State v. Washington

• Decision Date: 28 March 1978
• Docket Number: No. 1,CA-CR,1
• Citation: 120 Ariz. 229,585 P.2d 249
• Parties: STATE of Arizona, Appellant, v. Dennis WASHINGTON, Donald Lee Clancy, Pete Duarte Ayala, Dennis John Lautanen, Alan Michael Green and Richard Joseph Stefko, Appellees. 2718.
• Court: Arizona Court of Appeals

Page 249

585 P.2d 249

120 Ariz. 229

STATE of Arizona, Appellant, v. Dennis WASHINGTON, Donald Lee Clancy, Pete Duarte Ayala, Dennis John Lautanen, Alan Michael Green and Richard Joseph Stefko, Appellees.

No. 1 CA-CR 2718.

Court of Appeals of Arizona, Division 1, Department B.

March 28, 1978.

Rehearing Granted June 29, 1978.

Rehearings of Supplemental Opinion Denied Aug. 31, 1978.

Review Denied Oct. 3, 1978.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., Asst. Atty. Gen., Phoenix, Robert J. Roberson, Deputy Yuma County Atty., Yuma, for appellant.

Stephen J. Rouff, Yuma, for appellees Clancy and Washington.

Garth Nelson, Yuma, for appellee Ayala.

Donald B. Engler, Yuma, for appellees Green, Stefko and Lautanen.

OPINION

JACOBSON, Judge.

The basic issue raised by this appeal is whether the "fruit of the poisonous tree" doctrine prohibits the use of testimony of a co-defendant, after that co-defendant has entered a plea of guilty.

The facts in this case are not in material dispute. On October 23, 1976, officers of the Yuma City-County Narcotics Task Force had Room 130 of the Holiday Inn in Yuma under surveillance. The reason for the surveillance was that the officers had information that three persons had checked into this room and had deposited a large amount of cash in the motel safe. The occupants of the room were later identified as Ronald Salvato and appellees Washington and Clancy.

During the surveillance, the officers observed appellees, Stefko, Green and Lautanen enter and leave the room. Stefko and Green were suspected heroin users and Stefko was believed to be in the area for a heroin buy. Several days prior to October 23, 1976, Stefko, Green and Lautanen were seen at the residence of appellee Ayala, a suspected heroin dealer. On October 23, 1976, the officers observed all six appellees together with Salvato, coming and going into Room 130. Later, they observed Ayala entering the room carrying an object under his arm. Several hours later, Salvato, Clancy and Washington left the room with their luggage, placed it into a vehicle and left the motel. They were followed by strike force officers and subsequently stopped. Ayala had left the motel at the same time. He, too, was followed and stopped by strike force officers. A search of Ayala revealed a small amount of heroin and $6,900.00 in cash.

The stop and subsequent search of the vehicle containing Clancy, Washington and Salvato revealed four ounces of heroin on Washington's person and eight ounces of heroin secreted around the vehicle.

After being notified of the stop and search of the two vehicles, strike force officers entered Room 130 of the motel, arrested Stefko, Green and Lautanen and confiscated various heroin paraphernalia and money wrappers.

On October 28, 1976, all the participants, including Salvato, were charged by indictment with the crimes of sale, possession for sale, possession, transportation, and being under the influence of narcotic drugs.

Following their arrests, both Salvato and Ayala gave detailed statements to the police concerning the sale and purchase of the heroin confiscated. On November 16, 1976, Salvato was released from custody after posting bond. Subsequently, all the defendants, except Salvato, moved to suppress the statements and physical evidence on the grounds that they were the result of illegal arrests, searches and seizures.

After hearing these motions on December 30, 1976, the Superior Court of Yuma County on January 13, 1977, ordered all physical evidence and statements of the defendants, including the statements of Salvato, suppressed on the grounds that they were obtained by reason of constitutionally infirm arrests, searches and seizures. There is no contention in this appeal that that ruling granting the suppression motion was incorrect. As a result of this suppression order, all pending charges against the six appellees were dismissed on February 8, 1977.

Apparently, counsel for Salvato and the Yuma county attorney had entered into an oral plea agreement whereby Salvato would plead guilty to the crime of possession of a narcotic drug, the remaining charges would be dismissed and Salvato would receive probation. This oral plea agreement was entered into prior to the filing of appellees' motion to suppress. Apparently, Salvato's counsel was of the opinion that the chances of a successful motion to suppress were minimal and the best deal he could arrange for his client lay in a plea bargain arrangement.

On January 18, 1977, after the appellees' motion to suppress was granted, Salvato filed a written plea agreement dated November 24, 1976, and entered a plea of guilty to the crime of possession of a narcotic drug. The plea was accepted. The oral agreement was lived up to and on June 1, 1977, Salvato received three years' probation. The written plea agreement also contained the following conditions "That the defendant appears and testifies at the trial or trials in Superior Court Cause No. 8537, the State of Arizona v. Richard Joseph Stefko, Alan Michael Green, Dennis John Lautanen, Pete Duarte Ayala, Donald Lee Clancy and Dennis Washington."

On January 20, 1977, Salvato appeared before a grand jury, the result of which was that the grand jury returned indictments against all six appellees, charging them with conspiracy in the first degree. The state avows that it intends to subpoena Salvato to testify at the trial of the six appellees on the conspiracy charges.

Following the return of the conspiracy indictments, all six appellees moved to suppress the testimony of Salvato, which was granted by the Superior Court of Yuma County on May 2, 1977. The state has appealed the granting of that order.

The state, having conceded the initial illegality of the arrest and searches of appellees and Salvato, relied primarily on the "attenuation" exception articulated in State v. Fortier, 113 Ariz. 332, 553 P.2d 1206 (1976) to avoid suppression of Salvato's testimony. In Fortier, the Arizona Supreme Court stated:

"Evidence is not classified as a fruit (of the poisonous tree) requiring exclusion, however, merely because it would not have been discovered 'but for' the primary invasion:

'Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." ' Wong Sun v. United States, 371 U.S. (471) at 488, 83 S.Ct. (407) at 417, 9 L.Ed.2d (441) at 455. " Id. at 335, 553 P.2d at 1209.

The state tacitly concedes that unless it can show that Salvato's proposed testimony "came . . . by means sufficiently distinguishable to be purged of the primary taint" such testimony is inadmissible. The "means" pointed to by the state is Salvato's plea of guilty. Among the limitations to the fruit of the poisonous tree doctrine are: (1) the "independent source" doctrine set forth in the early case of Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); (2) the inevitable discovery doctrine, See, Somer v. United States, 138 F.2d 790 (2nd Cir. 1943); United States v. Seohnlein, 423 F.2d 1051 (4th Cir. 1970), Cert. denied, 399 U.S. 913, 90 S.Ct. 2215, 26 L.Ed.2d 570 (1970); and (3) the " attenuated connection" limitation as expressed in Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939).

The state relies on the "attenuated connection" limitation, arguing that Salvato's guilty plea is such an attenuated circumstance. Support for the state's position can be found in United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967). In Hoffman, the defendant and others including one Fears were first arrested by local authorities and certain forged money orders were taken into custody. All were subsequently charged with conspiracy to violate 18 U.S.C. § 2314 (transportation of forged money orders.) Fears pled guilty as charged. The district court held the initial arrest of the defendants including Fears was illegal and therefore suppressed the evidence taken from them at the time of their arrest. The trial court, however, allowed Fears to testify against his co-conspirators. In upholding this ruling, the circuit court of appeals stated:

"The testimony of Fears . . . did not come about by government exploitation of the illegal arrest or of anything incidental thereto. The source of the testimony lies in two much later events the occurrence of which were wholly independent of any fruit of the arrest. First, Fears' decision to plead guilty, and, second, Fears' subsequent determination to testify as a government witness. Without the first of these the plea of guilty a matter over which the government could exercise no control, The disclosure of Fears' identity which was an incident of the illegal arrest and tainted thereby was subject to no exploitation by the government which could be productive of Fears' testimony absent his consent. From a practical standpoint it was Fears' plea of guilty which made him available in the role of a witness against the appellants. His conviction upon that plea divested him of his Fifth Amendment right to refuse to testify . . . and subjected him to being called by the government as a witness.

"Fears' decision, and the testimony it ultimately prompted, involved the exercise of those attributes of will, perception, memory and volition unique to the individual human personality which serve to distinguish the evidentiary character of a witness from the relative immutability of inanimate evidence (citations omitted). And the exercise of such attributes can, and under the circumstances here presented do, Effect an attenuation dissipating any taint which pervaded the original disclosure of the existence and identity of the witness." (emphasis added) Id. at 504.

We agree with the Hoffman reasoning....