State v. Sardo

• Decision Date: 19 December 1975
• Docket Number: No. 3235,3235
• Citation: 543 P.2d 1138,112 Ariz. 509
• Parties: STATE of Arizona, Appellee, v. Ross Lynn SARDO and Richard Thomas Mandell, Appellants.
• Court: Arizona Supreme Court

Page 1138

543 P.2d 1138

112 Ariz. 509

STATE of Arizona, Appellee, v. Ross Lynn SARDO and Richard Thomas Mandell, Appellants.

No. 3235.

Supreme Court of Arizona, In Banc.

Dec. 19, 1975.

Bruce E. Babbitt, Atty. Gen., Phoenix, William Michael Smith, Yuma County Atty., Yuma, for appellee.

James Hamilton Kemper, Derickson & Kemper, Phoenix, Joseph Shemaria, Shemaria, Storie & Schlanger, Los Angeles, Cal., for appellants.

GORDON, Justice:

The appellants, Ross Lynn Sardo and Richard Thomas Mandell, were convicted by the court sitting without a jury of the crime of possession of marijuana for sale. On appeal they contend that the case should be remanded for a voluntariness hearing on the basis of State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974). In addition they contend the search of the motor home vehicle violated their Fourth Amendment rights to be free from unreasonable searches and seizures. We took jurisdiction of the case pursuant to Rule 47(e)(5), Rules of the Supreme Court. We affirm the judgment.

The facts pertinent to this review are as follows:

On April 9, 1974 an agent of the Drug Enforcement Administration received information from a reliable informant which included the fact that a shipment of a quantity of marijuana would be smuggled into the United States on that day at the point where the International Boundary fence ends, approximately two miles west of the port of entry at San Luis, Arizona. This same agent later received a broadcast from a fellow agent who confirmed that a vehicle had crossed at that location and was proceeding north into Yuma. This 'load car' was under constant surveillance from the time it crossed the border until it was parked in front of the Stardust Hotel in Yuma at approximately 3:00 p.m. At this time the motor home vehicle later ascertained as occupied by appellants was parked in the area of the Stardust Hotel. Mandell left the motor home vehicle and drove the 'load' vehicle to the rear of the Stardust Hotel. Mandell and Sardo were then observed opening the trunk of the 'load' vehicle. At the same time a narcotics agent for the Yuma County Sheriff was able to see into the trunk and observed what appeared to be burlap bag and a couple of square packages. A few minutes later Mandell moved the 'load' vehicle to the center of the complex. Both the 'load' car and the motor home vehicle were moved out of the Stardust Hotel parking area at approximately 7:45 p.m.

The appellants' motor home vehicle was then observed in a vacant lot near the alley across the street from the Stardust Hotel; it was parked with its interior lights on and its curtains open. Sardo was seen moving from the front to the back of the vehicle, and appeared to be carrying or moving something from the front of the vehicle to the rear at least four times in succession. In the meantime, the 'load' vehicle had been returned to its original position in front of the Stardust Hotel, and several agents ascertained that the trunk of the 'load' vehicle was empty except for some marijuana debris. The motor home vehicle was later moved back to the front parking area of the Stardust Hotel complex.

After another period of surveillance an agent went to the door of the motor home vehicle, represented himself as part of the hotel management and requested the occupants to open the door in order to answer some questions. When the door was opened by Mandell the agent smelled a fairly strong odor of marijuana, immediately identified himself and arrested Mandell and Sardo. In order to ascertain that no one else was present the agent opened the closet and bathroom doors and then sighted the marijuana.

On July 3, 1974 appellants waived jury trial and submitted the issue of guilt to the trial court on a stipulated record. The Crowley decision was entered on December 4, 1974. Appellants contend, therefore, that State v. Crowley, supra, should apply. This court has held that State v. Crowley, supra, is not to be retroactively applied to a judgment and sentence. State v. Smith, 112 Ariz. 321, 541 P.2d 918 (1975), hence our inquiry is limited to the question of whether due process was accorded to the appellants when the case was submitted to the trial court on a stipulated record.

Crowley requires that it must affirmatively appear in the record that defendants knew the significance and consequences of submitting the case on the basis of the record as well as knowingly and intelligently waiving applicable constitutional rights. Here the court personally addressed the appellants to ascertain whether their waiver of jury trial and 'any right that you feel you are giving up' was intelligently and voluntarily made. Further, defendants not only signed the jury trial waiver form, but did so on the advice of counsel. This is shown by the record.

The essential requirement of due process, as delineated by Crowley, is that the record must show that the decision to submit the case on the basis of the transcripts of the preliminary hearings was not only freely, intellingently and voluntarily made, but the defendants understood that the entire decision of guilt or innocence was to be made by the court, acting as both the trier of facts and of the law, upon the submitted record. The record in the instant case is not a silent one. Quite the contrary, the record reflects an extensive and careful inquiry by the court in order to determine that the defendants' decision was made freely, voluntarily and knowingly. This is in accord with due process. The preliminary transcript shows the evidence more than supported a finding of guilt. We deny the request to remand on the basis of Crowley.

A more difficult question presented is whether the search of the motor home vehicle violated the appellants' Fourth Amendment rights to be free from unreasonable searches and seizures. The search and seizure of the motor home was a warrantless one as was the arrest of the defendants. Searches conducted without a warrant issued upon probable cause are 'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.' Schneckloth v. Bustamonte, 412 U.S. 218, at 219, 93 S.Ct. 2041, at 2043, 36 L.Ed.2d 854, at 858 (1973); See State v. Damon, 18 Ariz.App. 421, 502 P.2d 1360 (1972).

The exception appellee urges us to affirm and the one relied upon by the trial court is the 'border search' situation. This we cannot do. We accept appellants' contention that the facts do not bring this case squarely within the philosophy of United States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971), and United States v. Markham, 440 F.2d 1119 (9th Cir. 1971). Though a Weil search need not be predicated upon a known border crossing or the functional equivalent; the search must, nevertheless, be in the immediate vicinity of the international boundary. It is true that '(w)hether the car itself crosses the border or merely drives down to the border area to make a pickup has no effect on their (the custom agents') power (to search) * * *.' United States v. Markham, supra, at 1122, 1123. However, we can find no Arizona or federal case in which the search was considered a valid border search if the site of the search was removed in both time and place from the border, and, in addition, neither the vehicle or the person involved had actually crossed the border.

This case, as in United States v. Majourau, 474 F.2d 766 (9th Cir. 1973), presents a situation where the motor vehicle searched was remote in both time and place from the border. 'It had not recently, or 'just,' crossed the border', United States v. Majourau, supra, at 769; in fact the vehicle searched in the instant case had not crossed or approached the border at all.

Though the search cannot be justified as a border search, it does not follow that the search is invalid. Another basis for a warrantless search is the Carroll ¹ type search based upon probable cause. Such is the situation in this case.

Under the rationale of Carroll v. United States, supra, an officer may, when he has probable cause based upon a belief that a motor vehicle contains contraband (or 'that which by law is subject to seizure and destruction'), search the vehicle and seize the contraband without a warrant if exigent circumstances are present. State v. Harrison, 111 Ariz. 508, 533 P.2d 1143 (1975). The apparent mobility of a motor vehicle presents a pressing need for a prompt search, i.e. an exigent circumstance. Exigent circumstances will justify the warrantless search of a motor vehicle where probable cause exists to believe that the motor vehicle contains contraband. State v. Williamson, 20 Ariz.App. 397, 513 P.2d 686 (1973); See also State v. Lawson, 107 Ariz. 603, 491 P.2d 457 (1971).

Exigent circumstances are found when 'the vehicle can quickly be moved out of the locality or jurisdiction in which the warrant must be sought.' Carroll, supra, 267 U.S. at 153, 45 S.Ct. at 285, 69 L.Ed. at 551. Such was the situation in the instant case. The motor home vehicle, though not traveling on a highway, was occupied, mobile and located in close proximation to several jurisdictions.

However, the mere fact that a motor vehicle is the area to be searched does not mean that the Carroll doctrine can be automatically invoked; officers must at least have 'probable cause' for believing that the vehicle to be searched contains contraband or illegal merchandise. State v. McCullar, 110 Ariz. 427, 520 P.2d 299 (1974).

Probable cause must be measured by the facts and circumstances of each case. See State v. Cofhlin, 3 Ariz.App. 182, 412 P.2d 864 (1966). Here we view the facts and circumstances as to whether probable cause exists from the collective knowledge of all the law enforcement agents involved in this operation. State v. Richards, 110 Ariz. 290, 518 P.2d 113 (1974).

Information can be viewed in light of the fact that an officer relied upon his past...