State v. Stabler

• Decision Date: 14 November 1989
• Docket Number: CA-CR,No. 2,2
• Citation: 783 P.2d 816,162 Ariz. 370
• Parties: The STATE of Arizona, Appellee, v. John Raymond STABLER, Appellant. 89-0396.
• Court: Arizona Court of Appeals

Page 816

783 P.2d 816

162 Ariz. 370

The STATE of Arizona, Appellee, v. John Raymond STABLER, Appellant.

No. 2 CA-CR 89-0396.

Court of Appeals of Arizona Division 2, Department A.

Nov. 14, 1989.

[162 Ariz. 371] Robert K. Corbin, Atty. Gen. by R. Wayne Ford, Phoenix, for appellee.

Susan A. Kettlewell, Pima County Public Defender by Frederick S. Klein, Tucson, for appellant.

OPINION

HATHAWAY, Judge.

Appellant, John Raymond Stabler, was convicted upon a jury verdict of first-degree murder, armed robbery and theft of property valued over $1,000. As part of a plea agreement wherein the state agreed not to seek the death penalty, appellant pled guilty to attempted first-degree murder, armed robbery, kidnapping and theft of property valued over $1,000. He was sentenced on the pled charges to concurrent terms of imprisonment, the longest of which was 18 years. On the jury convictions, he was sentenced to concurrent terms of imprisonment, the longest of which was life, to be served consecutive to the sentences for the pled charges. Appellant appeals only from the jury verdicts and sentences.

Appellant was hitchhiking and was given a ride by the victim, a jailer with the Pima County Sheriff's Office. The victim took appellant to his home. Along the way, and after they arrived at the victim's home, both men consumed a considerable amount of beer. Appellant testified that while they were sitting on the sofa watching television, the victim grabbed at appellant's crotch. When appellant drew back, the victim took a knife and blocked the door. When appellant attempted to get out the door, the victim grabbed him. They struggled and the victim dropped the knife. Appellant picked it up and stabbed the victim until he fell to the floor. One of the stab wounds was to the victim's neck which severed the right jugular vein. According to the autopsy report, the victim died approximately one-half hour to an hour after being wounded. Appellant took the keys to the victim's pickup truck and money from the victim's pockets. Appellant then drove to Phoenix.

The day after the stabbing, appellant was stopped while driving the pickup truck. The police had received an anonymous call to Crime Stop that a truck with the same license plate was involved in a drug transaction. Appellant was cited for not having a driver's license. He was not arrested. The victim's body was discovered the following day by sheriff's deputies who were investigating why he had failed to report for work. Appellant was arrested in Phoenix later that same day. When questioned by detectives, appellant denied having been in Tucson and denied any involvement in the murder. When he testified at trial, appellant admitted stabbing the victim. His defense was self defense and a rage reaction to the homosexual advance made by the victim.

Appellant raises four issues on appeal: (1) the initial stop by the police officer the day before he was arrested violated his constitutional rights and the fruits of that stop should have been suppressed; (2) misconduct on the part of the prosecutor constituted reversible error; (3) the trial court erred in admitting into evidence a color coroner's photograph of the victim, and (4) statements made by appellant to the police should have been suppressed. We affirm.

INITIAL STOP

Appellant first argues that the anonymous telephone call concerning the drug transaction was insufficient to justify the officer stopping the truck; therefore, evidence discovered in the truck or statements made by him should have been suppressed.

In reviewing a trial court's ruling on a motion to suppress, we view the facts in the light most favorable to upholding the ruling and will not overrule the trial court absent a showing of clear and manifest error. State v. Sheko, 146 Ariz. 140, 704 P.2d 270 (App.1985). Appellant claims a violation of his Fourth Amendment right to be secure against unreasonable searches and seizures. The issue is whether the initial stop by the police officer was reasonable under the circumstances. The United States Supreme Court has articulated a dual inquiry for evaluating the reasonableness of a temporary investigative stop: Whether the police officer's action was justified at its inception and whether it was reasonably related in scope to the circumstances that justified the interference in the first place. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

The standard of justification for an investigative stop is whether the officer had a reasonable suspicion that criminal activity "may be afoot." United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Lawson, 144 Ariz. 547, 698 P.2d 1266 (1985). The intrusion cannot be based on unfounded suspicion; there must be some demonstrable basis to determine that the officer's action was not arbitrary or harassing. United States v. Walling, 486 F.2d 229 (9th Cir.1973), cert. den. 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 479; State v. Jarzab, 123 Ariz. 308, 599 P.2d 761 (1979), cert. den. 444 U.S. 1102, 100 S.Ct. 1069, 62 L.Ed.2d 789 (1980). As stated in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the concern is assurance that the expectation of privacy is not violated by "arbitrary invasions solely at the unfettered discretion of [the] officers." 443 U.S. at 51, 99 S.Ct. at 2640.

The police officer was dispatched by radio to investigate an alleged drug transaction. The caller gave the police the address where the transaction was taking place, and stated that a brown pickup truck, Arizona license number NP-6751, was involved. When the officer neared the reported address, he saw a brown pickup headed towards him. When he verified the license number as the same as that given by the caller, he turned around, followed the truck for a short distance, activated his emergency lights, and stopped the vehicle.

Given these facts, we believe the traffic stop was justified. When he stopped the truck, the officer reasonably suspected that a narcotics offense had just occurred or was occurring, and that the driver of the brown pickup was involved.

The officer did not have probable cause to arrest appellant, but probable cause is not required for an investigative stop. The United States Supreme Court stated in Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-617 (1972):

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

Appellant was driving a vehicle allegedly involved in a drug transaction. This would make any police officer suspicious enough to stop appellant to determine his identity, obtain more information, establish probable cause to arrest or dispel the officer's suspicions.

After the officer stopped appellant, he only attempted to establish appellant's identity. His actions were reasonable and consistent with Terry and its progeny. The stop was a very minor intrusion on appellant's privacy. As noted in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138 82 L.Ed.2d 317 (1984), a traffic stop is the least intrusive of all detentions.

The officer was not acting arbitrarily when he stopped appellant's vehicle, nor was he acting to harass appellant. He was acting on a specific, reasoned, articulable basis when he stopped the vehicle. After the stop, his action was reasonably related in scope to the circumstances justifying the stop. The stop of appellant's vehicle was not in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. Therefore, any fruits flowing from the stop were not subject to suppression.

We find two cases cited by appellant distinguishable. In both State v. Temple, 65 Haw. 261, 650 P.2d 1358 (1982), and Glass v. State, 681 S.W.2d 599 (Tex.Cr.App.1984), the anonymous tip was approved except for the lack of proximity of time and place of the offense in relation to the detention. His remaining authority in support of his challenge to the initial stop, Olson v. Comm'r. of Pub. Safety, 371 N.W.2d 552 (Minn.1985), we decline to follow.

There the court disapproved of a stop based on an anonymous tip of "possibly a drunken driver." The court rejected the anonymous tip because it found a lack of credibility in the nature of the tip itself. The informant had given the color and make of the automobile, its license number and location. The police officers verified the accuracy of the information before stopping the vehicle. Because of the detailed information given and its accuracy, we disagree with the court's finding the stop invalid.

An investigative stop will be upheld if the police officers observe facts which corroborate even the innocent details of the tip from an informer. U.S. v. Roper, 702 F.2d 984 (11th Cir.1983). The fact that the informant is anonymous does not invalidate the stop. Id; U.S. v. White, 648 F.2d 29 (D.C.Cir.), cert. den. 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233 (1981). "A valid stop and frisk may be based on information obtained from an anonymous tipster if that information appears sufficiently reliable because of the surrounding circumstances or the nature of the information given in the tip itself." Hetland v. State, 387 So.2d 963 (Fla.1980). See People v. Smithers, 83 Ill.2d 430, 47 Ill.Dec. 322, 415 N.E.2d 327 (1980); Graham v. Commonwealth, 667 S.W.2d 697 (Ky.1984); State v. Jernigan, 377 So.2d 1222 (La.1979), cert. den. 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (19...