STATE of Arizona, Appellee, v. Alva COOK, Appellant.
No. 3519-PR.
Supreme Court of Arizona, In Banc.
April 25, 1977.
564 P.2d 877
Ross P. Lee, Maricopa County Public Defender, Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
GORDON, Justice:
Appellant was convicted in a jury trial of first degree burglary (in violation of
Sometime between thе hours of 5:30 p.m. September 10, 1974 and 9:00 a.m. the following morning, a burglary occurred at an office (Apartment B) on North 9th Place in Phoenix, Arizona. Items taken included a typewriter, record books and miscellaneous medical equipment used in paramedical examinations for insurance companies. Officer Sheeve of the Phoenix Police Department took the report.
Appellant undressed the victim and himself; the evidence is uncontroverted that he attempted to rape her, but did not. While in appellant‘s apartment the victim saw items which she recognized as property from the office robbed.
Thereafter appellant forced the victim to drive him various places. When they returned to the address on North 9th Place, the victim ran to the office and was let in by her employer. Neither she nor the employer saw where appellant went after her escape.
The first officer was dispatched to the address on North 9th Place at approximately 12:37 p. m. When he arrived, the officer talked with the victim for “[approximatеly 30 seconds.” The victim indicated the location of appellant‘s apartment as well as the fact she had seen items in a drawer which she identified as stolen from the office. The officer testified at the suppression hearing that he asked the victim if the suspect was in the apartment, and that she said she did not know but she thought he was still inside.
This officer, John Hanley, went to appellant‘s apartment and entered.1 He testified that he knew immediately that appellant was not there:
“Q. At what point of time did you realize there was no one in the apartment?
“A. After I had been in there about ten seconds. It‘s an extremely small apartment.”
Officer Hanley saw a typewriter, later identified by the employer as having beеn stolen from Apartment B, in an open closet. Hanley had heard a police report earlier that day concerning the burglary and the property taken, he testified that he felt the machine he saw in appellant‘s apartment was the stolen one.2
Hanley searched the rest of the apartment “for identification” and found some of the stolen property in drawers, as the victim had related.
Officer Sheeve, who had originally investigated the burglary, arrived after Officer Hanley and searched Apartment C. He, too, came across the drawer of stolen property. Sheeve saw appellant looking into the apartment from outside the kitchen window. Sheeve gave chase and arrested the suspect thereafter identified as appellant.
Officer Hanley advised appellant of his Miranda rights3 and obtained a valid waiver. Hanley asked whether appellant knew why the Officer was there, and he testified that appellant said “Yes, I did a rape and a burglary, I‘ll sign a confession.”
At the police station appellant was again advised of his constitutional rights and made confessions concerning the kidnap, attempted rape, and burglary.
The first issue before us relаted to the process by which defendant‘s competency to stand trial was established.
On October 24, 1974, defendant made a motion for examination of his competency pursuant to
On December 16, 1974, a stipulation was filed,5 signed by the Deputy Public Defender and Deputy County Attorney. By minute entry on December 13, 1974, the trial judge specifically found that defendant was competent to stand trial and that he understood the nature of the proceedings against him. See
Appellant‘s trial began January 9, 1975. Before jury selection his attorney again raised the issue of competency to the court. Counsel for both sides agreed tо proceed with jury selection before competency was reviewed. In chambers, after jury selection, appellant‘s attorney expressed the belief that psychiatric examinations conducted in October and November of 1974 might not reflect appellant‘s current ability to understand the nature of proceedings against him, and that appellant‘s psychiatric condition had deteriorated. At that time, the court asked appellant if he understood the crimes he was charged with, and he responded “[k]idnapping, attempted rape, attempted armed robbery, burglary.” The court further questioned appellant, and both sides agreed to proceed with trial pending psychiatric rе-examination.
One of the court-appointed psychiatrists examined defendant the morning of January 10, 1975. Later in chambers he expressed the opinion that appellant‘s condition had not changed significantly since the October, 1974 examination, and that appellant remained competent to stand trial. Neither attorney questioned the psychiatrist.
Appellant contends that he was denied procedural due process when the issue of his competency to stand trial and aid in his defense was decided on the written psychiatric reports submitted by stipulation. He also alleges that his right to be present was abridged by the discussions held in chambers after commencement of the trial.
We recently rеsolved the issue of waiver of appellant‘s presence at competency-related hearings in State v. Blier, 113 Ariz. 501, 557 P.2d 1058 (1976). Since these facts fall within our holding in Blier, supra, appellant‘s allegations of error must fall. In Blier we were concerned with the presence of “* * * any indication in the record that the defendant is dissatisfied with his legal representation.” 113 Ariz. 503, 557 P.2d at 1060. We find no indication in this record that appellant was dissatisfied with the procedures followed or with representation of counsel.
Appellant next cites error in the procedure followed during the in-chambers conferences held January 9 and 10. We view the trial court‘s actions therein as falling within the initial requirement of
The second issue before us relates to admissibility of evidence seized in a warrantless search of appellant‘s apartment.6 We view the facts in the light most favorable to support the trial court‘s ruling on the motion to suppress. State v. Childs, 113 Ariz. 318, 553 P.2d 1192 (1976); State v. Verdugo, 109 Ariz. 391, 510 P.2d 37 (1973).
The record, without contradiction, shows that the officers failed to fulfill the clear requirements of
The entry into appellant‘s apartment was unlawful under
This statute embodies the time-tested mandate of the people of Arizona that the police respect their right to be left alone. In ruling on the announcement required by a similar statute,
We note that there are no exceptions on the face of the statute, nor are we persuaded to create any. The circumstances
Even if exigent circumstances were present under these facts, the clear requirements of
Even if we did not have a statute such as
The reasoning in People v. Ramey, supra, was based in part on an analysis of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). As the court in Ramey explained:
“[I]t is incongruous to pay homage to the considerable body of law that has developed to proteсt an individual‘s belongings from unreasonable search and seizure in his home, and at the same time assert that identical considerations do not operate to safeguard the individual himself in the same setting. Where genuine exigencies exist, broad constitutional mandates often give way to the necessity for immediate action, and an arrest is no exception to this rule. But in the absence of a bona fide emergency, or consent to enter, police action in seizing the individual in the home must be preceded by the judicial authorization of an arrest warrant.” 16 Cal.3d at 275, 127 Cal.Rptr. at 636, 545 P.2d at 1340.
It is our opinion that under
Our analysis must proceed one step further. Even if the entry into appellant‘s home could be justified, the physical evidence obtained therefrom would still be suppressed as the officers knew within seconds that the suspect was not there. At that point, the officers’ duty was to secure the premises and obtain a search warrant. See State v. Sauve, supra. If the police had been lawfully within appellant‘s home for a purpose other than to seize the items seen, the “plain” or “open view” doctrine would permit the seizure and use in prosecution of items which inadvertently сame into their view. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Childs, 110 Ariz. 389, 519 P.2d 854 (1974); State v. Caldwell, 20 Ariz.App. 331, 512 P.2d 863 (1973). The items found after a search of appellant‘s closed drawers were not in “plain view” and are clearly inadmissible.
The plain view doctrine is further limited by the nature of the items seen. Items seized must be tied to criminal activity, either intrinsically or through an officer‘s knowledge and reasonable belief. See Warden v. Hayden, 387 U.S. 294 at 306-307, 87 S.Ct. 1642 at 1650, 18 L.Ed.2d 782 (1967). Officer Hanley testified that the typewriter seized was clearly visible in an open closet in appellant‘s apartment when he entered. His belief that the typewriter he saw was stolen property was based on insubstantial information at best. Hanley had heard a police report earliеr in the day concerning the burglary and the property taken. This broadcast mentioned a typewriter but gave no description of manufacturer, size, color, or other characteristics. There is testimony to the effect that the victim told the officers she had seen items, stolen from the office where she worked, in drawers in appellant‘s apartment. Nevertheless Hanley lacked any basis for forming a reasonable belief that the typewriter seen was stolen property. He possessed at best a mere suspicion, insufficient to justify seizure. State v. Broom, 113 Ariz. 495, 557 P.2d 1052 (1976). The record is unclear as to how soon the second officer entered after the first. In any case, the purpose of his entry could not possibly be justified оn grounds of arrest; Officer Hanley testified that he knew immediately that the suspect was not there. The typewriter should have been suppressed at trial as well.
“I then asked Cook if he knew why I was here and he said, ‘Yes, I did a rape and a burglary, I‘ll sign a confession.‘”
The written confessions were given subsequently at the station.
Briefly, we note that the test of admissibility of evidence articulatеd in Wong Sun v. United States, 371 U.S. 471 at 487-88, 83 S.Ct. 407 at 417, 9 L.Ed.2d 441 (1963) is “‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).” Furthermore, “[i]f Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted.” Brown v. Illinois, 422 U.S. 590 at 602, 95 S.Ct. 2254 at 2261, 45 L.Ed.2d 416 (1975). We cannot say that appellant‘s confession concerning the burglary was not a product of having already seen police officers illegally inside his apartment. We also note that the еmployer‘s identification of the stolen property in the drawer might be considered the fruit of an illegal search. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see also Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); In re appeal in Pima Cty. Anon. Juv. Act, No. 24818-2, 110 Ariz. 98, 515 P.2d 600 (1973). Because we are remanding the case for retrial on the burglary charge, we leave those questions for the trial court. It is sufficiently clear, however, that the confessions to the attempted rape and attempted armed robbery charges were unrelated to the illegality of previous police action. The entry and search of appellant‘s home did not taint the subsequent confessions to those charges.
The opinion of the Court of Appeals is vacated. Judgment of conviction and sentence on the attempted rape and attempted armed robbery charges affirmed; judgment reversed and remanded on the charge of burglary.
HAYS and HOLOHAN, JJ., concurring.
STRUCKMEYER, Vice Chief Justice, dissenting.
I am compelled to dissent in this case because of the fundamental philosophy evidenced in the Court‘s opinion. It reverses the conviction of a confessed burglar because of the asserted actions of the police officers who effected his arrest.
I
The majority of the Court, without any claim of error by defendant or reference in his brief or elsewhere in the record, apply
“The record, without contradiction, shows that the officers failed to fulfill the clear requirements of
A.R.S. § 13-1411 when they entered appellant‘s home.”
and again:
“The entry into appellant‘s apartment was unlawful under
A.R.S. § 13-1411 . The requirements of the statute are clear and unambiguous, and place as conditions precedent to a lawful entry the obligation that officers announce their authority and purpose and be refused entry.”
I cannot agree that the entry into defendant‘s apartment was unlawful.
“An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, as provided in
§ 13-1403 , may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if the officer is refused admittance after he has announced his authority and purpose.”
It authorizes a police officer to break open a door or window of a building in order to make an аrrest if he is refused admittance after he has announced his authority and purpose. It does not say that an officer must announce his authority and purpose before he enters a building if it is unnecessary to break open a door or window.
The statute is not of recent origin. It is virtually an enactment of the common law. Compiler‘s notes § 44-132, A.C.A. 1939. Similar language is to be found in the Penal Code of 1901, § 744. It has no application to this case because the police officers did not “break open a door or window” to gain admittance to the defendant‘s apartment. See, Argetakis v. State, 24 Ariz. 599, 212 P. 372 (1923), where the police entered an unlocked door after an unanswered knock but no announcement of authority or purpose, and the defendant‘s conviction was affirmed.
Police Officer John Hanley testified without contradiction that the door of defendant‘s apartment was unlocked and not completely closed:
“The door was unlocked. The door was closed. It wasn‘t closed tight, it was against the door jamb, and I entered with the intention of apprehending the subject if he was still in there.”
No doubt the Legislature, if it had intended that an officer before entering a building announce his authority and purpose, would have said so in just that language.
I am aware of the construction attached to the congressional enactment,
“The States are not * * * precluded from developing workable rules governing arrests, searches and seizures to meet ‘the practical demands of effective criminal investigation and law enforcement’ in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissable against one who has standing to complain.” Id. at 34, 83 S.Ct. at 1630, 10 L.Ed.2d at 738.
But even if we arbitrarily assume in the face of the plain language of the Arizona statute that the police officer should have first announced his authority and purpose before entering the defendant‘s apartment, Justice Traynor‘s statement in construing a statute identical to Arizona‘s is applicable here:
“Moreover, since the demand and explanation requirements of section 844 are a codification of the common law, they may reasonably be interpreted as limited by the common law rules that compliance is not required if the officer‘s peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose. (Read v. Case, 4 Conn. 166, 170 [10 Am.Dec. 110]; see, Rest., Torts, § 206, com. d.) Without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance.” People v. Maddox, 46 Cal.2d 301, 306, 294 P.2d 6, 9 (1956).
Officer Hanley could reasonably assume that the defendant would аttempt to frustrate the arrest had he announced that was his purpose in entering—either by resistance or attempt to escape through another entrance to the building.
II
The majority criticize the officers’ entry into the defendant‘s apartment because “the circumstances were not exigent,” meaning “critical or pressing“, Webster‘s Third New International Dictionary (1961). Here, again, I cannot agree with the major-
This is what happened. The prosecuting witness, who was 18 years of age, was employed at the Community Medical Services as a receptionist. The defendant, who had an apartment next door to the Community Medical Services office, came in at about 11:30 in the morning and “grabbed” her and held a 12-inch butcher knife at her neck. He took her purse and the money in it, compelled her to go with him to his apartment, disrobed her and attempted sexual intercourse. Thereafter, he made her drive him around Phoenix in her car. When they returned and she saw her employer‘s car was parked at the Medical Services office, she pushed on the horn and ran into the office. Her employer called the police. She and her employer went outside to await their arrival, “and the police came shortly after that.”
The prosecuting witness testified:
“then [the police] asked me where I thought he [the defendant] might have gone, and I just said, he might have gone to the apartment, I thought he had to be around there, because he didn‘t have a car or anything.”
Officer Hanley testified:
“She said she went around the front of the car after she had honked on the horn and beat on the door and the last she saw him, he was going back towards the apartment and she didn‘t know where he went from there.”
The majority concede that hot pursuit of a fleeing felon is an “exigent circumstance” which would justify entry into the defendant‘s apartment, but do not consider that the officer was in hot pursuit, although the defendant was last seen but a short time before in close proximity. A peace officer could reasonably believe that in order to put an end to the unrestrained criminal activities of this man he should immediately be arrested аnd that the most likely place to accomplish this was to intercept him at his apartment.
In Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the Supreme Court found hot pursuit in circumstances comparable to those of the instant case. There, an armed robber entered upon the business premises of a Diamond Cab Company in Baltimore, Maryland, and took $363.00. Two cab drivers followed the man to 2111 Cocoa Lane in Baltimore, where one driver called the company dispatcher by radio and told him the man had entered a house at that address. The dispatcher relayed the information to the police and very shortly thereafter the police arrived at the house, which they entered and searched, finding the defendant, Hayden. Even though it was plain the police had the opportunity to watch the house in which Hayden was arrested until a warrant could be obtained, the Court held:
“We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, ‘the exigencies of the situation made that course imperative.‘” Id. at 298, 87 S.Ct. at 1645, 18 L.Ed.2d at 787.
III
I am further of the opinion that under the particular circumstances of this case, the police officers having made a lawful entry could properly examine the apartment. Officer Hanley testified:
“Q. All right. When you went in there, what did you do inside?
A. The apartment was empty and due to the fact that the crime had taken place there and she had told me that that‘s where he took her, I felt that the suspect lived there, otherwise he wouldn‘t have been in there, and I searched his apartment for identification so I could put out a broadcast as to his identity.”
The officers could hardly have done less. The exigencies of the circumstances demanded that the defendant be identified with certainty in order to facilitate his earliest apprehension. That the officer saw part of the stolen property which the prose-
IV
Although the foregoing points would alone seem to justify an affirmance of the judgment, I am most concerned with this Court‘s handling of the defendant‘s confession to the crime of burglary. The defendant at the trial and after the jury was impaneled, requested a voluntariness hearing as to the admissibility of his confessions. At the voluntariness hearing, the State called the two police officers who had arrested the defendant. They testified that they had a conversation with him at the scene of his arrest and that he had been read his rights from a standard rights card. He was then asked by Officer Hanley:
“Why do you think I am here?”
to which the defendant replied:
“I did it, I did a burglary and a rape.”
When the defendant was taken to the police station, he told Police Officer Charles Braden the details of his criminal rampage and they were incorporated in two written statements which the defendant signed. At the conclusion of Officer Braden‘s testimony, the defense waived the testimony of another police officer who had witnessed the statements, and in response to the court‘s question:
“Do you have an argument to make or—”
replied:
“No, Your Honor, I‘ll rest on the evidence.”
The trial judge then found that the confessions were knowingly, intelligently and voluntarily made.
The defendant did not take the witness stand at the voluntariness hearing, did not say that his confessions were involuntary either then or now, did not move for a new trial after his conviction for the reason that his confessions were involuntary, did not urge in his notice of appeal that his confessions were involuntary, did not assign as error in this Court that his confessions wеre involuntary. Yet the majority, without any suggestion from the defendant, decide they “cannot say that appellant‘s confession concerning the burglary was not a product of having already seen police officers illegally inside his apartment.”
The theory that an illegal search tainted the confessions is dredged up by the majority of the Court out of their unbridled imagination more than two years after the defendant‘s trial. There is no suggestion whatsoever in the record that the circumstances coerced the defendant into confessing. He did not testify at a time when he could have at the voluntariness hearing, at a time when he was not in the presence of the jury and the examination would have been directed to the coercive circumstances surrounding the arrest and attendant confessions.
The rule is recognized everywhere that a motion for a new trial and a statement of the grounds or reasons therefor must be made in order to apprise the trial court of possible error and avoid the necessity of appeal. Lacking such a motion, any error later asserted is not preserved for appellate review. In State v. Boozer, 80 Ariz. 8, 291 P.2d 786 (1955), this Court said:
“In the instant case as to practically all of the various matters now complained of no objection was then made, and it is
significant that on motion for new trial these matters were not set forth as grounds for granting such motion. Hence they cannot be reviewed here.” Id. at 13, 291 P.2d at 789.
The standard for review on appeal in this State lacking a motion for a new trial is “fundamental error.” In the federal courts, lacking a motion for a new trial, it is “plain error.” United States v. Stamas, 443 F.2d 860 (1st Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 86, 30 L.Ed.2d 90 (1971); United States v. Valez, 431 F.2d 622 (8th Cir. 1970), appeal after remand, 467 F.2d 600 (1972). Since the defendant did not testify when he had the opportunity that the presence of the officers in his apartment was coercive, nor did his lawyer ever argue in this Court or in the court below that defendant was coerced into confessing, the determination by the trial court that the confession was voluntary was correct.
I do not think it is necessary for the Court to be so solicitous of the defendant. He had competent counsel who certainly would have brought out that his client was coerced had it been true. While the majority do not revеrse because they cannot say the defendant‘s confession was not a product of having already seen police officers illegally inside his apartment, the opinion suggests a new defense, one which at present finds no support in the facts and derived solely as a figment of the reviewing judges’ imagination. Decisions such as these encourage frivolous appeals and perjury by defendants on retrial. Trial judges, attorneys and law enforcement officers become confused because they do not know what standards should be applied in order to assure a constitutional trial to an accused.
For the foregoing reasons, the judgment of conviction on burglary should be affirmed.
CAMERON, Chief Justice, dissenting.
I dissent from that рortion of the majority opinion which indicates that defendant‘s oral confession might be the result of his having seen the police officers inside his apartment. Even assuming the entry was illegal, I do not believe that the oral confession could be considered a product of that illegal entry.
Notes
1. On direct examination Officer Hanley testified:
“Q. When you say that you entered the apartment, what do you mean?
“A. I opened the door and went in.
“Q. Was the door closed?
“A. It wasn‘t closed completely. It wasn‘t —it‘s—it‘s locked by a padlock from the outside.
The door was against the jamb, but it wasn‘t tight.”
2. The police broadcast mentioned a typewriter but gave no description as to manufacturer, color, size, or other identifying characteristics. As Officer Hanley testified:
“A. I just remember him saying about the typewriter and some of the other items that were taken.
*
*
*
*
*
“Q. Did he describe the typewriter in any manner?
“A. No.
“Q. He just said a typewriter?
“A. Right.
“Q. Was there any identification on the typewriter that leads you to conclude that it had been removed from this address in the other apartment?
“A. No, sir. At that time I just felt like that was the typewriter.”
9.
*
*
*
*
*
“B. An officer may break into a building, premises, or vehicle or any part thereof, to execute the warrant when:
“1. After notice of his authority and purpose, he receives no response within a reasonable time.
“2. After notice of his authority and purpose, he is refused admittance.”
10. Compare
“When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the person to be arrested is then engaged in the commission of an offense, or is pursued immediately after its commission or after an escape, or flees or forcibly resists before the officer has opportunity so to inform him, or when the giving of such information will imperil the arrest.”