State v. Kempton

• Decision Date: 19 July 1990
• Docket Number: No. 1,CA-CR,1
• Citation: 803 P.2d 113,166 Ariz. 392
• Parties: STATE of Arizona, Appellee, v. Christopher Reed KEMPTON, Appellant. 89-494.
• Court: Arizona Court of Appeals

Page 113

803 P.2d 113

166 Ariz. 392

STATE of Arizona, Appellee, v. Christopher Reed KEMPTON, Appellant.

No. 1 CA-CR 89-494.

Court of Appeals of Arizona Division 1, Department A.

July 19, 1990.

Reconsideration Denied Aug. 30, 1990.

Review Denied Jan. 23, 1991.

[166 Ariz. 393] Robert K. Corbin, Atty. Gen. by Jessica Gifford Funkhouser, Chief Counsel, Crim. Div., and Mark E. Dwyer, Asst. Atty. Gen., Phoenix, and David S. Ellsworth, Yuma Co. Atty. by Philip Hall, Chief Deputy Co. Atty., Yuma, for appellee.

Suciu, Donovan & Schmitt by Michael J. Donovan, Yuma, for appellant.

OPINION

CLABORNE, Presiding Judge.

The defendant was arrested and charged with possession of cocaine, marijuana and drug paraphernalia. Before trial, he moved to suppress evidence seized during the search of his vehicle, and to exclude statements he made to the police officers during and following the search. The trial court denied the motion after an evidentiary hearing. The evidence and statements were subsequently admitted during his trial. The jury found the defendant guilty of possession of cocaine and drug paraphernalia. ¹ The court placed the defendant on supervised probation for three years. The defendant timely appealed. In his appeal, the defendant challenges the legality of the police action in stopping and searching his truck. Because we find that the police were not justified in stopping the defendant and searching his truck without first obtaining a warrant, we reverse and remand for further proceedings.

FACTS

The following events occurred in the small community of Somerton, Arizona, which is a few miles south of Yuma, Arizona. On December 15, 1988, at approximately 12:30 a.m., Agent Daniel Nordell, a member of a drug enforcement task force called Southwest Border Alliance, received information from a "confidential reliable informant." The informant told Agent Nordell that the defendant had offered to sell the informant cocaine during the day of December 14, 1988. The informant stated that he had seen the cocaine in defendant's 1985 white Toyota truck. The informant also told Agent Nordell that the defendant would have the cocaine in his truck when he went to work the following morning. Although the informant did not refer to any specific amount, it was clear to Agent Nordell that it was a small amount of cocaine.

Agent Nordell relayed all of this information to Agent Juan Hoke, another member of the task force, immediately after the informant's phone call. At that time, Agents Nordell and Hoke discussed the need for a search warrant, but they decided not to get one. Agent Nordell testified about their conversation:

Q. Dan, you and Hoke talked about whether or not a search warrant would be required in this case when you talked to him? Right?

A. We discussed the idea of a search warrant briefly.

Q. And the decision was made that you were not going to get a search warrant between you and Hoke? Right?

A. Right.

Q. And that conversation was when you spoke with Hoke the night before between the hours of twelve and one?

A. Again, I am not real sure about the times, right now, but it was during the only discussion we had prior to the stop of Mr. Kempton.

. . . . .

Q. Now, concerning your discussion with Hoke about the search warrant, in this case you are not processing--at least were at that time feeling that you were dealing with a relatively small amount of narcotics, someone who was referred to as a relatively small dealer, and you felt you had enough probable cause and decided to just stop and check his vehicle? Right?

A. Basically.

Q. And you discussed with me the thought processes behind that on the twenty eighth of February? Right?

A. Yes, sir.

Q. And you told me that, when you get a report that here is a vehicle out running around, that one of your reliable informants has seen some narcotics in, and you haven't been able to get a registration check to the vehicle, if we find that vehicle, we will stop it, and the person will be asked if he will let you take a look, and you said it's always nicer to get a consent search than to have to do it the hard way? We always ask them if they mind if we search? Did that about cover it?

A. It was in response of [sic] your statement about Mr. Kempton giving a consent of the vehicle, yes.

Q. But you were giving a general view of how you handled it there? Right?

A. I was responding that we always ask for a search of the vehicle.

Agent Hoke testified that between 12:30 a.m. and approximately 7:00 a.m., there were three magistrates available in the area to issue a search warrant and that a warrant could have been obtained in an hour or less. When Agent Hoke was asked if he had thought about getting a search warrant after the search had occurred, he responded, "No. I had no--I did not think of getting a search warrant prior nor after."

At 7:00 a.m. on December 15, Agent Hoke watched the defendant leave his residence for work in the white Toyota truck described by the informant. Agent Hoke was acquainted with the defendant and was familiar with the truck. He contacted Officer White of the Somerton Police Department and asked Officer White to stop the defendant's truck and "make it look like a traffic stop." Based on Agent Hoke's instruction, Officer White turned on his overhead emergency lights and followed the normal police procedure for stopping a vehicle. Officer White testified that the defendant had not committed a traffic violation, ² and that the defendant was not under the influence of drugs or alcohol at the time of the stop. The traffic stop was made solely on the orders of Agent Hoke who had told Officer White that he, Hoke, had probable cause to believe that the defendant had drugs in the truck.

Officer White asked the defendant to step out of the truck. When the defendant asked Officer White why he was being stopped, Officer White responded that Agent Hoke wanted to speak to him regarding possession of illegal drugs. Agent Hoke immediately arrived and advised the defendant that he had probable cause to believe that the defendant was in possession of illegal drugs.

Agent Hoke asked the defendant if he would mind emptying his pockets. The defendant did so, but no narcotics were found. Agent Hoke then asked for permission to look in the defendant's vehicle. The defendant replied, "Go ahead. You are not going to find nothing."

Upon inspecting the truck, Agent Hoke found four burnt marijuana cigarettes in the ashtray. The defendant was placed under arrest and advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant stated that he understood his rights and did not mind answering questions. Agent Hoke asked the defendant about the marijuana cigarettes, and he admitted that they were his.

Agent Hoke then went back into the truck, searched, and found a small vial containing a powder-like substance which he suspected was cocaine. The defendant stated that he knew what was in the vial, but denied knowing how it got in his truck.

After the arrest, the defendant was taken to the Somerton Police Department. He was not handcuffed. He was allowed to smoke and to make as many phone calls as he wanted. During this period, an officer assigned to watch the defendant asked him if he knew what was in the vial. The defendant responded that he knew the vial contained cocaine because he had tasted it, that the cocaine was not his, and that he did know that it was in the truck.

During the search of the defendant's truck at the police station, the officers found a small straw with white residue along with a straight razor blade. The defendant later signed a statement admitting that the marijuana cigarettes were his and that the cocaine had been left in his truck.

DISCUSSION

The defendant contends that the stop and search of his vehicle were illegal and that the evidence discovered as a result of that search should have been suppressed. He argues further that the statements made after the search should have been suppressed because they were the "fruits" of the illegal stop and search of the defendant's vehicle.

The state's position is that since the agents had a reasonable suspicion that the defendant's vehicle contained narcotics, they could stop the vehicle to inquire whether the driver would consent to a search of the car.

We must answer two questions. First, were the defendant's fourth amendment rights violated when the agents, who had approximately six and one-half hours to obtain a warrant, made a warrantless stop of the defendant's truck based solely on reliable information from an informant that the defendant's truck contained illegal contraband? And second, if such a stop was a fourth amendment violation, was a subsequent "consent search" of the defendant's person and truck valid?

THE WARRANTLESS STOP

The starting point of this inquiry is the fourth amendment to the federal constitution. ³ The basic constitutional rule is that a search or seizure is per se unreasonable unless it is supported by a warrant or falls within one of the few specifically established and well-delineated exceptions to the constitutional warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). See also Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971); State v. Sardo, 112 Ariz. 509, 513, 543 P.2d 1138, 1142 (1975). These exceptions must be narrowly tailored to the circumstances that justify their creation. Florida v. Royer, 460 U.S. 491, 499-500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 19, 25-26, 88 S.Ct. 1868, 1878-79, 1882, 20 L.Ed.2d 889 (1968). If special circumstances exist, the resulting search or...