State v. Pine

• Decision Date: 13 November 1968
• Docket Number: No. 2,CA-CR,2
• Citation: 8 Ariz.App. 430,446 P.2d 940
• Parties: STATE of Arizona, Appellee, v. Douglas Neall PINE, Appellant. 117.
• Court: Arizona Court of Appeals

Page 940

446 P.2d 940

8 Ariz.App. 430

STATE of Arizona, Appellee, v. Douglas Neall PINE, Appellant.

No. 2 CA-CR 117.

Court of Appeals of Arizona.

Nov. 13, 1968.

Rehearing Denied Dec. 10, 1968.

Review Denied Jan. 14, 1969.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, former Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

William H. Tinney, Jr., Tucson, for appellant.

KRUCKER, Judge.

Information was filed against the defendant, Douglas Neall Pine, on October 17, 1966 charging the crime of burglary, two counts. The trial before a jury in July, 1967 resulted in verdicts of guilty on both counts, and on July 24, 1967 a judgment of guilty was entered, imposition of sentence was suspended for a period of five years, and the defendant placed on probation.

The major grounds for this appeal arise under the search and seizure provisions of the Fourth Amendment of the U.S. Constitution and the Privilege Against Self-Incrimination under the Fifth Amendment of the U.S. Constitution, as applied to the states under the aegis of the 14th Amendment to the U.S. Constitution. An additional ground for appeal arises out of the failure of the trial court to grant a mistrial because of allegedly prejudicial misconduct of a witness before the jury.

Construing the record most favorably to the State, State v. Hassman, 101 Ariz. 583, 422 P.2d 699 (1967), the relevant facts and circumstances surrounding the constitutional grounds for this appeal are as follows. Two detectives from the Tucson Police Department, armed with what they believed to be a valid search warrant, went to the defendant's apartment with purpose and intent of searching that premises and questioning the defendant in connection with two burglaries. As they approached the apartment, the main door of the apartment stood open, but an outer screen door was closed. One of the detectives knocked on the door, and in response thereto, a young woman appeared. The detectives identified themselves as police officers, and the screen door was opened, either by the young woman or by one of the detectives, for the purpose of showing the officers' identification to her. The officers asked if defendant were there. The young woman went to get the defendant, who was in another room in the apartment, and the officer, from the doorway, looked into the room, the screen door having remained open during the conversation with the young woman. At this time, and from this position, the officer observed a large aquarium and several small aquariums, and, because of a description given to the officer by the owner of one of the burglarized premises, the officer believed that the large aquarium had been taken in connection with one of the burglaries.

At this time the defendant appeared, and the officers identified themselves to him, told him they had a warrant to search his apartment, and informed him that they were investigating two burglaries and that they would like to speak with him in connection with them. The defendant stated that he knew why the officers were there, and he requested that they conduct their business outside the apartment, out of the presence of the young woman.

The defendant and the two detectives then proceeded to the sidewalk in front of the defendant's apartment, and at this time the defendant was served with the search warrant and 'Miranda warnings' were given to him. The defendant, while outside the house with the officers, admitted that he had committed the two burglaries. Defendant gave the officers complete details regarding both of these burglaries, and when the conversation was finished the defendant and the two officers returned to the house, the young woman in the meantime having departed, and while inside the house the defendant went about the house pointing out to the officers the various items which he had taken in connection with the burglaries.

When this was done, one of the officers called the owners of the burglarized premises, and the respective owners later appeared in the presence of the defendant at his apartment and identified the items pointed out by the defendant as property taken from their premises at the time of the burglaries. Both owners at this time had conversations with the defendant in the course of which he again admitted the burglaries, and arrangements were made between the defendant and the respective owners to pay for the property taken and for damages done to the respective premises as a result of each burglary.

In addition to the owners of the property, a police photographer was called, and during this same period photographs were taken of the exterior and the interior of the defendant's apartment, the interior photographs depicting various articles which were taken in the course of the burglaries.

When all of the foregoing transactions were completed, the defendant was taken to the city jail for booking, and then to the detective division where a written confession was taken by a stenographer.

Prior to the trial and again at the commencement of the trial, the defendant moved to suppress all of the information and evidence and admissions by the defendant which were obtained subsequent to the time that the screen door was opened in order that the detectives could exhibit their identification to the young woman who answered the door. As a basis for the motion to suppress, defendant asserted the invalidity of the search warrant, claiming that it was issued upon improper affidavit. The pre-trial motion to suppress was denied without explanation. The motion to suppress at the commencement of the trial was denied, and the trial court, although clearly of the opinion that the warrant was invalid, declined to rule on the warrant's validity, it being of the opinion that the information and evidence sought to be suppressed was obtained without the use of the search warrant. ¹

The first matter we shall consider concerns the actions of the police officer while standing in the doorway of the defendant's apartment, and whether what the officers saw at that time and place was the fruit of an unreasonable search or seizure.

The officer knocked on the door, a young woman answered the door, the screen door was opened for the purpose of showing identification to her, and at this time the officer looked into the room, there observing a large fish tank the appearance of which corresponded to a description of property taken in the burglaries. The trial court ruled that the foregoing sequence of events did not constitute an unreasonable search, and that the observations of the officer were made without the use of the search warrant.

We are constrained to agree with the ruling of the trial court. Aside from the fact that the officers had the search warrant in their possession at this time, there is nothing whatsoever to indicate that the presence of the officers in the doorway was secured by use of the search warrant. It is not enough that the officers had what they believed to be a valid warrant and that they believed the warrant gave them the power to search the apartment, and where there is nothing in the record to indicate that the officers made any use of the warrant at this time, then the admissibility of the officer's observations from the doorway under the doctrine of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) should be determined without further reference to the search warrant.

The Fourth Amendment to the U.S. Constitution does not prohibit all searches and seizures, but only those that are unreasonable. State v. Baca,1 Ariz.App. 16, 398 P.2d 924 (1965).

Of the many possible situations recognized by the courts as not constituting unreasonable searches, the one most appropriate to the case before us appears to be the 'open view doctrine.' Under this doctrine a peace officer who has reached a location by lawful means and who, from this location, can, by the mere act of looking, observe what he believes to be contraband, is '* * * not required to close (his) eyes and need not walk out and leave the article where (he) saw it.' Davis v. United States, 327 F.2d 301, 305 (9 Cir., 1964). The entry of the officer in this case, to the extent that there was an entry, and his placing himself in the doorway of the defendant's apartment, was not an unlawful intrusion. The outer screen door was opened without objection, and the presence of the officer in the doorway was likewise achieved and maintained without objection. See, Davis v. United States, supra.

It was at this time, and from this location, that the officer observed the aforesaid fish tank, and we are of the opinion that this observation did not constitute an unreasonable search.

It is noteworthy that even after the officer observed what he believed to be stolen property, he did not seize it or utilize it or even make reference to it, and instead he continued with his originally stated purpose, that being to talk to the defendant with regard to the burglaries.

We move next to defendant's proposition that his statements and admissions made during the course of the conversation with the police officers were coerced by virtue of the fact that the police officers presented him with an invalid search warrant. We are unable to discern between the possibilities of coercion which might be produced by a valid search warrant and those which might be produced as a result of an invalid search warrant, believed by the relator to be valid. If a person who makes a confession or an admission claims to have been coerced, then the real issue is his state of mind, Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and not whether the means by which he is said to be coerced possess all those qualities which the person making the confession or admission believes them to possess. The record, before the court alone and before the jury, shows that before the defendant made any admissions or before he confessed he was served with...