State v. Gossett

583 P.2d 1364, 120 Ariz. 44, 1978 Ariz. App. LEXIS 573
CourtCourt of Appeals of Arizona
DecidedJune 8, 1978
DocketNo. 1 CA-CR 2812
StatusPublished
Cited by6 cases

This text of 583 P.2d 1364 (State v. Gossett) 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. Gossett, 583 P.2d 1364, 120 Ariz. 44, 1978 Ariz. App. LEXIS 573 (Ark. Ct. App. 1978).

Opinion

OPINION

NELSON, Judge.

The appellant, Harold L. Gossett, was adjudged guilty of possessing heroin for sale.1 Guilt was determined following submission of the case to the trial judge on a stipulated record. Appellant was thereafter sentenced to prison for a term of five to ten years. On appeal he contends that his motion to suppress 39 balloons containing heroin and other articles seized from his car should have been granted.

The basis of appellant’s motion to suppress is set forth in the memorandum attached to the motion. The memorandum reads as follows:

“On February 2, 1977 the Defendant was stopped by uniformed members of the Phoenix Police Department ostensibly because they suspected him of drunken driving.
He thereafter allegedly gave his consent to have his car searched, during which search heroin was found.
At the evidentiary hearing on this matter the Defendant will establish that the stop of GOSSETT’s vehicle was entirely a pretext, that the real reason the police stopped GOSSETT was that they desired to search his automobile and that therefore under the doctrine of Blazak v. Ey-man, 339 Fed.Supp. 40 (D.Ariz.1971), GOSSETT’s arrest on the traffic charge was a pretext, that the search of his [46]*46vehicle was in bad faith, and that he is entitled to have all items seized during that search suppressed because they were taken in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution.”

At the preliminary hearing, Officer Re-sczenko testified that he had observed appellant’s vehicle “weaving” over the dividing line between the curb lane and the passing lane on a street in Phoenix. See A.R.S. § 28-729(1). After he and another officer had stopped appellant, Officer Re-sczenko asked appellant if the officers could search appellant’s car. After asking why and being told the officers just wanted to look in it, appellant responded: “Sure. Go ahead and search it.” After the balloons containing heroin had been found and appellant had been taken to the police station, the officer asked him if he had consented to the search. Appellant replied: “Yeah, I let you search the car. Do you think I’d have let you search it, if I knew that stuff was in there?”

At the hearing on the motion to suppress, Officer Resczenko reaffirmed that the officers stopped appellant’s car for the traffic violation and not to search it for contraband. The companion officer, Officer Evans, referred to the search as an “inventory search”. At the conclusion of the hearing and after hearing argument on the single issue raised by appellant in his motion, the trial court denied the motion to suppress.

On the same day, the parties presented to the trial court an executed “waiver of trial by jury”. They then proceeded to stipulate that the case would be submitted to the trial court for determination on the basis of the preliminary hearing transcript and police departmental and related reports. The trial court having previously read the stipulated record, appellant was immediately found guilty.

Appellant’s counsel on appeal has seized upon Officer Evans’ characterization of the search as an “inventory search”, and contends that as such it was invalid. Counsel cites State v. Ruiz, 109 Ariz. 437, 511 P.2d 172 (1973), and United States v. Edwards, 554 F.2d 1331 (5th Cir. 1977).

The state counters with a threshold argument that since the submission was clearly tantamount to a plea of guilty2 or no contest, it should have the effect of a guilty plea, that is, it should operate as a waiver of all non-jurisdictional defects, including an assertedly invalid search and seizure. See, e. g., State v. DeFoy, 109 Ariz. 159, 506 P.2d 1053 (1973). The State also argues that the search was consented to by appellant and therefore valid.

Appellee has argued its threshold position at considerable length. It has the laboring oar because its position is squarely at odds with State v. Chagnon, 115 Ariz. 178, 564 P.2d 401 (App.1977), in which this Court stated in response to a similar argument:

“We think it is apparent that a submission of the case to the court based on stipulated evidence is still a trial on the issue of guilt or innocence whether tantamount to a guilty plea or not h The trial judge must weigh the evidence contained in the transcripts and convict only if in view of all matters properly contained therein, he is persuaded beyond a reasonable doubt of the defendant’s guilt. It necessarily follows that a defendant who submits his case for trial to the court on stipulated evidence may appeal any matters which he could have if the case had gone to trial before a jury or to the court upon other than stipulated, documentary evidence. Cf., State v. Eliason, supra. [25 Ariz.App. 523, 544 P.2d 1124 (1976)]. Moreover, it is readily apparent that the appellants here may well have submitted the question of their guilt or innocence, rather than pleading guilty for the express purpose of preserving for appellate review the trial court’s denial of the motion to suppress.” (Footnote omitted) 115 Ariz. at 180, 564 P.2d at 403.

[47]*47Appellee argues that the reasoning in Chagnon has been rejected by our Supreme Court in State v. Woods, 114 Ariz. 385, 561 P.2d 306 (1977) and State v. Garcia, 115 Ariz. 535, 566 P.2d 683 (1977). Appellee points specifically to the following language in Woods:

“The totality of the circumstances shows this proceeding was not in any sense a trial, and the record, when fairly read, offers no hope that there could be an acquittal.” 114 Ariz. at 388, 561 P.2d at 309.

So far as we can ascertain, Arizona is one of only three jurisdictions where “submissions” (California and Arizona) or “stipulated bench trials” (Illinois)3 are in frequent use. Arizona has on some occasions referred to California authority for guidance. See State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974) and State v. Woods, supra.

One California case, Bunnell v. Superior Court4, 13 Cal.3d 592, 119 Cal.Rptr. 302, 308, 531 P.2d 1086, 1092-1093 (1975) states:

“Notwithstanding such agreements or the fact that conviction is a foregone conclusion, a submission of the cause for decision on the transcript is a trial.

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Bluebook (online)
583 P.2d 1364, 120 Ariz. 44, 1978 Ariz. App. LEXIS 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gossett-arizctapp-1978.