State v. Kennedy

Decision Date06 May 1977
Docket NumberCA-CR,No. 2,2
Citation116 Ariz. 566,570 P.2d 508
PartiesThe STATE of Arizona, Appellant, v. David KENNEDY and Tennis Kennedy, Appellees. 959.
CourtArizona Court of Appeals
Bruce E. Babbitt, Atty. Gen., Phoenix, Stephen D. Neely, Pima County Atty. by David R. Cole, Deputy County Atty., Tucson, for appellant
OPINION

HOWARD, Chief Judge.

The state appeals from the granting of appellees' motion to suppress certain statements made by appellees just prior to the time they were arrested for attempted murder and conspiracy to commit murder.

The record shows that appellees had hired a former employee, Leo Beisler, to murder their partner, Tony Rodriguez, so that they could gain complete ownership of the partnership business, Kenler Pest Control. The plan was that Beisler was to use a ruse to gain entrance to the Rodriguez residence where he was to murder both Rodriguez and his wife.

Beisler contacted an assistant Pima County Public Defender and after explaining his involvement was taken to the Pima County Attorney's office. The police equipped him with an electronic listening device and he succeeded in recording an incriminating conversation with appellees. At that time it was mentioned that the murders were to take place at 10:00 p. m. on May 3, 1976. To provide appellees with an alibi, they were going to give a party on the night of May 3rd. On May 3rd Beisler was again "bugged". He went to appellees' apartment where the plan was further discussed. This conversation was monitored by Detective Marmion of the Tucson Police Department and several other detectives.

At about 10 o'clock on the evening of May 3rd, Det. Marmion and Sgt. Bunting approached the Kennedys in the pool area at their apartment complex where they had gone for the purpose of arresting the appellees. The detectives were not in uniform. There were backup officers and units in the area but they were not visible from the pool.

The two detectives told the Kennedys that Mr. and Mrs. Rodriguez had been murdered and that a man had been seen running from the residence. The statements were not true and were made in order to see how the Kennedys would react and what kind of story they would tell the detectives. Neither Kennedy had been advised of his "Miranda Rights". At no time was there any discussion involving a possible trip to the police station. In fact, Det. Marmion told the Kennedys that he would attempt to make telephone contact with them the next day to find out if they had any idea who might have committed the murders. The conversation between the detectives and the Kennedys took place in the immediate vicinity of the pool and other individuals were in the area. A few minutes after the interview appellees were arrested.

A motion to suppress the conversation at the poolside was granted although the trial judge indicated that in the light of the evidence the appellees could not have believed that they were in custody prior to the time they were actually arrested.

Appellees contend that under Arizona law the "Miranda warning" must be given if the police have probable cause to arrest the defendant. In support of this proposition they cite the following cases: State v. Melot, 108 Ariz. 527, 502 P.2d 1346 (1972); State v. Mumbaugh, 107 Ariz. 589, 491 P.2d 443 (1971); State v. Thomas, 104 Ariz. 408, 454 P.2d 153 (1969); and State v. Tellez, 6 Ariz.App. 251, 431 P.2d 691 (1967). We do not agree. The "Miranda warning" is required to be given prior to custodial interrogation which is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Bainch, 109 Ariz. 77, 505 P.2d 248 (1973). The danger of custodial interrogation is intimidation either mental or physical. State v. Tellez, sup...

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17 cases
  • State v. Fulminante
    • United States
    • Arizona Supreme Court
    • June 16, 1988
    ...suspect, 3) whether the objective indicia of arrest were present and 4) the length and form of the interrogation. State v. Kennedy, 116 Ariz. 566, 570 P.2d 508 [ (App.1977) ]. Although the site of the statements given in this case was at a Federal Correctional Institution, the Court finds t......
  • State v. Waller
    • United States
    • Arizona Court of Appeals
    • August 29, 2014
    ... ... Nor did the existence of probable cause for Waller's arrest automatically necessitate the advisements. See State v. Kennedy, 116 Ariz. 566, 569, 570 P.2d 508, 511 (App.1977).         ¶ 14 Waller argues, however, that both his pre- and post- Miranda statements ought to have been suppressed pursuant to Seibert, 542 U.S. at 611–13, 124 S.Ct. 2601 (pre- and post- Miranda statements suppressed where police ... ...
  • State v. Blakley
    • United States
    • Arizona Court of Appeals
    • November 16, 2010
    ...S.Ct. 1870, 64 L.Ed.2d 497 (1980). Thus, Miranda warnings were required before additional questioning. See State v. Kennedy, 116 Ariz. 566, 568-69, 570 P.2d 508, 510-11 (App.1977). And given Blakley's immediate confession, he reasonably might have believed it was fruitless to refuse consent......
  • State v. Urbina
    • United States
    • Arizona Court of Appeals
    • June 20, 2017
    ...person has been taken into custody or otherwise deprived of his freedom of action in any significant way." State v. Kennedy, 116 Ariz. 566, 568-69, 570 P.2d 508, 510-11 (App. 1977). Like the test for arrest, whether a defendant is in custody for Miranda purposes is an objective assessment t......
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