State v. Papineau
| Decision Date | 02 May 1985 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 146 Ariz. 272,705 P.2d 949 |
| Parties | STATE of Arizona, Appellee, v. Gary G. PAPINEAU, Appellant. 3283. |
| Court | Arizona Court of Appeals |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Crane McClennen, Phoenix, for appellee.
Bruce A. Burke, Tucson, for appellant.
Defendant, convicted of possession of marijuana, raises two issues on appeal concerning the propriety of the search leading to the discovery of the marijuana. The first, that the affidavit in support of the application for a warrant did not demonstrate probable cause and that the failure to raise that issue constituted ineffective assistance of counsel, is without merit. The affidavit recited firsthand recent knowledge of marijuana on the premises to be searched by an informer of demonstrated credibility. This satisfies the rigid test of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), as well as the more relaxed standard of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Beyond that, because the executing officers were acting in good faith reliance on a warrant, issued by a judicial officer, exclusion would not be an appropriate remedy. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
Defendant's second issue relates to the manner of execution of the warrant. The trial court found that the officers, after knocking at the door of the house to be searched and announcing their authority and purpose, did not wait a "significant period of time" before entering. The court also found that the officers had the good faith belief that "the occupants were aware of their presence and identity" and that entry was necessary "to protect against a possible loss of evidence." The evidence on which these findings rest were that someone at the window of the house could see the officers approaching (that they were seen was confirmed by a witness within the house), that that person could have opened the door immediately, that the officers waited five to ten seconds after knocking and announcing before entering, and that they entered only after hearing "rustling" movements within.
Defendant contends that this evidence is insufficient to show that the officers were refused admittance or received no response within a reasonable time so as to permit entry under A.R.S. § 13-3916(B). In State v. Dixon, 125 Ariz. 442, 610 P.2d 76 (App.1980), also a narcotics search case where destruction of evidence is always a risk, we held otherwise. We there stated:
See also United States v. Wysong, 528 F.2d 345 (9th Cir.1976).
Even had there been a violation of the knock...
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