State v. Jackson
Decision Date | 24 October 1977 |
Docket Number | No. 3879,3879 |
Citation | 571 P.2d 266,117 Ariz. 120 |
Parties | STATE of Arizona, Appellee, v. Patricia Rene JACKSON, Appellant. |
Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Shirley H. Frondorf, Asst. Attys. Gen., Phoenix, for appellee.
Eugene A. Burdick, Phoenix, for appellant.
Appellant, Patricia Rene Jackson, was convicted of possession of marijuana, A.R.S. § 36-1002.05. Sentence was suspended and she was placed on probation for two years, a condition of which was the reimbursement of attorney's fees in the amount of $350. A timely notice of appeal was filed and we have jurisdiction pursuant to 17A A.R.S., Rules of the Supreme Court, Rule 47(e)(5).
The appellant raised one question in her appeal:
Did the magistrate abuse his discretion in authorizing a nighttime search?
A search warrant was obtained for the search of the premises occupied by appellant and Peggy and Wendy Tremble. The warrant was executed at 11:05 p.m. Included in the fruits of the search were 7.1 grams of marijuana found in a locked jewelry box which was in appellant's bedroom. Appellant and Peggy and Wendy Tremble were arrested and charged with possession of marijuana. Following a preliminary hearing, appellant and the co-defendants were bound over to Superior Court for trial. They all entered not guilty pleas. Prior to trial, appellant filed a motion to suppress as evidence the marijuana found in her bedroom, contending that the search and seizure was illegal. After a hearing, the trial court denied the motion. The appellant then waived her right to a jury trial and agreed to submit the question of guilt or innocence to the trial court on the basis of the police report and the preliminary hearing transcript.
The search warrant contained a direction that it could be served at any time of the day or night. The warrant was served at night. The appellant contends that the affidavit for the search warrant was not sufficient to support a nighttime search.
Historically there has been a strong aversion to nighttime searches (Jones v. U. S., 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Wilson, 25 Ariz.App. 49, 540 P.2d 1268 (1975)). This was embodied in A.R.S. § 13-1447, prior to the 1970 amendment. The statute, as adopted in 1901, provided:
"The magistrate shall insert a direction in the warrant that it be served in the day time, unless the affidavits are positive that the property is on the person of the party, or in the place to be searched, in which case he may insert a direction that the warrant be served at any time of the day or night."
In 1970, this statute was amended to provide:
Appellant contends that the affidavit for the search warrant was not sufficient to support a finding of good cause for a nighttime search. The affidavit provided in part:
It is appellant's position that the "good cause" required by the statute is a showing beyond the probable cause necessary to justify the search itself and that specific and particular facts must be stated to justify a nighttime search.
The original A.R.S. § 13-1447 and the 1970 amendment were taken from statutes of the State of California. We, therefore, look to decisions...
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State v. Adamson
...nighttime searches was taken from the State of California. We therefore look to decisions of the California courts. State v. Jackson, 117 Ariz. 120, 571 P.2d 266 (1977). Absent an abuse of discretion, a magistrate's finding of reasonable necessity for a nighttime search will not be disturbe......
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State v. Fowler
...barrier, provided, of course, he pursued it only at night.... 100 Idaho at 42-43, 592 P.2d at 857-58. In State v. Jackson, 117 Ariz. 120, 571 P.2d 266, 268 (1977), the Arizona Supreme Court held there was sufficient "reasonable cause" to justify a nighttime search supplied by an affidavit w......
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State v. Fields
...Id. at 534-38. A survey of other jurisdictions reveals similar justifications for nighttime warrants. See, e.g., Arizona v. Jackson, 117 Ariz. 120, 571 P.2d 266, 268 (1977) (finding nighttime warrant proper when presented with evidence of nighttime drug sales); Arizona v. Eichorn, 143 Ariz.......
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State v. Zeller
...contraband was being disposed of, removed, or hidden in such a manner that nighttime service was required); compare State v. Jackson, 117 Ariz. 120, 571 P.2d 266, 268 (1977) (holding the magistrate did not abuse his discretion in finding sufficient reasonable cause to justify nighttime sear......