State v. Ream
| Decision Date | 30 January 1973 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 505 P.2d 569,19 Ariz.App. 131 |
| Parties | STATE of Arizona, Appellee, v. Jim Lee REAM and Conrad James Badt, Appellants. 468. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen. by Peter M. Van Orman, Asst. Atty. Gen., Phoenix, for appellee.
Jay H. Bundy, Kingman, for appellants.
Defendants Jim Lee Ream and Conrad James Badt were convicted of the crime of possession of marijuana for sale, a felony, and received sentences of not less than two years nor more than five years in the arizona State Prison.
Prior to trial the defendants filed, and the trial court denied, a motion to suppress certain evidence consisting of marijuana found in the automobile in which the defendants had been riding immediately prior to their arrest. The sole question raised on this appeal concerns the propriety of the denial of the motion to suppress. The pertinent facts are as follows.
Shortly after midnight on June 17, 1970, a police officer of the City of Kingman, Arizona, noticed defendants in the company of three other individuals proceeding west on Highway 66 in a 1966 Buick automobile with out-of-state license plates. He decided to stop the automobile The officer's reasons for suspecting that the auto might be stolen are well summarized by defendants' counsel on redirect examination as follows:
'Q Mr. Chapin, as I understand, in your opinion when you first spotted the vehicle, the occupants just didn't fit the vehicle and this is because it was a 1966 car which was dirty which had five occupants who all had beards and who looked at you as you drove alongside them, is that correct?
'A Not all of them had beards, but that's basically correct.
'Q What other things did you actually observe that led you to the conclusion that they just didn't seem to fit the vehicle?
'A It's hard to say. In my opinion they just didn't fit the vehicle.
'Q This was more or less a hunch you had, is that correct?
'A I can't explain it. It just is there.
'Q Well, was it more than what you've told us you observed coupled with a hunch that you had?
'A I guess hunch is as good of word for any.
'Q But there was nothing unusual about their driving?
'A No, sir.
'Q And you had no information from your superiors that a vehicle of this description was suspect--involved in criminal activity that night, had you?
'A No, sir.' 1
After the officer stopped the vehicle he found that the driver's operators license and the registration did not correspond, and the driver could not give the correct first name of the owner nor could he give the owner's address. While pursuing his questioning as to the vehicle owner's name and address, the officer asked the occupants of the vehicle (including defendants) to get out. At this point, and without entering the vehicle, the officer observed various contraband items in plain view in the car. On the back seat he saw a hand-rolled marijuana cigarette butt with a yellow stain. He walked from the passenger's side of the car to the driver's side for a closer look. The windows were rolled up. He then saw on the floor two more hand-rolled digarette butts and a small white pill which appeared to him to be a 'bennie'. He also observed a complete hand-rolled marijuana cigarette made with yellow paper which had pinched unburnt ends. Based upon these observations of contraband items in plain view, the officer then proceeded to search the vehicle and found therein a large quantity of marijuana.
The defendants' only contention on appeal is that the evidence does not show 'probable cause' sufficient to justify the initial stopping of the vehicle. We agree that prior to the initial stopping, the officer did not have 'probable cause' to arrest defendants or search the vehicle in which they were riding within the accepted meaning of that term as used in search and seizure cases. However, as we stated in our recent opinion in State v. Ruiz, 19 Ariz.App. 84, 504 P.2d 1307 (Filed January 16, 1973), not every stopping or seizure of a person without probable cause constitutes a violation of that person's Fourth Amendment rights. Only those seizures which are 'unreasonable' are proscribed. In Ruiz, we reviewed several pertinent decisions, particularly that of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which that court recognized the necessity of police field interrogation procedures 'where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . .' 392 U.S. at 30, 88 S.Ct. at 1884. In Terry, the United States Supreme Court stated that in this type of case, the central inquiry is 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'
Therefore, here the issue which we must determine is whether the initial stopping of the automobile in which defendants were passengers for a driver's license and registration check was, under the circumstances, a reasonable governmental invasion of the defendants' personal security. In determining 'reasonableness in all the circumstances' Terry states that the court's 392 U.S. at 19--21, 88 S.Ct. at 1879, 1880.
It is our opinion that the testimony presented to the trial court by the officer to the effect that defendants and the other occupants 'did not appear to belong to the vehicle' and his 'hunch' that this was a stolen vehicle did not meet the objective standard test enunciated in Terry so as to justify this particular stopping--this ...
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U.S. v. Bowen
...check for valid license and registration. See, e.g., Lipton v. United States, 348 F.2d 591 (9th Cir. 1965); State v. Ream, 19 Ariz.App. 131, 505 P.2d 569 (Div. 1, Dept. B, 1973); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973). In other cases, courts did not even find the fact that the s......
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State v. Ochoa
...with rational inferences therefrom and satisfies the test laid down in Terry v. Ohio, supra. Any statements in State v. Ream, 19 Ariz.App. 131, 505 P.2d 569 (1973), and State ex rel. Berger v. Cantor, 13 Ariz.App. 555, 479 P.2d 432 (1970), conflicting with those expressed herein are The jud......
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U.S. v. Carrizoza-Gaxiola
...Supreme Court has not addressed the issue and only one division of the Arizona Court of Appeals has so held. State v. Ream, 19 Ariz.App. 131, 505 P.2d 569, 571-72 (1st Div. 1973); State ex rel. Berger v. Cantor, 13 Ariz.App. 555, 479 P.2d 432, 434-35 (1st Div. 1970). Another division has ex......
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State v. Ochoa
...leads us to the conclusion that there is a fundamental split between the two divisions of the Court of Appeals. In State v. Ream, 19 Ariz.App. 131, 505 P.2d 569 (1973), Division One accepted the argument "The mere fact that a car is operating on the highway may be sufficient reason for poli......