State v. Pederson

• Citation: 102 Ariz. 60,424 P.2d 810
• Decision Date: 09 March 1967
• Docket Number: No. 1666,1666
• Parties: The STATE of Arizona, Appellee, v. Wilfred Raymond PEDERSON and Gary L. Langseth, Appellants.
• Court: Supreme Court of Arizona

Page 810

424 P.2d 810

102 Ariz. 60

The STATE of Arizona, Appellee, v. Wilfred Raymond PEDERSON and Gary L. Langseth, Appellants.

No. 1666.

Supreme Court of Arizona, In Division.

March 9, 1967.

Rehearing Denied April 4, 1967.

Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., and Robt. K. Corbin, County Atty., Maricopa County, for appellee.

Langerman, Began & Lewis, Phoenix, Allen H. Aaron, Minneapolis, Minn., and Robert D. Myers, Phoenix, for appellants.

UDALL, Justice.

At an undetermined hour on March 14th or 15th, 1965, a SupeRx drug store in the city of Phoenix was burglarized. On March 16th at approximately 12:15 p.m. the defendant, Gary Langseth, was arrested in a Las Vegas, Nevada hotel room. The arresting officers, detectives Conger and Ruble, of the Clark County Sheriff's Office in Las Vegas, arrested Langseth without a warrant, and during the course of an immediately subsequent search of Langseth's baggage the officers found money and drugs thought to be traceable to the burglarized drug store. At approximately 1:45 p.m., the defendant, William Pederson, was arrested after he used a key to enter the room where Langseth had been found. Pederson was searched and the officers removed approximately $1031.00 from his wallet.

After the arrest and search of the defendants, and after obtaining a search warrant, detective Conger and other officers searched Langseth's 1964 Pontiac automobile. In the car the officers found a sledge hammer, an ax, crowbars, hammers and other tools, all of which were alleged by the prosecution to be burglary tools. Both Langseth and Pederson were returned to Arizona and after a jury trial in superior court they were found guilty of committing burglary, in violation of A.R.S. § 13--303. Each defendant was sentenced to imprisonment for a period from ten years to life. From the conviction and sentence the defendants bring this appeal.

On this appeal counsel for the defendants has raised several questions as a basis for reversal of the conviction. The principal question, which pertains to both defendants, relates to the admissibility in evidence of the money, drugs and tools which were seized after the arrests. Defendants contend there was no probable cause for their arrest without a warrant, and consequently, that the introduction of the items into evidence violated their federal and state constitutional guaranties against illegal searches and seizures. Defendants' motion to suppress was denied.

If the money and drugs were obtained during the course of or as the result of an illegal search and seizure, they were not admissible as evidence against the defendants. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. We are bound to follow the United States Supreme Court decisions which have established the guidelines for ascertaining the admissibility of evidence allegedly searched and seized in violation of rights guaranteed by the Fourth Amendment of the United States Constitution. State v. Graham, 97 Ariz. 408, 401 P.2d 414.

In judging the admissibility of the evidence in this case, we are guided by the following principle enunciated in Ker:

'The evidence at issue, in order to be admissible, must be the product of a search incident to a lawful arrest, since the officers had no search warrant. The lawfulness of arrest without warrant, in turn, must be based upon probable cause, which exists 'where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." 374 U.S. 23, 34--35, 83 S.Ct. 1623, 1630.

With the above standard in mind, we have examined the record in order to determine whether the facts and circumstances, as they existed at the time of the warrantless arrests, were sufficient to constitute probable cause. In order to answer this issue we must first note a few additional facts, as established by the testimony.

On Sunday, March 16, Sergeant Judd of the Phoenix Police Department called the Clark County Sheriff's office in Las Vegas. The office had also received a call from agent Kensinger of the local office of the FBI in Las Vegas. Although the record indicates relatively little about the details of the telephone calls, it is clear that the subject of both was the Phoenix burglary and the defendants Langseth and Pederson.

After the calls were received Sergeant Simmons, of the Sheriff's office, talked with detective Conger, who testified as follows concerning the conversation:

'Q Did he tell you to find Mr. Langseth and arrest him?

'A He told me the information that was given to him by Detective Sgt. Judd and Kensinger.

'Q Well, the question I asked is, did he tell you to go and make an arrest?

'A Yes, sir.

'Q. Sgt. Simmons told you to go make an arrest?

'A I don't recall exactly if that was his words. I believe he told me to attempt to locate them. We didn't know for a fact that they were in Las Vegas.

'Q And did you know that when Sgt. Judd of Phoenix called Sgt. Simmons that he did not even ask Sgt. Simmons to arrest either Langseth or Pederson? Did you know that as of March 16, 1965?

'A No, I don't know the entire text of his conversation.

'Q Do you know that to be the fact now?

'A No, sir, I still don't.

'Q So right now you don't know whether Sgt. Simmons was requested by Phoenix authorities to even make an arrest, is that right?

'A He told me that they were wanted. Sgt. Simmons said that Sgt. Judd advised him that they were wanted in Phoenix. I don't know his exact words, but they were wanted in Phoenix for burglary.

'Q And he either told you or you interpreted that as a request to make an arrest, is that right?

'A Yes, sir.'

After talking with his superior officer, detective Conger went out to look for the suspects, and during the search, over his car radio he received a message from the Las Vegas FBI office, informing him that the suspects' automobile had been located at the Dunes Hotel in Las Vegas. Detectives Conger and Ruble went to the hotel, where they met FBI agent Kensinger. During the trial of this case, in order to rule on the defendants' renewed motion to suppress, detective Conger was examined in the chambers of the trial judge, and he testified as follows, with regard to what agent Kensinger told him at the Dunes Hotel before the arrests:

'Q Now, at the time you made the arrests what facts were within your knowledge concerning the SupeRx burglary in Phoenix and the connection of these defendants with that burglary?

'THE WITNESS: On arriving at the Dunes hotel at approximately noon, I contacted our local FBI agent, Kensinger, and he advised me at that time that a burglary had been committed in Phoenix, Arizona.

'Q Did he tell you where?

'A Yes, he said it was at the SupeRx drug store, and that the safe had been burglarized.

'He advised me that a vehicle that was answering the description of the one the two suspects are driving had been observed behind the building that the subjects were registered into (in Phoenix, Arizona), the Kon Tiki Motel, Phoenix, and that after they had left the Kon Tiki a cardboard container which appeared to be one that had been taken in the burglary was found in the room.

He also advised me that their office had received information that subjects Langseth and Pederson were traveling from Minnesota to Phoenix, Arizona for the purposes of, as he referred to, making a score, and then on to Las Vagas.

'THE WITNESS: Now, he also had a picture of Langseth that had been forwarded to him, apparently by the FBI in the State of Minnesota.

Also, he stated that the vehicle that answered the description of theirs that was observed behind the scene of the burglary did not have Minnesota license plate on it.

'Q Did he say anything about anything else being behind the scene (of the burglary)?

'THE WITNESS: Well, he advised me that a witness had been observed, a subject, behind the building. I guess it was prior to the burglary. And that it answered Langseth's description. I don't know if he said it was him, but I believe he said it answered his description.

And also that shortly after the time that the burglary had occurred, that the two subjects in question had checked out of the (Phoenix) motel room where the article was found that had apparently come from the burglary.

'Q Did he say anything about Langseth's reputation in Minnesota?

'THE WITNESS: He advised me that Langseth did have a reputation with the police officers in that area, and also the FBI.

'Q As what?

'A Of being a burglar, and that he traveled extensively, and I believe that was the extent of it. I don't recall if he specified that he specialized in safes or not.

Do you remember anything else?

'A He advised me that he had received this information from their agency here in Phoenix, Arizona, which had been forwarded to him, and subsequently to myself. We had also received information from Sgt. Judd, which of course I didn't receive myself--I got it from my superior--which was basically--Well, prior to that time I hadn't got too many of the details from my office * * *.'

During the course of the above testimony in the chambers of the trial judge, defendant repeatedly raised a hearsay objection. We need not dwell upon this point. It is sufficient simply to note that in a hearing to determine whether probable cause existed for an arrest, what the arresting officer has been told by another person is not excludable by raising the objection of hearsay. In Draper v. United States, 358 U.S. 307, 311, 312, 79 S.Ct. 329, 332, 3 L.Ed.2d 327, 331, the Supreme Court of the United States explained the unavailability of the hearsay objection as follows:

'* * * (We) find the petitioner entirely in error. Brinegar v. United States, 338 U.S. 160, 172--173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, 1888, 1889, has settled the question the other way. There,...