State v. Starr

• Decision Date: 25 May 1978
• Docket Number: No. 1,CA-CR,1
• Citation: 581 P.2d 706,119 Ariz. 472
• Parties: STATE of Arizona, Appellee, v. Michael Thomas STARR, Appellant. 2600.
• Court: Arizona Court of Appeals

Page 706

581 P.2d 706

119 Ariz. 472

STATE of Arizona, Appellee, v. Michael Thomas STARR, Appellant.

No. 1 CA-CR 2600.

Court of Appeals of Arizona,Division 1,Department C.

May 25, 1978.

Rehearing Denied June 28, 1978.

Review Denied July 18, 1978.

Bruce E. Babbitt, Former Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., Lynn Hamilton, Asst. Attys. Gen., Phoenix, for appellee

Gerald F. Moore, Phoenix, for appellant.

OPINION

SCHROEDER, Judge.

Following a trial by jury, appellant was convicted of attempted burglary, first degree, a felony, and possession of marijuana, a misdemeanor. On the felony conviction, appellant was sentenced to the Arizona State Prison for not less than two nor more than three years. On the misdemeanor conviction, appellant was sentenced to time served. It is from these judgments and sentences that this appeal is taken.

The principal issues before us involve the admissibility of statements made by the appellant prior to the giving of Miranda warnings, and the admissibility of burglary tools discovered by police in an open glove compartment of appellant's car. Determination of these issues requires an understanding of the factual circumstances surrounding appellant's arrest and the subsequent search of the vehicle.

At approximately 2:45 a. m. a Phoenix police officer, while on routine patrol observed a car parked in a deserted gas station lot next to a fence which separated the gas station from an adjacent bar. The police officer observed an individual, later identified as appellant, run from the door of the bar toward the automobile, jump the fence, deposit something underneath the car, and surreptitiously enter it. The officer observed movement in the car and concluded that there were two people inside. The police officer then drove into the service station lot, turned on his spotlight and asked the occupants of the vehicle to get out with their hands up. He then conducted a pat-down search for weapons, and asked for the occupants' personal identification and the automobile's registration. Appellant obtained the vehicle's registration from the glove compartment.

While the two men were showing the requested identification, the following colloquy took place between appellant and the officer, Officer Moran OFFICER MORAN: "What were you doing, closing the (bar)?"

APPELLANT: "Yeah."

OFFICER MORAN: "Are you a bartender?"

APPELLANT: "No, but I have tended bar in the past."

OFFICER MORAN: "What do you do it for then?"

APPELLANT: "The beer."

The officer then noticed a reddish object on the ground underneath the driver's side of appellant's automobile, and upon examination determined that it was a bundle of lock picking tools. Appellant was placed under arrest for possession of lock picking tools, and a search, incidental to the arrest, was conducted. The search of his person revealed a marijuana cigarette. Appellant was placed in the patrol car.

The officer proceeded to examine the door to the bar, and determined that there had been recent tampering with the lock. He then went back to the patrol car, informed appellant that he was under arrest for burglary, and advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant responded that he wished to see an attorney.

The officer then completed his investigation of the bar premises and, before locking appellant's car and leaving it at the scene, conducted a search of the car for the purpose of inventorying its contents. The evidence before the trial court indicated that it was police department policy to inventory cars for valuables in such situations in order to protect the department against claims of theft. While sitting on the front seat of the car, and apparently before instituting any actual search, the officer observed that appellant had left the door to the glove compartment open, and that inside the glove compartment were more burglary tools. These items were seized and were admitted into evidence at the trial. No other evidence or anything of value was discovered during the course of the subsequent inventory search.

The first argument raised by appellant in this appeal is that the statements which he made in response to Officer Moran's initial questions concerning his reason for being in the area at that hour should have been suppressed because they were made before he was advised of his Miranda rights. Assuming arguendo that appellant's responses were significantly incriminating, we hold that they were admissible because they were in response to general on-the-scene questioning, and were not made in the context of a custodial interrogation.

Appellant focuses on language in the Supreme Court's opinion in Miranda, which defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706 (footnote omitted). However, the Supreme Court in the Miranda decision itself pointed out that while suspects must be advised of their constitutional rights prior to undergoing custodial interrogation, such interrogations must be distinguished from general, on-the-scene investigations:

"Our decision is not intended to hamper the traditional function of police officers in investigating crime. . . . General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present." Id. at 477-78, 86 S.Ct. at 1629-30, 16 L.Ed.2d at 725-26 (citations omitted) (footnote omitted).

Courts have generally considered the totality of the circumstances surrounding a stop in deciding whether a person is subjected to a custodial interrogation. These circumstances include the nature of the interrogator the nature of the suspect, the time and place of the questioning, the nature of the questioning, and the progress of the investigation at the time of the questioning. State v. Kennedy, 116 Ariz. 566, 570 P.2d 508 (Ct.App.1977); Annot. 31 A.L.R.3d 565, 577 (1970). In a sense, all investigatory stops for on-the-spot questioning deprive a person of some freedom of action since a person being asked questions by the police would normally not feel that he was free to go. However, as the Arizona Supreme Court has recognized, it is only when the on-the-scene questioning becomes accusatory in nature and when a reasonable man would feel he was deprived of his freedom of action in a significant way, that the Miranda warnings must be given. See State v. Hatton, 116 Ariz. 142, 146, 568 P.2d 1040, 1044 (1977); State v. Landrum, 112 Ariz. 555, 559, 544 P.2d 664, 668 (1976).

In this case, the nature of the questioning prior to the giving of Miranda warnings can be characterized only as investigatory. It was limited to requesting identification and the reasons for appellant's presence in suspicious circumstances. It was only when the first burglary tools were found underneath the car that the focus of the investigation shifted to specific criminal activity. At that point, the Miranda warnings were correctly given.

The fact that the officer requested appellant to leave his automobile and conducted a limited search for weapons in the course of this preliminary questioning does not serve to transform the questioning itself into a custodial interrogation. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court recognized that in appropriate circumstances a police officer can approach an individual for the purpose of investigating possible criminal activity and make a limited search for weapons if he has reason to believe that he is in danger. As Chief Justice Warren stated in Terry :

"(W)e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to...