State v. Jeney, 1

• Decision Date: 26 October 1989
• Docket Number: No. 1,CA-CR,1
• Citation: 163 Ariz. 293,787 P.2d 1089
• Parties: STATE of Arizona, Appellee, v. Joseph Matthew JENEY, Appellant. 88-1251.
• Court: Arizona Court of Appeals

Page 1089

787 P.2d 1089

163 Ariz. 293

STATE of Arizona, Appellee, v. Joseph Matthew JENEY, Appellant.

No. 1 CA-CR 88-1251.

Court of Appeals of Arizona,

Division 1, Department D.

Oct. 26, 1989.

Review Denied March 20, 1990.

[163 Ariz. 294] Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., and Diane M. Ramsey, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Edward F. McGee, Deputy Public Defender, Phoenix, for appellant.

OPINION

GRANT, Chief Judge.

The defendant was convicted by a jury of possession of narcotic drugs, a class four felony, and possession of drug paraphernalia, a class six felony, both repetitive offenses. He was sentenced to concurrent, mitigated terms of imprisonment.

FACTS

Police officers received a tip from the "silent witness" program that the defendant was selling drugs from his apartment. A few days later, the officers began a surveillance of the defendant's apartment to determine whether there was any "drug traffic" at his residence. Prior to beginning the surveillance, the officers conducted a routine computer check of the defendant and discovered that he was on probation and that there were outstanding traffic warrants for his arrest.

The surveillance began at 6:00 a.m. and lasted for approximately an hour and a half. At that point, the officers decided to arrest the defendant on the traffic warrants. When the defendant answered the door, the officer showed the defendant his identification and told him he was under arrest. The officer also saw someone sitting on the couch behind the defendant and immediately entered the house in order to secure the arrest scene for the protection of all the officers. The officer asked the person on the couch whether anyone else was in the residence and was told someone was in the bathroom. The person in the bathroom was then brought into the living room and placed on the couch. While the officer was talking to the persons on the couch, he noticed a burned marijuana cigarette on an end table which was by the couch and behind the front door. When the defendant denied the officer's request to search the apartment, the officer contacted the defendant's probation officer. The probation officer's search revealed several controlled substances, including marijuana, weapons, ammunition, and assorted drug paraphernalia.

ISSUES

On appeal, the defendant argues that:

1. The search of his apartment was an invalid "pretextual" search.

2. The trial court erred in denying his request for a voluntariness hearing and in refusing to suppress statements made by him during the booking process.

SEARCH OF DEFENDANT'S APARTMENT

The defendant argues that he was arrested by the police officers on a minor traffic offense simply because they suspected him of more serious criminal activity and, therefore, that the arrest was "pretextual" and the evidence seen during that arrest should have been suppressed. The defendant also argues that because the officer admitted his normal duties did not include the execution of traffic warrants, the arrest of defendant on a traffic warrant was a "subterfuge" used to allow the officers to enter his apartment to search for drugs. Finally, he argues that, pursuant to State v. Bolt, 142 Ariz. 260, 689 P.2d 519 (1984), the search of his home incident to the arrest on a misdemeanor traffic warrant violated his right to privacy under the Arizona State Constitution.

The state argues that when an arrest warrant places a police officer in a position where he has the lawful authority to be, the inadvertent viewing of items subject to seizure allows the officer to seize them. State v. Reasoner, 154 Ariz. 377, 381-82, 742 P.2d 1363, 1367-68 (App.1987). The state also argues that pursuant to State v. Main, 159 Ariz. 96, 764 P.2d 1155 (App.1988), the protective sweep of the defendant's residence was proper because the officers reasonably believed an immediate danger to their safety existed. Finally, the state asserts the seizure of the marijuana in this case was lawful as a search incident to arrest. State v. Love, 123 Ariz. 157, 160, 598 P.2d 976, 979 (1979). The state does not, however, respond to the defendant's argument that the "pretextual quality" of the police conduct in this case stripped them of the "authority of law" necessary to validate their search, given the right of privacy protected by art. 2, § 8 of the Arizona State Constitution.

A "pretextual" arrest occurs "when the police employ an arrest based on probable cause as a device to investigate or search for evidence of an unrelated offense for which probable cause is lacking." United States v. Trigg, 878 F.2d 1037, 1039 (7th Cir.1989). Courts in the past have deemed such arrests to be for illegitimate purposes because they were undertaken to search for evidence of other crimes, circumventing the warrant requirement of the fourth amendment. Id.; see also United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). Determining whether an arrest was a "pretext" necessarily involved a subjective inquiry into the motive of the arresting officer. Trigg, 878 F.2d at 1039. However, as noted in Trigg, "the utility of the subjective intent approach has been questioned in recent years." Id. at 1040.

The United States Supreme Court, in a trilogy of cases, has stressed that fourth amendment analysis ordinarily involves "an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time." Maryland v. Macon, 472 U.S. 463, 471, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370, 378 (1985) (quoting Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168, 177 (1978)). See also United States v. Villamonte-Marquez, 462 U.S. 579, 584 n 3, 103 S.Ct. 2573, 2577 n. 3, 77 L.Ed.2d 22, 28 n. 3 (1983). The federal circuits have interpreted these cases to hold that searches and seizures are to be examined under a standard of objective reasonableness without regard to the good or bad faith intention of a police officer, or to the underlying intent or motive of the individual officer involved. See, e.g., United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987); United States v. Atkinson, 450 F.2d 835, 840 (5th Cir.1971), cert. denied, 406 U.S. 923, 92 S.Ct. 1790, 32 L.Ed.2d 123 (1972) (arrest on one charge, for purpose of detaining the defendant while building a case on another, does not invalidiate an otherwise initially lawful arrest); United States v. D'Antoni, 856 F.2d 975 (7th Cir.1988); United States v. Hardy, 855 F.2d 753 (11th Cir.1988), cert. denied, 489 U.S. 1019, 109 S.Ct. 1137, 103 L.Ed.2d 198 (1989); 2 W. LaFave, Search and Seizure, § 6.7(d) (2d ed. 1985).

Most state courts have now adopted the view that so long as the police do no more than they are objectively authorized and legally permitted to do, their motives in making an arrest are irrelevant and not subject to inquiry. See, e.g., State v. Law, 115 Idaho 769, 769 P.2d 1141 (Ct.App.1989), and cases cited therein; People v. Anderson, 169 Ill.App.3d 289, 120 Ill.Dec. 123, 523 N.E.2d 1034 (1988), cert. denied, 490 U.S. 1036, 109 S.Ct. 1935, 104 L.Ed.2d 407 (1989); State v. Jones, 127 N.H. 515, 503 A.2d 802, 805 (1985); Wensman v. State, 342 N.W.2d 150 (Minn.1984); State v. Bruzzese, 94 N.J. 210, 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984); Stoneham v. State, 764 S.W.2d 13 (Tex.Ct.App.1988); Smith v. State, 722 S.W.2d 205 (Tex.Ct.App.1986). Contra Brown v. State, 738 P.2d 1092 (Wyo.1987). For example, in State v. Bruzzese, the court stated:

[T]he proper inquiry for determining the constitutionality of a search-and-seizure is whether the conduct of the law enforcement officer ... was objectively reasonable, without regard to his or her underlying motives or intent. We emphasize that the Fourth Amendment proscribes unreasonable actions, not improper thoughts.

94 N.J. at 219, 463 A.2d at 325.

In Smith v. State, 722 S.W.2d 205, the court held that when the police had a valid arrest warrant for the defendant on a traffic offense, the use of it by officers to arrest the defendant at his trailer when they suspected that he was engaged in drug activities was not improper. The defendant's argument that the arrest constituted a pretextual arrest or search was rejected based on the court's conclusion that arrests and searches should be judged by an objective standard.

Based on the language in Scott, we agree with these courts that have adopted an objective rather than a subjective test for determining the reasonableness of an officer's search under these circumstances.

Our discussion, however, does not end here. We must further determine whether the arrest was objectively reasonable under the standards of the fourth amendment. In this case, the officers arrested the defendant on valid warrants which the defendant does not allege were in any way defective. Regardless of the officers' subjective intent, they had an objectively valid reason to make the arrest. There is no suggestion that the traffic warrants were held or issued for any purpose other than their execution for a traffic offense. See Causey, 834 F.2d at 1186 (Higginbotham, J., specially concurring). The fact that evidence of alleged drug offenses might come to the officers' attention when they effected the arrest does not make the officers' otherwise lawful conduct invalid because of an alleged subjective motivation. Furthermore, the officers had a right, at the time of arrest, to remain "literally at the [defendant's] elbow." Washington v. Chrisman, 455 U.S. 1, 6, 102 S.Ct. 812, 816, 70 L.Ed.2d 778, 785 (1982).

The defendant claims that even the objective facts reveal an invalid pretextual search. He points to the fact that arresting officers usually worked on the narcotics detail and did not normally arrest citi zens on traffic warrants. A similar argument was rejected by the ...