State v. Kelley

480 P.2d 658, 107 Ariz. 8, 1971 Ariz. LEXIS 218

• Court: Arizona Supreme Court
• Decided: February 11, 1971
• Docket: 1935
• Status: Published

Opinions

HAYS, Vice Chief Justice.

On May 15, 1969 we affirmed a conviction of the defendant of the crime of unlawful possession of marijuana. The principal question involved in that appeal was whether the marijuana was illegally seized. See State v. Kelley, 104 Ariz. 418, 454 P.2d 563.

On June 29, 1970 the United States Supreme Court, 399 U.S. 525, 90 S.Ct. 2252, 26 L.Ed.2d 783, granted certiorari, vacated the judgment of conviction, and remanded the case to us “for further consideration in the light of Chambers v. Maroney, 399 U. S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419,” decided June 22, 1970. We have re-examined the entire record in accordance with the direction of the United States Supreme Court.

The facts in the case are substantially as set forth in the original opinion, supra. One relevant fact not stated in the original opinion is that when the deputy sheriff ran his identification check on defendant’s car, he found that the registration was in the name of someone other than Terry Davis, the friend from whom defendant said he had borrowed the car. At this point the deputy had probable cause to believe that the car which the defendant was driving was stolen. This missing fact is vital to the determination of the issue here, and we find nothing in the Chambers opinion which requires us to reverse this case.

The basis issue is whether an officer who has probable cause to believe a car is stolen may search the vehicle after he has taken the defendant into custody by locking him in the back seat of the police .cár. In the Chambers case the occupants of the car were arrested and the car was driven to the police station. Thereafter, at the police station, the car was searched. The majority opinion in Chambers readily points out the fact that this was not a. search incident to arrest. We can hardly believe that the U. S. Supreme Court would place the facts of our case in the same category. No police officer could be reasonably expected to divert his attention to a search while the defendant was free and close at hand. The mere fact that the defendant was first locked in the back of the patrol car does not make this search any less a search incident to arrest.

Very frankly, with the evidence that there was probable cause to arrest the defendant, we cannot see how the holding of Chambers has application to this case. We are persuaded that the U. S. Supreme Court was not aware of the crucial facts of this case which made the search one incident to an arrest. We need only to quote from Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) to support our position:

“It is argued that the search and seizure was justified as incidental to a lawful arrest. Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145 (1925). This right to search and seize without a search warrant extends to things under the accused’s immediate control, Carroll v. United States, supra, 267 U.S. 132 at 158, 45 S.Ct. 280 at 287, 69 L.Ed. 543, and, to an extent depending on the circumstances of the case, to the place where he is arrested, Agnello v. United States, supra, 269 U.S. at 30, 46 S.Ct. at 5, 70 L.Ed. 145; Marron v. United States, 275 U.S. 192, 199, 48 S.Ct. 74, 77, 72 L.Ed. 231 (1927); United States v. Rabinowitz, 339 U.S. 56, 61-62, 70 S.Ct. 430, 433, 94 L.Ed. 653 (1950).” 376 U.S. at p. 367, 84 S.Ct. at p. 883.

In a per curiam opinion the U. S. Court of Appeals, District of Columbia Circuit, in Adams v. United States, 118 U.S.App.D.C. 364, 336 F.2d 752 (1964) said:

“We recognize, of course, the logic in appellant’s argument. After his arrest there was no danger from unseen weapons or of evidence disappearing from the locked trunk of the car. The status quo with respect to the trunk could have been maintained until a search warrant was issued, particularly since the car itself was impounded by the police. Cf. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). But as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. We are not persuaded that we should be the first court to do so.” 336 F.2d at page 753.

See also United States v. Doyle, 373 F.2d 875 (2 Cir., 1967).

The officer in his testimony at the suppression hearing indicated that he suspect.ed that the paper sack which the defendant furtively kicked under the car seat might . contain a weapon. This does nothing more ■than add to the need for the search and •enhance the validity of the search. To hold otherwise would tend to needlessly •hamstring the efforts of' law enforcement.

It is well to note that the record reflects defendant had been given the Miranda 'warnings and the determination of the car registration status had been made prior to the time the search of the car was undertaken. There was probable cause for an arrest, the defendant was taken into custody, Miranda warnings were given and the car was searched. We can conceive of no more classic fact situation to support the search of a car incident to arrest than'the facts in this case.

The judgment of conviction is affirmed.

STRUCKMEYER, C. J., and UDALL, J., concur.