument that the DPS agents lacked authority for the arrest, he contends the anonymous tip originating with the mobile CB operator in Arizona was insufficient to establish probable cause.
In Francisco v. State, supra, the Supreme Court of Arizona...
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Kaul v. Stephan, 94-3428
...235, 235 (1976) (upholding arrest on Indian reservation of non-Indian found to be in possession of marijuana); State v. Herber, 123 Ariz. 214, 598 P.2d 1033, 1034-35 (Ct.App.1979) (same). Because Stephan would have criminal jurisdiction to execute search warrants against a non-Indian under ......
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State v. Verdugo
...court has jurisdiction over criminal offense committed on Indian reservation involving persons who are not Indians); State v. Herber, 123 Ariz. 214, 598 P.2d 1033 (App.1979) (same). Nor does the state challenge the corollaries of that rule that, if a crime that occurs on an Indian reservati......
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State v. Thomas, 88-152
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