State v. Mendoza

• Decision Date: 01 May 1969
• Docket Number: No. 1733,1733
• Citation: 104 Ariz. 395,454 P.2d 140
• Parties: The STATE of Arizona, Appellee, v. Espiridion Morales MENDOZA, Appellant.
• Court: Arizona Supreme Court

Page 140

454 P.2d 140

104 Ariz. 395

The STATE of Arizona, Appellee, v. Espiridion Morales MENDOZA, Appellant.

No. 1733.

Supreme Court of Arizona, In Banc.

May 1, 1969.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., by T. M. Pierce, Asst. Atty. Gen., for appellee.

Charles M. Giles, Tucson, for appellant.

McFARLAND, Justice:

Defendant Espiridion Morales Mendoza, hereinafter referred to as defendant, was tried and convicted of unlawful possession of narcotic drug--heroin--in violation of § 36-1002, A.R.S., with a prior conviction, and was sentenced to serve a term of not less than fifteen years nor more than sixteen years in the Arizona State Penitentiary. From the judgment and sentence of the court, he appeals.

Defendant was 52 years of age at the time of the trial, and had been addicted to the use of narcotics for approximately twenty-five years. The first question presented by defendant was whether criminal punishment of a narcotic addict for the possession of narcotic drugs constitutes cruel and unusual punishment.

Counsel for defendant contends that the instant case is similar to that of Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, wherein the Supreme Court of the United States held that the statute of the State of California which makes it a criminal offense to be addicted to the use of narcotics inflicts cruel and unusual punishment and violates the Eighth Amendment to the Constitution of the United States. Counsel for defendant contends that possession is necessarily corollary to the addiction, in that one addicted to the use of narcotics is under compulsion to have it in his possession for use; therefore, a statute which provides for the punishment of an addict who has possession of narcotics is, under the holding in Robinson v. State, supra, unconstitutional. However, the Court, in Robinson, supra, also stated:

'The broad power of a State to regulate the narcotic drugs traffic within its borders is not here in issue. More than forty years ago, in Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 41 S.Ct. 425, 65 L.Ed. 819, this Court explicitly recognized the validity of that power: 'There can be no question of the authority of the state in the exercise of its police power to regulate the administration, sale, prescription and use of dangerous and habit-forming drugs * * *. The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question."

We cannot agree with defendant's conclusion. We believe it ignores the public policy against the possession of dangerous narcotics. The 'cruel and unusual punishment' clause has been directed at the Method or kind of punishment imposed for the violation of the criminal statute; and the nature of the conduct made criminal is ordinarily relevant only to the fitness of the punishment imposed. Powell v. State of Texas, 392 U.S. 514, 88 S.Ct. 2145, 2155, 20 L.Ed.2d 1254.

In Bailey v. United States, 386 F.2d 1, 5th Cir., the Court said:

'Robinson is not authority for appellants' position. * * * The Holding was limited to the criminality of addition, and the Court said there is no constitutional objection to punishment for the 'unauthorized manufacture, prescription, sale, purchase, or Possession of narcotics. " (Emphasis added.)

We hold that § 36-1002, A.R.S. is constitutional, and punishment thereunder does not amount to cruel and unusual punishment.

The second question presented by defendant was whether the evidence should have been suppressed for the reason that it was obtained by a search of defendant's premises.

Defendant contends that the failure of the trial court to suppress the evidence obtained as the result of the peace officers' search was error for the reason that the search warrant was executed in such a manner that it violated the prohibition against unreasonable searches and seizures contained in the Fourth Amendment to the Constitution of the United States, and also the mandate set forth in § 13-1446, subsec. B, A.R.S., which provides:

'The officer may break open an outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose he is refused admittance. * * *'

On March 16, 1966, Sergeant William Dunn of the Tucson Police Department secured a search warrant from the justice of the peace to search the premises of defendant. Four detectives in plain clothes went to defendant's one-room apartment at 9:30 in the morning. One man was sent around to watch the rear window, which was the only exit from the apartment except for the front door. The other three proceeded to the door. Without any words directed to the occupant inside, one detective took the handle of the screen door, which was outside the inner door, and shook it in an attempt to open it. He was unsuccessful. Testimony indicates the surrounding area was quiet, and the rattling was considerable, but there was no testimony as to whether defendant actually did hear the noise. One detective then checked with the officer at the rear to determine if he had seen defendant, and when it was determined he had not he returned to the front and informed the other officers. Then Lt. Zuno pulled on the screen door, and this time it opened. Lt. Zuno testified he then grasped the knob on the inner door, turned it, and opened the door. Sgt. Dunn testified 'the door was just pushed inward.'

After Lt. Zuno opened the door the other officers followed him inside. It is uncontroverted that at no time did they knock, or announce who they were, or their purpose for being there. Once inside the officers discovered defendant sitting on his bed in a T-shirt and underpants. Sgt. Dunn knew defendant from past encounters on narcotics violations. He greeted defendant, promptly presented him with a search warrant, and then informed him of the purpose of the visit. Defendant remained sitting in bed through the search. After some twelve minutes the officers found three papers containing over 400 milligrams of heroin in the frame of the bed.

The question is whether the action of the police officers in failing to announce their identity before forcibly entering defendant's apartment, as provided for in § 13-1446, subsec. B, A.R.S., constituted an unreasonable search and seizure. The State contends that it was not an unreasonable search and seizure, and cites as authority Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. In Ker the Supreme Court of the United States, in passing upon the question of the admissibility of evidence obtained without a search warrant in the State of California, held that the search was incident to a legal arrest and therefore admissible. The Court said:

'It is contended that the lawfulness of the petitioners' arrests, even if they were based upon probable cause, was vitiated by the method of entry. This Court, in cases under the Fourth Amendment, has long recognized that the lawfulness of arrests for federal offenses is to be determined by reference to state law insofar as it is not violative of the Federal Constitution. Miller v. United States, supra, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Johnson v. United States, 333 U.S. 10, 15, n. 5, 68 S.Ct. 367, 370, 92 L.Ed. 436 (1948). A fortiori, the lawfulness of these arrests by state officers for state offenses is to be determined by California law. California Penal Code, § 844, ⁹ permits peace officers to break

into a dwelling place for the purpose of arrest after demanding admittance and explaining their purpose. Admittedly the officers did not comply with the terms of this statute since they entered quietly and without announcement in order to prevent the destruction of contraband. The California District Court of Appeal, however, held that the circumstances here came within a judicial exception which had been engrafted upon the statute by a series of decisions, (Cases cited.) and that the noncompliance was therefore lawful.

'* * * Here justification for the officers' failure to give notice is uniquely present. In addition to the officers' belief that Ker was in possession of narcotics, which could be quickly and easily destroyed, Ker's furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police. We therefore hold that in the particular circumstances of this case the officers' method of entry, sanctioned by the law of California, was not unreasonable under the standards of the Fourth Amendment as applied to the States through the Fourteenth Amendment.'

The Court based its holding on a 'judicial exception which had been engrafted upon the statute by a series of decisions.' The California Penal Code, 844, permits peace officers to break into a dwelling place for the purpose of arrest after demanding admittance and explaining their purpose. While this statute is similar to § 13-1446, subsec. B, A.R.S., which provides in the execution of a search warrant that the 'officer may break open an outer or inner door * * * after notice of his authority and purpose (if) refused admission * * *' However, unlike California, this Court has not by a series of decisions engrafted a judicial exception to the statute.

18 U.S.C. Par. 3109, provides:

'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.'

It will be noted that this section is similar to that of § 13-1446, subsec. B, A.R.S. The Supreme Court, in ...