State v. Calvery

571 P.2d 300, 117 Ariz. 154, 1977 Ariz. App. LEXIS 728
CourtCourt of Appeals of Arizona
DecidedNovember 3, 1977
DocketNo. 1 CA-CR 2290
StatusPublished
Cited by3 cases

This text of 571 P.2d 300 (State v. Calvery) 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.

Bluebook
State v. Calvery, 571 P.2d 300, 117 Ariz. 154, 1977 Ariz. App. LEXIS 728 (Ark. Ct. App. 1977).

Opinion

OPINION

NELSON, Presiding Judge.

Appellant, Allan Calvery, was charged by information with the first degree burglary of an automobile in Mesa, Arizona on March 11, 1976. Following the denial of his motions to suppress certain physical evidence and allegedly involuntary statements, appellant was convicted and sentenced to not less than five nor more than seven years in the Arizona State Prison to be served concurrently with a sentence of not less than seven years nor more than life on an unrelated conviction. This appeal followed.

The issues on appeal are whether the trial court correctly admitted into evidence at trial certain articles discovered in an automobile used by appellant during the crime and whether the trial court properly ruled that appellant’s admissions to the police officers following the crime were voluntary.

At approximately 2:00 a. m. on the morning of the crime, a resident of the victim’s apartment complex heard noises in the parking lot and looked through her window into the lot. This witness observed two men inside a small green automobile, and another man walking from behind some bushes. She then saw the men leave that automobile, later learned to be the victim’s, and enter a white 1965 Chevrolet. When the men departed in the Chevrolet, the witness summoned the police.

The victim was awakened and accompanied Officer Webber to the parking lot to inspect her automobile. During this investigation, which took place approximately thirty minutes after the initial observation of the three men, Officer Webber noticed appellant inside the burglarized vehicle; two other men were standing nearby. The three men were arrested and one of them, not the appellant, was found in possession of a tape cartridge. The victim then noted that a tape cartridge, similar to that found on appellant’s companion, and a can of oil had been taken from her automobile. Due to the poor lighting conditions, the victim did not then realize that the tape deck speakers had also been taken from the automobile, a fact she discovered later in the morning and so informed the police.

Pursuant to the conditions of a plea bargain, whereby he was allowed to plead guilty to a lesser charge, one of appellant’s companions, Robert Hanks, testified at trial for the prosecution. This witness testified that he, appellant, and two others stopped the Chevrolet near the parking lot. Hanks did not see the initial entry into the automobile as he remained in or near the Chevrolet while appellant entered the lot. When Hanks heard the sound of breaking glass, he searched for appellant and found him sitting inside the victim’s car. The left window of the vehicle was already broken when Hanks arrived. Appellant and his companions thereafter prematurely fled from the scene when they heard sirens in the area. Hanks further testified that they later returned to the crime scene because appellant had lost his wallet and thought that it might be inside the victim’s car. Appellant entered the subject automobile to [156]*156look for the wallet, and while inside, picked up a tape cartridge and handed it to Hanks. The arrests immediately followed.

The can of oil taken from the victim’s car was ultimately discovered several hours later and fifteen blocks from the crime scene inside a white 1965 Chevrolet. The Chevrolet belonged to appellant’s fiancee, who had given appellant permission to use the car two and one-half hours before the crime. Apparently the Chevrolet had broken down shortly after the burglary had been temporarily abandoned.. Officer Bray patrolled the vicinity of the crime scene and observed several vehicles that approximated the description of the one in which the men were seen leaving the crime scene. One of these was the vehicle previously entrusted to appellant. Officer Bray looked inside and viewed a can of oil lying on the floor and protruding from under the front seat. Bray entered the car, which was unlocked with the windows open, and seized the can which was later introduced into evidence at trial.

At approximately -8:00 a. m., the victim again examined her automobile and discovered that two tape deck speakers had also been taken from her car. She reported this fact to the police. Sometime later, the owner of the 1965 Chevrolet accompanied Officer Millsapps to her vehicle, whereupon Millsapps obtained the two speakers from underneath the front seat of the automobile. These speakers were also introduced into evidence at trial.

Appellant argues that the trial court erred in denying his motion to suppress the can of oil and the speakers on the ground that appellant did not have standing to challenge the search of the 1965 Chevrolet. The trial court restricted the suppression hearing and the introduction of evidence therein solely to the question of whether appellant had standing to challenge the search and seizure of the Chevrolet

The evidence adduced at the suppression hearing and at trial was uncontradicted that appellant had been given permission to use the Chevrolet. The evidence further showed that when the Chevrolet broke down, appellant and his companions legally obtained another vehicle and were in the process of returning to the Chevrolet to restart it. Appellant then discovered that he had lost his wallet and, while returning to the Chevrolet, stopped at the crime scene, whereupon he was arrested. Appellant did not testify in his own defense at trial. The trial court ruled that appellant did not have standing to challenge the search of the Chevrolet and the seizure of the evidence obtained from it. We believe this was error.

Under the circumstances present in this case, in order to establish standing to challenge a search or seizure, the defendant must allege and show:

(a) he was on the premises at the time of the contested search and seizure; or
(b) he had a proprietary or possessory interest in the premises; or
(c) that he was charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.

Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). See also Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Subsection (b) is the applicable provision at issue in this appeal as the issues are whether appellant had a possessory or proprietary interest in the Chevrolet at the time of the two warrantless searches and seizures, and whether an automobile constitutes a “premises” within the Brown and Simmons rulings.

We think it is clear that an automobile falls within the definition of “premises” as contemplated by Brown v. United States, supra. See State v. Sauve, 112 Ariz. 576, 544 P.2d 1091 (1976); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It is similarly clear that appellant had a substantial possessory interest in these “premises” by virtue of his legal possession of the automobile on the morning of March 11, 1976. See, e. g., Williamson v. State, 248 So.2d 634 (Miss. [157]*1571971); United States v. Eldridge,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Van Dyke
621 P.2d 22 (Arizona Supreme Court, 1980)
State v. Alvarado
591 P.2d 973 (Arizona Supreme Court, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
571 P.2d 300, 117 Ariz. 154, 1977 Ariz. App. LEXIS 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-calvery-arizctapp-1977.