State v. Porter

550 P.2d 253, 26 Ariz. App. 585, 1976 Ariz. App. LEXIS 910
CourtCourt of Appeals of Arizona
DecidedJune 1, 1976
DocketNo. 1 CA-CR 1161
StatusPublished
Cited by3 cases

This text of 550 P.2d 253 (State v. Porter) 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. Porter, 550 P.2d 253, 26 Ariz. App. 585, 1976 Ariz. App. LEXIS 910 (Ark. Ct. App. 1976).

Opinion

OPINION

HAIRE, Chief Judge.

The appellant appeals from his conviction of robbery in Cause Nos. 83327 and 83424.1 Appellant was found guilty by the trial judge after a trial to the court based on departmental reports and the preliminary hearing transcript. Following a finding of guilt, the trial judge imposed a sentence of five to seven years imprisonment for each conviction to run concurrently.

On appeal appellant argues:

1. The initial investigatory stop of a co-defendant’s [Robbins] vehicle was unlawful ;

2. The search and seizure of the wallets from that vehicle was made without probable cause;

3. The confession of co-defendant Robbins was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);

4. The arrest of appellant was based solely upon the uncorroborated and untested statements of a co-defendnat acccom-plice and was therefore without probable cause;

5. The incriminating statements made by the appellant were the “fruit” of unlawful police conduct and should have been suppressed.

The appellant was arrested following the confession of a co-defendant. The co-defendant had been arrested earlier in a separate incident without appellant being present. The co-defendant, Robbins, implicated the appellant as an accomplice in several robberies. He gave the police a description of appellant and told them where appellant worked. The description given to the police matched that of a suspect in the robberies in which appellant was implicated by Robbins’ statement. Acting on this information, the police proceeded to appellant’s place of work and arrested him.

On appeal, the appellant argues that his arrest and subsequent confession must be suppressed because they are the fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963). Appellant premises his argument on the following facts. On August 29, 1974, a Phoenix police officer, Stevens, was directed to proceed to the area of Squaw Peak Park and told to be alert for possible armed robbery suspects. Stevens had been informed that an armed robbery had taken place earlier that evening at South Mountain Park. Officer Stevens was aware that a week prior to this an armed robbery had taken place at Squaw Peak Park which was followed in quick succession by an armed robbery at South Mountain Park. Officer Stevens was informed that the suspect vehicle involved in the South Mountain Peak robbery earlier that evening contained three white males, was a light colored Chevrolet Chevelle with loud pipes and that the suspects were armed. Officer Stevens stationed himself at the entrance to Squaw Peak Park, and later that evening observed the co-defendant Robbins’ car enter the park. The vehicle had loud pipes and contained three white males. However, the automobile was a dark colored Chevrolet Chevelle. Officer Stevens decided that he would make an investigatory stop. Upon doing so, and, upon shining his light into the vehicle, he noticed several weapons lying on the floorboard behind the front seat. Soon after the stop by Officer Stevens, Sgt. Garrigan arrived at the scene and assumed command. By this time, the suspects had been directed to leave the automobile and were separated for questioning.

Soon thereafter, Sgt. Garrigan entered the vehicle, searched the glove compart[588]*588ment, and found wallets belonging to the victims of the robbery which had occurred earlier that evening at South Mountain Park. At the time Sgt. Garrigan searched the vehicle, he was aware that two weapons had been found on the floor behind the front seat of the automobile, that a shotgun and rifle had been used in the South Mountain robbery earlier that evening, and that the suspect vehicle from the South Mountain robbery was a dark colored Chevrolet Chevelle rather than light colored as first understood by Officer Stevens.

THE INVESTIGATORY STOP

We note that appellant was at no time present during the stop or subsequent search of co-defendant Robbins’ vehicle on the night of August 29, 1974. As we understand appellant’s argument, it is in the nature of a derivative claim flowing from the alleged primary illegality of the stop, search, and arrest of co-defendant. We cannot help but observe at the outset that the facts of this case suggest that appellant was without standing to urge suppression of the evidence based on the alleged unlawful stop, search, and statements of his co-defendant. See, Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed. 2d 208 (1973) ; Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Wong Sun v. United States, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Lisk, 522 F.2d 228, 231 (7th Cir. 1975); State v. Elias, 111 Ariz. 195, 526 P.2d 734 (1974); State v. Vassar, 7 Ariz.App. 344, 439 P.2d 507 (1968). Since the appellant was not present at the time the vehicle was stopped, and it appears the vehicle was not his, we think that appellant could properly have been required to show the requisite interest in the property to invoke the protection of the exclusionary rule. However, this issue was neither argued below, nor briefed on appeal. We therefore do not reach the issue of appellant’s standing to object to the search and seizure of Robbins’ vehicle.

Appellant’s first argument on appeal, that the initial stop and detention of Robbins was unreasonable, is without merit. As stated earlier, the facts observed by the officers and information related to them by other officers and the victims of the robbery on August 29, clearly gave rise to a rational and reasonable suspicion on their part that criminal activity might be afoot. Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Ruiz, 19 Ariz.App. 84, 504 P.2d 1307 (1973); State v. Baltier, 17 Ariz. App. 441, 498 P.2d 515 (1972). As noted by this Court in State v. Eliason, 25 Ariz. App. 523, 544 P.2d 1124 (1976), “The reasonableness of the governmental invasion of the citizen’s personal security is the central inquiry in an investigatory stop such as this . . . .” 544 P.2d at 1127.

While appellant makes much of the fact that the vehicle stopped by Officer Stevens was a dark colored rather than a light colored Chevrolet Chevelle, we think that the circumstances taken as a whole were clearly sufficient to furnish a rational foundation for the initial detention of Robbins’ vehicle. See e. g., State v. Martinez, 26 Ariz.App. 210,

Related

State v. Brooks
618 P.2d 624 (Court of Appeals of Arizona, 1980)
Merrick v. State
389 A.2d 328 (Court of Appeals of Maryland, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
550 P.2d 253, 26 Ariz. App. 585, 1976 Ariz. App. LEXIS 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-porter-arizctapp-1976.