State v. Turner, 2

• Citation: 688 P.2d 1030,142 Ariz. 138
• Decision Date: 08 May 1984
• Docket Number: No. 2,CA-CR,2
• Parties: The STATE of Arizona, Appellee, v. Charlie Ray TURNER, Appellant. 3197.
• Court: Court of Appeals of Arizona

Page 1030

688 P.2d 1030

142 Ariz. 138

The STATE of Arizona, Appellee, v. Charlie Ray TURNER, Appellant.

No. 2 CA-CR 3197.

Court of Appeals of Arizona Division 2.

May 8, 1984.

Review Denied Sept. 18, 1984.

Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Tucson, for appellee.

Davis, Siegel & Gugino, P.C. by Michael L. Piccarreta and Carla Ryan, Tucson, for appellant.

OPINION

HOWARD, Judge.

This appeal questions the legality of a warrantless search of appellant's property while he was on probation.

Appellant had been convicted in 1981 of unlawful possession of marijuana and placed on probation for two years. In September 1982 appellant was involved in an automobile collision and was arrested when a routine police check revealed two warrants for traffic violations. Appellant was taken to CVC (Correctional Volunteer Center) at the jail for booking on the traffic warrants. His luggage was placed in the trunk of the police car and taken to CVC with him since his automobile was inoperable and there were no alternatives at the time. A police officer at the scene of the accident was approached by a Tucson Electric Power Company employee who had heard the collision and had offered assistance prior to the arrival of the police. The TEP employee told the police officer that when he had asked appellant if he needed any help following the accident, appellant, who was by the trunk of his car and handling his luggage, handed the TEP employee a white canvas bag approximately 12 inches by 18 inches and asked the TEP employee to "stash it" for him, which the employee refused to do. The TEP employee further stated that the contents of the bag felt like a powder, like flour.

The police officer then called CVC and transmitted this information to the arresting officer. The probation department was informed and a verbal hold was put on appellant. Upon arriving at CVC, appellant telephoned his sister-in-law and requested that she pick up his luggage. A short time later she arrived and requested the suitcases but was refused. Appellant's luggage was removed from the police car and placed on the ground. Two narcotics detector dogs were brought in to "sniff" the suitcases. Both dogs sniffed the bags twice but, although they showed some interest, they did not sit and bark which is the positive sign for drugs. Appellant's sister-in-law again asked for the luggage but was refused by the police who told her that they were investigating the possibility of drugs.

The police then contacted the probation department and spoke with appellant's probation officer. Based on information from police regarding the car accident, the traffic warrants and the TEP employee's statement, two Pima County probation officers went to CVC to conduct a search of appellant's luggage pursuant to a regulation in the "conditions and regulations" of appellant's probation requiring him to "submit person and property to search and seizure at any time of the day or night when so requested by a probation officer, with or without warrant and with or without probable cause." The probation officers then proceeded to search the bags. During this search the police surrounded the probation officers and assisted them by helping to open one of the bags. The probation officers found contraband, made an inventory of it and passed it on to police officers for testing.

Upon appellant's waiving his right to trial by jury, the case was submitted to the court on testimony contained in the transcript of his motion to suppress and some additional evidence offered on appellant's behalf. From convictions of unlawful possession of cocaine for sale of a value greater than $250 and unlawful transportation of cocaine of a value greater than $250, this appeal followed.

Appellant contends that the initial detention of his luggage was unlawful because a police officer cannot without probable cause seize and detain property, and refuse to release it upon request of the owner. His position is based on the premise, which was also accepted by the trial court without much consideration, that the police action was taken without probable cause. This premise is erroneous. The facts known to the police at the time are as follows. Appellant had been involved in a traffic accident and appeared to be under the influence of some intoxicant. A TEP employee had informed the police that appellant had attempted to have the employee hide something for him. The object, a canvas bag, felt like flour to the TEP worker, and appellant used the term "stash" which, though not limited to the criminal drug milieu, has its greatest use there. Appellant demonstrated an inordinate desire to keep the bag secret. He first placed it inside his shirt and then spent a long time fumbling with the luggage in his trunk. He even sought to leave the scene of an automobile accident in which he had been injured to make arrangements for the disposition of his luggage.

The United States Supreme Court has recently reiterated that probable cause is a practical, not a technical concept and that only the probability of criminal activity is required. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Appellant's obsessive concern with his luggage, combined with the TEP employee's statement to police and the exigency of the situation in which the contraband was about to disappear with appellant's sister-in-law, provided an adequate legal basis for the warrantless seizure of the bags.

Appellant takes great solace in the fact that the police stated in a transcript of an interview, submitted in evidence at the motion to suppress, that they did not think they had probable cause to permit a search of the luggage. Reliance on this theory is misplaced. The standard of probable cause is not a subjective standard but an objective one. State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969); State v. Pederson, 102 Ariz. 60, 424 P.2d 810 (1967); State v. Vaughn, 12 Ariz.App. 442, 471 P.2d 744 (1970); State v. Pine, 8 Ariz.App. 430, 446 P.2d 940 (1968); It merely requires that the facts available to the police would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of crime, and it does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability that incriminating evidence is involved is all that is required and it is not necessary that a police officer be possessed of near certainty as to the seizable nature of the items. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). In Klingler v. United States, 409 F.2d 299 at 304 (8th Cir.1969), which we quoted with approval in State v. Vaughn, supra, the court stated:

"Because probable cause for an arrest is determined by objective facts, it is immaterial that Kisecker, at the hearing on the motion to suppress, testified that he did not think he had 'enough facts' upon which to arrest Klingler for armed robbery. His subjective opinion is not material. See, Terry v. State of Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868 [1880], 20 L.Ed. 889 (1968)." 12 Ariz.App. at 444, 471 P.2d 744.

We believe the facts in this case indicate that there was probable cause for the initial warrantless seizure of the luggage. In view of the facts known to the police at the time and having probable cause to believe the contraband was about to disappear with appellant's sister-in-law, the police were justified in seizing the suitcases they suspected contained drugs. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); State v. Bustamante, 11 Ariz.App. 129, 462 P.2d 822 (1970).

Appellant further asserts that the warrantless search by probation officers was rendered improper by the degree of involvement by police in the situation. It is argued that the Fourth Amendment requires this result. The Fourth Amendment to the United States Constitution does not prohibit all searches and seizures, only those that are unreasonable. U.S.C.A. Const.Amend. 4. This court has consistently adhered to the view that reasonableness is to be determined by the facts and circumstances presented in each case. State v. Sainz, 18 Ariz.App. 358, 501 P.2d 1199 (1972); State v. Cofhlin, 3 Ariz.App. 182, 412 P.2d 864 (1966); State v. Taylor, 2 Ariz.App. 314, 408 P.2d 418 (1965); State v. Baca, 1 Ariz.App. 16, 398 P.2d 924 (1965).

In the case now before us, appellant, pursuant to the "conditions and regulations" of his probation, was required to "submit person and property to search and seizure at any time of the day or night when so requested by a Probation Officer, with or without warrant and with or without probable cause." The purpose of such a search requirement is to ascertain whether the probationer is complying with the terms of his probation. State v. Jeffers, 116 Ariz. 192, 568 P.2d 1090 (App.1977). While appellant is on probation his expectations of privacy are less than those of other citizens not so categorized. State v. Montgomery, 115 Ariz. 583, 566 P.2d 1329 (1977).

A probation officer has a duty to determine whether a probationer is complying with all of the conditions of his probation. State v. Tarrell, 74 Wis.2d 647, 247 N.W.2d 696 (1976). The court in United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir.1975) stated:

"... some forms of search by probation officers are not only compatible with rehabilitation, but, with respect to those convicted of certain offenses such as possession and distribution of narcotics, are also essential to the proper functioning of a probationary system." 521 F.2d at 265.

In the instant case, appellant had been placed on probation after pleading guilty to unlawful possession of marijuana. One of the conditions of his probation instructed appellant to "avoid contact with, or use of, marijuana, dangerous drugs, or narcotics...." The similarity between appellant's prior offense and this offense, and the...