State v. Kananen

• Decision Date: 25 February 1965
• Docket Number: No. 1310,1310
• Citation: 97 Ariz. 233,399 P.2d 426
• Parties: STATE of Arizona, Appellee, v. Richard Alfred KANANEN and Larry Vernon Hill, Appellants.
• Court: Arizona Supreme Court

Page 426

399 P.2d 426

97 Ariz. 233

STATE of Arizona, Appellee, v. Richard Alfred KANANEN and Larry Vernon Hill, Appellants.

No. 1310.

Supreme Court of Arizona, In Banc.

Feb. 25, 1965.

Robert W. Pickrell, Atty. Gen., Jerry W. Lawson, Asst. Atty. Gen., for appellee.

Lewis, Roca, Scoville, Beauchamp & Linton, Phoenix, by Calvin C. Thur, Scottsdale, for appellants.

McFARLAND, Justice.

Appellants, Richard Alfred Kananen and Larry Vernon Hill, hereinafter referred to as defendants, were each convicted on four counts of forgery, and sentenced to serve from seven to ten years on each count, to run concurrently. From the judgment and sentence they appeal.

Defendants were arrested at Montgomery Ward's Chris-Town store in Phoenix, Arizona, at about 6:30 p. m., December 2, 1961, attempting to cash a forged check drawn on the First National Bank of Arizona, payable to David S. Olson, signed by J. B. Andrews, Treasurer, Lytle Eng. Co., Inc. It was shown the Lytle Eng. Co. was non-existent, and no account existed in the bank for either the company or J. B. Andrews. Defendant Kananen, in attempting to cash the checks, presented identification that he was Olson. He had passed checks to Korrick's, Sears Roebuck and Co., and Montgomery Ward's downtown store. Two more checks identical in nature were found on the person of defendant Kananen. Also found was a wallet on the person of defendant Hill bearing identification of Richard Alfred Kananen. Hill stated that the wallet belonged to Kananen.

Defendants were questioned and searched by Officer Don Rodriguez while at the store, Among other articles obtained from them was a key to Room 28 of the Montezuma Motel in Phoeniz, Arizona, which was in the possession of defendant Hill. Defendants were then taken to jail.

Officer Rodriguez testified that both defendants stated at the store that the checks were no good, and also that defendant Kananen made a similar statement while in jail. At about 10:30 p. m. that same night the officers Rodriguez and Robert Morris picked up defendant Hill at the jail, Rodriguez stating that he obtained permission from Hill to search the room of the motel. The officers handcuffed Hill and took him to the Montezuma Motel, and, in the presence of the manager of the motel, searched Room 28. Several items were found in the room, including a checkwriter, a typewriter, and serveral blank checks which were introduced in evidence. The motel manager testified that Hill was registered in Room 28 under the name of Olson. There was testimony that Hill stated to police officers on serveral occasions that he and Kananen were staying at the motel in Room 28.

The officers did not have a search warrant. A handwriting expert testified that defendant Hill had signed the name of J. B. Andrews on the checks, and that all four endorsements on the checks were written by the same person.

Defendants contend that the court erred in admission of the evidence obtained by search of the room without a search warrant, including a checkwriter, a typewriter, and blank checks, over the objection of defendants, and erred in denying defendants' motion for a new trial, based upon the admission of such evidence obtained by the search and seizure. The state contends that the claim of unreasonable search and seizure was waived by consent.

In determining whether or not there was a consent, it is necessary that such a waiver or consent be proved by clear and positive evidence in unequivocal words or conduct expressing consent, and it must be established that there was no duress or coercion, actual or implied. State v. Tigue, 95 Ariz. 45, 386 P.2d 402; State v. Robinson, 74 N.J.Super. 305, 181 A.2d 208.

The question then is whether the state proved consent by clear and positive evidence in unequivocal words or conduct expressing consent. After Officer Rodriguez had testified that defendants had been placed under arrest, in response to questions asked by the deputy county attorney, he gave the following testimony:

'Q Then what occurred--Did you see the defendants subsequent to that date, later that day, that same day?

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'A Yes, I did.

'Q Sir, did you have an opportunity to find any other articles on Mr Hill besides Mr. Kananen's wallet?

'A Yes, sir, I did.

'Q What was that?

'A That was a key to Room 28 at the Montezuma Motel.

'Q Subsequent--Did you see Mr. Hill again or Mr. Kananen?

'A Yes, I saw Mr. Hill.

'Q Where was that?

'A This was at the Police Department.

'Q And what took place there, if anything?

'A Mr. Hill and Detective Robert Morris and myself went to the Montezuma Motel, Room 28.

'Q And did you ask Mr. Hill's permission to go to this room?

'A Yes, I did.

'Q And when you went to the room, in whose company were you besides the officer and Mr. Hill?

'A A Mr. Winch, who is a clerk at the Montezuma Motel, was also present.

'Q Did you make a search of the premises at 28, Room 28, in the Montezuma Motel, sir?

'A Yes, sir.'

And, then, in answer to questions on voir dire examination, he testified:

'Q You testified that from Montgomery Wards Chris-Town, the defendants were taken to jail. Did you accompany them to jail?

A No, sir, I didn't.

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'Q And you said you later saw them at the jail or at least you saw the defendant Hill at the jail; is that correct?

'A That is correct, yes.

'Q What time was that?

'A That was approximately 10:30.

'Q The same evening?

'A Yes.

'Q Now, from there, you took the defendant Hill to the Montezuma Motel, is that correct?

'A He accompanied us there, yes.

'Q Well, was he given a choice?

'A Yes, he was.

'Q As to whether or not he wanted to go or not?

'A Yes.

'Q Did you have him restrained in any way?

'A We had him handcuffed, yes.

'Q Did you have a search warrant?

'A No, sir.

'Q Why not?

'A We went in with Mr. Hill's permission.'

And, or cross-examination:

'Q How did you come about to accompany the defendant Hill to the Montezuma Motel?

'A While at Montgomery Wards, while finding this key in Mr. Hill's possession, and he advising me that he and Kananen were staying at the Montezuma in this particular room, I talked to him privately and asked him if he would accompany us to the Montezuma Motel, which at that time he said he would.

'Q Did he at any time question your right to take him to this room or ask if he had a choice in the matter?

'A Do you mean if he refused to take us out there?

'Q All right--Did he refuse?

'A No, he did not.

'Q Did he consent without reservation?

'A He agreed to accompany us to the motel.'

The questions and answers in regard to the giving of consent were 'And did you ask Mr. Hill's permission to go to this room?' 'Yes, I did.' And, on voir dire, 'Did you have a search warrant?' 'No, sir.' 'Why not?' 'We went in with Mr. Hill's permission.' Then, on cross-examination, after answering the question as to whether Hill refused to go out to the room, and stating that he did not, this question and answer ensued: 'Did he consent without reservation? He agreed to accompany us to the motel.'

It will be noted that the question was not asked of Hill as to whether he consented to a search of the room. The officer only stated that he asked Mr. Hill's permission to go to this room. He did not testify as to what the answer was. The most that one could say would be that the answer implied that consent was given. The statement that 'We went in with Mr. Hill's permission,' was merely a conclusion. Neither meets the test of 'clear and positive evidence in unequivocal words,' nor does accompanying the officers to the room, hours after arrest, and while handcuffed, amount to positive proof of consent. There must not be duress, coercion--actual or implied.

In Judd v. United States, 89 U.S.App.D. C. 64, 190 F.2d 649 (D.C.Cir.1951), the court held:

'Searches and seizures made without a proper warrant are generally to be regarded as unreasonable and violative of the Fourth Amendment. True, the obtaining of the warrant may on occasion be waived by the individual; he may give his consent to the search and seizure. But such a waiver or consent must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied. Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; United States v. Kelih, D. C.S.D.Ill.1921, 272 F. 484. The Government show show a consent that is 'unequivocal and specific' (Karwicki v. United States, 4 Cir., 55 F.2d 225, 226), 'freely and intelligently given.' Kovach v. United States, 6 Cir., 53 F.2d 639. Thus 'invitations' to enter one's house, extended to armed officers of the law who demand entrance, are usually to be considered as invitations secured by force. United States v. Marquette, D.C.N.D.Cal.1920, 271 F. 120. A like view has been taken where an officer displays his badge and declares that he has come to make a search (United States v. Slusser, D.C. S.D.Ohio 1921, 270 F. 818), even where the householder replies 'All right.' United States v. Marra, D.C. W.D.N.Y.1930, 40 F.2d 271. A finding of consent in such circumstances has been held to be 'unfounded in reason'. Herter v. United States, 9 Cir., 27 F.2d 521. Intimidation and duress are almost necessarily implicit in such situationas; if the Government alleges their absence, it has the burden of convincing the court that they are in fact absent.'

If will be noted that the court, in the summarization of the statement of defendant, said:

'I have nothing to hide. You can go there and see for yourself. Conceivably, that is the calm statement of an innocent man; conceivably, again, it is but the false bravado of the small-time criminal. But, however it be characterized, it hardly establishes willing agreement that the officers search the household without first procuring a warrant.'

In State v. Robinson, supra, in which the Judd case was quoted with approval, it will be noted that the officer testified that one of the defendants, Josephine Robinson, said it was all right to make...