State v. Nadler, 2

• Decision Date: 12 March 1981
• Docket Number: CA-CR,No. 2,2
• Parties: The STATE of Arizona, Appellee, v. Blaine R. NADLER, Appellant. 2182.
• Court: Arizona Court of Appeals

Page 56

628 P.2d 56

129 Ariz. 19

The STATE of Arizona, Appellee, v. Blaine R. NADLER, Appellant.

No. 2 CA-CR 2182.

Court of Appeals of Arizona, Division 2.

March 12, 1981.

Rehearing Denied April 22, 1981.

Review Denied May 12, 1981.

Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Asst. Atty. Gen., Tucson, for appellee

Donau & Bolt by Alfred S. Donau, III, Tucson, for appellant.

OPINION

BIRDSALL, Judge.

Appellant and two co-defendants, Michael and Douglas Commons, were charged with possession of cocaine and possession of marijuana. The two co-defendants entered into plea agreements with the State. Appellant was found guilty by a jury of both counts and subsequently sentenced by the trial court to the presumptive sentence of four years imprisonment on the cocaine charge and a concurrent sentence of 1.875 years on the marijuana charge. This appeal followed.

There are four issues presented. First, did the trial court err in denying appellant's motion to suppress the physical evidence? Second, did the trial court abuse its discretion and commit reversible error in refusing to grant a continuance on the first day of the trial? Third, was there sufficient evidence to sustain the convictions and lastly, did the trial court err in denying appellant's motion to dismiss based on a violation of time limits under Rule 8, 17 A.R.S., Rules of Criminal Procedure?

The pertinent facts are as follows. On January 5, 1980 a law enforcement officer approached a motor vehicle which previously has been under police surveillance at the Lavender Pit viewpoint just off U.S. 80 in Bisbee, Cochise County, Arizona. Co-defendant Michael Commons was standing outside the vehicle and as the officer engaged him in conversation he detected a strong odor of burnt marijuana coming from the automobile. He then ordered the other two occupants, appellant and co-defendant Douglas Commons, out of the car and proceeded to search it. Although the officer was alone at the time he initially came to the scene, other officers appeared at about the time that he commenced his search.

In the search the officer located a paper bag in the back seat where co-defendant Douglas Commons had been sitting. Appellant was occupying the passenger seat in the front of the vehicle at the time he exited. The officer opened the bag and discovered a baggy of marijuana. At that time he ordered a fellow officer to take all three persons into custody. Upon further inspection of the contents of the bag the officer removed a closed box and a leather pouch. He opened both of these items and discovered a flat dish, an eye dropper, two glass bottles with liquid and two vials. During the surveillance of the automobile the officers had observed conduct by its then occupants, none of whom could be identified as the defendants, which led them to believe that both marijuana and cocaine were being used in the vehicle. Laboratory analysis of the vials disclosed the contents to be cocaine. We will discuss other facts as necessary in considering the issues presented.

Denial of the Motion to Suppress

Appellant argues that the motion to suppress should have been granted because the search did not fall within an exception to the warrant requirement. In the alternative, he argues that even if a warrantless search of the car was permissible, a search warrant had to be obtained before the officer inspected the contents of the paper bag. See Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). We do not reach these issues because we hold that appellant failed to prove that he had standing to claim the benefits of the exclusionary rule because he had no legitimate expectation of privacy in either the automobile or any of the property seized. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). See also Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

In Salvucci the United States Supreme Court overruled the holding of the Court of Appeals that a defendant is entitled to "automatic standing" to challenge the legality of a search and seizure if he is charged with a possessory crime. The Supreme Court also held that defendants charged with crimes of possession may claim the benefits of the exclusionary rule only if their own Fourth Amendment rights have, in fact, been violated. A defendant may testify in support of a motion to suppress in order to establish his interest in the contraband and if he does that testimony cannot be admitted as evidence of guilt at trial. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Rule 16.2, 17 A.R.S. Rules of Criminal Procedure specifically provides that a defendant may testify at a hearing concerning the constitutionality of the use of specific evidence against him and, if he does, he does not waive his right to remain silent during the trial. Neither the fact of his testifying nor his testimony shall be mentioned at the trial unless he testifies concerning the same matters. Id.

Thus in this case in order for the court to grant appellant's motion to suppress, assuming the validity of his reasons for suppression, appellant would first have to present evidence concerning his interest, possessory or otherwise, in the contraband. No such evidence was presented. At trial all of the evidence presented by appellant demonstrated his apparent lack of any invaded legitimate interest. In fact he testified himself before the jury and disclaimed any right to either the drugs or any of the paraphernalia. The evidence further disclosed that he was neither the owner of the car nor its driver and that co-defendant Michael Commons was the owner of the drugs. In rebuttal appellant argues that since this question of standing was not argued to the trial court it cannot now be urged on appeal as a reason for upholding the trial court's denial of the motion to suppress. As authority he cites State v. Goldsmith, 112 Ariz. 399, 542 P.2d 1098 (1975). Goldsmith only involved an objection not made to the trial court which was argued for the first time on appeal as a grounds for reversal and is not authority for the proposition stated by appellant. On the contrary on appeal the trial court's ruling will be affirmed on any grounds which were within the issues. State v. Sardo, 112 Ariz. 509, 543 P.2d 1138 (1975). Certainly the question of whether or not appellant's constitutional right of privacy was invaded was an issue on the motion to suppress. The record does not show the reasons for the trial court's ruling. However, its ruling will be affirmed when the correct result is reached even though based upon the wrong reasons. State v. Sardo, supra; State v. Martin, 102 Ariz. 142, 426 P.2d 639 (1967). The trial court did not err in denying the motion to suppress.

Denial of Motion to Continue

The state intended to call as a witness co-defendant Michael Commons. The day before trial was to commence the court learned that he had been injured in an accident and would be unable to come from his home in Idaho and would be unavailable because of medical reasons for four weeks. Upon learning of this the prosecutor advised the trial judge ex parte. The judge was adamant that no continuance would be permitted and the prosecutor then secured the attendance of the other co-defendant Douglas Commons from Delaware. He had not previously intended to call him. Appellant had not listed either of the co-defendants as witnesses and had not secured any...