State v. Miller

• Decision Date: 30 May 1972
• Docket Number: No. 2194,2194
• Parties: The STATE of Arizona, Appellee, v. Richard Lee MILLER, Appellant.
• Court: Arizona Supreme Court

Page 516

497 P.2d 516

108 Ariz. 303

The STATE of Arizona, Appellee, v. Richard Lee MILLER, Appellant.

No. 2194.

Supreme Court of Arizona, In Banc.

May 30, 1972.

Rehearing Denied June 27, 1972.

Gary K. Nelson, Atty. Gen., by John Ryley and Albert M. Coury, Asst. Attys. Gen., Phoenix, Roslyn Moore, Third Year Law Student, Arizona State University, of counsel, Tempe, for appellee.

Lewis & Roca, by Paul G. Ulrich and James P. Walsh, Phoenix, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal from jury verdicts and judgments of guilty, with a prior conviction (§ 13--1650 A.R.S.), to first degree burglary, §§ 13--301 and 13--302 A.R.S., 13--138 to 13--140 A.R.S. and grand theft, §§ 13--661, 13--663, 13--138 to 13--140 A.R.S., and concurrent sentences of 10 to 12 years.

We are asked to answer the following questions:

1. Should evidence obtained incident to defendant's arrest have been suppressed?

2. Was the evidence sufficient to establish burglary?

3. Was the evidence sufficient to establish grand theft?

4. Was the disposition of the codefendant's case properly excluded from evidence?

5. Was there error in the State's reference to the defendant's not testifying?

6. Should the prior conviction have been used for sentencing purposes?

The facts necessary for a determination of this matter on appeal are as follows. At about 9:50 p.m. on the night of 30 December 1969 two individuals were driving past 329 East Indian School Road when they spotted two people they belived to be breaking into the Friden Office Machine building located at that address. The driver, Don Herring, turned his car around and drove back to an accident scene he had previously passed and told a Police Officer, Raymond Tyres, that he had observed two men at Fourth and Indian School and 'one man was pushing another man in an open window.'

Officer Tyres sped to the area and observed two men (the defendant Richard Lee Miller and his codefendant Leonard James Lackey) standing behind a tree against the east side of the Friden Building. The window under which they had been standing was 'ripped open' and the screen was torn off. Officer Tyres completed his radio call for back-up help for a possible burglary, and got out of his car. The defendants, upon seeing the Officer, began walking hurriedly southward, but stopped and complied with Officer Tyres when he asked them to back up against the wall. They did not respond, however, when asked what they were doing. When asked for identification, Lackey produced some identification but Miller said he didn't have any. At this point two other officers, both of whom had heard the radio call for help in a possible burglary, arrived almost contemporaneously on the scene. They were informed by Officer Tyres that the two men up against the wall were the burglary suspects. Officer Tyres, after checking Lackey's identification--Miller was still unable to produce any identification--advised the defendants that they were under arrest for vagrancy. Then the officers searched the defendants and found a rachet and penknife on Miller's body and a pair of leather gloves on the ground next to him. A pair of gloves and a flashlight were discovered on Lackey. The defendants were placed in police cars and one of the officers told them either that they were presently under arrest for burglary or were to be arrested for burglary (his testimony is unclear).

A check of the building revealed that 'there were pry marks * * * on the window.' The officers boosted themselves through the open window (it was six feet off the ground) and searched the building. They 'observed one or two places where we thought maybe an office machine might have been but wasn't.' They found a rear door which opened up to a pickup truck backed flat against it and three business machines in the flat rear of the pickup. A check of the registration of the truck revealed it was in the name of the codefendant Lackey. The torn screen was found behind the building. The officers then arrested (or re-arrested) the defendants for burglary and accompanied them down to the police station.

The defendants were charged with first degree burglary and grand theft. At the preliminary hearing on 21 January 1970 the codefendant Lackey pled guilty to the reduced charge of petty theft and, after a speech by his counsel emphasizing his relatively spotless former record and his willingness to confess to the police the day after the crime, received a 90 day suspended sentence. Miller was bound over on both counts.

The defendant made a timely motion to suppress the evidence obtained as a result of the vagrancy arrest, on the theory that no probable cause existed to arrest for vagrancy. The motion was denied. At his trial, which began on 27 April 1970, Miller concentrated on an alibi defense and an alternate defense that the machine was worth less than $100, and therefore the theft was not grand theft.

Defendant was convicted, and pursuant to the recidivist statute, § 13--1650 A.R.S., the State put into evidence a prior (1960) California conviction which resulted from a guilty plea by Miller. Defenant made timely objections to the admission of the prior conviction, the court denied the motions, and the jury found the defendant guilty with a previous conviction. The defendant was sentenced to 10 to 12 years on each count, to be served concurrently, and the

appeal followed. SHOULD EVIDENCE OBTAINED INCIDENT TO DEFENDANT'S ARREST HAVE BEEN SUPPRESSED?

At the trial, the defendant unsuccessfully moved to suppress the evidence obtained after the arrest on the basis that there was no probable cause to arrest for vagrancy. On appeal the defendant further raises the question of the constitutionality of the Arizona vagrancy statute. The recent United States Supreme Court cases of Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 and Smith v. Florida, 405 U.S. 172, 92 S.Ct. 848, 31 L.Ed.2d 122, both decided on 24 February 1972, have cast doubt on the constitutionality of vagrancy statutes such as Arizona's. It is not, however, necessary to answer the question of the propriety of the arrest for vagrancy or the constitutionality of the vagrancy statute, because we believe that at the time of the arrest for vagrancy, there was probable cause to arrest for burglary and therefore the arrest was initially lawful.

The authorities are admittedly in disagreement on this point, but we feel that the better view is that when an officer makes an initial arrest for a minor offense such as vagrancy, which charge is considerably less serious than the offense which is actually and logically under consideration and investigation, the arrest and the resulting search is lawful provided there is at that time probable cause to make the arrest for the more serious offense and the arrest for the lesser offense is not merely a sham or subterfuge for the purpose of obtaining sufficient evidence to have probable cause to arrest for the more serious offense. Of course, if probable cause for the more serious offense is initially lacking, then the arrest must rise or fall on the sufficiency and constitutionality of the arrest for the lesser offense. Where the arrest is a mere sham, the courts have stated:

'A study of the facts of appellant's arrest for vagrancy and the events prior thereto convinces us that the arrest was merely a sham for the officers' real purpose which was to gather evidence in their investigation of the robbery. No evidence whatever appears in the record which would even hint at there being any probable cause for this arrest and the state so concedes in its brief. Appellant testified that when he was told he was being arrested for vagrancy, he then informed Officer Ayars that he was employed, he had a home, and had money with him at the time and this was corroborated by the officer. Furthermore, the search in the police station revealed that each suspect indeed did have a substantial amount of cash with him, yet they were booked on the vagrancy charge. * * * Activity such as this by the police is entirely inimical to basic constitutional standards for arrest and search and simply cannot be countenanced.' State v. Barwick, 94 Idaho 139, 141, 483 P.2d 670, 672--673 (1971). See also Brumley v. State (Okl.Cr.), 484 P.2d 554 (1971).

However, where there is probable cause to arrest for the more serious crime and the arrest for vagrancy is not a mere sham or subterfuge:

'* * * The officers' correct choice of a legal theory to rely on at the time of the arrest is not the factor which provides protection to persons from unreasonable searches and seizures. The barrier to an intrusion on a person's constitutionally guaranteed 'zone of privacy' by way of an arrest for a crime is removed only when the police officers are aware of specific, articulable facts amounting to 'probable cause'. State v. Smithers, supra. Where the police awareness of such facts is not present, then their choice of a legal theory is irrelevant because the arrest is invalid in any case. Where the police awareness of such facts is present, society's need to have the person arrested outweighs whathever minimal value the person arrested receives from having the arresting officers choose the correct legal theory for the arrest. The issue is, did the officers, at the time they stopped the car, have knowledge of facts and circumstances sufficient to warrant a prudent man of reasonable caution in believing that the driver (sic) of the car had committed a burglary and assault. We hold that they did have such knowledge.' Smith v. State (Ind.), 271 N.E.2d 133, 137 (1971).

and:

'We have also been mindful of the fact that the police officer acts within the context of everyday occurrences and is not presumed to be a legal technician. * * *' People v. Battiste (Ill.App.), 272 N.E.2d 808, 811 (1971). See also State v. Daugherty, 94 Idaho 232, 486 P.2d 243 (1971).

We have reviewed the evidence in the...