State v. Sinclair, 1

• Decision Date: 07 April 1988
• Docket Number: No. 1,CA-CR,1
• Parties: STATE of Arizona, Appellant, v. Clifford SINCLAIR, Appellee. 11542.
• Court: Arizona Court of Appeals

Page 655

768 P.2d 655

159 Ariz. 493

STATE of Arizona, Appellant, v. Clifford SINCLAIR, Appellee.

No. 1 CA-CR 11542.

Court of Appeals of Arizona Division 1, Department C.

April 7, 1988.

Reconsideration Denied June 3, 1988.

Review Denied Oct. 4, 1988.

[159 Ariz. 494] John Verkamp, Coconino Co. Atty., by Michael J. Hruby, Deputy Co. Atty., Flagstaff, for appellant State.

Michelle L. Ratner, Flagstaff, for appellee.

OPINION

CORCORAN, Judge.

The state appeals from the trial court's suppression of evidence found after a warrantless automobile search. See A.R.S. § 13-4032(7). Because the suppression order was based on erroneous factual findings and an incorrect legal standard, we reverse. ¹

1. Factual Background

Appellee Clifford Sinclair (defendant) was indicted for possession of a prohibited weapon, a class 4 felony, in violation of A.R.S. § 13-3102, as well as two misdemeanor offenses--possession of a concealed weapon and possession of drug paraphernalia. The facts that follow are viewed in the light most favorable to sustaining the trial court's order, see State v. Olivas, 119 Ariz. 22, 579 P.2d 60 (App.1978), and are based on the evidence presented at the hearing on defendant's motion to suppress. ²

Officer Pratt of the Flagstaff police department initially came in contact with defendant because he was seated in a parked station wagon with no front or rear license plates. As defendant and his female companion, Karen Prickett, exited the station wagon and approached the officer, he im mediately observed several knives on their belts. He requested them to remove their belts and place the knives on the back roof of the station wagon while he spoke to them. They both complied. While questioning Ms. Prickett, Officer Pratt determined her date of birth, that the station wagon was hers, that she had previously used the name of McDonald, and that she and defendant had recently been in Las Vegas, Nevada. Satisfying himself that the ownership papers of the vehicle were in order, Officer Pratt left the scene without issuing any citation. He had received no response from the police dispatcher after calling in information about Ms. Prickett for a check on the National Crime Information Center (NCIC) computer.

A few minutes later, the police dispatcher notified Officer Pratt that a felony arrest warrant had issued (a possible NCIC "hit") from Las Vegas, Nevada, under the name of McDonald, with a date of birth and a physical description that apparently matched the information Ms. Prickett had given the officer. Officer Pratt radioed for assistance from Officer Weems and both returned to the area in an attempt to locate Ms. Prickett.

The officers located Ms. Prickett's vehicle close to its prior location. Officer Pratt testified that he parked his patrol vehicle approximately 10 to 12 feet behind the suspect's station wagon and, using the public address system, called Ms. Prickett to exit the vehicle. Officer Pratt testified this was routine procedure for effecting a felony arrest. Ms. Prickett was in the driver's seat and got out of the vehicle. Officer Pratt explained to Ms. Prickett that he had been informed of a possible warrant for her arrest from Las Vegas and asked if she would accompany the officers to the Flagstaff police station to resolve the matter. She agreed to go with them and was placed in the back seat of the police vehicle. Officer Pratt testified that he told her she was not under arrest.

Defendant had remained in the front passenger seat of the station wagon. After speaking with Ms. Prickett, Officer Pratt then requested that defendant get out of the vehicle. He did so, meeting Officer Pratt at the front of the patrol vehicle. Defendant was still wearing the three knives on his belt that Officer Pratt had previously observed. Officer Pratt testified that he was nervous about the knives on defendant's belt and asked him to again remove them and place them on the roof of the police car. Defendant did so. While Officer Pratt talked to defendant, Officer Weems approached the station wagon and looked inside it to make sure no other weapons were in the vehicle. While looking through the windows, Officer Weems observed two or three knives with blades stuck into the dashboard, one or two knives on the front seat or the front floorboard, an electrical "stun gun" on the dashboard, and what appeared to be the butt of a shotgun or rifle protruding from underneath clothing directly behind the driver's seat. He called to Officer Pratt that a gun was in the car. Officer Weems then opened the car door and retrieved a sawed-off .410 gauge shotgun. Officer Pratt asked defendant whose gun it was; defendant responded that it was his and that he sometimes used it for hunting.

Officer Pratt testified that the barrel appeared cut or altered, with uneven edges. He also testified that it was obvious that the barrel of the weapon had been altered. A further search of the vehicle revealed shotgun shells, as well as nine .44 caliber magnum shells in an ammunition belt lying partially under the weapon. Shortly thereafter drug paraphernalia were also found in the vehicle. Defendant was then arrested for possession of a prohibited weapon and possession of drug paraphernalia.

2. Defendant's Motion to Suppress

Before trial, defendant moved to suppress the evidence because of an illegal search. Following an evidentiary hearing, at which Officers Pratt and Weems testified, the court suppressed the fruits of the search of the vehicle. Pursuant to a subsequent request by the state, the trial court made findings of fact. The court found that defendant and Ms. Prickett exited their station wagon without incident and were "peacefully seated in the squad car" during the search. This finding is contrary to the evidence presented at the hearing, which indicated that defendant remained standing in front of the police car talking to Officer Pratt during the search, although Ms. Prickett was seated in the back seat of the police car. The trial court also found that Officer Weems approached defendant's vehicle, looked in and saw the shotgun while "the defendants were still in the squad car." Again, this finding was not supported by the record, which indicated that defendant remained at all times standing in front of the police vehicle. The court also stated: "The officers were in no danger. There were no exigent circumstances warranting entry into the defendants' car."

After the trial court granted the motion to suppress, the state moved to dismiss the complaint without prejudice and brought this appeal. See State v. Million, 120 Ariz. 10, 14-15, 583 P.2d 897, 901-02 (1978); A.R.S. § 13-4032(7).

3. Application of Michigan v. Long

The facts in this case are very similar to those discussed in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), which, unfortunately, neither party brought to the trial judge's attention. The state, however, has cited Long in support of its position on appeal. In addressing issues similar to those raised here, the Supreme Court in Long concluded that the balancing test required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), clearly weighs in favor of allowing the police to conduct a weapons search of the passenger compartment of a motor vehicle stopped for a traffic offense, as long as the officers possess an articulable and objectively reasonable belief that the suspect is potentially dangerous. 463 U.S. at 1051, 103 S.Ct. at 3481-82. The Supreme Court recognized that investigative detentions involving suspects in motor vehicles are "especially fraught with danger to police officers." Long, 463 U.S. at 1047-48, 103 S.Ct. at 3480, citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The Court also noted that suspects may injure police officers by virtue of their access to weapons, even when the suspects may not be personally armed. Long, 463 U.S. at 1048, 103 S.Ct. at 3480. The Court concluded:

Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect.

Long, 463 U.S. at 1049, 103 S.Ct. at 3480-81.

The Court also addressed the conclusion by the Michigan Supreme Court that it was unreasonable for the officers to fear that Long could injure them because he was effectively "under their control" during the investigative stop and could not gain access to any weapons that might have been located in the automobile. 463 U.S. at 1051, 103 S.Ct. at 3481-82. The Court stated that this reasoning was mistaken in several respects. First, during any investigative detention, a suspect is always under the "control" of the officers in the sense...