*1
STATE of BUCCINI, Joseph Appellant.
Richard
No. CR-90-0124-PR.
Supreme Arizona, Court of
En Bane.
April 18, 1991. *2 Rulе 31- L.Ed.2d See 19, Ariz.R.Crim.P., jur- 17 A.R.S. We have Const, pursuant to Ariz. art.
isdiction 5(3) and A.R.S. 12-120.24. § § AND PROCEDURAL HISTORY FACTS Shortly midnight May a after on carport of Ho- pipe exploded bomb Although Tucson home. ward Moore’s explosion, he loud did not Moore heard a damaged property realize that his had been following morning. the Moore then until Earn telephoned police, and Officer dispatched home to was to Moore’s secure a The report.1 the area and make bomb damaged carport and Moore’s automo- Moore called Earn’s attention to a bile. it,” “drop was note that read which stuck car window the driver’s door. Earn could have asked Moore who been replied responsible. Moore that he had minor been involved in a traffic accident six by Canyon a van weeks earlier with owned van, Ranch. The driver Richard Buccini, apologized pay and offered to for damagе himself. asked Moore not He report police, accident as he to to jeopardize afraid a citation would Woods, Atty. Grant Gen. Paul J. However, bystander job. already a had his Ramsey, At- McMurdie and Diane M. Asst. arrived, police. police When called the Phoenix, tys. Gen., appellant. for partially Buccini claimed that Moore was Grayson Michael B. and Robert D. Nel- report wrote a on the fault. officer son, Tucson, for appellee. not cite accident but did Buccini Moore. told Earn that his own insurance Moore OPINION company paid damage him the had for but FELDMAN, Vice Justice. Chief to from planned ask reimbursement Canyon say Moore did not Ranch. review, petitioned for as- Richard Buccini this or that he had lost his Buccini knew serting appeals that the erred court of incident, job of the nor did he as result reversing superior suppress- court оrder any report further contact with Buccini. ing evidence seized search warrant. on a might Moore also Earn that the threat told Buccini, State v. Ariz. position president relate his as (Ct.App.1990). granted review We Association Veterinarian because it was clarify appropriate used standard to be job investigate against his part of claims by an suf- appellate reviewing not, however, Moore could ficiency veterinarians. of a affi- redrafted search warrant any identify particular situations could procedure davit under established Delaware, threat. Franks 98 S.Ct. relate 438 U.S. Report. following
1. The facts taken State’s Officer Karn’s are from the C, Opposition Suppress, to Motion to Exhibit Karn then called the search, Bomb Unit at During gun Kadous pow- found Tucson Department, Police and Detectives der types and certain of fuses. Buccini responded. Kadous and Weadock Kadous explained formerly employ- spoke Moore, and Weadock photo- ee of Jensen’s Custom Ammunition and *3 scene, graphed the and collected the evi- that he hobby reloading had a ammuni- dence, while Karn interviewed the sur- mentioned, tion. apparently Buccini also rounding neighbors. neighbors Several search, even before the that he had used explosion. had heard the noise Most cannon fuse obtained try at Jensen’s to estimated that it had occurred between mothballs, detonate bleach and and that he previous 12:00 and night. 12:30 One friend, Weisel, and a Carl at one time used neighbor stated that the noise had occurred go out grenade to dirt caves and set off p.m. at 11:56 and that he had been alarmed simulators. immediately telephoned and 911. Karn’s Buccini employed Canyon was still at report includes the fact that the call was Ranch and had to p.m. be at work at 2:00 made, along with its documenting number. day, so the search terminated after At noon May about Kadous possession Kadous took gun powder apartment went to Buccini’s to interview and fuses. Kadous admits that Buccini only him. Kadous was aware that Buccini completely cooperative and even as- and Moore had been involved an automo- (HT 44.) sisted Kadous as he searched. bile accident in March and that Moore could Following the consent search and Bucci- anyone not think of but Buccini who could work, departure ni’s Kadous made a have had a reason to threaten him. At the telephonic request for a search warrant.2 interview, time of the appar- Kadous was sought He apartment to search Buccini’s ently still uncertain about the exact time of any “materials,” “tools,” and car for bombing, although spoken he had “equipment” that could be used to “con- Karn possibly report read her disclos- explosive struct an device.” Kadous de- ing the existence of the 911 call at 11:56. May scribed the March car accident and the (Transcript Hearing Sup- on Motion to bombing explained incident. He press (HT).) statement —Kadous’ had interviewed Buccini and that Buccini cooperative Buccini was when Kadous him told “he was out around at at the him, approached and invited him in. Ka- time of bombing and did not do it but interview,” dous “pretape conducted a any people did not have other provide disputed, content of taped which is and a alibi where he was at.” He said that Bucci- undisputed interview. It is that Buccini search, ni during had consented to a which having any denied involvement he discovered the gunpowder. fuses and bombing and stated he was at the He сoncluded that searching “while Harp and Shamrock Bar until between residence Mr. Buccini definitely in a 12:00 and night, giving 12:30 that hurry inferring and was that I leave the names of at least two witnesses who could go residence so that he could to work at (HT verify 26.) this. Buccini then stat- 1400 hours.” He complete stressed that a ed bar, that after he left the he to his went search had not been done and that he be- parents’ house, where he had a sandwich lieved that evidence would be concealed or spoke with his sister and father. He destroyed if the residence was not searched parents’ left his house at approximately immediately.3 1:00 a.m. and went home. telling
After Kadous superior judge, sitting about the events A mag- court as a 8, May signed giving (see 1-215(13)), Buccini a form Ka- istrate A.R.S. issued the § dous search apartment. warrant, consent his and Kadous conducted a 13-3914(C), magistrate may 2. Under A.R.S. § 3. The relevant text of the search warrant affida- take the affiant’s oral statement under oath Appendix opinion. vit is set forth in A to this telephone. This statement is recorded and purposes deemed to be an affidavit for of is- suance of a search warrant. car, apartment standard to Buccini’s trial court used an incorrect search of items of yielded judge several evidence. affidavit and which the contents testimony Kadous’ be- Following suppress- Detective therefore abused its discretion grand jury, County a Pima Buccini fore ing the evidence. on several counts.
was indicted
correctly noted
appeals
to suppress
Buccini filed motion
may challenge the veraci
a defendant
pursuant to the search war-
evidence seized
in an
ty of factual statements contained
ground that Kadous omitted or
rant on the
of a
supporting the issuance
war
misrepresented material facts
the affida-
Buccini,
Ariz.
rant.
Specifically, Buccini claimed the affi-
vit.
Franks,
(citing
at 912
*4
material facts as to
davit omitted
Buccini’s
’
test,
2674).
two-pronged
Applying Franks
alibi, falsely stated there were no
wit-
alibi
assumed,
deciding,
the court first
without
nesses,
falsely implied that
at-
and
Buccini
proved
Buccini
the existence of a
that
had
tempted
the search
all
to terminate
before
requisite
falsehood
mental
made
uncovered,
giving
was
thus
the evidence
intent,
state, i.e.,
knowledge,
or reck
to
reason
think that Buccini would
Kadous
disregard. Turning
less
to Franks’ second
destroy
or
evidence. Buccini
later conceal
the
after
prong,
court held that even
the
if Kadous had not made these
claimed that
to
the
affidavit was redrafted
exclude
false
misrepresentations,
material omissions and
include
information and
the omitted materi
magistratе
prob-
would not have found
the
information,
is
al
“it
clear that
able cause to issue the
warrant.
these items
cause existed to believe that
evidentiary
The
court ordered an
trial
apartment
would be found in Buccini’s
and
hearing
suppress.
the motion
Buccini
to
therefore,
Concluding,
automobile.” Id.
the
extensively
and Kadous testified
at
that the trial court had
its discre
abused
hearing. At the
of
testimo-
conclusion
the
tion,
suppression
the court
the
or
vacated
ny, the
granted
trial court
the motion to
the
der and remanded
case. Id. 165 Ariz.
suppress. The trial
Ka-
judge found that
111,
judge falsely also found that affidavit A. The Assert Abuse of Dis- Parties that implied uncooperative. that Buccini was Applies cretion Standard Instead, should have included the affidavit statement that Buccini was truthful argues ruling Buccini that a court’s trial cooperative throughout investigation. suppress upheld on a motion to must be judge The that once the false concluded discretion, absent abuse that its and the omitted information was eliminated findings underlying of fact the motion to added, the affidavit material informatiоn accepted suppress clearly must be unless probable cause.4 was insufficient to show (PR) at erroneous. Petition Review Buccini, According motion, 14-15. the trial
Upon the case was the state’s finding court’s that redrafted search The state prejudice. dismissed without did not establish suppression then order warrant appealed from the (see 13-4032(7)), essentially alleging that factual determination. A.R.S. § opinion. Appendix this 4. The court’s is set forth in B to trial order Thus, appeals PR 14. the court Carter, erred rant affidavit. State v. 145 Ariz. redrafting then the affidavit and revers- (1985); 700 P.2d State ing “the factual determinations the trial Poland, Ariz. judge determining probable cause.” PR Carter, In we also that held where the falsehoods or were omissions reckless, re- deliberate court must
Agreeing appropriate that inquiry affidavit deleting the trial draft the false- whether court abused its discre- tion, claims, first, the state аdding the trial hoods omitted material did not find that Kadous moving intentional- facts before on to the knowingly, ly, recklessly mag- lied to the cause determination. 145 Ariz. at Opposition Second, istrate. to PR 5-6. judge at 496. trial case if even such falsehoods are assumed to clearly redrafted the accord- and deleted exist from the also, Carter, ance with Franks and we redrafted affidavit contains facts show assume, determining followed law probable cause. the misstatements and omissions requisite material fact were made with the Findings B. Review of a Trial Court’s at a mind, remaining state of before *5 Hearing Franks probable facts to insufficient establish 1. Allegations to Pertaining Falsity cause.5 of Averments appeal, On different standards are Franks, In Supreme the Court held used to the trial court’s as findings review a that defendant is a hearing entitled to to knowing, to whether the affiant included a challenge a search warrant affidavit when intentional, or reckless misstatement of (1) he shows knowingly, that the affiant fact the and whether redrafted affidavit intentionally, disregard or with reckless for probable establishes cause. A trial court’s the truth included a false statement the finding deliberately on whether the affiant (2) and the was false statement included misstatements of law or excluded necessary finding probable of cause. determination, is a material facts factual 155-56, U.S. at 438 98 at 2676. The S.Ct. upheld “clearly unless erroneous.” United must prong defendant first establish the Fawole, (4th 1141, States v. 785 F.2d 1145 by test a preponderance evidence Cir.1986); Elliott, United 893 — States v. may before court false set the material (9th Cir.), 220, denied, F.2d 222 cert. and remaining aside view the affidavit’s -, 268, 111 U.S. S.Ct. 112 224 L.Ed.2d
content to see whether it is sufficient to (1990); Dozier, probable 156, establish United States v. 844 F.2d cause. at Id. 98 701, Cir.), (9th denied, at If S.Ct. 705 cert. affidavit then insuf 488 cause, 927, 312, ficient to probable (1988); establish 102 “the 109 S.Ct. L.Ed.2d 331 Jenkins, 1075, search warrant must be voided and the v. United States 901 F.2d — Cir.), fruits of the (11th denied, U.S.-, search excluded the same 1079 cert. lacking extent as if 259, cause was (1990). 112 111 L.Ed.2d 216 This the face of the affidavit.” Id. general standard is consistent with the holding body of review for law clear error
2. Nature
the Falsehood
applicable
appropriate
legal
where the
stan
test,
provides
strictly
This
dard
for a
court has followed Franks when
factual
considering challenges
the truthful-
such as
as to
state mind. See United States
1195,
(9th
ness
factual
in a search
McConney,
statements
war- v.
728 F.2d
judge’s
explicitly
ruling
prong.
5. The
state
order did not
that
Franks’ second
under
Franks
knowingly,
the false
in-
averments were made
thoroughly
argument
explicitly
discussed at
but,
tentionally,
recklessly
given
that the affi-
judge.
addressed
trial
In
HT at 3-7.
swearing
ant both knew the correct facts while
suppressing under
prong,
Franks’
second
to fаlse facts
facts
and omitted other
judge necessarily
trial
considered and resolved
knew,
Also,
inescapable.
the conclusion seems
the issues under the first.
explanation
judge’s
there is no other
for the
Cir.),
denied,
824,
redrafting
search warrant
469 U.S.
105 S.Ct. Franks
cert.
101,
the material misstate-
L.Ed.2d
exclude
the relevant omitted
ments and include
case,
notes,
Buccini
In this
as
now determine whether
facts. We must
unique position
judge
trial
was suffi-
redrafted search warrant
credibility
judge
and determine
Kadous’
probable cause.7
cient to establish
he
notice of material
that
that was on
facts
entirely
he either misstated
omitted
Issue
3. The Probable Cause
The
from the affidavit.
Court in Franks
apparently
appeals
re
showing
stressed that
probable cause de
the trial court’s
viewed
“truthful, in the
cause must be
sense that
of discretion
termination under an abuse
put
forth is believed or
information
Buccini, 165 Ariz. at
standard.
accepted by
appropriately
the affiant as
Although
has
P.2d at 912.
this court
never
at
true.” 438 U.S.
98 S.Ct.
2681. It
issue,
we believe
expressly considered
Buccini
Kadous
is clear that
told
of his alibi
proper
novo
is the
standard
that de
review
several alibi witnesses. The
named
finding
as to
to review
trial court’s
hearing
also
evidence at
showed
affida
whether a redrafted search warrant
employed
knew Buccini was still
Kadous
cause.
vit is sufficient to establish
Canyon
he
Ranch and knew that
had to be
See,
222; Dozier,
Elliott,
e.g.,
893 F.2d at
Therefore,
day.
at work that
the evidence
705;
844 F.2d at
United States Grand
supports
judge’s implicit
the trial
Cir.),
(9th
staff,
F.2d
cert.
recklessly6
misstated
Kadous
least
States,
sub
Brown
denied
nom.
v. United
by swearing
facts
under
material
oath
484 U.S.
108 S.Ct.
go beyond the facts of the case and consid
applied
the time he
for the search warrant:
legal principles
er the “abstract
that inform first, Moore,
bombing,
the victim of the
had
jurisprudence.”
constitutional
Id. Other
been involved
a minor traffic accident
state courts follow the rule of de novo with Buccini several weeks before the
See,
Rubio,
e.g.,
review as well.
State v.
second,
bombing;
reading “drop
a note
it”
873,
115 Idaho
(App.),
P.2d 537
rev.
vehicle; third,
was found on the victim’s
denied,
509,
117 Idaho
make an
device. Buccini never
Application
the Probable Cause
in
denied that he had worked
an ammuni-
Standard
supply
kept
tion
store and that he
such
reloading
items
connection with his
hob-
In undertaking de novo review of
then,
by.
quarrel,
We have no
probablе
cause determination under
appeals’
court of
statement that there was
apply
redrafted
must
we
probable cause to believe that such items
standard
by
articulated
the United States
Buccini,
would be found
the search.
Supreme
Gates,
Court in
462
Illinois v.
110,
" The affidavit recounts the fact that Buc- engaged in being judged by the officer in a traffic cini and Moore were involved enterprise of fer- competitive the often There was no that the accident. evidence reting out crime. encounter was hostile or that Buccini later 10, 13-14, 333 U.S. 68 S.Ct. any threatening toward evinced behavior L.Ed. 436 Further, there Moore. was no evidence conclude, therefore, that the redraft- We reading “drop that the note it” tied in provide probable ed affidavit does not any way alleged to Buccini. It is not in the support cause to the issuance of the war- affidavit or otherwise that Moore or his rant. The redrafted fails to show any type proceed- insurer had instituted ings against connecting Buccini or that Buccini was Buccini or Bucci- Thus, any aware of threat to do so. ni’s home with the crime. While it shows phrase “drop it” seems to have little rele- possessed property type vance when related to an incident that oc- crime, might connected with the it also be short, curred earlier. In the affida- weeks possession explained that this shows that, vit does not show so far as Buccini any is not refuted facts cited knew, anything “drop.” Moore had Further, the redrafted affidavit affidavit. crime, and, again, alibi, then, shows an alibi for the relating
The facts
to Buccini’s
provides
indicating
no facts
were critical to the
cause determi-
the affidavit
possibly
nation.
If Buccini had firm
alibi for
the alibi to be untrue or
untrue.
bombing,
time of
no
there would be
materiality
false
Because the
in his
basis
believe that
items
home
statements or omissions is reviewed de
bombing,
were connected to the
and there-
novo,
any speciаl
need
defer
we
not accord
fore no
cause.
facts indi-
Absent
*8
judge’s findings
to the trial
in this
ence
untrue,
cating that the alibi was
we cannot
regard.
Grandstaff,
false,
longer any
there is no
reason to
drafted
support
sufficient to
give deference
finding.
to that earlier
*9
probable
Thus,
cause for the issuance of a
when a court
reassesses a search
Therefore,
allega-
warrant affidavit with the
warrant.
we vacate the
false
excised,
tions
marginal
a “doubtful or
appeals’ opinion
and affirm the trial
McDaniel,
156,
People
explosives
purposes;
16 Cal.3d
127
tion to use
for criminal
Cf.
467, 478,
843,
(in
Cal.Rptr.
545
854
a bomb
defendant’s car was seen in the immediate vicin
case,
ing
support probable
affidavit found to
ity
explosion;
of the
defendant
told officers
cause determination under search warrant for
experienced
after his arrest that he was
following
defendant’s car where it included the
explosives
might
use of
and that there
be some
being
facts: defendant was identified as
trailer which was later
at the
car),
denied,
847,
explosives in his
cert.
U.S.
429
bombed;
defendant was
131,
(1976).
97 S.Ct.
559
prudent
liquor
is
suppressing
court’s order
the evidence ob-
man to believe
illegally possessed
under the search
in the automobile to
tained
warrant.
be searched.
GORDON,
MOELLER, J.,
C.J., and
States, Husty v. United
700-
concur.
240, 241-42,
(1931)
Probable cion. Facts that would cause the officer to cause, however, dealing probable In investigate further from the matter differ very implies, as the name we deal with support facts that technical; probabilities. These are not case, cause. In this absent the false state- they practical are the factual and consid- ments, supported only the affidavit a mere of everyday erations life on which rea- suspicion of defendant’s connection to the men, prudent legal sonable tech- pipe bomb. nicians, proof act. The standard of questioned Defendant’s accordingly actions when be- correlative to what must be important. cooperation came His proved. favor, point though authorities is a in his States, Brinegar v. United 338 U.S. not conclusive. The inference the affida- 1302, 1309, 1310, L.Ed. vit, cooperate the defendant did not police, might, if wanted avoid To it is not neces- show true, provide with the miss- sary arresting officer should ing prudent link to man to ra- warrant legal have had before him evidence tionally believe that there was enough if suspected act. It is *10 causе to issue the warrant. apparent come to facts which have capacity his attention are sufficient in the circum- Because the defendant had the stances, bomb, reasonably pipe capacity to lead a discreet and to make a he no community, shared others in the doubt stances that he could not have committed ques- made the in charged does not mean he bomb offense. Black’s Law Dictio- proceeded (6th 1990). tion. The officer should have nary 71 ed. point investigate the matter to the investigating At the time the officer sub- either found or excluded oral, telephonic mitted the affidavit re- suspect. The good defendant as a officer’s warrant, questing police a search be- that defendant made faith belief the bomb exploded May lieved that the bomb enough. is not Probable cause exists when a.m., around 12:30 about the same time facts and circumstances known Buccini, according to the redrafted person that a officer were such reasonable affidavit, parents’ arrived at his house af- defendant committed could believe leaving Harp ter and Shamrock Bar. crime, possession or was evidence that This information not foreclose all does connect defendant to the crime. would guilt, suggests probability but instead 80 S.Ct. at Henry, 361 U.S. opportunity plant that Buccini had the Furthermore, I note that when an affidavit way bomb on his to see his father and part, it knowingly is false tends to infect simply sister. The redrafted affidavit con- affidavit and makes the state’s whole investigating firms the officer’s ex- beliefs
burden more difficult.
affidavit;
pressed
original
Buccini
I would affirm
decision
trial
fact “out around at
at the
court.
bombing”
time of the
and “did not have
any other” witnesses
could account
who
CORCORAN, Justice, dissenting:
for his actions from the time he left the
because,
respectfully
I
dissent
even when bar,
is
which
located near the victim’s resi-
the affidavit is redrafted to exclude the
dence,
parents’
until he reached his
house.
false information and take into account the
assume,
therefore,
majority
The
cannot
“alibi,”
omitted
sufficient evidence exists
that the
would have altered his
support
a reasonable
ruling
police
had the
recounted Buccini’s
cause.
story in more detail.
test, probable cause ex-
Under the Gates
person
A
could
also con-
reasonable
have
person
ists if a
would conclude
reasonable
cluded at the time the search warrant was
sought
“that the items
are connected with issued that at
least some of the items
they
activity
criminal
and that
would be
illegally
seized in the consent search were
place
found at the
to be searched.” State
possessed, and therefore connected with
Carter,
Ariz.
process
reloading
activities. The
(1985).
majority
admits
The
require
ammunition does not
cannon or
cause to believe that the seized items would safety
purchased
fuse. Such fuse
and
search,
to ac-
be found in the
but refuses
purpose
triggering
one
used with
mind—
knowledge
sought
con-
that the items
are
explosive
manufacturing
devices.
activity
nected
because it be-
with criminal
fireworks,
possession of small
not to men-
(1)
negates any
lieves
that Buccini’s “alibi”
powerful
tion the more
bleach/mothball
responsible
basis to think he was
charges
grenade
simulators described
(2)
gunpowder and
bombing, and
that the
strictly regu-
in the redrafted
are
question
“inherently
fuses in
crimi-
are
lated under Arizona statutes. See A.R.S.
nal.”
sale,
(prohibiting
36-1601 to -1608
§§
whereabouts,
use,
fireworks);
possession
any
or
explanation
Buccini’s
of his
howеver,
(prohibiting
13-3101 to -3104
the mak-
“Alibi” is a Latin
is not an alibi.
§§
ing
“prohibited
possession
weap-
term
or “in another
meaning “elsewhere”
bombs,
Hubbard,
143, on[s],” including
place.”
explosives,
gre-
Mo.
State v.
nades,
In a crimi-
or a combination of materials de-
S.W.2d
signed
making
proceeding,
nal
refers to a defense
or intended for use
“alibi”
plea
converting
prohibited weap-
a device into a
that the defendant was at a differ-
on).
place
Buccini does not claim authorized
ent
so remote or under such circum-
*11
state,
permitted
municipal,
under
or
with a Richard Buc-
use
involved an accident
36-1605,
paying
federal
13-
cini. Buccini insisted on
for the
laws.
See §§
short,
3102(C)(3).
dealing
job
are
damage
In
we
so that he would not lose his
as
gun-owner
simply
Canyon
who
Ranch Re-
with a
reloads am-
a chauffeur-driver for
hobby. Rather,
have,
anyway
for a
and a
munition
we
sort. Police were called
least,
explosives
day,
an
very
report
May
enthusiast
made.
this
On
only collects
parapher-
who not
demolition
1130 hours I made contact with Richard
nalia,
enjoys improvising
setting
residence. He invited me
but
Buccini at his
regarding
inci-
off
bombs.
and I interviewed him
this
probation
dent. He stated that he was
dissenting, I do not
By
any po-
condone
he works
Canyon
Ranch Resort where
attempt
sway
magis-
lice officer’s
he
involved in
because of the accident was
probable cause
trate’s
determination with
as
as another vehicle accident that
well
false statements or material omissions. At
occurred a
after the March 31 acci-
week
however,
juncture,
propriety
out
dent. He also stated that he was
conduct is
officer’s
immaterial. When the
bombing
around at
at the time of the
finds,
case,
as in this
that an affiant
any
and did not
it but did not
other
do
have
knowingly, intentionally,
in-
recklessly
рeople
provide
an alibi where he was at.
cluded a false statement or omitted rele-
sign
I asked him if he would
a consent to
facts,
vant
the issue
becomes whether
search form which he did at 1230 hours.
necessary
false or omitted information was
to the
cause.
During
gun powder,
Franks
the search I found
Delaware,
154, 155-56,
safety
green
fuse and
cannon fuse which
2674, 2676,
APPENDIX A complete seized. A search was not done of the residence or vehicle. It is believed SEARCH WARRANT AFFIDAVIT may concealed or de- evidence be pipe May On 8th at 0030 hours a bomb stroyed immediately. if not searched garage placed a Howard APPENDIX B Moore on 9086 E. Holmes. The device was garage causing damage detonated TRIAL ORDER COURT’S and the victims’ vehicle. Also attached to THE the car was a note which stated to COURT FINDS that the statement window Mr. Moore that the defendant “did not “drop it.” An interview with any people provide revealed that on March 1988 he was have other an alibi
that on March 1988 he was involved an accident with a Richard Buccini. Bucci- where he was at.” is false. THE COURT ni paying damage insisted on for the so FURTHER FINDS that the affidavit that job he would not lose his aas chauf- should have included the information that feur-driver for Canyon Ranch Resort. Po- the officer had at the time which was that lice were called anyway report and a was defendant had he at the “Harp stated made. May On day, at 1130 hours during part and Shamrock Bar” of the time I made contact with Richard Buccini at his question he had listed and that alibi residence. He invited me in and I inter- Nanna, Dwayne among including witnesses him regarding viewed this incident. He Furthermore, the officer others. should probation stated that he was on Canyon at had, ap- have listed that the defendant Ranch Resort where he works because of 12:30, proximately gone parents’ to his the accident he was involved as well as home his father and and that sister had another vehicle accident that occurred a presence noted his in the residence at that week after the March 31 accident. He also time. stated that he around-at-night was out THE COURT FURTHER FINDS that bombing the time of the and-did- not do it deletion of with the the false statement and -any people but did not have other pro- statements, the inclusion of the alibi that vide-an- alibi where he was at. He stated Judge prompted the would have been Harp was at the and Shamrock inquire police further of the officer as to Bar on the bombing, investigative regard his efforts with to ver- this, named witnesses who verify could ifying presence of the defendant with Nanna, including Dwayne among others. the alibi witnesses. He also par- stated that he went to his ents’ home approximately 12:30 and THE COURT FURTHER FINDS that that his and sister had noted his implication inclusion of the father presence in the residence I at that time. rushing police defendant was officer in sign asked him if he would a consent to Rather, his search was incorrect. the offi- search form which he did at 1230 hours. cer should have included a statement that was, fact, cooperating defendant During gun powder, the search I found throughout with the voluntary officer safety green fuse and cannon fuse which search, and that it was the officer who was consistent with the fuse used on the concluded the explosive garage search based on his own device found at the area. knowledge go searching got that the defendant had to to While he stated that he work day. items such as the cannon fuse to make an improvised explosive using device bleach Accordingly, THE COURT FINDS the and mothballs which he had learned in a remaining is insufficient to show publication and with a friend of his at Can- probable cause and yon Ranch. He also stated that he re- IT suppressing IS ORDERED all fruits some military paraphernalia ceived and ex- search. plosives year from a Carl Weisel who last Minute Entry, March Departmеnt the Tucson Police conjunc- tion FBI investiga- conducted an APPENDIX C tion in possession which he was found in REDRAFTED SEARCH military explosives. ordnance and Those AFFIDAVIT WARRANT were also searching confiscated. While May On pipe 8 at 0030 hours a bomb was Buecini-was-definitely residence Mr. in a placed in garage of a Howard Moore on hurry-and inferring I leave the 9086 E. Holmes. detonated The device was go residence-so -that -he-could to work at and the vic- n 1400hours. The search was concluded and causing damage garage items—aforementioned—were—seized, tim’s vehicle. Also attached to the car the— window was a “drop note which stated to cooperative throughout Buccini was it.” An interview Mr. revealed I with Moore search. concluded the search I because work at go that Buccini had to knew *13 items hours. The aforementioned complete A search was were seized. It is
done on the residence or the vehicle. may the evidence be con-
believed destroyed if immedi-
cealed or not searched
ately. Arizona,
STATE
Appellee/Cross-Appellant, BARGER,
Kriss Landon
Appellant/Cross-Appellee.
No. 1 CA-CR 89-1524. Arizona, Appeals
Court of 1, Department
Division D.
Oct. 1990. May
Review Denied