State v. Little

590 P.2d 916, 121 Ariz. 377, 1979 Ariz. LEXIS 219
CourtArizona Supreme Court
DecidedJanuary 25, 1979
DocketNo. 4357
StatusPublished
Cited by3 cases

This text of 590 P.2d 916 (State v. Little) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Little, 590 P.2d 916, 121 Ariz. 377, 1979 Ariz. LEXIS 219 (Ark. 1979).

Opinion

CAMERON, Chief Justice.

This is an appeal by the defendant Thomas Allen Little from a judgment of guilt to the crime of possession of marijuana, A.R.S. §§ 36-1002.05 and 36-1002.10. Following the trial to a jury on the above charge, defendant was found guilty of a prior conviction pursuant to A.R.S. §§ 13-1649 and 1650 and Rule 19.1(b), Rules of Criminal Procedure, 17 A.R.S. We have jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.

We are asked to address three issues on appeal:

1. Did the trial court err in failing to suppress certain evidence seized from defendant’s person at the time of defendant’s arrest?
2. Was it error for the trial court to have arraigned and tried the defendant on the allegation of a prior conviction in defendant’s absence?
3. Did the trial court commit errors in sentencing?

The facts necessary for a resolution of this appeal are as follows. In the early evening of 8 July 1977, two uniformed Phoenix police officers, on duty in South Mountain Park in Phoenix, observed from their parked car two males standing next to a car parked approximately 15 yards away. For several minutes the officers watched through binoculars as the two subjects smoked a hand-rolled cigarette in a manner suggesting the use of marijuana. After approaching the car, the officers detected a strong odor of marijuana coming from inside the vehicle as well as from the parties who were standing next to the car. The defendant was seated in the back of the vehicle.

Defendant was instructed by the officers to keep his hands where they could be seen while the individuals outside the vehicle were searched. Defendant ignored this instruction by making repeated attempts to reach into his pocket and also by making movements with his hands behind his back toward another passenger seated next to the defendant.

The defendant was searched and a cigarette pack containing a measure of marijuana was found in his right-hand pocket. Two small pipes used for smoking marijuana were also found in the car. Defendant was placed under arrest and given his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant had admitted to the officer at the time of arrest that he had a prior conviction for sale of marijuana. After arraignment in the Superior Court, the defendant was notified of the time and place of the trial. When defendant did not appear, the court found that he had voluntan[379]*379ly absented himself from trial. Trial was held in absentia, the defendant being represented by counsel. See State v. Tacon, 107 Ariz. 353, 488 P.2d 973 (1971), cert. dismissed 410 U.S. 351, 93 S.Ct. 998, 35 L.Ed.2d 346 (1973).

Following findings of guilt, defendant was sentenced to serve not less than three and one-half years nor more than seven years in the Arizona State Prison. Notice of appeal from the judgment and sentence was filed by defendant’s attorney.

MOTION TO SUPPRESS

Defendant initially asserts that the officers did not have probable cause to support their search of the defendant and that the marijuana found on defendant’s person should therefore have been suppressed as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We do not agree.

In order to investigate possible criminal activity, it is not necessary that police officers have sufficient information to arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We stated in State v. Lelevier, 116 Ariz. 37, 567 P.2d 783 (1977), that the police may approach individuals for the purpose of investigation where there is

“a reasonable suspicion * * * that ‘some activity out of the ordinary’ is or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. State v. Hocker, 113 Ariz. 450, 457, 556 P.2d 784, 791 (1976).” 116 Ariz. at 39, 567 P.2d at 785.

We believe that the officers in the instant case clearly were justified in approaching the individuals for the purpose of investigating possible criminal behavior. They had observed the individuals smoking a hand-rolled cigarette in a manner that their experience had taught them was common to marijuana smokers. Once the officers arrived at the car, they smelled marijuana coming from inside the car where defendant was seated.

We believe the distinctive smell of marijuana coupled with defendant’s suspicious hand movements provided the officers with probable cause to search the defendant. See State v. Valenzuela, 121 Ariz. 274, 589 P.2d 1306 (1978). In the context of drug investigation, a movement of the hand to the pocket, particularly where, as here, the one being investigated has been specifically instructed to keep his hands away from his pockets, can be a meaningful circumstance in determining the existence of probable cause. State v. Wilson, 31 Or.App. 783, 571 P.2d 554 (1977). We find no error.

CONVICTION OF THE PRIOR OFFENSE IN DEFENDANT’S ABSENCE

After a finding that the defendant had voluntarily absented himself from trial, the court also ordered the entry of a plea of not guilty to the allegation of prior conviction.

The defendant does not contend on appeal that being voluntarily absent the trial court could not proceed in absentia. Defendant does contend, however, that the arraignment on the allegation of prior conviction in defendant’s absence constitutes reversible error. We do not agree.

Rule 14.2 of the Arizona Rules of Criminal Procedure, 17 A.R.S., states that a defendant “shall be arraigned personally before the trial court.” Rule 9.1, however, indicates that the defendant may effectively waive his right to be present at such a proceeding by voluntarily absenting himself:

“[A] defendant may waive his right to be present at any proceeding by voluntarily absenting himself from it. The court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, his right to be present at it, and a warning that the proceeding would go forward in his absence should he fail to appear.”

The record indicates that 11 days prior to the date trial began, the defendant was present in court for a change of plea:

[380]*380“MR.

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Cite This Page — Counsel Stack

Bluebook (online)
590 P.2d 916, 121 Ariz. 377, 1979 Ariz. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-little-ariz-1979.