State v. Smith

• Decision Date: 21 December 1973
• Docket Number: No. 2555,2555
• Parties: STATE of Arizona, Appellee, v. Brenda Ann SMITH, Appellant.
• Court: Arizona Supreme Court

Page 83

517 P.2d 83

110 Ariz. 221

STATE of Arizona, Appellee, v. Brenda Ann SMITH, Appellant.

No. 2555.

Supreme Court of Arizona, In Division.

Dec. 21, 1973.

Rehearing Denied Jan. 22, 1974.

Gary K. Nelson, Atty. Gen., by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.

Stewart & Florence by Henry J. Florence and Charles Ledsky, Phoenix, for appellant.

HAYS, Chief Justice.

Defendant, Brenda Smith, a 21-year-old resident of Orlando, Florida, appeals from a conviction of the crime of transporting marijuana, for which she received a suspended sentence and three years probation. The case was tried by the court sitting without a jury.

The facts, taken in a light most favorable to the State, follow. Defendant had been working for some time at a ranch in Tucson but decided to return to her home in Florida. She purchased a through ticket which would take her from Tucson to Phoenix on American Airlines Flight #69; from Phoenix to Dallas, on Delta Airlines; and then to Florida. Arriving at the airport in Tucson, she was carrying two blue suitcases--one small and one large--which she gave to an attendant at the curb. She then went to the ticket counter where she checked them and received duplicate baggage checks which were stapled to her airline ticket. After that she enplaned for Phoenix.

Shortly thereafter, Sergeant Doty of the Tucson police received a phone call from a man who stated that Miss Smith was carrying narcotics in her luggage en route to Phoenix on American Airlines Flight #69, and that she was carrying two blue bags. He also gave to Doty the claim check number on the large bag. Sergeant Doty testified that although he knew the caller's name, he did not know the man personally, but that the caller identified himself by name, and stated that he was an airline employee; that the informant was reliable because on two previous occasions his information had led to arrests for possession of narcotics; and that he recognized the caller's voice from previous conversations. Doty then called Officer Quinonez of the Phoenix police, relayed the information, and told him why it was reliable.

The informant told Doty that he had seen the marijuana in the blue suitcase.

On cross-examination at the trial, Doty admitted that he did not know how the informant was able to look inside the suitcase and did not ask him. He also testified that he had no reason to believe that the informer was paid by the police or any other governmental agency.

Quinonez called back to Tucson to make sure that his call had actually come from Doty. It had. He then phoned Sergeant Kinsey of the Phoenix police, who was stationed at the airport, passed on to him the information he had just received from Tucson by phone, and asked that Kinsey investigate whether Brenda Smith was in fact an arriving passenger on American Airlines Flight #69. Kinsey called back and advised Quinonez that Flight #69 had already unloaded; that Miss Smith and her luggage were already aboard the Delta plane which was about to take off for Dallas. Kinsey asked whether there was probable cause for a search and arrest and Quinonez said that there was and ordered Kinsey to proceed with the search. Quinonez then took off for the airport.

At the airport security office he found Kinsey, another officer and Miss Smith, in the presence of the large blue suitcase which was open and which was filled with bricks of marijuana. In the bag, in addition to the marijuana, were a pillow and a quantity of mothballs. Quinonez took Miss Smith's purse and found the ticket with the claim checks stapled to it, one of which matched its other half which was attached to the suitcase.

Officer Kinsey testified that Quinonez had told him on the phone that he had reliable information from the Tucson police that Miss Smith, arriving on Flight #69, was bringing a blue suitcase filled with marijuana, and that the claim number on the bag was 45--41--91; that he removed Miss Smith's luggage from the Dallasbound Delta plane; that he opened the larger bag; that he found marijuana in it; and that he then arrested her. Kinsey testified that he then had Miss Smith accompany him to the security office, where she was advised of her rights. She was not questioned until Quinonez arrived a few minutes later. There is no question that Officer Kinsey, who arrested defendant and who conducted the initial search, was not told and did not know how the Tucson informant received his information, and relied on Quinonez's telephone statement that there was probable cause for a search.

An objection by defendant to the admission into evidence of the suitcase full of marijuana was overruled and defendant took the stand on her own behalf. Her defense was that the suitcase was not hers because her suitcase had no marijuana in it. The evidence that it was her suitcase was sufficient to support the trial court's finding of guilt. Even the contention that her purse contained no key to the suitcase was offset by the fact that she admitted the bag had not been locked.

The chief issue raised on appeal is whether defendant was the victim of an unreasonable search, such as is prohibited by both our state and federal constitutions. Defendant argues that under 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 (1968), there was not probable cause for the search. It is true that these cases require the informant to be reliable and a showing be made that he knows whereof he speaks. In the instant case, there was a showing that the informant saw the marijuana in the suitcase. The evidence showed an exigent situation. Were it not for a disturbance that delayed the plane's departure, it would have left on time and the seizure would...