Long v. Garrett
This text of 527 P.2d 1240 (Long v. Garrett) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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OPINION
Petitioner’s special action challenges the constitutionality of A.R.S. § 13-1424, both on its face and as construed and applied, in that it violates the petitioner’s rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and similar provisions of .the Arizona Constitution. We find, however, that the statute in question is not violative of petitioner’s rights and we deny the petition.
[398]*398The pertinent facts giving rise to the challenge of A.R.S. § 13-14241 are as follows :
On approximately July 5, 1973, a refund check in the amount of $167.95 was sent by Sears, Roebuck and Co. to Jan Dee Summers in Tucson. On approximately July 23, 1973, the endorsed check was deposited in a Tucson bank account owned by the mother of the petitioner. The respondent Judge Lee Garrett, acting on a petition filed June 21, 1974, by Tucson Police Officer Jerry Hathaway, signed an order authorizing the petitioner to be taken into “temporary detention” for the purpose of surrendering a certain handwriting sample. It was the contention of Officer Hathaway in his petition to obtain evidence of physical characteristics that Miss Summers never received the check and never gave petitioner or anyone else permission to sign her name to the check. Miss Summers and Miss Long had been roommates before Miss Summers moved to Virginia. After Officer Hathaway was unable to locate petitioner, he refiled the petition on August 15 and the respondent Judge Robert Bucchanan re-executed the order granting an additional fifteen days from August 15 within which to take the petitioner into “temporary detention.” On August 30, this court ordered a stay in the proceedings to allow us to decide the constitutional issue presented by petitioner.
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme [399]*399Court stated that any restraint by the authorities of a person, as well as the seizure of physical evidence during that period of restraint, is subject to the prohibition against unreasonable searches and seizures under the Fourth Amendment. And if the detention is found to be illegal, any physical evidence seized at the time of the detention is a direct product of the illegality. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).
Petitioner is incorrect in her assertion that a detention prior to arrest is unlawful if done without probable cause. An obvious example is that detentions and searches at the nation’s borders can be made without probable cause. Witt v. United States, 287 F.2d 389 (9th Cir. 1961); Henderson v. United States, 390 F.2d 805 (9th Cir. 1967). Therefore, in lieu of probable cause, what must be ascertained is whether the detention is “reasonable” under the circumstances. See Drake, Detention for Taking Physical Evidence Without Probable Cause, 14 Ariz.L.Rev. 132 (1972).
All of those factors which in their totality lead to the “reasonable” standard are present in A.R.S. § 13-1424. The detention is authorized by a magistrate, a factor enunciated by the Supreme Court in Davis v. Mississippi, supra. The statute limits the detention to three hours and as there is no exigency involved in securing a handwriting exemplar, the detention should be at a time which is convenient for the detained person. The crime involved must be a felony and, as society has a substantial interest in preventing serious crimes, the detention’s reasonableness in that regard is apparent.
Another matter of importance is the inability to obtain the evidence elsewhere. A.R.S. § 13-1424(A) (3) requires a showing that “such evidence cannot otherwise be obtained by the investigating officer from either the law enforcement agency employing the affiant or the criminal identification division of the Arizona department of public safety.” In his petition to obtain the handwriting exemplar, Officer Hathaway stated that the evidence sought from Miss Long was not available from any other source.
The major contention of petitioner is that while the statute requires a showing of “reasonable cause for belief that a specifically described criminal offense punishable by at least one year in the state prison has been committed,” there is no requirement of a showing that the person detained is connected in any way with the crime. However, subsection (B) (3) of the statute provides that any order issued pursuant to the statute must specify “the relevance of such evidence to the particular investigation.” We find that under this provision, the officer must show why the evidence may implicate the individual and provides the necessary nexus between the crime and the suspect. Officer Hathaway complied with this provision and such connection has been established to our satisfaction.
We agree with petitioner that the language of A.R.S. § 13-1424 is not as explicit as jurists would like. However, it is the duty of the court to uphold statutes if the language will permit. Coggins v. Ely, 23 Ariz. 155, 202 P. 391 (1921). This is true even if the language is indefinite and uncertain. Peterson v. Sundt, 67 Ariz. 312, 195 P.2d 158 (1948). We hold that a reasonable reading of the statute allows the “temporary detention” without an unconstitutional deprivation of petitioner’s rights.
Relief denied.
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Cite This Page — Counsel Stack
527 P.2d 1240, 22 Ariz. App. 397, 1974 Ariz. App. LEXIS 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-garrett-arizctapp-1974.