State v. Taras
| Decision Date | 19 December 1972 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 19 Ariz.App. 7,504 P.2d 548 |
| Parties | The STATE of Arizona, Appellee, v. Mark Adam TARAS, Appellant. 305. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., Phoenix, by John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellee.
Ed Bolding, Pima County Public Defender, by Richard Van Duizend, Asst. Public Defender, Tucson, for appellant.
Defendant was charged in an information with illegal transportation of marijuana and possession of marijuana for sale. A motion to suppress the marijuana on the grounds that seizure of the marijuana was the result of an unlawful search was subsequently made and denied after the illegal transportation count was dropped. Upon defendant's waiving his right to trial by jury, the case was submitted to the court on the testimony contained in the preliminary hearing transcript and some additional evidence offered on defendant's behalf. From a conviction of possession of marijuana for sale, this appeal followed.
Defendant raises the following questions on appeal:
(1) Were the facts sufficient to constitute probable cause to arrest defendant?
(2) Is the entry into the glove compartment, and subsequent entry into the locked trunk by the police officer in an effort to find an indication of ownership an unreasonable search?
The facts necessary for a determination of this matter are as follows. On October 28, 1970, defendant was in a 1965 Buick automobile parked facing south in an unposted desert area behind the Midway Drive-In theatre in Tucson, Arizona. The screen was directly in back of the vehicle. At about 11:15 p.m., a patrol car with two police officers, Carstensen and Shoemaker, entered the area behind the drive-in looking for abandoned cars that had been stolen. One officer testified at the preliminary hearing that they often found stolen or abandoned vehicles in the desert area.
Defendant was behind the wheel of the car as the patrol vehicle approached at a speed of ten to fifteen miles per hour. Upon seeing the bright lights of the patrol car, the defendant straightened up, turned around to look back at the patrol car, and drove off rapidly into the desert without turning on his headlights. The police immediately turned on the patrol car's emergency equipment and pursued the defendant at a close distance. After traveling only sixty or seventy yards, defendant's car skidded sharply, whereupon he abandoned the vehicle in motion and took off across the desert on foot with Officer Carstensen in pursuit. Carstensen identified himself and shouted to the defendant while he was chasing him, 'Stop, this is the police.' The defendant, however, stopped only after tripping over a cactus and running into a barbed wire fence about twenty yards from the car. After being apprehended by Carstensen, he was then led back to his own car where he was frisked and checked for identification. After the defendant furnished Carstensen with his valid Arizona driver's license, he was handcuffed and led back to the patrol car. He was advised of his rights, placed in the back seat of the car and secured by a seat belt. Officer Carstensen then checked via police radio to see if the car had been reported stolen and received a reply that it had not.
After being advised of his rights, defendant told Officer Shoemaker that he wanted to contact his attorney, that the car belonged to him and that there was no registration card in the car. Shoemaker relayed this information to Carstensen, who then searched the vehicle for evidence of registration. Officer Carstensen got into the vehicle and looked at the seat and the dashboard and visor area. He found no registration but observed some matchbooks and some small paper that is normally used for rolling cigarettes strewn on the front seat and on the floorboard. In continuing his search for the ownership registration papers, he opened the glove compartment and noticed two baggies of what appeared to be marijuana. He told Officer Shoemaker of his discovery and asked him to call their sergeant. Carstensen then continued to search for a registration paper inside the car and glove compartment. He then took the keys from the ignition and opened the trunk, still looking for the registration paper. He found a large brown sack containing 42 separate plastic baggies full of a green, leafy susbtance, later found to be marijuana, in the trunk.
Defendant has presented the first issue in terms of probable cause to arrest. We find it unnecessary, however, to discuss the validity of the police activity from such standpoint. Not every time an officer flashes his emergency equipment to flag down a vehicle has an arrest been made. Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966); State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969); State v. Fish, 280 Minn. 163, 159 N.W.2d 786 (1968); People v. King, 270 Cal.App.2d 817, 76 Cal.Rptr. 145 (1969). When an officer is engaged in an investigation, he may detain a person under circumstances not justifying an arrest. State ex rel. Berger v. Cantor, 13 Ariz.App. 555, 479 P.2d 432 (1971); State v. Baltier, 17 Ariz.App. 441, 498 P.2d 515 (1972). Thus, we find it necessary to consider whether, under the circumstances, the detention or seizure of the defendant for investigatory purposes was justified and whether it was reasonable in the manner in which it was carried out.
Discussing when a reasonable detention is justified, the court, in Wilson v. Porter, supra, stated:
In State v. Baltier, supra, our court recently dealt with what is necessary to justify a forced stop for investigative purposes. In adopting the California test set forth in Irwin v. Superior Court, 1 Cal.3d 423, 82 Cal.Rptr. 484, 462 P.2d 12 (1969), we said:
We believe that the above test should apply not only to a situation such as in Baltier, but also to force stops of vehicles. 1
In light of the above, we believe the officers were justified under the circumstances in detaining the defendant to ascertain ownership of the car. Nor do we think the detention unreasonable because the defendant was handcuffed and seatbelted into the back seat of the patrol car. A valid limited detention is, in effect, a forced stop. Terry v. Ohio, Justice Harlan, concurring opinion, 392 U.S. 1, 32--33, 88 S.Ct. 1868, 1888, 20 L.Ed.2d 889, 912 (1968). The force applied to the detention must be that which is reasonable Under the circumstances. In considering whether the frisk of the person was justified in Terry v. Ohio, supra, Mr. Chief Justice Warren observed 'the specific content and incidents of this right must be shaped by the context in which it is asserted.' We think this right to stop and the method employed in stopping an individual must also be shaped by the context in which it is asserted. Applying this principle to the case at bar, we are of the opinion that handcuffing and seatbelting defendant into the patrol vehicle was reasonable under the circumstances. The defendant had sought to avoid the police even to the extent of abandoning the car while it was in motion. Disregarding the command of Officer Carstensen to stop, he continued to run until he ran into a fence. It was not unreasonable to assume that while he was in their custody, given an opportunity he would attempt to flee.
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In re Arturo D.
...also support the propriety of such limited searches. (E.g., State v. Acosta (Ct.App. 1990) 166 Ariz. 254, 801 P.2d 489, 493 [affirming Taras but holding that search for registration in "rear interior compartment"—requiring officer to "unscrew plastic bolts and remove the panel covering the ......
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State v. Johns
...compelling a finding that the suspect was in custody." United States v. Booth, 669 F.2d 1231, 1236 (9th Cir.1981). See State v. Taras, 504 P.2d 548 (Ariz.App.1972). Under the facts of this case the use of handcuffs was a reasonable precaution for the officer's safety. Within moments after h......
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State v. Cook
...and to return. Such detention by the police officer was within the permissible scope of the investigative stop. E.g., State v. Taras, 19 Ariz.App. 7, 504 P.2d 548 (1972); State v. Gardner, 28 Wash.App. 721, 626 P.2d 56 (1981). Any investigative stop necessarily involves a brief period of de......
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State v. Tsukiyama
...30 Cal.App.3d 432, 106 Cal.Rptr. 344 (1973); Restani v. Superior Court, 13 Cal.App.3d 189, 91 Cal.Rptr. 429 (1970); State v. Taras, 19 Ariz.App. 7, 504 P.2d 548 (1972); People v. Barksdale, 14 Ill.App.3d 415, 302 N.E.2d 718 (1973); People v. Loveland, 71 Misc.2d 935, 338 N.Y.S.2d 548 (1972)......
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5.5.2
...332 (App. 1997) (Div. 1), limiting State v. Acosta, 166 Ariz. 254, 801 P.2d 489 (App. 1990) (Div. 1) and State v. Taras, 16 Ariz. App. 7, 504 P.2d 548 (1972) (Div. 1). The Arizona Court of Appeals, Division Two, does not appear to have this requirement. See State v. Weinstein, 190 Ariz. 306......