State v. Taylor, 2

• Decision Date: 06 December 1965
• Docket Number: No. 2,CA-CR,2
• Citation: 2 Ariz.App. 314,408 P.2d 418
• Parties: The STATE of Arizona, Appellee. v. Henry TAYLOR and Mitchell Darby, Appellants. * 20.
• Court: Arizona Court of Appeals

Page 418

408 P.2d 418

2 Ariz.App. 314

The STATE of Arizona, Appellee. v. Henry TAYLOR and Mitchell Darby, Appellants. ^*

No. 2 CA-CR 20.

Court of Appeals of Arizona.

Dec. 6, 1965.

Darrell F. Smith, Atty. Gen., Norman E. Green, Pima County Atty., Carl Waag, Deputy County Atty., for appellee.

Royal & Carlson, by H. Wesley Carlson, Tucson, for appellant, Henry Taylor.

Manuel H. Garcia, Tucson, for appellant, Mitchell Darby.

MOLLOY, Judge.

Henry Taylor and Mitchell Darby were convicted of first degree burglary. At a hearing held before commencement of trial, throughout the course of trial, and at the time appointed for sentencing, the defendants raised various motions, all of which were denied by the trial court. This is an appeal from the denial of motions to suppress evidence, to declare a mistrial, for directed verdicts, to dismiss, for a new trial, and to delete references made in written and oral statements.

On appeal from a conviction, the appellate court is required to view the evidence in a light most favorable to the state, State v. Rivera, 94 Ariz. 45, 381 P.2d 584 (1963), and such a view reveals the following facts.

A police officer in a patrol car stopped an automobile with a defective tailight at 2:30 a. m. The driver, Taylor, 19 years of age, stepped from the auto and met the officer, who explained to Taylor that the law required proper taillights (A.R.S. § 28-925). Routinely, the officer then approached Taylor's auto and looked inside. He may have used his flashlight. Within the auto he observed Darby, 18 years of age, and another young man not involved in this action. On the floor of the rear seat, the officer saw two new Delco automobile batteries in unopened cardboard containers, one longer and narrower than the other. The officer also saw seven to eight packages of three different brands of cigarettes in the back seat. When inquiry was made as to the ownership of the batteries, the reply given was that one battery belonged to each of the passengers, and that they had been purchased '* * * from a Richfield station * * * on the south side * * *' from a service station attendant named 'John.' Asked about the cigarettes, each of the defendants maintained that the other person must have brought them into the car. The officer filled out a field interrogation card, requested and was granted permission by Taylor to get into the car and look more closely at the batteries, and radioed the police station for a records check of the defendants and for a burglary report. Both resulted in negative responses. After two or three additional police units arrived, a search of the defendants' persons and of the trunk of the car was conducted. The opening of the trunk was performed by Taylor at the request of the officers. Search of the persons disclosed a roll of pennies and a 'lettuce' knife. A used battery was located in the trunk.

All three batteries were latter identified as having been taken from the Richfield service station which the defendants were charged and convicted of burglarizing in the lower court. The three brands of cigarettes were of the same three brands as cigarettes taken from this same station.

Additional questioning at the scene failed to satisfy the officer. No explanation was offered by the defendants as to why they had the batteries in question nor as to why they were out in the early hours of the morning. The officers informed the defendants that although charges could be filed against them, the officers would prefer that the defendants voluntarily accompany them to the station for further investigation. This they agreed to do. Taylor drove his own car to the station with police units in front and behind. Darby and the other occupant were driven in the police units. Taylor's car was parked on the police ramp and Taylor and Darby were questioned further at the station. At about 4:30 a. m.--two hours after being stopped for a defective taillight--the burglary of the Richfield station was reported and Taylor and Darby were formally arrested. No citation was ever issued for the taillight infraction.

At about 9 a. m. the same morning Taylor and Darby were taken from the county jail to the detective bureau for interrogation. They were separately questioned. Taylor made an oral confession which was later reduced to writing and signed by him. Confronted by this written statement, Darby orally agreed with Taylor's statement but declined to make a written statement himself. Later the same day Taylor and Darby were arraigned before a magistrate.

The trial in the lower court and this appeal revolve largely around whether the batteries and cigaretes were obtained by means of an illegal search and seizure.

The question of searches and seizures has received considerable--perhaps inordinate--attention since the historic decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and appellants herein, defendants below, rely heavily upon that case.

The Mapp decision requires the exclusion in state courts of all evidence secured by means of illegal search and seizure. The Arizona Supreme Court, in State v. Quintana, 92 Ariz. 267, 376 P.2d 130 (1962), specifically acknowledged the applicability of the Mapp rule in Arizona courts, but proponded:

'Nevertheless, the test regarding the legality of a search and seizure is whether it was 'reasonable' under the circumstances, and the courts have held that circumstances beyond the fact that there was an arrest might justify a search and seizure which otherwise would be unreasonable.' (Emphasis added)

92 Ariz. 267, 269, 376 P.2d 130, 131 (1962)

See also State v. Baca, 1 Ariz.App. 16, 398 P.2d 924 (1965).

It is universally recognized that a search and seizure incident to a lawful arrest, or lawfully conducted under the authority of a valid search warrant, is reasonable. It is similarly accepted that a search inspired by exceptional circumstances is likewise reasonable. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1946); Williams v. United States, 105 U.S.App.D.C. 41, 263 F.2d 487 (1959); State v. Quintana, supra, and cases discussed therein. The mobility of vehicles has frequently been considered in requiring less for a finding of exceptional circumstances rendering a search reasonable. Busby v. United States, 296 F.2d 328 (9th Cir. 1961); State v. Baca, supra.

As summarized in 79 C.J.S. Searches and Seizures § 8, pp. 787-788:

'What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a considration of the circumstances involved, including the purpose of the search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, the character of the articles procured, and the nature and importance of the crime suspected.'

In State v. Quintana, supra, a suspicion grounded upon the evasive answers and nervous demeanor of the driver of an auto exceeding the speed limit late at night, was held to be sufficient to label the attendant search as reasonable. The Arizona Supreme Court, in fact, commended the officer by stating that it was the '* * * reasonable thing for the officers to have done upon having such suspicion. * * *' 92 Ariz. 267, 269, 376 P.2d 130, 131 (1962).

'Reasonableness' is a matter concerning which conceptual generalities are of little help. No pattern of behavior may unequivocally be said to be reasonable under all conceivable circumstances. This court is inclined to give great weight to the conclusion of the trial judge in the matter, and is in agreement that the conduct of the officers in searching defendants and the automobile was reasonable under the circumstances. State v. Quintana, supra; 5 Am.Jur.2d 735, Arrest §§ 44-49. And, although we recognize that a lawful arrest for a minor traffic violation does not, in and of itself, automatically render constitutional any contemporaneous search and seizure, State v. Quintana, supra, nevertheless where, as here, the search was reasonable, it is not rendered unreasonable, and hence unlawful, by subsequent occurrences.

Appellants place much significance on the fact that they were detained for two hours before being formally arrested for burglary, and to the fact that for that period their detention was based on nothing more than the suspicions of the officer. The state counters that defendants consented to the detainer and that if there was an arrest, the same was based on reasonable grounds.

Although we recognize that it is possible to waive constitutional guarantees by consent (State v. Pina, 94 Ariz. 243, 383 P.2d 167 (1963); State v. Tigue, 95 Ariz. 45, 386 P.2d 402 (1963)), we also are cognizant of the fact that conduct performed at the request of police officers often lacks that genuine voluntariness contemplated by an effective waiver of a precious right.

In the opinion of this court the question of whether the defendants were arrested at 2:30 a. m. or 4:30 a. m. is immaterial to the question before us: whether the trial court erred in denying a motion to suppress evidence. Basic constitutional rights should not depend upon the technicality of when an arrest is made. We hold that the circumstances presented to the trial court were such that the court was justified in finding that the search, made at 2:30 a. m., and the seizure, made either at 2:30 a. m. or 4:30 a. m., were reasonable. We do not believe that the trial court was mandated under the facts of this case to find that the conduct of these officers falls within the category of '* * * rude invasions of privacy * * *' (81 Sup.Ct. 1694), which were condemned in Mapp.

Appellants next assert that the court erred in admitting the oral statement of Darby and the oral and written statements of Taylor, on the grounds that they were originally detained illegally, that they were not warned of their right to...