State v. Wedding

• Decision Date: 14 January 1992
• Docket Number: No. 1,CA-CR,1
• Citation: 831 P.2d 398,171 Ariz. 399
• Parties: STATE of Arizona, Appellee, v. Randy Joseph WEDDING, Appellant. 89-1264.
• Court: Arizona Court of Appeals

Page 398

831 P.2d 398

171 Ariz. 399

STATE of Arizona, Appellee, v. Randy Joseph WEDDING, Appellant.

No. 1 CA-CR 89-1264.

Court of Appeals of Arizona Division 1, Department A.

Jan. 14, 1992.

Review Denied June 30, 1992.

[171 Ariz. 401] Grant Woods, Atty. Gen. by Jessica Gifford Funkhouser, Chief Counsel, Crim. Div., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by John W. Rood, III, James M. Likos, Deputy Public Defenders, Phoenix, for appellant.

OPINION

LEVI RAY HAIRE, Judge, Retired.

Appellant Randy Joseph Wedding (defendant) has appealed from judgments of conviction on thirty-two counts and the sentences imposed. For the reasons stated below, we affirm the convictions and sentences.

PROCEDURAL HISTORY

The defendant was indicted on four counts of burglary in the first degree of a residential structure, class 2 felonies, two counts of burglary in the first degree of a nonresidential structure, class 3 felonies, six counts of aggravated assault, class 3 felonies, sixteen counts of kidnapping, class 2 felonies, thirteen counts of sexual assault, class 2 felonies, and one count of attempted sexual assault, a class 3 felony.

After the defendant's motion to suppress evidence was denied, he waived his right to a jury trial and the case was submitted to the court on the record, consisting of the transcript of the grand jury proceedings and various departmental police reports.

The court found the defendant guilty and imposed aggravated sentences on all counts. The sentences collectively totaled 320 years.

FACTS

The facts leading to the arrest of the defendant are basically undisputed. Numerous sexual assaults with a similar modus operandi had occurred in Maricopa and Pima Counties. In particular, from March 12, 1986 through June 6, 1988, six women were assaulted in Maricopa County on different occasions. In one instance, the suspect gained entry to the woman's residence on the pretext of having car trouble. In the five other instances, the women were leasing agents for residential or commercial properties. In those cases, the suspect posed as a prospective tenant and while being shown the properties, committed the sexual and other assaults. On three occasions, the victims were threatened with a hand gun, and on three occasions, the victims were threatened with a knife.

A multi-agency task force was formed to investigate what became known as the case of the "leasing agent rapist." In connection with the investigation, a composite sketch of the rapist was made and publicly disseminated along with descriptions of three vehicles used by the suspect in the sexual assaults. On July 10, 1988, the Tempe Police Department was contacted by the defendant's 16-year-old neighbor. He told them the composite drawing looked like the defendant and that the defendant had vehicles similar to those used in the assaults. The neighbor supplied to the police a photograph of the defendant which matched the descriptions of the assailant given by the victims.

The police located a 1987 accident report relating to a motor vehicle accident in which the defendant was involved. The defendant had written a witness statement which was part of this report. During their investigation, the police had previously obtained from a rental office a card filled out by the leasing agent rapist. The police took both handwriting samples to a Department of Public Safety questioned document examiner who determined that they had been written by the same individual.

Based on this information, on July 11, 1988, at 3:30 p.m., the police obtained an order of detention for obtaining evidence of identifying physical characteristics pursuant to A.R.S. § 13-3905. The order authorized the taking of the defendant's fingerprints, head and pubic hairs, blood and saliva. The order specified that the evidence was to be taken at the facilities of the Tempe Police Department or Department of Public Safety "as soon as reasonably practicable following the issuance of the order." Pursuant to A.R.S. § 13-3905, the order stated that the defendant could not be detained for more than three hours for the purpose of executing the order and that the order would be valid until executed, but in no event beyond fifteen days from the date of issuance.

The order was served on the defendant at 7:25 p.m. on the same day that it was issued. At that time, a police officer stopped the defendant's vehicle, asked the defendant for identification and then served the order. The police then took him to the Tempe Police Station to obtain the evidence.

The police first took the defendant's fingerprints. They were immediately matched with latent fingerprints found at the scenes where four sexual assaults had occurred. When these matched, the defendant was given his Miranda rights. Samples of head and pubic hairs, saliva and blood were taken, and the defendant was formally arrested at approximately 8:11 p.m. that evening.

On appeal the defendant raises the following issues:

1. Is A.R.S. § 13-3905 unconstitutional on its face and as applied to the defendant under the fourth amendment to the United States Constitution because the statute allows for the taking of physical evidence such as blood, saliva and pubic hair on less than probable cause?

2. Is A.R.S. § 13-3905 unconstitutional on its face under the fourth amendment to the United States Constitution because the statute fails to specify how to effectuate the detention of the identified person?

3. Is A.R.S. § 13-3905 unconstitutional as applied to defendant under the fourth amendment to the United States Constitution because the order of detention for obtaining identifying physical evidence failed to specify the time of taking the evidence?

4. Is A.R.S. § 13-3905 unconstitutional as applied to defendant under the fourth amendment to the United States Constitution because the manner in which the defendant was detained to obtain the physical evidence did not comply with the statute?

5. Does A.R.S. § 13-3905 violate Article 2, §§ 8 and 10 of the Arizona Constitution?

6. Did the court improperly impose consecutive sentences on Counts VI and VII?

LACK OF PROBABLE CAUSE STANDARD IN A.R.S. § 13-3905

The defendant argues that A.R.S. § 13-3905 ¹ is unconstitutional on its face and as applied to him because it does not require probable cause and permits detention of the identified person and the taking of physical evidence beyond that permitted by the fourth amendment without probable cause. He further argues there was no such probable cause in this case.

The defendant argues that the United States Supreme Court cases interpreting the fourth amendment involving bodily intrusions to obtain some types of physical evidence have indicated that probable cause is required. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (following lawful arrest for DUI, police could take blood samples with probable cause but without a search warrant because exigent circumstances existed). He notes that the Supreme Court has implied that in narrowly defined circumstances detention for finger-printing might be justified on less than probable cause, if prior judicial authorization has been obtained, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985), but argues that detention to obtain the other types of physical evidence enumerated in the Arizona statute is authorized only if there is a showing of probable cause which he alleges was not present in this case. Finally, while acknowledging that prior Arizona decisions have upheld the constitutionality of A.R.S. § 13-3905, the defendant asks this court to reconsider the issue in light of the United States Supreme Court decision in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985).

As the defendant concedes, the Arizona Supreme Court upheld the constitutionality of A.R.S. § 13-3905 (then A.R.S. § 13-1424) in State v. Grijalva, 111 Ariz. 476, 533 P.2d 533, cert. denied, 423 U.S. 873, 96 S.Ct. 141, 46 L.Ed.2d 104 (1975). In Grijalva, the Arizona Supreme Court held that under the statute, probable cause to believe that the suspect committed the crime is not a necessary requirement for the temporary detention of a person to obtain evidence of physical characteristics. 111 Ariz. at 479, 533 P.2d at 536. See also State v. Stanhope, 139 Ariz. 88, 91, 676 P.2d 1146, 1148 (App.1984); Long v. Garrett, 22 Ariz.App. 397, 527 P.2d 1240 (1974).

In Grijalva, the court noted that reasonableness is the primary inquiry in determining whether there is a violation of the fourth amendment, considering "all of the circumstances of the particular governmental invasion of a citizen's personal security." 111 Ariz. at 478, 533 P.2d at 535, citing Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968). It noted that reasonableness involves balancing society's interest in preventing serious crime against the suspect's interest in privacy and stated that "[t]he key to the statute and its great strength is that a magistrate must make the necessary determinations." Grijalva, 111 Ariz. at 479, 533 P.2d at 536. The court further noted that consistent with the fourth amendment, the statute required a nexus between the person detained and the crime being investigated and it must be made clear to the magistrate that there is reasonable cause to believe that such a connection exists. Id. The court specifically found constitutional the taking of photographs, fingerprints and head hair samples on reasonable cause, stating that:

The degree of intrusion into the person's privacy was relatively slight. Photographs, more so than fingerprints, involve none of the probing that the Davis court found to mark a search of an unreasonable nature. Similarly, clipping several head hairs is only the slightest intrusion upon the body, if any at all, and does not constitute anything...