State v. Torrez

• Decision Date: 26 December 1975
• Docket Number: No. 3098,3098
• Citation: 112 Ariz. 525,544 P.2d 207
• Parties: STATE of Arizona, Appellee, v. Willie G. TORREZ, Appellant.
• Court: Arizona Supreme Court

Page 207

544 P.2d 207

112 Ariz. 525

STATE of Arizona, Appellee, v. Willie G. TORREZ, Appellant.

No. 3098.

Supreme Court of Arizona, In Banc.

Dec. 26, 1975.

Bruce E. Babbitt, Atty. Gen. by Galen H. Wilkes, Asst. Atty. Gen., Phoenix, for appellee.

Debus, Busby & Green by Jordan Green, Phoenix, for appellant.

HOLOHAN, Justice.

The appellant, Willie G. Torrez, was tried and convicted of three narcotic drug charges for which he was sentenced to confinement in the state prison. This appeal followed.

Appellant challenges the legality of his arrest and search incident to it, and he also contests the sufficiency of the affidavits for search warrants for his home and business premises.

The facts necessary for a determination of this appeal are essentially that the appellant, Willie G. Torrez, was placed under surveillance on the morning of March 13, 1974 by the Department of Public Safety acting on information from informants that appellant was a narcotics trafficker. Following an observed period of nearly four to five hours, during which time appellant frequented his home and gas station, carried objects to and fro, made several phone calls, consummated a controlled sale of heroin, and made contact with a known drug user, the appellant was arrested for the sale of narcotics. A search of his vehicle contemporaneous with the arrest revealed a quantity of heroin underneath the front seat. Following the arrest, two search warrants were sought and obtained for appellant's place of business and residence, resulting in the seizure of additional quantities of heroin.

Appellant filed a motion to suppress the heroin seized from the vehicle on the ground that it was discovered as a result of an arrest not based upon probable cause. He also moved to suppress the heroin seized at appellant's place of business and residence on the grounds that the subject arrest was invalid and the affidavits in support of the warrants were constitutionally defective. After full hearing the motion was denied on June 24, 1974.

Appellant argues that there was not sufficient evidence to establish probable cause for the arrest. There is no dispute by the parties with the legal principles that an arrest will be upheld if the officer has reasonable grounds to believe that an offense is being or has been committed by the person arrested, and reasonableness is to be tested by the nature of the information supplied to the officer and the facts and circumstances which he observes or knows. State v. Richards, 110 Ariz. 290, 518 P.2d 113 (1974).

The evidence in support of the arrest consisted of the officers' independent knowledge of appellant's reputation as a drug trafficker, information from drug users that they had purchased narcotics from appellant, the observations of the officers shortly before the arrest of the suspicious activities of the appellant and his contact with another drug user, and finally, the controlled buy of narcotics from the appellant by an informant within forty-five minutes of the arrest. The evidence was ample to convince a man of reasonable caution that an offense had been committed, and the appellant had committed it. Appellant contends that the arrest was improper because the officers had time to procure a warrant before arresting him, and this failure to obtain a warrant makes the arrest without a warrant unreasonable. Appellant relies on State v. Hutton, 110 Ariz. 339, 519 P.2d 38 (1974). In the Hutton case there was a lapse of fourteen hours between the receipt of information by the officers and the search of the defendant. Such is not the instant case. The lapse of some forty-five minutes from the time of the controlled buy to arrest is not unreasonable under the circumstances. The officers wanted to protect the informant by giving him time to leave the area, but the officers were also aware that the appellant was moving about in his automobile. The officers' continued surveillance of appellant was necessary to follow his movements. Just prior to the arrest the appellant had met with a narcotics user, and there was reasonable belief that another sale of narcotics was about to take place. With the circumstances established by the evidence, the arrest without a warrant was justified because of the exigent circumstances. Since the arrest was valid, the subsequent search incident to the arrest was also valid, and the narcotics seized were admissible in evidence.

Appellant alleges that the evidence seized from the search of appellant's place of business and residence should have been suppressed because the affidavits upon which the magistrate issued the search warrant were insufficient to establish probable cause. Specifically, appellant attacks the sufficiency of the circumstances from which the informants reached the conclusions related to the officers. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Because there had not been a personal observation by the informants of heroin at the gas station for a period of three days and because neither informant had ever personally observed heroin at the appellant's home, appellant maintains that the information received from the informants was not credible.

The affidavit in support of the search of appellant's place of business recited that an informant had purchased a usable quantity of narcotics from appellant at his place of business within the last three days, and that affiant's fellow officer had been advised by another informant that he had effected numerous sales of narcotics during the past thirty days with appellant at appellant's place of business. The affidavit further stated that appellant had been observed on numerous occasions removing small objects from his vehicle and transferring them to various persons who appeared to be customers at his place of business. Finally the affidavit set forth a summation of the events surrounding appellant's arrest that morning for possession of heroin, including his contact with a known drug user. We are of the opinion that the factual circumstances enumerated in this affidavit were sufficient to permit a detached and neutral magistrate to conclude that quantities of narcotics were located at appellant's place of business.

Contrary to appellant's insistence, we do not find the information in the search warrant stale. As stated in United States v. Harris, 482 F.2d 1115, 1119 (3d Cir. 1973): 'The question of staleness of probable cause depends more on the nature of the unlawful activity alleged in the affidavit than the dates and times specified therein.' Where an affidavit recites facts indicating an activity of a continuous nature or 'a course of conduct, the passage of time becomes less significant.' United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). We are of the opinion that the passage of three days since one of the informants purchased heroin at appellant's gas station did not render the warrant stale in light of the protracted and continuous activity inherent in appellant's largescale narcotic operation.

The affidavit presented to the magistrate in support of the search warrant for appellant's residence also stated that two informants had been purchasing narcotics at defendant's place of business for periods from...