*1 magistrate ion interposed of a be requiring .officer and the citizen INC., CO., WHOLESALE ROOFING Petitioner,
warrant before a search is allowed. While it' strictly is and should be a enforced re- quirement, completely it is not inflexible PALMER, Superi D. Clerk of Wilson may, extraordinary rule but one that under or Court of in and for Arizona, Respondent. State exigent circumstances, and dispensed No. 10937. with: suggested “It has been that since the In Banc. applied only rule has been where there 15, 1972. Nov. grounds were reasonable to believe that Rehearing Denied Jan. imminent destruction or removal of ma subject terial to seizure threatened was * * * application merely [it] accepted principle that the Fourth preclude
Amendment search does ‘exigent
without a warrant in such cir (citations
cumstances.’ omitted) The
‘exigent exception circumstances’ to the requiring a search warrant independent permitting that a war arrest,
rantless search incident valid to a
(citations applicable and if it omitted) be immaterial that the arrest fol
would search,
lowed the or no that there was only inquiry
arrest all. relevant probable
would be whether was present
contraband was both threat ened with imminent removal destruction.”
Cip States, 343 F.2d res 1965). (9th Cir. totality
We believe that under the circumstances the fact reliable, informant drug
defendant was a known user and
dealer, particularly the fact that de stay place
fendant did not in one for a suf period time,
ficient the warrantless required
search reasonable. have To
the officer obtain search warrant probably
would have meant the de gone
fendant would have the time
the officer could have ttsed warrant.
Judgment affirmed.
HAYS, STRUCKMEYER, J.,C. and, HOLOHAN, JJ., con
LOCKWOOD
cur. *2 may any judgment of which
satisfaction
recovered,
gives se-
unless defendant
judgment:
curity to pay such
contract,
upon a
ex-
“1.
an action
press
implied,
payment of
for direct
or
money,
or is
contract is made
where the
payable
fully se-
and is not
in this state
’
by mortgage!
upon
or
or lien
real
cured
personal
pledge
personal
property or
of
secured,
or,
originally
property,
if
Nelson,
Kaplan and
W.
Jerold
John
has,
any act of
security
without
such
Phoenix,
petitioner.
for
plaintiff
person to
the se-
the
whom
or
County
Berger, Maricopa
Atty.,
Moise
curity
become
given,
valueless.”
Carter,
County
Deputy
Atty.,
William
And:
respondent.
Phoenix, for
of
Affidavit
for
issuance
12-1522.
Ҥ
of attachment
writ
CAMERON,
Chief
Vice
Justice.
justice
“A. The clerk of the court or
of
petition
special
in
This is a
for
action
pea.ce
the
the
attach-
shall issue
writ of
of
in
we are
nature
mandamus
which
upon receiving
ment
or
affidavit
respondent,
order the
Wilson D.
asked to
**
on
plaintiff
behalf of
Palmer,
Clerk of the
States
issue a
to
writ
Family
in the case
of Sniadach
Finance
garnishment
of
and
of
attachment
writ
View,
Corporation
Bay
of
pursuant
12-1521, 1522, and 1571
to
A
§§
1820,23
(1969)
S.Ct.
L.Ed.2d
.held
developments
of
.R.S
recent
in
Because
.
prejudgment
garnishment
procedures
and
of law
because it was a mat
field
wages
whereby a defendant’s
are frozen in
importance
ter
of
interest
garnishment
the interim
State,
throughout
accepted jurisdic
wages and the determination of the lawsuit
tion.
having
without the
to
defendant
a chance
Roofing
plaintiff-petitioner,
Whole-
prior
garnishment,
be heard
to the
violate
Inc.,
against
sale
an action
fil.ed
James
to the
the 14th
Amendment
Diehl,
Diehl,
Doe
E.
dba Diehl’s Con-
Jane
decision,
Constitution. As a result of said
Services,
Company,
struction
Consolidated
upon
this court
called
to
Inc.,
Casualty
and State Automobile &
Un-
constitutionality
garnishment
stat
derwriters,
expressed
as the result of an
in
utes
two cases:
open
pay-
the direct
account contract for
“
*
money.
Therefore,
filing
ment of
At the time of
we hold that
plaintiff-petitioner
procedure
complaint,
garnishment
wages
asked the
for
of
gen-
up
Clerk
the Court to issue a writ
this state does not measure
to the
of
of.
garnishment
Sniadach,
eral attachment and
standards
forth in
and that
writ
set
prior
prejudgment
refused to
the Clerk
the Court
is-
the issuance
.which
petition
special
for
wages
sue. The
action
writ of
there must
provision
be some
court resulted.
notice to the de-
hearing
validity
fendant and a
read:
Our statutes
plaintiff’s
claim.
property of
12-1521. Attachment of
Ҥ
defendant
[*]
[*]
[*]
[*]
[*]
emphasize, however,
filing
plaintiff, at the time of
“We
“A
that our hold-
thereafter,
any
complaint
may
prejudgment gar-
is limited to the
time
following
property
wages (as
nishment
cases have
was the
security
of Sniadach).
regard;
Termplan
defendant attached as
the United
Su
On
be-
the Court below went
maintains that
June
handed down its decision
yond
scope of the Sniadach
Fuentes v.
the matter of
Shevin
Par
procedure
therein
ruled that
when it
Cortese, 407 U.S.
ham v.
in attachments
must be followed
*3
which, by
32
in
four
(1972),
L.Ed.2d 556
property other
than
garnishment of
decision,
to three
Court held
agree,
that
wages.
and hold that
We
replevin
that the
laws in both
be
cases violat
question
portion
order in
must
process
ed the due
clause of the 14th
Termplan Inc. v.
vacated.”
270,
members of
Co.,
Amendment. Four
the court
Maricopa
105 Ariz.
68,
process
held that
the due
clause of
272,
(1969).
70
463 P.2d
gave
de
And:
right
opportu
fendant
to notice and an
prejudg-
“Appellee urges that we declare
nity
meaningful
to be
at a
heard
time
garnishment
in
ment
this case unconsti-
prior
meaningful
in a
to the actual
manner
deprivation
process
of due
tutional as a
property
seizure of the
involved.
It was
Fi-
Family
pursuant
v.
to Snidach [sic]
upon
opinion
basis of
the Fed
337,
View,
Bay
Corp.
395
nance
U.S.
eral
in
District
Arizona in the case
Court
1820,
(1969).
89
its Pa. 584 Ar vote. Madlem’s Arizona II, Rees, A.R.S., ticle (1883); 12 21 Putnam v. Ohio and the United States § Constitution, VI, R. provide R. Co. v. Concord Article (1843); Northern ; Ayres Ben United (1870) 166 States Constitution shall N.H. be the “su Another, sley, in ad law-of (1867). the land” and we are bound Cal. by question dealing interpreted by of an dition with court, Supreme though equally involved consti divided even may disagree of we provision respectfully for the concurrence in- tutional with those believe, however, terpretations. law, than the area of We do criminal for it is activity, touching it is unreasonable to ask that before area of intense ev- ery required we are to declare unconstitutional citizen. The case before us drama- legislature provide tizes the statutes enacted our with failure to direction and part resulting important suggests judiciar- chaos to an Federal and State law, responsibilities cannot commercial contract ies meet their un- speak changed.” with less some rules are subject. at least a voice on the highest I intend no disrespect for our court many when I indicate times in the Until such time as the United past recent that court has failed realize question Court decides this the burdens of uncertainty they have cast majority, a clear we will continue to e upon the state management courts. Good uphold th and attachment legal requires of our state’s defin- business statutes of State in cases wherein itive now. A half answers answer which wages are not involved. Cain Common requires guess high as to what the court Kentucky, Ky., wealth of S.W.2d really means, nothing does more than com- Reese, ; Fla., (1969) Florida v. 222 So.2d pound problems judicial manage- our (1969). ment. The issuance of the mandate will consti- *5 really ask for a clearer respon- tute an order of this court that the command before we declare an established dent, Palmer, D. of Wilson Clerk the law of our state unconstitutional dis- Court of issue rupt legal practices the business and the of gar- writ attachment and community. nishment in the entitled above action. granted. Relief LOCKWOOD, (dissenting) : Justice HOLOHAN, grave Although feel it is a J., I I concurs. dissent. ex- unconstitutional laws matter to declare HAYS, Chief : (concurring) Justice field isting in Arizona in the commercial quotation opinion A concurring from a many years, of for both the Constitutions of Chief Jersey Weintraub of New óf Ari- the and of the United States State Justice is apt most Although legal here. sub Consti- declare that the United zona ject opinion land, matter in that in the is crimi supreme law of tution is the field, nal expressed the ideas therein Supreme fit of interpretation Court of problems of though this case binding tai is therefore the United States lored therefqre In Jersey them. of State New it is a feel all the states. I of Funicello, Victor R. 60 at graver to declare matter invalid still N.J. 59-60, A.2d 55 at Chief Weintraub Su- by the United States law as announced said: preme Court. ex- merely for the my opinion that management It high among is “Judicial laws which we
present priorities. pediency upholding state being of The courts un- constitutional been considered upon them, able to meet feel have the demands a recent and valid before among understandable the sol- declaring Supreme Court proposal judi- vents would be a that the ques- otherwise, right .to ciary we have no rudimentary principles them borrow authority when of that Court from the tion the business world. The first a by more than considered has been good management must that man- matter decided and has agement manage. quorum of that Court shall A work force is a That matter by majority thereof. cannot be effective if it cannot know a Su- strictly jurisdiction the- how it is within to function. I. can think of no (cid:127) guidance vital; preme area in which- is more itself. Court ter Supreme into the decision. Cases such as these Congress nor Neither precedent; binding rule must be to be oth- has determined statute or held itself erwise, important “majority of areas constitutional what the Court” constitutes congressional law and remain purpose making its decisions enactments limbo, although finally de- binding generally, has until subse- each court “quo- quent opportunity, years to constitute action has an later clared six members perhaps, questions to re-examine rum”. All of the citations of the equal- presented. resulting is intol- here refer decisions of an mischief which, course, ly no divided court have erable. except case particular effect on the them, so far as the Su-
involved. None of concerned, une- Court is refer to an
qually which divided court
quorum. there which hold Those cases with
must be a a court deal
specific provi- statutory or constitutional states, applying sions of or federal
to inferior tribunals. BENSON, Appellant, Robert ques- Arizona, pointedly ignored resolution of the EYMAN, STATE of ex rel. Frank A. Warden, Appellee. Prison, Arizona State tion. No. 10715. agree that I cannot Court has right “guess” to “be what convinced” participate did not two who Banc. they *6 Shevin, supra, Fuentes would do if Nov. participated they had if should presented question in the future. a similar reasons, foregoing
For the I dissent.
STRUCKMEYER, (dissenting). Justice join dissent I in the Lock-
wood, emphasize point, but I would one term,
During the same October Shevin, supra,
that Fuentes v. was handed
down, opinions other of the eleven Court were decided Likewise, majority.
four-member
October 1949 and October sixteen
opinions decided a four-
United States were leading majority.
member
case of States v. United States Corp., 251 40 S.Ct. Steel by a four-member decided
L.Ed.
majority. important aspects
I cannot believe and federal all are not construed country simply because
other courts of en- Court did not
all nine members oiFthe