State v. Million

556 P.2d 338, 27 Ariz. App. 490, 1976 Ariz. App. LEXIS 652
CourtCourt of Appeals of Arizona
DecidedSeptember 23, 1976
DocketNo. 1 CA-CR 1529
StatusPublished
Cited by3 cases

This text of 556 P.2d 338 (State v. Million) 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. Million, 556 P.2d 338, 27 Ariz. App. 490, 1976 Ariz. App. LEXIS 652 (Ark. Ct. App. 1976).

Opinion

OPINION

HOWARD, Chief Judge.

The state brings this appeal under A.R. S. Sec. 13-1712(7) from an order granting appellees’ motion to suppress the use of the finding of 1,200 pounds of marijuana as evidence. We believe the order was improvidently granted and reverse.

Appellees were charged with transportation of marijuana and possession of marijuana for sale. Two questions are posed for our consideration: (1) Did the officers have probable cause to search the motor vehicle and arrest the appellees? (2) Did the circumstances sanction a search of the motor vehicle without first obtaining a search warrant?

The facts necessary for a determination of this appeal are as follows. On May 12, 1975, acting on the tip of an informant, officers of the Drug Enforcement Adminis-tation, the Department of Justice and officers of the Yuma City-County Narcotics Task Force conducted a surveillance of a residence at 2590 West 14th Place in Yuma. The informer had identified several vehicles allegedly used by narcotics traffickers and one of them, a tan motor home, was seen at the house. Officer Stevenson testified at the hearing on the motion to suppress that from his vantage point, he was able to identify the three appellees in and about the motor home. Also, that he observed them carrying dark-colored garbage bags into the motor home and that the garbage appeared to be full of brick-sized objects. He further testified that he had seen similar garbage bags used in more than 100 prior marijuana case investigations and that from his experience was able to state that the garbage bags are used for such transportation because they conceal the smell better and are waterproof.

When the motor home and a Volkswagen left the residence, surveillance was continued to the Jet Cafe where appellees parked the motor home and got into the Volkswagen. They went to a different residence, returned and went into the cafe. When they came out, they all entered the motor home and it was driven toward the California border. It was stopped by the officers when it became clear the motor home was about to leave Arizona. Officer Stevenson testified that the three subjects left the vehicle while he and his supervisor entered it and located marijuana. The appellees were then placed under arrest.

We acknowledge that a reversal in this instance would not be proper unless the trial court clearly abused its discretion. State v. Vandeveer, 23 Ariz.App. 331, 533 P.2d 91 (1975). However, we think it did. As an appellate court, we must assume the ultimate facts to exist as strongly in support of the court’s ruling as the evidence will reasonably justify. State v. Boyer, 106 Ariz. 32, 470 P.2d 439 (1970). Here there was no conflicting testimony given at the hearing on the motion to suppress and the court therefore considered the testimony since it was not obviously incredible or physically impossible. State v. Dominguez, 87 Ariz. 149, 348 P.2d 919 (1960).

The test of probable cause to arrest is outlined in State v. Sardo, 112 Ariz. 509, 543 P.2d 1138 (1975):

“ ‘The lawfulness of a warrantless arrest depends upon whether the facts and circumstances within the knowledge of the arresting officer at the time were sufficient to warrant a man of reasonable [492]*492caution to believe that a felony had been committed by the person arrested.’ State v. Edwards, 111 Ariz. 357 at 360, 529 P.2d 1174, at 1177 (1974). See also State v. Green, 111 Ariz. 444, 532 P.2d 506 (1975).” 112 Ariz. at 515, 543 P.2d at 1144.

In Sardo, supra, our Supreme Court, citing United States v. Patterson, 492 F.2d 995 (9th Cir. 1974), cert. den., 419 U.S. 846, 95 S.Ct. 82, 42 L.Ed.2d 75 (1974), found that where the totality of events makes it more probable than not that the agents would find smuggled contraband in a motor vehicle, there was probable cause to stop it. Also in Sardo the court said that information can be viewed by the officer in light of his past experiences so as to interpret the actions of persons he had under surveillance.

The testimony of Officer Stevenson that he saw appellees loading the motor home with the green garbage bags and that the bags contained brick-shaped objects, combined with the officer’s knowledge of the use of such bags and the identification of the vehicle by the informant, satisfies the language in Sardo.

It is of no consequence that the informant here was never shown to be reliable. The Fifth Circuit Court of Appeals has said:

“The idea that a reliable informer may somehow supply probable cause while a first-time informer can not is only the beginning of the inquiry. . Probable cause rests on the whole of the evidence which is urged in support of police action. It may rest entirely on information from a reliable informer, or it may be based on a combination of informer’s information, itself insufficient, and facts generated by independent police investigation.” United States v. Lopez-Ortiz, 492 F.2d 109 (5th Cir. 1974) at 113-114.

Appellees argue that while the officers might well have had probable cause, it arose when Officer Stevenson saw the bags being loaded, and the delay between the 11 p.m. observation and the 1 a.m. stop invalidated the legality of the search. However, Justice Blackmun, in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), wrote for the majority:

“Respondent contends that here, unlike Chambers [Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)], probable cause to search the car existed for some time prior to arrest and that, therefore, there were no exigent circumstances. Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment. Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest. Cf. Chambers, id., at 50-51, 90 S.Ct., at 1980-1981. The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation’s necessitating prompt police action.” 417 U.S. at 595-596, 94 S.Ct. at 2472.

We think that under the circumstances, the officers were correct in setting up the surveillance of the vehicle in the hope of netting more suspects and ascertaining the “drop” point for the marijuana.

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Related

State v. Million
583 P.2d 897 (Arizona Supreme Court, 1978)
State v. Castoe
559 P.2d 167 (Court of Appeals of Arizona, 1976)

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Bluebook (online)
556 P.2d 338, 27 Ariz. App. 490, 1976 Ariz. App. LEXIS 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-million-arizctapp-1976.