State v. Sherron, 2005

• Decision Date: 09 January 1970
• Docket Number: No. 2005,2005
• Citation: 463 P.2d 533,105 Ariz. 277
• Parties: STATE of Arizona, Appellee, v. Ronald Eugene SHERRON, Appellant.
• Court: Arizona Supreme Court

Page 533

463 P.2d 533

105 Ariz. 277

STATE of Arizona, Appellee, v. Ronald Eugene SHERRON, Appellant.

No. 2005.

Supreme Court of Arizona, In Banc.

Jan. 9, 1970.

Rolle, Jones & Miller, by H. Stewart Bradshaw, Yuma, for appellant.

Gary K. Nelson, Atty. Gen., Phoenix, and Ronald F. Jones, Yuma County Atty., Yuma, for appellee.

UDALL, Justice:

This is an appeal by Ronald E. Sherron from his conviction of Robbery for which he received a sentence of five to six years.

Appellant first complains that the court below erred in denying his motion to suppress the evidence found by the police officers in the search of his residence. He contends the search was unlawful in that it was made without a warrant, was not incident to an arrest, and was made without securing freely given consent, if consent was given at all. It is conceded that no search warrant was obtained and that the search cannot be justified as incident to an arrest. The facts pertinent to the question of consent are as follows:

On November 10, 1968 at approximately 10:30 at night, the victim, a taxi driver, picked up the appellant as a passenger and drove him to his apartment building. Appellant, who was riding in the back seat, robbed the driver of his wallet and coin changer and then ran from the cab down between two buildings. The victim radioed for the police who arrived shortly thereafter. A few minutes later after having been seen leaving his apartment, appellant was stopped on the street about a block away from the apartments by Officer Huff who testified as follows:

'At that point I stopped the person described to me, I told him that he was not under arrest; however, I would like to have his help, that we had had an armed robbery and I advised him that I would like him to wait with him while I called the victim and the other officer back.'

'Yes, sir. I asked him to approach, to come to me and advised him that there had been an armed robbery, that the other officer assisting on the investigation had asked me to--and I said I would like to have your cooperation, you are not under arrest, however, if you would wait until I called the cab driver over to take a look at you why, it would be greatly appreciated.'

'We asked the subject, Mr. Sherron, where he lived and he said he lived over in the apartments where the officers and the victim had seen him come from. This would have been apartment number three at 2430 Fifth Avenue. We asked the suspect then if he would mind going over to the apartment with us and he said, 'No.' He said, 'I'd be glad to, I want to get this straightened out,' and we proceeded over to the apartment.'

'We went to the apartment where Mr. Sherron was asked if he lived in this apartment. He said that he did. We asked him if he had a key to it and he said, 'No, I don't.' Then, he was asked if he would mind if we could look into the apartment. We asked him, we said we want to get this straightened out so we elicited his cooperation in doing this. He said, 'Fine,' and opened up the door for myself, Officer Reedy and the victim to enter.'

'* * * the other officers and myself went on in and Mr. Shinn followed behind me and Mr. Sherron lead us into the apartment and then he was asked if he would mind if we looked around a little bit. He said, 'No, sir, go ahead."

The officers found a knife underneath a shirt which was lying on a chair. The cab driver testified it was the one used in the robbery or one like it. The cab driver's wallet was also found behind the refrigerator.

Although appellant gave contrary testimony as to whether voluntary consent was given for the search, the resolution of conflicts in testimony is a function of the trial court. We have consistently held that where there is substantial evidence to support the factual finding of the trial court, we will not disturb that finding on appeal. State v. Denton, 101 Ariz. 455, 420 P.2d 930 (1966); State v. Sanders, 101 Ariz. 410, 420 P.2d 281 (1966). Clearly, Officer Huff's unequivocal testimony is substantial evidence upon which the trial court could find that appellant consented to the search of his apartment.

Appellant argues that if his consent was given, it was coerced as a matter of law because he had been taken into custody and had not been advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). It is true that the Miranda warnings are required not only before the interrogation of an arrested suspect at the police station, but also where he has been 'otherwise deprived of his freedom of action in any significant way.' Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). We think it apparent from the record that appellant was neither in custody nor had his freedom of action been restrained in any way at the time he gave his consent to the search of his apartment. He was not arrested; on the contrary he was specifically told that he was not under arrest. He was not told or directed to do anything, rather his cooperation was requested, being told that it would be greatly appreciated. Appellant voluntarily co-operated, giving the explanation, 'I'd be glad to, I want to get this straightened out.' Whet...