Dunlap v. Superior Court

817 P.2d 27, 169 Ariz. 82, 92 Ariz. Adv. Rep. 40, 1991 Ariz. App. LEXIS 181

• Court: Court of Appeals of Arizona
• Decided: August 8, 1991
• Docket: 1 CA-SA 91-109
• Status: Published

Opinions

OPINION

TAYLOR, Presiding Judge.

Petitioner Max Dunlap originally brought this special action in the superior court, challenging a magistrate’s decision to consider revocation of petitioner’s release on his own recognizance and the magistrate’s refusal to exclude wiretap evidence from the scheduled preliminary hearing. Because the superior court determined that it had no jurisdiction to review the matter, petitioner brought his special action to this court.

Following oral argument, this court accepted jurisdiction and entered an order in which relief was denied in part and granted in part, with a written opinion to follow. Thereafter, the parties settled the disputed matters presented in the petition. Because we believe that the legal issues presented are capable of repetition, see KPNX Broadcasting Co. v. Superior Court, 139 Ariz. 246, 250, 678 P.2d 431 (1984), and of significant importance in the administration of criminal justice in this state, we exercise our discretion to retain jurisdiction of petitioner’s special action.

FACTS AND PROCEDURAL HISTORY

On December 19,1990, the state served a criminal summons on petitioner with a complaint alleging that he participated in the much-publicized murder of investigative reporter Don Bolles, and that thereafter he conspired to obstruct justice. The State did not arrest petitioner or place him in custody. On January 3, 1991, petitioner appeared at his initial appearance before Superior Court Judge Ronald S. Reinstein, sitting as a magistrate. Without objection by the State, petitioner was released on his own recognizance. A preliminary hearing was scheduled for July 1,1991 before Superior Court Judge Norman D. Hall, Jr., also to sit as a magistrate.

On January 26, 1991, the State moved to revoke petitioner’s release and to consolidate the bail hearing with the preliminary hearing. Petitioner objected to both motions. He also filed a motion to preclude the use of wiretap evidence at his preliminary hearing.¹ Judge Hall, by granting the motion to consolidate the hearings, agreed to consider revocation of release. The motion to preclude wiretap evidence was denied.

Petitioner filed special action proceedings in the superior court challenging the rulings of Judge Hall sitting as a magistrate. The special action was assigned to Judge Steven D. Sheldon, who raised the issue of the superior court’s jurisdiction sua sponte. Although both petitioner and the state agreed that the superior court had jurisdiction to accept review of the matter, Judge Sheldon held that, based on Rule 16.1(d) of the Arizona Rules of Criminal Procedure,² he, as a superior court judge, lacked jurisdiction to review the decisions of another superior court judge sitting as a magistrate. The special action was dismissed in the superior court and these proceedings followed.

DISCUSSION

We first determine whether the superior court has jurisdiction to accept a special action challenge to the decisions of a superior court judge acting as a committing magistrate. We then address the merits of the issues presented in the superior court petition: 1) whether the magistrate may properly consider the revocation of petitioner’s release, and 2) whether the magistrate may properly consider wiretap evidence at a preliminary hearing.

Jurisdiction to Review the Magistrate’s Decision

The office of a magistrate is created by state constitutional and statutory law. Our state constitution provides that “no person shall be prosecuted for a felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination.” Ariz.Const. art. II, § 30. A “magistrate” is defined by statute as:

... an officer having power to issue a warrant for the arrest of a person charged with a public offense and includes the chief justice and judges of the supreme court, judges of the superior court, justices of the peace and police magistrates in cities and towns. (Emphasis added.)

A.R.S. § 1-215(13).

It is well recognized that a superi- or court judge may sit as a committing magistrate for the purpose of holding a preliminary examination to determine probable cause. Sheridan v. Superior Court, 91 Ariz. 211, 213-214, 370 P.2d 949, 951 (1962). The jurisdiction of a superior court judge to act as a magistrate for this purpose is created by statute. Wilson v. Garrett, 104 Ariz. 57, 58-59, 448 P.2d 857, 858-59 (1969). His powers and duties as a magistrate are solely those conferred upon him by the Rules of Criminal Procedure and applicable statutes.³ See State ex rel. Mahoney v. Stevens, 79 Ariz. 298, 300, 288 P.2d 1077, 1078 (1955). His status and jurisdiction, sitting as a magistrate, is neither enlarged nor diminished by the extent of his jurisdiction to hear or try criminal cases. Comment to Rule 4.1(b) and (c), Ariz.R.Crim.P.

All judicial officers sitting as magistrates have equal rank. The Sheridan court stated that “without regard to the powers pertaining to his judicial office, a judge when exercising the functions of a magistrate has only the jurisdiction and power conferred by law on magistrates.” Sheridan, 91 Ariz. at 214, 370 P.2d 949. The court then cited with approval the following from People v. Swain, 5 Cal.App. 421, 425, 90 P. 720, 722 (1907):

... Under the law a justice of the peace, when exercising the powers of a magistrate, has equal authority as such with the justices of the Supreme Court and judges of the superior courts when acting in a similar capacity. The jurisdiction of all those officers, when acting in the ex officio capacity in question, extends only to taking and hearing evidence upon the felony charge, and after hearing the proofs making an order either discharging the accused, or holding him to trial for the offense shown____

(Emphasis original.)

The Sheridan court also cited the following from People v. Crespi, 115 Cal. 50, 54, 46 P. 863, 864 (1896): “... Justices of the supreme court, judges of the superior court, justices of the peace, and police judges, when sitting as magistrates, have the jurisdiction and powers conferred by law upon magistrates, and not those which pertain to their respective judicial offices ...”. Sheridan, 91 Ariz. at 214, 370 P.2d 949. See Fursdon v. Los Angeles County, 100 Cal.App.2d Supp. 845, 848, 223 P.2d 520, 523 (1950); see also Knight v. Maricopa County, 53 Ariz. 540, 544, 91 P.2d 269, 271 (1939).

It is apparent from the foregoing that when exercising the functions of a magistrate, a superior court judge takes on a role separate and apart from his superior court duties. He is an ex officio magistrate with narrowly restricted power and jurisdiction.

In deciding that the superior court had no jurisdiction over the special action, Judge Sheldon relied on the comment to Rule 16.1(d) of the Arizona Rules of Criminal Procedure, prohibiting reconsideration of a court’s determination by the same court. However, the decisions of a superi- or court judge sitting as a magistrate are not an exercise of the judicial power of the superior court. 22 C.J.S. Criminal Law § 343(a), § 345. The determinations of a magistrate, who may at another time wear the robes of a superior court judge, are the determinations of an officer created by constitution and statute. He may, in addition to being a magistrate, hold any of the positions or offices enumerated in A.R.S. § 1-215(13).⁴ His duties as a magistrate, however, are separate and apart from any court.

The special concurrence relies upon Green v. Thompson, 17 Ariz.App. 587, 499 P.2d 715 (1972). In Green, this court held that a superior court judge may not review the actions of a superior court commissioner by means of a special action. The basis for that decision was the conclusion that the superior court judge and the court commissioner are members of the same court.

Based on provisions in our constitution, as well as former Supreme Court Rule 46, now Rule 91, we determined that court commissioners are appointed by the presiding judge of the superior court, that they act within the jurisdiction of the superior court, and that they are labeled “superior court commissioners.” Although his jurisdiction is narrower, a court commissioner, acting within the confines of his authority, acts as a member of the superior court. Green, at 590, 499 P.2d 715.

In the note to Supreme Court Rule 91, the supreme court emphasized the role of the commissioner:

It is the intention of the Supreme Court that court commissioners shall hereafter, as the court commissioner in Maricopa County has been doing since April 18, 1961, function within the scope of their authority in the same manner as do judges of the Superior Court, and that the effect of an order, judgment or decree entered by a court commissioner shall be precisely the same as if the same order, judgment or decree had been entered by a judge of the Superior Court.

Based on this language, this court reasoned that court commissioners and superi- or court judges are members of the same court.

The superior court has appellate jurisdiction, as well as power to issue writs⁵ to “inferior courts, boards and officers”. A.R.S. § 12-124(B). The court, in Green, concluded that because a court commissioner is a judicial officer of the superior court, his decisions are not those of an “inferior court, board, or officer” and are, therefore,^' not reviewable by the superior court.

We believe Green is distinguishable because, in our view, a magistrate is not an officer of the superior court, but is an inferior officer whose authority and powers are separate from any court. Simply stated, the powers and duties of a magistrate are conferred upon officers, not courts. A.R.S. § 1-215(13).

As stated in Green, “[t]he scope of the authority of the commissioner is a limited area within the jurisdiction of the superior court”, and that “within the confines of that authority, he acts as a superior court judge.” The distinguishing feature of this case is that Judge Hall was not a magistrate who was “acting as a superior court judge”, but instead was a magistrate performing functions pertaining to the distinct office of a magistrate. In so doing, his sphere of activity was not “a limited area within the jurisdiction of the superior court,” but rather was an exercise of the authority belonging to the office of magistrate.

In summary, the conduct of preliminary hearings is not a function within the jurisdiction of the superior court, but is a function within the jurisdiction of magistrates. We do not deem it significant that Judge Hall received this case by assignment from his presiding judge in the superior court. By operation of law, Judge Hall had been appointed a magistrate contemporaneously with his appointment to the superior court. The “assignment” merely designated which of the Maricopa County superior court judges would exercise his (not the superior court’s) authority as a magistrate in this case. Nor do we believe the determination of this issue hinges on whether Judge Hall elected to utilize his superior court facilities while sitting as a magistrate, or whether he chose to remove himself to the local justice court. A magistrate is an officer with certain specified powers, not an appendage of any particular court.

We therefore conclude that, pursuant to A.R.S. § 12-124, the superior court has jurisdiction to accept a special action challenge of a decision by a superior court judge sitting as a magistrate.

Revocation of Release

Next we determine whether the magistrate may properly consider the revocation of petitioner’s release. Art. II, § 22 of the Arizona Constitution provides:

All persons charged with crime shall be bailable by sufficient sureties, except for: 1. Capital offenses, when the proof is evident or the presumption great that the accused is guilty of the offense.

3. Felony offenses if the person charged poses a substantial danger to any other person or the community, if no conditions of release which may be imposed will reasonably assure the safety of the other person or the community and if the proof is evident or the presumption great as to the present charge.

Petitioner was released on his own recognizance at his initial appearance without objection by the state. Although he was at the time charged with a capital offense, apparently the State did not believe it could establish that “the proof is evident or the presumption great” that petitioner committed the offense without the testimony of John Harvey Adamson, who has been convicted of the same homicide as petitioner now stands charged. The State argues that at the time of the initial appearance, the State and Adamson were trying to reach an agreement to secure Adamson’s testimony, which it claims would implicate petitioner. However, the agreement was not finalized and accepted by the court until a later date. Once the agreement was signed and accepted, the State filed the motion to revoke petitioner’s release.

Petitioner urges that Rule 7.4(b) of the Arizona Rules of Criminal Procedures describes the procedure for reviewing the conditions of release:

b) Subsequent Review of Conditions. Any person remaining in custody may move for reexamination of the conditions of his release whenever his case is transferred to a different court or his motion alleges the existence of material facts not previously presented to the court.

Petitioner argues that this statute applies only if an accused is in custody and only if the accused initiates the review proceedings. Petitioner also complains that the State’s Motion to Consolidate Bail Hearing and Preliminary Hearing fails to contain a verified recital of a breach of release conditions, as required by Rule 7.5(a).⁶ The state’s motion, however, does not focus upon petitioner’s conduct subsequent to his initial appearance and release, but rather seeks an opportunity to present evidence of facts that would warrant the death penalty and to demonstrate that the proof is evident and that the presumption of guilt is great. In essence, the state seeks to demonstrate that, with Adamson’s testimony, the remaining requirements of art. II, § 22 of the state constitution, which were not addressed at the initial appearance, can now be satisfied.

Division Two of this court, in construing A.R.S. § 13-3961 as it relates to denial of bail to those found by the court to be a danger to others, stated that “[t]he court may review and amend release conditions at any time, and the subsequent discovery of additional information indicating that the accused is not bailable is a sufficient reason to do so.” Davis v. Winkler, 164 Ariz. 342, 346, 793 P.2d 99, 103 (1990). [Emphasis supplied.] The court also explicitly held that the state, as well as the accused, may seek reexamination of the conditions of release. Id.

We, likewise, do not believe that Rule 7.4(b), in outlining an accused’s right to a review of release conditions, should be construed as precluding the court from reviewing the question of the accused’s bailability upon motion of the state alleging the existence of newly available evidence. We hold that a court has the power to consider a request for modification of bail status if additional information becomes available after the prior determination. See Vol. II ABA Standards for Criminal Justice at 10-55 (2d ed.) (1980).

The issue then becomes whether there is some new evidence available to the State that would allow review of the conditions of petitioner’s release. The state relies upon the Adamson Cooperation Agreement, accepted by the court in Adamson’s case on February 4, 1991, as new evidence that will establish that the proof is evident and the presumption great.

Petitioner claims that Adamson’s testimony is not new evidence because it was available at the time of the initial appearance on January 3, 1991. He also claims that the State waived its right to establish art. II, § 22 requirements by not doing so at the initial bail determination.

We are persuaded by the State’s argument that it could not rely on Adamson to provide the needed testimony until the agreement was formally accepted by the court. Therefore, his testimony may be considered “newly available evidence” that provides the basis for reconsideration of petitioner’s bail status.

We conclude, therefore, that the magistrate may properly consider revocation of petitioner’s release at a bail hearing.

Wiretap Analysis

Petitioner asserts that because of the denial of his motion to preclude use of wiretap evidence at his scheduled preliminary hearing, he will be denied a right protected by federal law unless we order the committing magistrate not to consider such evidence in the proceedings. To support this argument, petitioner raises issues of jurisdiction, criminal procedure and the supremacy of federal law.

When it enacted the Omnibus Crime Control and Safe Streets Act of 1968, Congress included a scheme regulating wiretapping and electronic surveillance. Pub.L. No. 90-351, Title III, 82 Stat. 197, 211-225 (1968). Designed to meet the constitutional standards for electronic eavesdropping enunciated in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), Title III was intended to protect the privacy of wire and oral communications and to regulate their interception. Sen.Rep. No. 1097, 90th Cong., 2d Sess. 66, reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2153 (legislative history). See Title III, § 801(b) at 82 Stat. 211 (findings). To compel compliance with this scheme, Congress inserted the following “evidentiary sanction”, Sen. Rep. No. 1097, supra at 2184, now codified at 18 U.S.C. § 2515 (1970):

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

This sanction applies across the board in both federal and state proceedings to suppress evidence directly or indirectly obtained in violation of the regulatory scheme. Sen.Rep. No. 1097, supra at 2185. See Title III, § 801(b) at 82 Stat. 211. To provide a remedy for the right created by this prohibition, supra at 2195, Congress also included in Title III the following provision now codified at 18 U.S.C. § 2518(10)(a)(1970):

Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.

Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter____

The scope of this remedy is intended to be comprehensive, Sen.Rep. No. 1097, supra at 2195, and Arizona appellate courts have recognized the “federal exclusionary rule” created by these code provisions to be self-executing in state proceedings. State v. Politte, 136 Ariz. 117, 126, 664 P.2d 661, (App.1982); State v. Olea, 139 Ariz. 280, 292, 678 P.2d 465, 477 (App.1983).

The exercise of the congressional right and remedy is further defined by state statutes, caselaw and court rules. Two years after the federal enactment of §§ 2515 and 2518, our supreme court held that a justice of the peace presiding as a magistrate at a felony preliminary hearing was without jurisdiction to order the suppression of evidence claimed to result from an unlawful search and seizure. State v. Jacobson, 106 Ariz. 129, 130, 471 P.2d 1021, 1022 (1970). See also Zarate v. Jennings, 17 Ariz.App. 401, 406, 498 P.2d 475, 480 (App.1972). Such power was vested exclusively in the superior court. Jacobson, 106 Ariz. at 130, 471 P.2d at 1022. While unable to order its suppression, a presiding magistrate nevertheless could rule on the admissibility of evidence in a preliminary hearing when the objection alleged the evidence was the product of an unlawful search and seizure. Id. See also Zarate, 17 Ariz.App. at 406, 498 P.2d at 480; State v. Elling, 19 Ariz.App. 317, 506 P.2d 1102 (1973) (unlawful search and seizure).

Thus Jacobson distinguished between the trial court’s power to order unlawful evidence suppressed in a prosecution, and a magistrate’s power to rule against admissibility of unlawful evidence at a preliminary hearing. See generally 2 W. LaFave & J. Israel, Criminal Procedure § 14.4 at 266 (1984). While no issue of electronic eavesdropping was involved in Jacobson, Zarate or Elling, we note that the admissibility determination allowed at a preliminary hearing by these cases might arguably comport with the 18 U.S.C. § 2515 evidentiary prohibition. However, the want of jurisdiction under Jacobson for a magistrate presiding at a felony preliminary hearing to order evidence suppressed impeded application of the corresponding 18 U.S.C. § 2518(10)(a) remedy guaranteeing that “[a]ny aggrieved person ... may move to suppress” unlawful wiretap or electronic surveillance evidence “in any ... hearing ... in or before any ... officer ... of ... a State, or a political subdivision thereof”, and that “[s]uch motion shall be made before the trial, hearing or proceeding ...”.

By adoption of the Arizona Rules of Criminal Procedure on 17 April 1973, effective 1 September 1973, our supreme court procedurally eliminated even the admissibility challenge to preliminary hearing evidence it had recognized in Jacobson three years before. Rule 5.3(b) provided that “[rjules or objections calling for the exclusion of evidence on the ground that it was obtained unlawfully shall be inapplicable in preliminary hearings.” This negated the opportunity left intact by Jacobson to challenge the admissibility of evidence at the preliminary hearing level. See “Comment” to Rule 5.3.⁷ This preclusion presents an irreconcilable conflict with the prohibitions set forth in 18 U.S.C. § 2515.

The supremacy clause of the federal constitution, art. VI, para. 2, compels that Arizona Rule 5.3(b) yield to the § 2515 wiretap evidence prohibition insofar as they conflict. This conflict arises as we now determine that the § 2518(10)(a) suppression device expressly prescribed by Congress to hear and determine an evidentiary challenge is, under Jacobson and Rule 5.3(b), Ariz.R.Crim.P., unavailable to petitioner in a preliminary examination for lack of jurisdiction in the magistrate to entertain such a motion. Congress prescribed both the right and an exclusive remedy, and absent power in the magistrates to provide such a remedy, the right cannot, under our state constitution, be exercised in the manner required by federal law. Insofar as petitioner is precluded from the benefits of his federal right to evidentiary exclusion in the state preliminary hearing forum, we are obligated to protect this right and to grant relief by barring the committing magistrate in such a proceeding from considering any evidence derived from wiretap or electronic surveillance.

CONCLUSION

For the foregoing reasons, we determine that the superior court has jurisdiction to review by special action the proceedings of a superior court judge sitting as a magistrate; that a magistrate may review the bailability of an accused upon request of the state alleging the existence of newly available evidence; and that a magistrate lacks the power to suppress illegally obtained wiretap evidence, thus precluding the use of wiretap evidence in preliminary hearings.

GERBER, J., concurs.

2 . Rule 16.1(d) provides: “except for good cause, or as otherwise provided by these rules, an issue previously determined by the court shall not be reconsidered."

The comment to Rule 16.1(d) further explains: “issues, once determined by a court ought not, without a showing of good cause, be reconsidered by the same court or another of equal jurisdiction.”

3 . The functions of a magistrate are found throughout the Rules of Criminal Procedure, See e.g., Rule 4.1 (requiring that person arrested shall be taken before a magistrate without unnecessary delay), Rule 4.2 (outlining procedure for initial appearance), and Rule 5.3 (describing procedures to be followed in preliminary hearing).

4 . If we were to accept the position adopted by the special concurrence herein, we might ask, rhetorically, what state court would review the actions of a Supreme Court Justice sitting as a magistrate if the other members of that court were precluded from conducting special action review.

5 . The relief previously obtained by extraordinary writs of certiorari, mandamus, and prohibition is now referred to as "special action relief’. Rule 1, Rules of Procedure for Special Action.

6 . Rule 7.5(a). Upon verified petition by the prosecutor stating facts or circumstances constituting a breach of the conditions of release, the court having jurisdiction over the person released may issue, ... in the case of a person charged with a felony, a warrant or summons under Rule 3.2, to secure the person’s presence in court____

7 . This "Comment" added that Rule 5.3(b) adopted the federal standard for evidentiary exclusion at preliminary hearings. Ten years before Congress enacted 18 U.S.C. §§ 2515 and 2518(10)(a), the U.S. Supreme Court declared that a U.S. Commissioner had no authority on preliminary examination to suppress unlawful evidence in a prosecution. Giordenello v. United States, 357 U.S. 480, 484, 78 S.Ct. 1245, 1249, 2 L.Ed.2d 1503 (1958). See also United States v. Motte, 251 F.Supp. 601, 603-604 (1966). By enacting The Omnibus Crime Control and Safe Streets Act of 1968, Congress presumably remedied this deficiency for Title III purposes. However, by order dated April 24, 1972, Rule 5.1 of the Federal Rules of Criminal Procedure was amended by the Supreme Court to provide under subsection (a) that "[ojbjections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12." 56 F.R.D. 143, 150. See generally "Advisory Committee Note", id. at 151-154.

Under a Rules Enabling Act then in effect, Congress delegated to the Supreme Court "the power to prescribe ... rules of pleading, practice and procedure ... in criminal cases ... and in proceedings before United States magistrates. Such rules shall not take effect until ... reported to Congress ... and ... the expiration of ninety days after they have been thus reported. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” 18 U.S.C. § 3771 (1985), repealed effective December 1, 1988, 102 Stat. 4651, and replaced by 28 U.S.C. §§ 2072, 2074 (Supplement 1991). The reporting requirement impliedly reserved to Congress the power to approve, reject or alter proposed rules. United States v. Isaacs, 351 F.Supp. 1323, 1328 (N.D.Ill.1972). See 1 Wright, Federal Practice and Procedure: Criminal 2d § 4 at 13 (2d ed. 1982). By virtue of the “laws in conflict” supersession clause, congressional failure to act on the Rule 5.1(a) amendment before it became effective on October 1, 1972, operated to carve an exception from 18 U.S.C. §§ 2515 and 2518(10)(a) for federal preliminary hearings. See Wright, supra, § 32 at 27 (rules supersede inconsistent statutes in effect when adopted); Siegel, "Commentary on 1988 Revision” at 28 U.S.C. § 2071 (Supplement 1991). This exception remains in effect. See Federal Rules of Criminal Procedure Rule 5.1(a) (Supplement 1991).

Although Arizona Rule 5.3(b) borrowed the federal Rule 5.1(a) standard for evidence admissibility, state preliminary hearings could not thereby come within the limited federal rule exception to 18 U.S.C. §§ 2515 and 2518(10)(a).