State v. Mosley

581 P.2d 238, 119 Ariz. 393, 1978 Ariz. LEXIS 250
CourtArizona Supreme Court
DecidedJune 27, 1978
Docket4146
StatusPublished
Cited by76 cases

This text of 581 P.2d 238 (State v. Mosley) 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. Mosley, 581 P.2d 238, 119 Ariz. 393, 1978 Ariz. LEXIS 250 (Ark. 1978).

Opinion

HAYS, Justice.

Appellant David Lee Mosley was charged by information with possession of heroin for sale (A.R.S. §§ 36-1001, 36-1002.01) and possession of marijuana (A.R.S. §§ 36-1001, 36-1002.05). Following the denial of his motion to suppress certain physical evi *396 dence, appellant was found guilty of both counts by a jury. He then pled “no contest” to an allegation of a prior conviction for attempted robbery; the trial court ultimately sentenced Mosley to concurrent terms of 10 to 12 years imprisonment (A.R.S. § 13-1649). We have taken jurisdiction of this appeal pursuant to 17A A.R.S. Rules of the Supreme Court, rule 47(e)(5).

On the evening of November 4, 1976 undercover Officers Bradley and Kurth of the Phoenix Police Department were conducting surveillance of a residence at 101 South 28th Drive in Phoenix. Other officers had previously developed information, of an undisclosed nature, which had led the Department to suspect that residents of that address were dealing in stolen property and narcotics. Members of the surveillance team knew that search warrants previously had been served at this address, but did not know the results of those prior searches. They had no specific suspects, but did have a list of vehicles which had been frequently observed at the address. Kurth and Bradley, in plain clothes, began visiting with neighbors in the front yard of the house across the street from the residence in question, at about 5:45 p. m.; they were approximately 50-100 feet away from the residence. At 6:00 p. m. a blue 1966 four-door Pontiac sedan arrived at the house, but left within a few minutes. That vehicle was one mentioned on the list previously prepared by other field officers. At 6:20 p. m. the car returned and parked in the driveway of the residence. Appellant and another man, Edward Mays, emerged from the car and carried some unspecified articles from the car trunk into the house. Shortly before 7:00 p. m. appellant and Mays began carrying items out of the house and placing them into the vehicle’s trunk. Kurth and Bradley observed the loading from the front yard across the street; occasionally Kurth entered the front of that residence and used binoculars to make his observations. The two suspects loaded stereo equipment, speakers, and a .22-caliber rifle into the car trunk. During one trip out to the car, Officer Bradley observed one of the two men carrying a brown leather duffel bag and the other carrying a woman’s purse, but was unable to recall which man carried which item; they were both placed in the trunk. Officer Kurth testified that Mays carried out the duffel bag. After the trunk was loaded, Kurth observed the appellant carrying a red hand towel, which he was folding in his hands, from the front door of the residence; appellant leaned into the driver’s side of the car and placed the red towel somewhere inside, although Kurth was unable to tell whether it was in the front or back seat. Appellant then returned to the residence and nothing further was loaded into the car. Within a few minutes the two subjects again came out of the residence, accompanied by two females, and all four persons entered the automobile. Edward Mays took the driver’s position behind the steering wheel and Vera Staples sat beside him in the front seat. Appellant and Frieda Cowley sat close together in the back seat, near the left rear door and immediately behind the driver Mays. Appellant and Frieda Cowley had to enter the right rear door and slide across the back seat to reach this position; the left rear (driver’s side) door of the automobile did not work. The vehicle then backed out of the driveway and left the area.

Officer Kurth advised other officers of the surveillance team of his observations by radio. When the Pontiac pulled away from the residence, surveillance was continued by Officer Miller in an unmarked vehicle. He observed the Pontiac as it stopped briefly at two separate locations; nothing was unloaded from the car on either occasion, and all four people resumed exactly the same positions within the car after each stop. At around 7:30 p. m. the suspect vehicle arrived at the El Rancho Motel on West Van Burén Street and pulled into a small parking area near the office. Appellant slid across the rear seat, exited the right rear door and walked into the motel office. Miller then decided to approach the occupants of the car “to find out who he [Mays] was, get some identification, see if he had any weapons on him” and “to see where he was *397 going in case these items was stolen.” Officer Miller drove into the driveway behind the Pontiac, accompanied by uniformed officers in marked patrol cars. As Miller approached the Pontiac on foot, Frieda Cowley slid across the back seat, exited the right rear door and headed for the motel office. Miller directed uniformed officers to detain her and the appellant, as he approached the driver Mays. He asked Mays to exit the vehicle, and Vera Staples remained in the front seat. After identifying himself to Mays and inspecting Mays’ driver’s license, Miller “patted Eddie Mays down for weapons to find out if he had any guns or knives or anything hidden on him.” Then, according to Miller’s testimony:

“[B]ecause Vera Staples was still in the vehicle, I shined my flashlight inside to see if there were any weapons available or ready inside of the car.
“I observed a part of a plastic baggie of marijuana in the back seat sticking out from a red towel.
“It was lying on the floorboard on the left, rear, right behind the driver’s seat, and it was just partially covered by a red hand towel.”

After Miller made these observations, appellant and Cowley were arrested for possession of marijuana. Upon retrieving the baggie of marijuana from the floor of the car, two other plastic bags were also discovered wrapped within the same red towel. One of the bags contained three balloons full of a powder which later proved to contain heroin; the other bag contained a condom which also contained heroin. A field test at the scene showed a positive reaction for the presence of opiates within the powder, and appellant and Cowley were also arrested for possession of narcotic drugs for sale. After the arrests, the vehicle trunk was searched and the stereo equipment, speakers, .22-caliber rifle, duffel bag, and women’s purse were retrieved. The purse contained a pair of men’s boxer shorts, tee shirt and yellow robe; these items were tried on by appellant prior to trial, and appeared to fit him properly. The purse also contained more plastic baggies, one holding syringes and incense and one holding a bag of about 35 balloons, a stainless steel knife blade, two spoons, a funnel, a burned bottle cap, two cotton balls with brown residue, a can of men’s shaving powder and tissue paper. Subsequent laboratory analysis revealed that the heroin contained within the condom was 8% pure and weighed 22.9 grams, while the three balloons contained a total of .66 gram of 8% pure heroin; Miller’s characterization of the substance within the third baggie as marijuana proved to be correct.

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Cite This Page — Counsel Stack

Bluebook (online)
581 P.2d 238, 119 Ariz. 393, 1978 Ariz. LEXIS 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mosley-ariz-1978.