State v. McGann

645 P.2d 837, 132 Ariz. 322, 1981 Ariz. App. LEXIS 657
CourtCourt of Appeals of Arizona
DecidedOctober 20, 1981
DocketNo. 2 CA-CR 2246
StatusPublished
Cited by2 cases

This text of 645 P.2d 837 (State v. McGann) 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. McGann, 645 P.2d 837, 132 Ariz. 322, 1981 Ariz. App. LEXIS 657 (Ark. Ct. App. 1981).

Opinion

OPINION

HATHAWAY, Chief Judge.

Harold Vincent McGann was indicted, tried to a jury and convicted of four counts of forgery, a felony, under the old criminal code. He was sentenced to not less than five nor more than seven years on each count, the sentences to run concurrently.

On appeal, he contends that (1) the admission into evidence of three credit cards taken from his car in a warrantless search without exigent circumstances violated the Fourth and Fourteenth Amendments of the United States Constitution, (2) the admission into evidence of credit card invoices without proper foundation violated his due process rights and (3) the trial court’s refusal to invoke the rule excluding witnesses warrants reversal. We disagree.

On May 26, 1978, the defendant was arrested on an unrelated charge at his place of employment, Irish Chevron Service Station in Tucson. Present at the time were Nick DiLorenzo, assistant manager and mechanic, and Mike Sweeney, another employee. Upon his arrest, defendant asked Mr. DiLorenzo to take his car, which was parked at the station, to his home. Mr. DiLorenzo replied that he did not know where the defendant lived, so defendant gave his car keys to Mr. Sweeney with the same request. Mr. DiLorenzo took the car keys from Mr. Sweeney because, as he confirmed to the police, he suspected that defendant had committed credit card slip forgeries that had been occurring at the station and that the credit cards used were in the car. The police officers advised him that they could not search the car and one officer told Mr. DiLorenzo not to look in the car. Mr. DiLorenzo asked the police if he could keep the car at the station and was advised that he could because the car was not registered to defendant and the woman he was living with was not his wife.

The car was kept in sight, locked and parked outside the station during the day and locked inside during the night. Defendant’s girlfriend came to the station once on May 27 and once on May 28 to get papers that were needed for defendant’s court case. Each time, the trunk was unlocked by Mr. DiLorenzo.

On May 29, while defendant was in jail in Maricopa County, Mr. DiLorenzo searched the car and found three credit cards behind the mirror on the visor on the passenger side. He testified that the edges of the cards could have been seen from outside before he opened the car, although he had not seen them. He looked at the cards and ascertained that they were the ones suspected of being stolen. He replaced the cards as closely as possible to where he had found them and notified the police, who came out the next day. Mr. DiLorenzo pointed out the cards, the edges of which were visible from outside the automobile. One of the officers called a deputy county attorney, who advised him that it was not necessary to get a search warrant. Mr. DiLorenzo unlocked the car, the police entered and took the credit cards.

The foregoing scenario was depicted at the hearing on the defendant’s motion to suppress the credit cards. The trial court initially granted the motion but upon the state’s motion for rehearing, reversed its ruling and denied it.

[325]*325The state contends that the search and seizure was accomplished by a private citizen and is therefore immune from the application of the exclusionary rule. See Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); State v. Rice, 110 Ariz. 210, 516 P.2d 1222 (1973). It is true that the police may receive the fruits of an illegal private search if there has been no governmental involvement in it. State v. Hughes, 8 Ariz.App. 366, 446 P.2d 472 (1968), cert. den. 395 U.S. 940, 89 S.Ct. 2010, 23 L.Ed.2d 457 (1969). The characterization of a search as “private” or “governmental” depends on the extent of police involvement in the total enterprise. State v. Bohannon, 3 Kan.App.2d 448, 596 P.2d 190 (1979); Annot., 36 A.L.R.3d 553 (1971). Mr. DiLorenzo’s search, conducted without police encouragement and, in fact, against the instructions of the police, was clearly a private-act. He did not, however, turn over to the police the fruits of this search. Instead, he replaced the credit cards and called the police, who entered the car without a warrant and themselves seized the evidence. At that point, the private search had ended. The actions of the police were subject to the proscriptions of the Fourth Amendment.

We cannot agree with the state’s argument that the police seizure was reasonable because it went no further than the prior private search and seizure. The cases cited in support of this proposition deal with searches made by airline personnel in the course of their work handling passengers’ baggage. See United States v. Bulgier, 618 F.2d 472 (7th Cir. 1980). Other cases have involved luggage abandoned in hotel rooms. See Barnes v. United States, 373 F.2d 517 (5th Cir. 1967). We believe these cases are distinguishable from the case before us. In the cases cited by the state, the private searcher had custody of the defendant’s belongings. In the instant case, the defendant did not voluntarily put his automobile into Mr. DiLorenzo’s custody. It would be unwise to extend the holding of the state’s cited cases to the present situation. If the state’s argument were adopted, it would logically allow the police to search again, without a warrant, any place that an informant had previously searched.

Absent exigent circumstances, the next proper step would have been to procure a search warrant. Warrantless auto searches are often justified where the police have probable cause to believe contraband or evidence of a crime is in the automobile. See State v. Sardo, 112 Ariz. 509, 543 P.2d 1138 (1975); State v. Benge, 110 Ariz. 473, 520 P.2d 843 (1974). This doctrine is based on the inherent mobility of motor vehicles. Nevertheless, “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035-2036, 29 L.Ed.2d 564 (1971). In Coolidge, for example, a warrantless auto search was held illegal because the suspect’s automobile was parked and neither the defendant nor his wife were available to drive it away. In the instant case, the defendant’s car keys were in Mr. DiLorenzo’s possession. The defendant’s girlfriend obviously did not have a set, because Mr. DiLorenzo had to unlock the car for her when she needed to get things out of it. The facts here are similar to those in Coolidge, which we believe controls. The Arizona cases, such as State v. Million, 120 Ariz. 10, 583 P.2d 897 (1978); State v. Hunt, 118 Ariz. 431, 577 P.2d 717 (1978); State v. Sardo, supra, and State v. Benge,

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Related

State v. McGann
645 P.2d 811 (Arizona Supreme Court, 1982)

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Bluebook (online)
645 P.2d 837, 132 Ariz. 322, 1981 Ariz. App. LEXIS 657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcgann-arizctapp-1981.