State v. Vitale
| Citation | 530 P.2d 394,23 Ariz.App. 37 |
| Decision Date | 07 January 1975 |
| Docket Number | CA-CR,No. 2,2 |
| Parties | The STATE of Arizona, Appellee, v. Nicholas Stephen VITALE, Appellant. 394. |
| Court | Court of Appeals of Arizona |
Appellant was convicted of attempting to receive stolen property pursuant to A.R.S. §§ 13--108, 13--110, 13--621 and 13--1645, as amended. He was initially arrested on a charge of receiving stolen property, but this charge was subsequently dismissed. Following a plea of not guilty, appellant made motions at a February 20, 1974 hearing to suppress evidence, to establish entrapment as a matter of law and to dismiss the charge of attempt based on the allegation that the substantive crime was impossible. The motions were denied and appellant was thereafter convicted and sentenced to six months' probation and a $300 fine was imposed.
Appellant seeks reversal of his conviction on the following grounds:
1. That the evidence used in proving his guilt was illegally obtained and therefore should not have been admissible;
2. That he was entrapped as a matter of law;
3. That if the substantive offense was legally impossible, then an attempt to do it is not an offense;
4. That he was denied due process by the admission of the testimony concerning his conversation with the police informant after the State had lost tape recordings of the conversation.
The facts are that on May 1, 1973, a police informant, Steven Fristoe, was in the custody of the Tucson Police Department on charges of burglary, possession of forged documents, possession of marijuana, forgery and receiving stolen property. Fristoe, in a recorded interview on May 1, 1973, stated he had sold property to appellant at his pawn shop and informed appellant the property was stolen. Thereafter, the police devised a plan by which they might catch appellant receiving stolen property. A television set, recovered in an unrelated burglary several months earlier, was used. The informant, in exchange for a promise to drop several charges, agreed to try to sell the television set to appellant. The informant was fitted with a listening device so that the planned transaction with appellant could be recorded and listened to by the police.
Additionally, the police telephoned Justice of the Peace Eleanor Schorr to obtain a search warrant. The transcription of the conversation shows that the judge was informed that the informant was to help set up the sale of a stolen television set; that the informant had stated that he had previously taken and sold stolen goods to appellant; that the informant was known to the police officer and had been used as an informant on one prior occasion and had proven to be reliable; that the television set to be used was in the possession of the police and was related to a burglary unconnected with the informant. 1 The following colloquy took place between Judge Schorr and Officer Walsh:
After obtaining the search warrant, Detectives Walsh and Hill proceeded with Fristoe to appellant's pawn shop in an unmarked car, accompanied by two other detectives in a second car. Both cars were equipped with tape recorders and receivers for the device placed on Fristoe.
Fristoe entered the pawn shop and attempted to sell the television set to appellant, explaining that it was stolen. Appellant refused to purchase it because Fristoe did not have identification. Fristoe returned to Walsh's police car. An undercover agent was called in who accompanied Fristoe to appellant's pawn shop. The undercover agent supplied false identification and signed a false name to the pawn slip. Appellant then refused to accept the set for $120.00. The informer bargained and finally lowered his price to $90.00. Appellant then accepted the television set and the undercover agent signed his name to a pawn slip as appellant stated that the set was stolen and if there was any problem it would be their problem.
Fristoe and the undercover agent then left the pawn shop and delivered the money to Detective Walsh. Walsh, accompanied by Detective Hay, then executed the search warrant by entering the pawn shop through the front door, approaching appellant and indicating they were seeking the television set. Appellant indicated it was behind the counter and it was then seized.
Walsh took the tape recording of the conversation made in his car to the county attorney's office and placed it in a case file. He received the tape recording of the conversation made by the backup detectives' car, listened to it and found it was inaudible in parts. Walsh released the inaudible tape, which was subsequently reused, thereby erasing the recording of the conversations. It was later discovered that the remaining tape recording was missing from the file at the county attorney's office and could not be located despite a thorough search. At trial the police officers and informant testified that Vitale was told and expressed an awareness that the television set was stolen. Appellant denied knowing the set was stolen.
Appellant contends that the search warrant obtained by the police was prospective in nature and therefore invalid; that the affidavit submitted to the magistrate issuing the search warrant contained material misrepresentations and failed to establish the reliability of the informant; and, that the police could not seize the television set pursuant to a valid arrest.
We agree with appellant's contention that the search warrant issued in the instant case was invalid because there was no probable cause to believe a crime had been committed. Indeed, the transcript of the conversation between Officer Walsh and Justice of the Peace Schorr clearly shows there was no evidence of a crime having been committed at the time the warrant was issued. The informant had not yet approached appellant regarding the television set at the time the telephone search warrant was issued; also, there had not been any recent dealings between the informant and appellant.
A.R.S. § 13--1442, as amended, reads:
'A search warrant may be issued upon any of the following grounds:
1. When the property to be seized was stolen or embezzled.
2. When the property or things to be seized were used as a means of committing a public offense.
3. When the property or things to be seized are in the possession of a person having the intent to use them as a means of committing a public offense or in possession of another to whom he may have delivered it for the purpose of concealing it or preventing it being discovered.
4. When property or things to be seized consist of any item or constitute any evidence which tends to show that a particular public offense has been committed, or tends to show that a particular person has committed the public offense.
5. When the property is to be searched and inspected by an appropriate official in the interest of the public health, safety or welfare as part of an inspection program authorized by law. As amended Laws 1970, Ch. 59, § 1; Laws 1972, Ch. 61, § 3.'
The test as to the sufficiency of an affidavit in support of a search warrant is not whether items found in the search support the affidavit but whether at the time the affidavit was presented it contained information upon which probable cause could be found to issue a warrant. State v. Reynolds, 11 Ariz.App. 532, 466 P.2d 405 (1970). A.R.S. § 13--1442, as amended, clearly refers to seizing property where the criminal offense has already occurred. But, the requisite occurrence of a crime was lacking here.
Appellee places great emphasis on State v. Cox, 110 Ariz. 603, 522 P.2d 29 (1974), to support the procedure followed here. The factual distinctions between the instant case and Cox are clearly apparent. In Cox, the affidavit met the probable cause test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The affidavit in Cox enunciates the circumstances upon which the police premised their belief that the subject car was carrying marijuana. An informant's tip was clearly stated indicating that marijuana had been recently seen in the car. The facts establishing the informant's reliability and corroborating facts known by other agents were set forth. In brief, there was probable cause to believe that a crime was being or had been committed.
Furthermore, in Cox the comment is made:
'As long as the magistrate is fully and fairly apprised of the facts, it is reasonable to issue a warrant to be served at some time not unreasonably distant for a crime, as here, that is in progress or it is reasonable to assume will be committed in the near future.' 522 P.2d at 34.
In the instant case, no crime was in progress and it was a matter of pure speculation whether one would be committed in the future. The course of events strongly suggests that the duty to determine probable cause was improperly shifted from the magistrate to the police. Cf., Coolidge v. New Hampshire, 40o U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
Appellant's second major attack upon the admission of the television set into evidence is premised upon the assertion that the seizure outside the premissible limits of a search incident to a valid arrest. With this argument, however, we disagree.
On direct examination Officer Walsh described the arrest and seizure as follows:
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