State v. Marquez, 1
| Decision Date | 27 January 1983 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 660 P.2d 1243,135 Ariz. 316 |
| Parties | STATE of Arizona, Appellee, v. Jose Albert MARQUEZ, Appellant. 5594. |
| Court | Arizona Court of Appeals |
Appellant appeals from a jury verdict finding him guilty of one count of armed robbery. He was sentenced to a term of seven years in the Arizona State Prison.
Appellant became a suspect in the armed robbery while he and his two companions were being "booked" at Chandler City jail charged with unlawful use of means of transportation, A.R.S. § 13-1803.
Prior to trial, appellant moved to suppress certain statements he had made while in custody. He argued that his arrest under A.R.S. § 13-1803 was not supported by probable cause and, therefore, statements obtained after this "illegal arrest" should have been suppressed. On appeal, he argues that the trial judge's denial of his Motion to Suppress was error.
The following facts appear from the record: At approximately 9:15 p.m. on February 17, 1981, Officer Lang, Arizona Department of Public Safety (DPS), was operating radar at mile post 167 along Interstate 10, near Phoenix, when an automobile passed his checkpoint at a speed of 75 miles per hour. The officer gave chase and eventually stopped the car at approximately mile post 165. At that time, the officer asked the driver, Jesus Meraz, to step out of the vehicle, which he did. When asked for his driver's license and registration, Mr. Meraz was unable to produce either. Meraz, however, told the officer that he was the owner of the vehicle and that he had just purchased the car in Coolidge. The officer ran a driver's license and registration check. There was no record on Meraz's driver's license and the vehicle was reported stolen from Phoenix.
Appellant and Rafael Reyes were passengers in the vehicle.
After being informed at approximately 9:25 p.m. that the vehicle was stolen, Officer Lang patted Meraz down, handcuffed him and advised him of his rights. After he was arrested, the officer began reading him his rights, and Meraz developed difficulty speaking English.
Sometime between 9:15 p.m. and 9:25 p.m., Officer Lang was assisted by Officer Christie, DPS, who had arrived on the scene. When asked by defense counsel, at the Motion to Suppress, whether he had arrested the two passengers when he was advised that the car was stolen, Officer Lang stated that he had not. He stated that Officer Christie, who came to assist him, placed the two passengers under arrest. Officer Christie arrived on the scene just before Officer Lang was notified that the vehicle was stolen.
Officer Christie testified that he attempted to converse with appellant and Reyes, but was unable to do so. Appellant spoke no English at all during the stop. Officer Christie did not search either of the passengers during his initial questioning. Neither had any identification.
On appeal, as in the court below, appellant argues that his mere presence in a stolen automobile was not enough to justify his arrest for unlawful use of means of transportation, pursuant to A.R.S. § 13-1803. In support of his argument, appellant relies on State v. Hansen, 117 Ariz. 496, 573 P.2d 896 (App.1978). The court in Hansen held that where a police officer observed the defendant sitting next to another person who was smoking marijuana, on a public park bench, he did not have probable cause to arrest the nonsmoker. Appellant contends that he is in the same position as the defendant in Hansen, supra. We do not agree. The court in Hansen found that the activities engaged in by the defendant in that case did not demonstrate any type of joint activity. The court observed that the evidence showed merely that the defendant was sitting on a public park bench and the objective facts in no way indicated his complicity with or support of an illegal act being engaged in by another.
It is axiomatic that probable cause to effect an arrest exists where the arresting officer has reasonably trustworthy information of facts and circumstances which are sufficient to lead a reasonable man to believe an offense is being or has been committed and that the person to be arrested is committing or did commit it. State v. Nelson, 129 Ariz. 582, 633 P.2d 391 (1981). There is no easy formula for determining probable cause because each case is decided on its own facts. Cullison v. City of Peoria, 120 Ariz. 165, 584 P.2d 1156 (1978). It is the trial court's function to determine the existence of probable cause and when its determination is supported by substantial evidence, its finding will not be disturbed by this court in an attempt to reach or justify a different conclusion. State v. Dugan, 113 Ariz. 354, 555 P.2d 108 (1976). We hold the trial court properly found appellant's arrest was supported by probable cause.
As Hansen, supra, demonstrates, whether there is probable cause to arrest is a question of fact. In this case, we note that the evidence showed that three Mexican males, all of whom had trouble speaking English, none of whom had identification, were traveling together in a stolen vehicle, at night. In addition, concealed weapons were discovered during a search of the vehicle prior to taking all three subjects to the Chandler City jail. 1
Appellant argues that the only facts known to the officers at the time they arrested him were that the vehicle was stolen and appellant was a passenger. He contends that the fact the driver indicated to the officer that he and his friends were illegal aliens, and that a subsequent, lawful search of the vehicle disclosed a rifle concealed by a shirt on the seat, as well as a pistol under the passenger's seat, could not be considered in determining the existence of probable cause because they occurred subsequent to appellant's arrest. 2
Neither appellant, nor the state, have cited any cases which are dispositive of the exact issue presented here. We note that in People v. Williams, 9 Cal.App.3d 565, 88 Cal.Rptr. 349 (1970), the defendant raised an issue very similar to the one presented in this appeal. In that case, a police officer stopped a vehicle, in which the defendant was a passenger, for failure to stop at a stop sign. The automobile was halted to issue a citation and when the driver was unable to present a vehicle registration, a records check was run, disclosing that the vehicle was stolen. The officers then arrested both occupants of the vehicle and took them to the stationhouse. Marijuana discovered during the defendant's booking procedure was suppressed. The court held that there was no indication that the defendants were jointly engaged in any activity, legal or illegal.
The California Supreme Court in People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1 (1974), specifically declined to rule on this issue in a case involving the arrest of a passenger in a stolen vehicle. The lower court in People v. Hill, 107 Cal.Rptr. 791 at 808, vacated 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1 (1974), had held that the passenger in the stolen vehicle was subject to arrest, and specifically declined to follow People v. Williams, supra.
We believe the failure of either party to this appeal to cite, or our research to disclose, cases exactly on point, testifies to the paucity of case law on this issue. However, we are persuaded that when a police officer stops a vehicle on a public highway for a traffic offense, and then discovers that the vehicle is stolen, he knows that a felony has been committed and has probable cause to believe that one or more of the persons inside the vehicle is participating in the commission of a felony. 3 We note that the Model Penal Code § 223.9, "Unauthorized Use of Automobiles and Other Vehicles," Comments (Official Draft 1980) also supports our conclusion that individuals involved in joy-riding offenses, whether they be passengers or drivers, are liable to prosecution. The Model Penal Code (Official Draft 1980) § 223.9, Comment 2, page 273, states:
"A closer question is presented by the case of the non-operating passenger in a vehicle that is being operated without the owner's consent. There should be reluctance to authorize the conviction of a young person whose sole connection with the transaction is to accept a ride in a car taken and operated by another. The deterrent purposes of the law would seem to be served, on the other hand, by prosecution of the operator and those who can be held responsible as accomplices in the operation of the vehicle. A possible intermediate position would be to provide a presumption that all persons in a vehicle being operated without the owner's permission are accomplices in such operation.
In this case the results of the search of the vehicle, as well as the prior circumstances, could have been considered by the officers, in arriving at a decision to arrest appellant and the other passenger. The fact appellant may have arguably been "formally" arrested prior to revelation of these additional facts is of no moment. Probable cause to arrest, on suspicion of unauthorized use of means of transportation, existed prior to removing appellant and the other passenger from the scene of the arrest for booking at the Chandler jail. The evidence supporting a finding of probable cause with respect to appellant was not discovered by exploitation of any illegality in his arrest. It was obtained while he was properly detained during investigation of the stolen vehicle and Meraz. People v. Hill, supra.
Based on all the facts, it is our opinion that the trial judge's decision to deny the motion to suppress was based on adequate evidence in the record.
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