State v. Tucker

• Decision Date: 30 January 1978
• Docket Number: No. 3738,3738
• Citation: 574 P.2d 1295,118 Ariz. 76
• Parties: STATE of Arizona, Appellee, v. Arnold Ray TUCKER, Appellant.
• Court: Arizona Supreme Court

Page 1295

574 P.2d 1295

118 Ariz. 76

STATE of Arizona, Appellee, v.Arnold Ray TUCKER, Appellant.

No. 3738.

Supreme Court of Arizona, In Banc.

Jan. 30, 1978.

Rehearing Denied Feb. 22, 1978.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div., Robert S. Golden, Asst. Attys.Gen., Phoenix, for appellee.

Stephen J. Rouff, Yuma, for appellant.

STRUCKMEYER, Vice Chief Justice.

Appellant, Arnold Ray Tucker, was convicted after trial by jury of one count of first degree murder, two counts of kidnapping, and one count of robbery.He was sentenced to life imprisonment without parole for 25 years on the conviction for murder and appeals.

The evidence established that Tucker had been living in a bedroom of a house owned and otherwise occupied by Linda Shinauld and her husband.On the evening of July 15, 1976, two persons, Harry Seth and Robert Guy, went to the Shinauld residence intending to purchase marijuana from Lester Fenderson, Lex Allen and Russell Caldwell, three friends of Tucker who were waiting at the Shinauld house.The transaction had previously been arranged by Tucker.After Seth and Guy went into the house, Tucker left with Linda Shinauld in her car to go to a neighborhood laundromat.Seth and Guy were assaulted and robbed by Tucker's three friends.Guy was carried out of the room and a few seconds later Seth heard the sound of a gunshot.Guy was placed in the passenger area of the car in which he had driven with Seth to the Shinauld residence.Seth was then carried out of the house and placed in the trunk of the car, and after a few minutes the car was driven away from the house.

After Seth had been placed in the trunk of the car, but before it was driven away, Tucker walked back toward the house.As he approached the house, he noticed Seth's bound feet handing out of the trunk of Guy's vehicle.Tucker then returned to where he had left the Shinauld vehicle.When he drove back to the house, he saw the Guy vehicle being driven away.Tucker entered the house, called the police and reported a robbery and kidnapping.After the Guy automobile left the Shinauld residence, Seth escaped from the trunk.While he was running, after breaking out of the trunk, he heard a number of shots coming from the car.Some time during the course of these events, Guy was murdered, although it is not certain whether the homicide occurred before or after the car was driven away from the house.

Officer Gary Garrett, patrolman for the Yuma Police Department, arrived in response to Tucker's call.He was invited into the house by Tucker to discuss what had happened and was shown the disarray, which was especially severe in Tucker's bedroom.Tucker first told Garrett that he had been a victim of the robbery.However, Garrett suspicioned that the appellant was involved in the marijuana dealings and read him the Miranda rights.No search of the house or appellant's bedroom was made at this time.Later another police officer, Detective Doyne L. Turner, searched the entire house, including Tucker's bedroom.Photographs were taken and certain physical evidence was seized.

The State attempts to justify the search on the basis of Linda Shinauld's consent.A warrantless search of property is valid if conducted pursuant to a voluntary consent.United States v. Matlock, 415 U.S. 164, 39 L.Ed.2d 242, 94 S.Ct. 988(1974);Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854(1973).However, the voluntary consent by a third person to a search of the living quarters of another is valid only if the third person "possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected."United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 250(1974).The Supreme Court clarified its holding with this statement in a footnote:

"Common authority is, of course, not to be implied from the mere property interest a third party has in the property.The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, * * * but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."Id. n. 7.

Since evidence was seized in Tucker's bedroom, this issue turns on whether Linda Shinauld had "common authority" over that room.

The record shows the room was used as sleeping quarters and storage room by Tucker.There is no evidence that it was used for other purposes.Hence, even though Linda Shinauld was an owner of the house, it cannot be said that she had "joint access or control" within the meaning of Matlock,supra.Tucker's bedroom was not such a "common area" of the house that it can be said he had assumed the risk that Linda Shinauld might permit it to be searched.

The State argues further that appellant's acts of reporting that he was a victim of the crime and inviting Officer Garrett into the house to discuss the crime showed an "implied consent" to search the house.A consent to search may, of course, be evidenced by conduct as well as by words.However, the constitutional protection against unreasonable searches demands a waiver by unequivocal words or conduct expressing consent.State v. Tigue, 95 Ariz. 45, 386 P.2d 402(1963)(overruled on other grounds byState v. Harvill, 106 Ariz. 386, 476 P.2d 841(1970)).We think the appellant's conduct shows such consent beyond equivocation.

As stated, Officer Garrett, a patrolman, was the first to arrive at the Shinauld residence.Appellant invited Garrett into the house to discuss what had happened and told Garrett that he, Tucker, had been the victim of a robbery.Officer Turner, a detective for the City of Yuma Police Department, thereafter arrived to make an investigation.Mrs. Shinauld admitted Officer Turner to the house.He photographed the entire residence, "mostly the areas that had been ransacked."This included the bedroom occupied by appellant.While Detective Turner saw Tucker there, he did not talk to him.He testified:

"Q.Do you know whether Mr. Tucker ever gave permission to have his particular room searched?

A.No, I didn't ask him.

Q.Do you know whether anyone else may have been led to that room by Mr. Tucker?

A.I believe Officer Garrett was when Tucker pointed out what areas of the house had been ransacked in reporting his alleged kidnapping-robbery.

Q.And that is what Officer Garrett has already testified to?

A.Yes, Officer Garrett took me into the house and showed me what portion of the house had been ransacked."

On cross-examination, Officer Turner testified:

"Q.Am I correct in understanding that when you processed and photographed this room this was prior to the time that Mr. Tucker became a suspect in this case?

A.To my knowledge, yes.At the time I processed it I was under the impression that it was a kidnapping.That is why the house, other rooms of the house were not processed more thoroughly that evening.

Q.So you felt that Mr. Tucker was a victim of a crime?

A.At that time, yes.

Q.When did you change your mind?

A.Later that evening.I believe it was around 9:30, 10:00 o'clock that evening.

Q.That was down at the police station?

A.Yes."

To summarize: Appellant called the police and reported a robbery and possible kidnapping.When the first police officer arrived, he was admitted to the house by appellant.When other investigating officers arrived from the Yuma Police Department, they entered the house and appellant's room to investigate the robbery, photographed various areas of the house and seized certain physical objects to that end.No protest whatsoever was made by appellant.Consent is plain on the face of the undisputed facts.

After appellant was arrested, an agreement was made by appellant's attorney and the prosecuting attorney in which it was understood that appellant would take a polygraph examination.It was agreed that the results of the examination would not be admissible in court.The examination was administered to appellant on July 17, 1976.While it was in progress, appellant changed his mind and asked that the polygraph instruments be removed.The examiner then pointed out to appellant that he had done badly and in what respects, and told him that it was obvious that he was not telling the truth.All of the foregoing was excluded from the testimony at appellant's trial.

Later, Detective Turner came into the room and the examiner left.Appellant and Turner then discussed the crime.At that time, appellant told Turner:

" * * * that he had planned the robbery, that he had contacted subjects Fletcher or correction, not Fletcher, Fenderson, Allen and Caldwell earlier that day and told them about the marijuana transaction.And since he did not have any marijuana and they did not have any marijuana at that time they planned to rob Seth.They didn't know that Robert Guy would be coming over."(Testimony of Doyne L. Turner.)

Later, Detective Turner asked the polygraph examiner to come back in.When he returned, Turner asked the appellant to tell the examiner what the appellant had told him, Turner.At that time the appellant related to them both that he had "set up the deal, that he had planned the robbery."

We do not think it is necessary to determine precisely when the polygraph examination was ended whether when appellant broke off the examination by having the polygraph equipment removed or whether it was not until the polygraph examiner finally left the room.Clearly, if it was not when appellant refused to continue the examination, it was when the polygraph examiner left the room.At some time during this period the examination terminated.Appellan...