State v. Wilkerson

• Decision Date: 16 August 1977
• Docket Number: No. 2,CA-CR,2
• Citation: State v. Wilkerson, 117 Ariz. 143, 571 P.2d 289 (Ariz. App. 1977)
• Parties: The STATE of Arizona, Appellee, v. Jerry Hunter WILKERSON, Appellant. 951.
• Court: Arizona Court of Appeals

Page 289

571 P.2d 289

117 Ariz. 143

The STATE of Arizona, Appellee, v. Jerry Hunter WILKERSON, Appellant.

No. 2 CA-CR 951.

Court of Appeals of Arizona, Division 2.

Aug. 16, 1977.

Rehearing Denied Oct. 27, 1977.

Review Denied Nov. 15, 1977.

[117 Ariz. 144] Bruce E. Babbitt, Atty. Gen. by Philip G. Urry, Asst. Atty. Gen., Tucson, for appellee.

John M. Neis, Pima County Public Defender by Michael P. Roca, Asst. Public Defender, Tucson, for appellant.

OPINION

HOWARD, Chief Judge.

The only question presented in this appeal is whether the trial court erred in denying appellant's motion to suppress narcotics found in a suitcase in the trunk of his car. Resolution of this question requires that the following two questions be answered: (1) Was the initial stop of appellant's vehicle lawful? (2) Did appellant consent to the search of his vehicle?

Two witnesses testified at the suppression hearing the police officer who stopped appellant's vehicle and subsequently arrested him, and appellant. Their respective versions of what transpired differed in many respects and apparently the trial court, in ruling as it did, believed the police officer. According to the officer, he stopped appellant's car because he observed that the front license plate was missing. A.R.S. § 28-309 requires that the license plates assigned to a vehicle shall be attached in the front and rear and A.R.S. § 28-181 makes it a misdemeanor to fail to so display them. Thus, the officer was justified in stopping appellant. State v. Sergheyev, 23 Ariz.App. 494, 534 P.2d 302, rehearing denied 24 Ariz.App. 189, 536 P.2d 1081 (1975).

Appellant's second contention is that his consent to the search of the trunk of his vehicle and the suitcase located in the trunk was the product of intimidation and coercion, thus invalidating his consent. Although the burden of proof is on the state to establish by clear and positive testimony the consent was freely and intelligently given, we must view the evidence in a light most favorable in support of the ruling below. State v. Ballesteros, 23 Ariz.App. 211, 531 P.2d 1149 (1975). In Ballesteros, citing State v. King, 44 N.J. 346, 209 A.2d 110 (1965), we indicated the factors to be considered by the court on the issue of consent. Those tending to show that the consent was coerced are that consent was made by an individual already arrested, that consent was obtained despite a denial of guilt, that consent was obtained only after the accused had refused an initial request for consent to search, that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered, and that consent was given while the defendant was handcuffed. Among those factors tending to show the voluntariness of the consent are that consent was given where the accused had reason to believe that the police would find no contraband, that the defendant admitted his guilt before consent, and that the defendant affirmatively assisted the police officers.

Accepting the officer's testimony as true, which apparently the trial court did, the following took place: The highway patrol officer was patrolling I-10 between Marana and Tucson when he observed a gray 1958 Chevrolet headed west and noticed it had no front license plate. He crossed the median and pulled it over. Appellant got out of his car and met the officer at the side of the road. The officer asked appellant for his driver's license and appellant started to shake "uncontrollably". After briefly fumbling with his billfold, appellant told the officer that his sister had his driver's license. A field check through Phoenix revealed, however, that a...