State v. Smith

• Decision Date: 30 March 1979
• Docket Number: No. 4400,4400
• Citation: 593 P.2d 281,122 Ariz. 58
• Parties: STATE of Arizona, Appellee, v. Richard E. SMITH, Jr., Appellant.
• Court: Arizona Supreme Court

Page 281

593 P.2d 281

122 Ariz. 58

STATE of Arizona, Appellee, v. Richard E. SMITH, Jr., Appellant.

No. 4400.

Supreme Court of Arizona, In Banc.

March 30, 1979.

John A. LaSota, Jr., former Atty. Gen., Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Bruce M. Ferg, Asst. Attys. Gen., Phoenix, for appellee.

Harry E. Craig, Phoenix, for appellant.

HOLOHAN, Justice.

The defendant was tried and convicted of four counts of receiving stolen property. He was sentenced to confinement for not less than two nor more than four years on each count, the terms to be served concurrently. Defendant appealed, and we assumed jurisdiction pursuant to 17A A.R.S. Sup. Ct. Rules, rule 47(e)(5).

Between January 21 and January 25, 1977, officers of the Phoenix police department received information from a county jail inmate named George Fetick indicating that Fetick had stolen large amounts of commercial equipment and had sold them to the defendant. The officers compared this information with their stolen property reports, verified Fetick's information, and obtained detailed descriptions including the serial number of each item Fetick alleged he had sold to defendant. Fetick indicated that defendant would purchase the stolen items, repaint them using his company color, obliterate or remove any identifying numbers and then use the items as stock-in-trade in his commercial leasing business. Prior to seeking a warrant officers sought to verify Fetick's story further. One of the officers went to a place near defendant's business and observed items which matched the description of the items Fetick had described. On January 26, 1977, police officers sought and obtained a search warrant authorizing a search of defendant's business premises. During this search the police seized a Lincoln arc welder, the only item seized which was enumerated in the search warrant.

While executing the warrant officers also seized two motorcycles, a cement finisher and a number of other items which were not listed on the search warrant. The motorcycles and cement finisher along with the arc welder are the subjects of Counts I, II, III and V of the indictment. Count IV was dismissed on motion of the state.

The articles which formed the subject of Count VI were seized pursuant to a warrant to search defendant's home on January 31, 1977. Count VI was dismissed on motion of the state after the jury was unable to reach a verdict on that count.

Defendant asserts that the warrant authorizing a search of his business location is invalid due to the staleness of the information supplied to the police by their informant. Fetick's information ranged from five to nine months in age. There are several factors which support the finding of probable cause that the property listed was still on defendant's premises. Information in the affidavit indicated that the defendant was using the stolen items to form the stock-in-trade of his rental business. The items were sold to him by Fetick over a five-month time period and showed a continuing course of conduct by the defendant. Officers checked their reports of stolen property to confirm that the property enumerated by Fetick had in fact been stolen and not as yet recovered. One of the officers went to an area near defendant's business and observed items like those described by Fetick on defendant's rental yard.

The question of staleness depends more on the nature of the unlawful activity alleged in the affidavit than the dates and times specified therein. State v. Torrez, 112 Ariz. 525, 544 P.2d 207 (1975), Cert. denied, 425 U.S. 916, 96 S.Ct. 1517, 47 L.Ed.2d 767; United States v. Harris, 482 F.2d 1115 (3rd Cir. 1973). Where facts are indicated so that the magistrate may conclude that the activity is of a continuous nature or in a course of conduct, the passage of time becomes less significant. State v. Torrez, supra. We have held that information up to five months old was not stale when facts presented to the magistrate indicated that the items in question were of a kind not likely to be discarded by the defendant. State v. Kasold, 110 Ariz. 563, 521 P.2d 995 (1974). Here the evidence showed that the defendant was retaining the stolen equipment in order that he might rent it to the public. This fact increased the probability that the items would still be on his premises after a lapse of time. Fetick's information was made more reliable by the officers viewing similar items on defendant's premises. This corroboration tended to cure any staleness in Fetick's testimony.

Defendant further attacks the validity of the warrant issued on his business address by asserting that the affidavits do not establish the reliability of Fetick. We disagree. The affidavit identified Fetick by name and indicated he was an eyewitness to the events. It reflects that the officers verified portions of the information and found them to be accurate. There was sufficient information to show Fetick to be a reliable informant possessing reliable information. State v. Archer, 23 Ariz.App. 584, 534 P.2d 1083 (1975). We further find that the affidavit states probable cause for the issuance of the search warrant in accordance with the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Next defendant urges that the scope of the search at his business was too broad and constituted a general search prohibited by the Fourth Amendment.

Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), abolished the distinction between mere evidence and fruits of a crime, and held that where a search is otherwise lawful officers may seize items of mere evidentiary value as well as fruits and instrumentalities of a crime. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) held that where officers are otherwise lawfully on the premises they may seize items of immediately recognizable evidence which they inadvertently see in plain view. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), held that, while engaged in a search that is otherwise lawful, officers are not limited to seizure of evidence pertaining only to the crime in question but may seize evidence of other related crimes.

In the case at bar the officers were on the premises pursuant to a valid search warrant, and therefore the initial intrusion and seizure of any items listed was valid. Three of the four counts of which defendant stands convicted, however, are based on items which the officers had no authority to seize under the warrant. We must therefore decide whether these nonauthorized items were otherwise properly seized under an exception to the warrant requirement. The plain view doctrine holds that (1) where police officers make a valid initial intrusion either based on a warrant or upon an exception to the warrant requirement, (2) they may seize objects which they inadvertently see in plain view (3) which are immediately recognizable as evidence. Coolidge v. New Hampshire, Supra.

The Essick Lincoln arc welder was seized pursuant to a valid warrant as discussed earlier and therefore was properly admitted in evidence in support of Count V which alleges the unlawful receipt of the arc welder.

Next we must decide whether seizure of the cement finisher, described in Count I, qualifies under the plain view doctrine. Three of the items listed on the warrant were mortar and cement-mixing machines. The others can be generally described as construction equipment. In the course of the search, officers noticed a cement finisher on which the identification number had been obliterated. The officers were required to check in order to ascertain whether it was a listed item. They phoned a description of this item to police headquarters and determined that it was stolen but not an item listed on the warrant. We find that a reasonable man, untrained in the construction trade, would be justified in checking the cement finisher to determine whether it was an item enumerated on the warrant. Once the stolen cement finisher was inadvertently discovered in the course of the search and its character as stolen property established, the officers were justified in seizing it.

The motorcycles which make up Counts II and III are a closer question. They are not construction equipment, and therefore are unlikely to attract the attention of the officers. On the Yamaha...