State v. Superior Court In and For Pima County, 2

• Decision Date: 01 February 1983
• Docket Number: CA-CIV,No. 2,2
• Citation: 664 P.2d 228,136 Ariz. 78
• Parties: The STATE of Arizona, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, and the Honorable Michael J. Brown, Judge of the Superior Court, Respondent, and John Anthony LESSON, Real Party in Interest. 4674.
• Court: Arizona Court of Appeals

Page 228

664 P.2d 228

136 Ariz. 78

The STATE of Arizona, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, and the Honorable Michael J. Brown, Judge of the Superior Court, Respondent and John Anthony LESSON, Real Party in Interest.

No. 2 CA-CIV 4674.

Court of Appeals of Arizona Division 2.

Feb. 1, 1983.

Rehearing Denied March 15, 1983.

Review Denied May 24, 1983.

Stephen D. Neely, Pima County Atty. by Michael P. Pollard, Tucson, for petitioner

James E. Sherman and Thomas R. Althaus, Tucson, for real party in interest.

OPINION

BIRDSALL, Judge.

Mr. Lesson is the defendant in Cause No. CR-08145, a pending superior court prosecution for first-degree felony murder, two counts of first-degree burglary, and two other charges. The respondent judge granted his motion to suppress certain items seized at his residence on June 23, 1981, pursuant to a telephonic search warrant issued by another superior court judge. Although the suppression order is appealable, the state maintains the remedy is inadequate as dismissal would be necessary. Since the defendant's release from custody would follow, State v. Million, 120 Ariz. 10, 583 P.2d 897 (1978), and he has previously fled to Canada, the state's fear that he will again flee is not groundless. The reality of the situation justifies appellate intervention by special action.

The following evidence was presented at the suppression hearing. On June 23, 1981, two federal officers and three members of the Pima County sheriff's office entered the defendant's residence pursuant to two search warrants. The federal search warrant authorized a search of the premises for firearms and ammunition and the other warrant, issued by a Pima County Superior Court judge, authorized a search for stolen parts from vehicles. The only other reference to the state warrant appears in the information related to Judge Meehan in support of the telephonic search warrant. The validity of these search warrants is not challenged.

The three officers from the sheriff's department testified at the suppression hearing (Newburn, Youngling and Downing), along with one federal agent, VanHolst, and Sgt. Lawton, another member of the sheriff's office who had been summoned to the residence to identify certain items discovered during the search for firearms and ammunition.

During the search of the master bedroom of the Lesson residence, the federal agents were assisted by Officer Downing. Officer Downing testified that as agent VanHolst was conducting his search of a safe in the closet, Downing observed quite a bit of jewelry and a silver bar in the safe. VanHolst testified that the safe in the closet was "relatively small" and that as he was searching it he would take items out. He removed items from the safe and put them on the bed because he "could not see back in it." On cross-examination he testified that he did not purposely leave any of the items out for the sheriff's officers to check out and had not been instructed to do so. According to him, the shelves in the safe were stationary and were not spaced very far apart and therefore he pulled the items out and set them on the bed in order to search for firearms and ammunition which might be in the back of the safe. Weapons and ammunition described in the federal warrant were found in that bedroom.

Sergeant Newburn testified that Officer Downing advised him that there was some jewelry in the master bedroom. Newburn, a member of the burglary strike force of the sheriff's office, was the supervising officer. He and other members of the strike force had been involved in the investigation of Lesson and were aware of the information acquired in the investigation. Newburn went in and looked at the jewelry. He then summoned Sgt. Lawton because he had case reports for some of the property the officers believed would match up with some of the property observed on the bed. On questioning by the court, Newburn testified that the federal agents were aware of the fact that Lesson was a suspect in a lot of burglaries. When asked what kinds of property were lying on the bed, he responded:

"There was [sic] some coins, there was a silver bar, there was a lot of jewelry, some watches, there were some papers, there was [sic] some filing cabinets, the small files like, I think there were a couple of buses [sic] that had papers and stuff in them, too."

Officer Youngling testified to information he had previously received from Yanko Milenkevich as to houses that he and Lesson had burglarized and that most of the items stolen in the burglaries had been taken to Lesson's residence. This information had been passed on to the other members of the strike force and they obtained case reports matching the information. Lawton, who had been summoned to the residence, went through his case reports as to burglarized houses and checked off items lying on the bed against the reports. Youngling, who had assisted in the search of a tool shed, had also observed two Remline tool boxes which he suspected had been stolen. When Lawton arrived on the scene with his case reports, the tool boxes were also identified as having been stolen. After Youngling viewed the items on the bed which had been identified by Lawton as stolen, he applied for a telephonic search warrant.

Youngling's affidavit in support of the search warrant recited the circumstances of the information gleaned from the reliable informant, Milenkevich, a long list of items, several hundred, stolen from the burglarized premises, and his having seen specific items of stolen property at the Lesson residence: Mexican pesos, silver dollars, a gold cameo brooch, a gold Illinois Railroad watch, and two Remline tool boxes. The affidavit recited that these items were in plain view on the premises, and that he and his sergeant were on the premises to assist in the execution of the search warrant for firearms and stolen parts from vehicles. Based on Youngling's affidavit, the issuing magistrate found probable cause and issued the search warrant. The subsequent search resulted in the seizure of money bags and a silver bar. The respondent judge ordered that the evidence seized pursuant to the telephonic search warrant be suppressed.

We do not agree that the police actions here violated Lesson's Fourth Amendment right against unreasonable searches and seizures. There is no question that the officers, both federal and state, were lawfully on the premises pursuant to search warrants authorizing a search for stolen firearms and ammunition and parts of vehicles. The United States Supreme Court has recognized the possibility that the "plain view" doctrine might expand the scope of a search pursuant to a warrant in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh'g denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971):

"An example of the applicability of the 'plain view' doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character." 403 U.S. at 465, 91 S.Ct. at 2037, 30 L.Ed.2d at 582.

The Coolidge court set out several requisites for the seizure of evidence in plain view. First, the police are required to be legitimately in a position to obtain the view in order for the seizure to be...