State v. Torres

588 P.2d 852, 121 Ariz. 110, 1978 Ariz. App. LEXIS 684
CourtCourt of Appeals of Arizona
DecidedNovember 15, 1978
DocketNo. 2 CA-CR 1476
StatusPublished
Cited by1 cases

This text of 588 P.2d 852 (State v. Torres) 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. Torres, 588 P.2d 852, 121 Ariz. 110, 1978 Ariz. App. LEXIS 684 (Ark. Ct. App. 1978).

Opinion

OPINION

HOWARD, Judge.

Appellant was found guilty by a jury of transportation of marijuana. The trial judge placed him on probation for three years and incarcerated him in the county jail for ninety days as a condition of probation. He contends on appeal that the trial court erred in denying his motion to suppress and in allowing into evidence his statements to law enforcement officers. We do not agree.

The record shows that appellant’s vehicle was stopped by Officer Lopez for a speeding violation. Appellant got out of his vehicle and, upon request, gave Officer Lopez his driver’s license. When asked to produce the vehicle registration, appellant entered the vehicle on the driver’s side to get the registration out of the glove compartment. Officer Lopez went to the front door on the passenger side, which was locked, and asked appellant to open it. When appellant did, Lopez smelled the odor of marijuana coming from the vehicle. The officer then had appellant open the trunk, in which he found fourteen bricks of marijuana. Appellant was advised of his “Miranda” rights. He was told that he had the right to remain silent, that anything he said could and would be used against him, that he had a right to have an attorney present and that if he could not afford an attorney, one [112]*112would be appointed for him. Lopez then asked him if he wanted to talk to anybody and appellant said either “No, I don’t want to talk to anybody”, or, “No, I don’t want to see anybody.”

After they got into the patrol car and headed for the police station, Lopez, who was unsure whether appellant meant he did not want to talk to an attorney or did not want to talk to the police, said, “We have undercover agents that you can talk to if you want.” At that time appellant made no response. After they had traveled four or five miles without conversation, appellant asked Lopez what an undercover agent could do for him. Lopez told him that he did not know, that he could fix it up so he could see an agent and that it would probably be in his favor if he did so. Appellant agreed to talk to an agent.

After they arrived at the police station Lopez asked appellant where he got the marijuana. Appellant told him where he had picked it up and where he was supposed to make contact with the buyers. Lopez gave this information to an undercover agent who was summoned to the station. The agent asked appellant if his rights had been read to him and if he understood them. Appellant answered affirmatively. The agent then talked with appellant about where the load was going. He told appellant that if they were able to make an arrest of the buyers he would talk to the county attorney in his behalf. However, the agent made no promises to appellant. The load was taken to its destination but the buyers never showed up.

Appellant claims an illegal search occurred when Officer Lopez asked him to open the passenger door. He argues that this constituted an unlawful intrusion because the officer lacked probable cause to believe the vehicle contained contraband or that appellant had committed a crime other than a minor traffic violation. Officer Lopez stated that because many times a violator can have a knife or handgun under the seat of the car, the department’s unwritten safety policy is to follow a violator and keep him in view at all times. He said he asked appellant to open the passenger door for his protection. We believe that opening the car door served a legitimate purpose in assuring the officer’s safety. Since he had a right to make the request, his smelling the marijuana did not constitute a search.

Appellant contends his statements were inadmissible because (1) he was not told he had a right to the presence of an attorney during interrogation, (2) they were improperly induced by implied promises and (3) his invocation of his right to remain silent was not honored.

In Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the Court states:

“Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . . ” 86 S.Ct. 1626.

Federal and state courts have had occasion to rule on the adequacy of that part of the “Miranda” warning dealing with the right to counsel. Some federal courts have held that merely telling the accused that he has a right to an attorney does not suffice. United States v. Rizzo, 418 F.2d 71 (7th Cir. 1969), cert. den., 397 U.S. 967, 90 S.Ct. 1006, 25 L.Ed.2d 260; Lathers v. United States, 396 F.2d 524 (5th Cir. 1968). Informing the accused that he has a right to speak or consult with a lawyer has also been held to be insufficient. Chambers v. United States, 391 F.2d 455 (5th Cir. 1968). In Sanchez v. Beto, 467 F.2d 513 (5th Cir. 1972), cert. den. 411 U.S. 921, 93 S.Ct. 1548, 36 L.Ed.2d 314, the court held that warning the accused that he had a right to have an attorney appointed was defective. Telling the accused he has a right to consult with an attorney “anytime” has been also held to be defective. Atwell v. United States, 398 F.2d 507 (5th Cir. 1968). In Windsor v. United States, 389 F.2d 530 (5th Cir. 1968), the court held that Miranda was not complied with by telling the accused that he “. . could speak with an attorney or anyone else before he said anything at all.” [113]*113Since he was not told he had a right to have an attorney present during interrogation, the warning was held to be deficient.

State courts have also held that merely telling the accused that he has a right to an attorney does not comply with the constitutional requirements of Miranda. E. g., State v. Creach, 77 Wash.2d 194, 461 P.2d 329 (1969); Duckett v. State, 3 Md.App. 563, 240 A.2d 332 (1968). The rationale behind these cases is best expressed in Lathers v. United States, supra, at p. 535, where the court states:

“The Miranda warning must effectively convey to the accused that he is entitled to a government-furnished counsel here and now. If the words are subject to the construction that such counsel will be available only in the future, Miranda has not been obeyed. Although there is no talismanic or heraldic abracadabra which must be fulfilled, the offer of counsel must be clarion and firm, not one of mere impressionism. The words must asseverate with conviction that any accused can have a lawyer before speaking. Otherwise, the warning is delusory and the Miranda

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Cite This Page — Counsel Stack

Bluebook (online)
588 P.2d 852, 121 Ariz. 110, 1978 Ariz. App. LEXIS 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-torres-arizctapp-1978.