State v. Hutton

• Citation: 502 P.2d 1323,108 Ariz. 504
• Decision Date: 22 November 1972
• Docket Number: No. 2336,2336
• Parties: The STATE of Arizona, Appellee, v. William HUTTON, Appellant.
• Court: Supreme Court of Arizona

Page 1323

502 P.2d 1323

108 Ariz. 504

The STATE of Arizona, Appellee, v. William HUTTON, Appellant.

No. 2336.

Supreme Court of Arizona, In Banc.

Nov. 22, 1972.

Gary K. Nelson, Atty. Gen., by Peter Van Orman, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by William C. Blakley, Deputy Public Defender, Phoenix, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal by the defendant, William Hutton, from a jury verdict and judgment of guilty to the charge of illegal possession of heroin for sale in violation of § 36--1002.01 A.R.S. (as amended 1961) and a sentence with a prior felony drug conviction, § 36--1002.01, subsec. B A.R.S., of twelve to fifteen years.

Prior to the trial, the defendant moved to suppress evidence seized at the time of Hutton's arrest. This motion was denied and the sole question for our determination is whether the trial court erred in denying defendant's motion to suppress the evidence obtained as a result of a warrantless search of the defendant's person.

The facts necessary for a determination of this matter are as follows. In the evening of 21 October 1970, Phoenix Police Officer Arthur Quinonez received a telephone call from a confidential reliable informant who informed him that the defendant William Hutton was in possession of heroin. The informant told Officer Quinonez that Hutton was standing in front of the Tops Tavern at 1115 Buckeye Road, Phoenix, Arizona, and that he was wearing a hat, striped pants and a brown short-sleeved shirt.

Acting on this information, Officer Quinonez immediately called for a narcotic unit to assist him. Quinonez testified that within two or three minutes after he had spoken to the informant, Officer Oscar Long responded to the call for assistance. ¹ Quinonez provided Officer Long with the description of the defendant's clothing and told him that an informant had advised that Hutton (also known as 'Little Hut') was in possession of heroin. Officer Quinonez testified at the suppression hearing that the informant had previously given him information upon which some 19 search warrants had been issued and 40 to 45 persons had been arrested. He also testified that the informant could identify narcotics and had made two controlled buys while under surveillance. Both Officer Quinonez and the two narcotics officers testified that the defendant, known as 'Little Hut', was a known user and dealer of narcotics.

Officer Quinonez testified:

'Q. Did you relate anything, especially to Officers Long and Patterson as to any reason why Little Hut would still be in the vicinity?

'A. No, sir, that was the reason why I didn't take, personally . . .

'Q. I didn't understand the last part.

'A. No, sir, that was the reason I didn't take it personally, because he had gone downtown within 20 minutes and I advised him that I know the habits of Mr. Hutton and somebody would have to get there right away, that was the reason I couldn't get there . . .'

Officer Patterson, one of the arresting officers, testified:

'Q. Did you know Little Hut or William Hutton by sight?

'A. Yes, sir, I did and I also carried a police picture of him.

'Q. Approximately how long had you carried this picture?

'A. I carried it--

'Q. Prior to October 21st, that is?

'A. Probably about a month. That would be a rough guess, a month.

'Q. Now the information that Officer Long gave you and that he stated, did he tell you where that information had come from?

'A. You mean on October 21st, is that what you mean?

'Q. Yes.

'A. Yes, sir, he told me that Detective Quinonez told him.

'Q. Was there any statement made with respect to where Little Hut was to be found?

'A. On the night of the 21st, yes, sir, that he would be at Top's Bar which is located at 1115 West Buckeye.

'Q. Did you get a search warrant or an arrest warrant?

'A. No, sir, we didn't.

'Q. Why?

'A. By the time we could have gotten a warrant he would probably have been gone again.

'Q. Now was that based upon your prior experience and information upon Mr. Hutton?

'A. Yes, sir, it was.'

The officers proceeded immediately to Tops Bar arriving at approximately 8:15 p.m. Officers Long and Patterson entered the bar and proceeded into the poolroom where they located Hutton. The officers then conducted a search of the defendant.

Officer Patterson found $237.00 in one of the defendant's pockets. During the search of the defendant, Hutton did not protest. However, when asked to remove his shoes, he resisted, and Officer Patterson thereafter forcibly removed them. Inside each of Hutton's shoes was a plastic bag containing several ballons which held what the officers believed to be narcotics. Then the defendant was formally placed under arrest, handcuffed, and the money removed from his pants pocket. Officer Patterson later conducted a 'Marquis Reagent Test' on the contents of the balloons at the Phoenix Police Department. The results of the test indicated the presence of opiates. Defendant Hutton was then told again that he was under arrest.

Defendant's motion to suppress heard prior to trial was denied. A jury returned a verdict finding the defendant guilty of possession of heroin for sale. Hutton admitted the allegation of a prior drug conviction and was sentenced to not less than twelve nor more than fifteen years in the Arizona State Penitentiary.

The defendant appealed, contending that the evidence seized by the two police officers was without a search warrant or incident to a lawful arrest and was therefore violative of his rights as guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution. The State contends that this was a lawful arrest and therefore the search as an incident thereto was lawful.

Under the facts in this case, there is a question as to when the defendant was 'arrested.' His freedom of movement was certainly restricted by the officer prior to the search, but he was not formally placed under arrest until after the search revealed the probable narcotics. The briefs of counsel place great emphasis on the question of when the arrest occurred, defendant's brief contending that the arrest occurred after the search and the State's brief contending the arrest occurred first and therefore the search was valid as an incident to a lawful arrest. We do not consider the point dispositive of this appeal. It is immaterial for our purposes when the arrest occurred for it was the search and resulting seizure which was the basis of the arrest. Without the search there would have been no arrest in this case.

'We find no merit in the contention that a reasonable search and seizure should be rendered...