State v. Tellez, 1

CourtCourt of Appeals of Arizona
Citation431 P.2d 691,6 Ariz.App. 251
Parties, 25 A.L.R.3d 1063 The STATE of Arizona, Appellee, v. Paul Vargas TELLEZ, Appellant. 120.
Docket NumberNo. 1,CA-CR,1
Decision Date21 September 1967

Darrell F. Smith, Atty. Gen., Anthony H. Mason, Asst. Atty. Gen., for appellee.

Vernon B. Croaff, Public Defender, by, Grant Laney, Deputy Public Defender, for appellant.


This appeal is from a verdict and judgment of the Superior Court of Maricopa County, finding the defendant guilty of receiving stolen property. A.R.S. § 13--621.

On March 9, 1966, at about 2:30 a.m., two City of Phoenix police officers were driving east on East Van Buren Street in a patrol car when they saw an automobile traveling west and weaving back and forth across the double center line in the street. The officers made a 'U' turn and then stopped the automobile. The defendant was the driver and two women were in the car with him. He was directed to get out of the car, which he did. He appeared to be in a state of intoxication; he was unsteady on his feet; his eyes reacted poorly to light; he was incoherent and appeared to be numb. There was no odor of liquor on his breath, and when asked if he had been drinking he replied that he had not. He was then told to remove his coat and roll up his sleeves. The officers observed a fresh puncture mark in the bend of each arm. The defendant was then placed under arrest for driving while under the influence of narcotics. He was advised that he had a right to counsel and that whatever he said could be used against him, but he was not advised that he had a right to remain silent. At about this time he told the officers that he had been taking 'red devils'. He was led by the officers to the police car where he was searched and a syringe and needle were found in his pants pocket. There was a red substance in the syringe. The officers then placed the defendant in the police car. After he denied having the keys to his car, the police officers acquired them from one of the women passengers in defendant's car. The officers then searched the interior of his car, but nothing was found. The key was then used to unlock and open the trunk. No specific permission had been given by defendant. The officers found an aluminum suitcase with 'Cole's Medical Supply and Rental' on it, a green wooden box, a plastic gas can, a lunch kit, a shaving kit, gloves, a three-phase motor, and an overnight bag. One of the officers questioned defendant as to who owned the property and he claimed that the objects belonged to a friend. However, when asked, he could not remember the friend's name or identify him. The officers had not yet received a stolen property report and did not know the property was stolen. The property was taken from the trunk and impounded in the Police Property Locker for safekeeping as a matter of regular police routine. The defendant was taken to the police station.

On March 8, 1966, the driver of a truck belonging to Cole's Medical Supply and Rental had notified the police that a number of articles belonging to his employer had been taken from the truck he was driving. The following day the driver identified the items in the Police Property Room. They were the same ones taken from the trunk of defendant's car.

Shortly after noon on March 10 at the police compound the defendant was questioned by another police officer who identified himself as a member of the burglary detail. Defendant was informed of his constitutional rights, but the patrolman did not inform him specifically of his right to presence of counsel during interrogation, or of his right to the appointment of an attorney without cost, if necessary. The patrolman questioned defendant about the property and defendant again answered that it had come from a friend. Even after he was told that the property was stolen, he still answered that he could not tell who the friend was. The defendant was charged with receiving stolen property, a violation of A.R.S. § 13--621.

Prior to trial defendant moved to suppress all statements made by him to police officers on March 9 and later, including all statements from the time he was stopped on East Van Buren Street. He also moved to suppress all mention of narcotics. The Court granted the motion to suppress all statements, but limited it to those made after formal arrest. The motion to suppress evidence of narcotics was denied.

Defendant objected to admission in evidence of items which were not stolen but which were found in the trunk of his car. His objections were denied. After trial the defendant was found guilty. From the judgment on the verdict, he has appealed.

The first question we shall consider is whether it was error to admit in evidence statements made by the defendant to the police. In Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court set forth certain statements of constitutional rights that must be given to those suspected of committing crimes. The statements or warnings were required to be given to offset possible intimidation by police attempting to obtain confessions from suspects who were undergoing 'custodial interrogation'. The four warnings are, 1) that he has a right to remain silent, 2) that any statement he does make may be used in evidence against him, 3) that he has a right to consult with an attorney and have him present prior to and during interrogation, and 4) that if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires. The requirement applies not only to confessions, but also to admissions. All of the warnings must be given or the confessions or admissions may not be used in evidence. State v. Intogna, 101 Ariz. 275, 419 P.2d 59 (1966); State v. Powell, 5 Ariz.App. 51, 423 P.2d 127 (1967). Since the warnings must be given prior to 'custodial interrogation', we have been asked to locate that point where the prohibited questioning begins. The United States Supreme Court has called it that point where the questioning is 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. State of Arizona, supra. This statement provides no formality in determining where the point lies, nor should there be any such formal point. The Supreme Court of the United States has left to the courts of each jurisdiction both the power and duty to determine from the facts when the suspect has come within that pervasive power of law enforcement officers which compels him to make statements rather than to allow him to do so or to be silent, as he voluntarily decides.

Because of the factual nature of this determination, we do not believe that the formal arrest is an adequate dividing line to use as a rule to determine when the warnings of constitutional rights must be given after a suspect has been stopped. The temptation would be too great for the officers to postpone formal arrest until a full questioning was completed. In State v. Intogna, supra, the fact that signalled the changed condition was a drawn gun in the hands of a police officer.

In the instant case, the warning given to the defendant at the time of arrest was insufficient to meet the minimum standards required by Miranda v. State of Arizona, supra. However, on motion of defendant the trial court suppressed all statements made after the formal arrest. Such statements not having been admitted in evidence, defendant was not prejudiced.

Over the objection of counsel, the Court allowed in evidence two statements made prior to arrest. In the first, the defendant was reported to have admitted that the automobile which he was driving was his. Secondly, when asked if he had been taking drugs, he said that he had been taking red devils. The defendant had not yet been advised of his constitutional rights. We must determine if the admission of these statements was error, in that defendant should have been completely warned prior to the statements.

Defendant was stopped for a traffic offense. As we have mentioned, the requirement of a warning is a rule devised to offset any attempt by authorities to get admissions or confessions by intimidation. However, traffic offenses are not ones in which we find such a risk of this kind of official behavior. In most cases, the offender is not detained longer than is needed to make out a citation and have it signed. A.R.S. § 28--1054. Often he may remain in his own car.

The language of the Miranda case applies its rule to crimes. A.R.S. § 13--103 makes it clear that crimes are either felonies or misdemeanors. Those accused of either a felony or a misdemeanor are entitled to the warnings of constitutional rights. Traffic offenses are misdemeanors. Rule 1, 17 A.R.S., Rules of Procedure in Traffic Cases. As we construe the statutes and rules of procedure for traffic offenses, it was the intention of the Legislature of create special handling of 'routine' offenses.

The degree of seriousness, the number of offenses, the burden put upon police and courts, all militate against extending the Miranda-Escobedo protections to certain types of traffic offenses. State v. Zucconi, 93 N.J.Super. 380, 226 A.2d 16 (1967); People v. Bliss, 53 Misc.2d 472, 278 N.Y.S.2d 732 (1967). We would hold that defendant was not entitled to an immediate warning when he was stopped for crossing back and forth over a street center line.

We add, however, not all traffic offenses may be treated in this manner. For example, the law provides that upon the arrest of a person for a misdemeanor for violation of the statutes regulating traffic on the highways, he shall be immediately taken before the magistrate within the county in which the offense is alleged to have been committed. It further provides that when the person is taken before a justice of the peace, it must be before the...

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  • Berkemer v. Carty, 83-710
    • United States
    • United States Supreme Court
    • July 2, 1984
    ...courts have dealt with the problem of roadside questioning in a wide variety of ways. For a spectrum of positions, see State v. Tellez, 6 Ariz.App. 251, 256, 431 P.2d 691, 696 (1967) (Miranda warnings must be given as soon as the policeman has "reasonable grounds" to believe the detained mo......
  • Cummings v. State, 1015
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    ...124 (5th Cir. 1968) (suspect's husband); State v. Noriega, 6 Ariz.App. 428, 433 P.2d 281 (1967) (suspect's family); State v. Tellez, 6 Ariz.App. 251, 431 P.2d 691 (1967) (suspect's friends); Stout v. State, 244 Ark. 676, 426 S.W.2d 800 (1968) (suspect's wife); People v. Butterfield, 258 Cal......
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    ...result, but the seeming majority of the cases indicates the view we espouse. Examples of decisions to that effect are State v. Tellez, 6 Ariz.App. 251, 431 P.2d 691, 25 A.L.R.3d 1063, 1070--1071 (Ct.App.1967); State v. Bliss, Del., 238 A.2d 848 (1968); State v. Pyle, 19 Ohio St.2d 64, 249 N......
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