State v. White

• Decision Date: 15 November 1977
• Docket Number: No. 1,CA-CR,1
• Citation: 118 Ariz. 47,574 P.2d 840
• Parties: STATE of Arizona, Appellant, v. Garvin Dale WHITE, Appellee. 2395.
• Court: Arizona Court of Appeals

Page 840

574 P.2d 840

118 Ariz. 47

STATE of Arizona, Appellant, v. Garvin Dale WHITE, Appellee.

No. 1 CA-CR 2395.

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

Nov. 15, 1977.

Rehearing Denied Dec. 9, 1977.

Review Denied Jan. 10, 1978.

Jay V. Flake, Navajo County Atty., Snowflake, by David W. Adams, II, Deputy County Atty., Holbrook, for appellant

Ronald McKelvey, Yuma, for appellee.

OPINION

EUBANK, Judge.

This appeal by the State raises several questions involving the search and seizure of an airplane and its cargo of approximately 1100 pounds of marijuana by officers of the Navajo County Sheriff's Office.

Appellee was indicted by the Navajo County Grand Jury for two alleged violations: Count I, possession of marijuana for sale (A.R.S. § 36-1002.06), and Count II, transportation of marijuana (A.R.S. § 36-1002.07), both felony charges. These charges were originally tried to a jury in August 1976, resulting in a hung jury and mistrial. Prior to the second trial date, appellee moved to suppress the marijuana, fingerprints taken from a thermos bottle, and items of identification seized from a wallet inside a zippered flight bag, on the basis that the search and seizure of the evidence taken from inside the airplane was unreasonable under the Fourth Amendment as having been conducted without a search warrant and without exigent circumstances. Following a suppression hearing on September 23, 1976, the trial judge ordered all the evidence suppressed, and the State appealed from that order pursuant to A.R.S. § 13-1712, subd. 7.

The facts are that at approximately 5:00 p. m. on February 19, 1975, the appellee, and another person who is not a party to this appeal, landed an Aerocommander two-motored airplane at a remote and isolated airstrip in the Chevalon Retreat area of Navajo County, located about 15 miles from Heber and about 50 miles from the County Courthouse in Holbrook, Arizona. Witness Robert Telfer, who lived in the vicinity heard and saw the plane, and he drove over to the airstrip to see if the occupants needed assistance. The two occupants of the plane requested a ride to a point on the road to Heber where they had observed their friend's Winnebago motor-home stuck in the mud. Telfer complied with the request but first went by Chuck Alexander's house, near the airstrip, to obtain his assistance since Alexander had a four-wheel drive vehicle. Alexander was not home, so Telfer put chains on his Ford pickup and drove the two men toward Heber. On the way they met Alexander who told them he had already pulled the motor-home out of the mud. When they parted, Alexander returned to his home located near the airstrip and plane. Apparently suspicious, he examined the plane, entered it and removed one brick, approximately a kilo, of marijuana from the cargo. He was armed with a rifle, and he fired a bullet through one of the tires flattening it. Alexander then went to Telfer's house to await his return. In the meantime, Telfer had located the Winnebago, occupied by two additional men, and at their request Telfer led the motor-home far enough up the Heber road to avoid further trouble with mud. The four men then left the area for Heber or Overgaard for the announced purpose of getting something to eat. Telfer returned home, arriving there he estimates, at about 11:00 p. m. He was met by Alexander who informed him "that the Aerocommander wasn't going anywhere. He had shot a hole in the tire. And it was full of marijuana." Since there was no telephone in the area, Alexander drove to Heber and telephoned the sheriff's office reporting the events leading up to his discovery, his subsequent removal of the brick of marijuana from the airplane, and his shooting of the tire. This report was taken by Deputy Sheriff Chuck Ellison at 9:30 p. m., who immediately reported the complaint to his superior officer, requested a search for suspects and requested assistance to secure the airplane. He met Alexander at Heber, saw the brick of marijuana and followed him back to the airstrip and the plane, arriving there at approximately 10:00 to 10:30 p. m.

When Deputy Ellison arrived at the plane he looked in through the window and saw packages which according to his previous experience, appeared to be marijuana. He saw where Alexander had removed the brick. He could not smell marijuana, he said, because of the blowing wind. He stated that he did not enter the aircraft. Another deputy, Charles Payne, arrived to assist Ellison. He had been advised by radio that the plane was possibly loaded with marijuana and upon arrival, he inspected the marijuana seized by Chuck Alexander. He then checked the plane by looking inside with the aid of his flashlight. He saw what appeared to be bricks of marijuana inside bags. He opened the door, saw and smelled marijuana. He noticed a flight bag and plane registration and removed the flight bag. The bag contained a wallet identifying one of the men in the plane as Antennaci. He radioed the descriptive information of the suspect found in the wallet to the Holbrook office. The deputies, and later the sheriff, searched the area and "staked out" the plane for the rest of the night to prevent it from being flown off and in the hope of arresting other individuals involved. During the early morning hours two of the men involved were arrested by deputies in the Payson area.

At about daybreak, Deputy Ellison drove into Holbrook in order to obtain a search warrant to search the plane. He arrived there between 8:30 and 9:00 a. m., ate breakfast, obtained the warrant and returned to the plane arriving at 10:00 to 10:30 a. m. Taking the evidence in the most favorable light to support the order to suppress, the evidence shows that the deputies at the plane had unloaded approximately one-half the marijuana cargo into a pickup truck before Ellison returned with the warrant at approximately 10:00 a. m. After he returned, the warrant was read and a copy was placed in the plane. The face of the warrant states that it was executed at 12:00 noon.

A fact issue raised on appeal is the ownership of the airstrip that the plane landed on. The State alleges that it was the private property of Chuck Alexander, while the appellee contends that it was private property but not owned by Chuck Alexander. The record is devoid of any substantial proof in this regard. Since both parties contend that the airstrip was private property it seems reasonable that the trial court also treated it as such. We will therefore treat the airstrip as private property ¹ for the purpose of this appeal.

Other fact issues raised were what hour the warrant was actually delivered to the airstrip on February 20, 1975, and when the plane was unloaded in relation to the delivery of the warrant. Mrs. Mary Telfer testified that although she had no watch she was at the plane between 9:00 and 10:00 a m., and saw the deputies unloading the plane. She also testified that she didn't know when the warrant arrived, but that her husband knew. Her husband, Robert Telfer, testified that most of the marijuana had been loaded into the back of a pickup truck by the time he and his wife arrived at the plane. When asked how long it was before Ellison arrived after he and his wife arrived at the plane, he answered "fifteen, twenty minutes or maybe more." The deputies contend that the unloading did not occur until the warrant arrived. The trial court obviously did not credit this claim by the sheriff's office and instead relied on Mr. and Mrs. Telfer's testimony. Under these facts it seems reasonable to say that the unloading commenced before the warrant arrived at the airstrip.

I. STANDING

The first question raised by the State is whether the appellee had standing to contest the search and seizure of the contents of the plane since he was trespassing on private property and had abandoned the plane.

Since no findings of fact were requested or made, we must draw all inferences from the evidence in support of the trial court's order. In doing this we are faced with a conflict in the evidence. On the record a good case can be made that appellee and the others intended to flee Navajo County and had abandoned the plane; an equally good case can be made for the contrary argument. In such cases, the trial court must be upheld as the factfinder. A finding of "no abandonment" is necessarily implied in the trial court's suppression order.

The trespasser claim is more interesting. A.R.S. § 28-1743(B) declares it unlawful for a person to land an aircraft on lands of another without the landowner's consent, while A.R.S. § 28-1746 makes such violation a misdemeanor punishable by a fine, imprisonment, or both. As noted above, all parties contend that the airstrip was private land, but no evidence is included in the record regarding the ownership of the strip. Under such a record, we are of the opinion that it would be improper to treat the appellee as a trespasser since there is a lack of proof of ownership of the strip and the burden of proving trespass was on the State.

Turning to the standing issue, we agree with the appellee that he does have sufficient standing to question the legality of the search and seizure of the plane and its contents. Although the record before us shows that the appellee was not present at the plane when it was searched, and that he alleged no proprietary or possessory interest either in the plane or its cargo, he was charged in Count I of the indictment with possession for sale of the seized marijuana. In Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), the Supreme Court indicated that such a possessory charge was in itself sufficient to grant standing because it would be unfair to allow the government to allege possession as part of the crime charged and yet deny that there was possession sufficient for standing purposes. We agree and hold that appellee had standing to contest the search and seizure.

II. THE...