*1 guage in reconveyance. the deed of below, Tanque
affidavit that Verde filed Tanque merely doctor stated that
Verde would not have released the trust lan-
deed the insertion of that without
guage. itself reconveyance The deed of Tanque
signed by Verde.
Although occurred in no trustee’s sale agree with Proffer Baker, supra, holdings
based and Kansas, supra,
Mid and absent evidence of agreement contrary,
an when Tan-
que signed release Verde the deed of and right
reconveyance, thereby it waived deficiency judgment.
seek a attorney’s
Appellees be awarded will appeal compliance upon
fees on with Rule
21(c), Ariz.R.Civ.App.P., 17B A.R.S.
Affirmed. LIVERMORE, JJ., and
HATHAWAY
concur. P.2d 1024 ARIZONA, Appellant,
STATE County Romley, Maricopa Richard M. Grant, County Deputy Atty. Gerald R. EVANS, Appellee. Isaac Phoenix, appellant. Atty., for 91-663. No. CA-CR Trebesch, County Maricopa W. Dean Kemper, by James H. Public Defender Arizona, Appeals of Court of Defender, Phoenix, ap- Deputy Public 1, Department E. Division pellee. May 1992. 6, 1992. Oct. Review Granted OPINION
EUBANK, Judge.
appeals
Arizona
The State of
granting defendant Isaac
court’s order
trial
evidence.
Evans’s motion
proceed-
for further
reverse
remand
opinion.
ings consistent with
PROCEDURAL HISTORY
FACTS AND
a Phoenix
On December
peace
misdemeanor warrant
issued a
*2
315
for
appear
Evans’s arrest after he failed to
one of his hands. When Evans relaxed his
12,
hand,
on December
1990 for several traffic
dropped marijuana cigarette.
he
a
19, 1990,
violations. On December
how-
Sargent
Officer
and another officer then
ever,
pro
did appear
judge
Evans
before a
passenger
searched
compartment
of
tempore,
quashed
who
the warrant.
the car
bag
and found a
of marijuana un-
passenger
der the
seat. The officers also
procedure
quash-
Under the standard
for
found
package
cigarettes, rolling pa-
a
ing warrant,
justice
court clerk calls the
pers,
marijuana
pas-
and
in
residue Evans’s
(“Sher-
Maricopa County Sheriff’s Office
senger’s purse.
Office”)
iff’s
to inform them that a warrant
quashed.
has been
The Sheriff’s Office
ruling
suppress
on the motion to
comput-
then removes the warrant from its
evidence, the trial court
exclusively
relied
Office,
calling
er. After
the Sheriff’s
the.
on State v.
383,
162 Ariz.
783 P.2d
justice court clerk makes a note in the
(App.1989).
829
The trial court found that
file,
appropriate
indicating the clerk who
indistinguishable
our facts were
telephone
person
made the
call and the
that
and, therefore,
Greene
facts in
granted
spoke
the clerk
with at the Sheriff’s Office. Evans’s
suppress
motion to
the evidence.
In this
there was no indication in
granted
The trial court also
the State’s
Evans’s
court file that a
motion to
prejudice.
dismiss without
court clerk had called the Sheriff’s Office
notify
them of the
warrant.
ISSUE PRESENTED
addition, the Sheriff’s Office also records
presents
The State
appeal:
one issue on
telephone
all of the
calls it receives for
Did the trial court abuse its discretion in
quashed warrants. The Sheriff’s Office
granting Evans’s
suppress
motion to
call,
also had no
telephone
record of a
evidence?
informing them that Evans arrest warrant
quashed.
had been
STANDARD OP REVIEW
8, 1991,
January
On
the State filed a
This court will not reverse the trial
complaint against Evans, charging him
ruling
court’s
on a
suppress
motion to
un
possession
marijuana,
a class 6
less the trial court abused its discretion.
felony.
that,
complaint alleged
on Jan-
Prince,
State v.
268, 272,
160 Ariz.
772
5, 1991,
uary
knowingly pos-
Evans had
Coats,
1121,
(1989);
State v.
P.2d
sessed or
pound
used less than one
154, 158-59,
693,
Ariz.
797 P.2d
marijuana,
in violation of Ariz.Rev.Stat.
(App.1990). On a
suppress
motion to
evi
(“A.R.S.”)
13-3405, -3401,
Ann.
§§
dence, this court must view the
in
facts
-3418.
light most favorable to the trial court’s
27, 1991,
On March
Evans filed a motion
ruling, and the
ruling
trial court’s
will not
all evidence seized from him on
be disturbed absent clear and manifest er
January
1991. At
evidentiary
hear-
Gerlaugh,
State v.
164, 167,
ror.
134 Ariz.
ing on the
suppress,
motion to
Officer
654 P.2d
Bryan Sargent
January
testified
stopped
he
Evans
driving
for
DISCUSSION
wrong way
one-way
on a
street. When he
license,
asked
argues
his driver’s
Evans
The State
the trial court
replied
license,
that he did not have a
be-
abused its discretion in
suspended.
cause his license
Af-
motion to
It contends that the
check,
conducting
Greene are
ter
a records
Officer Sar-
distinguishable
facts
from
gent
case, because,
found that
Evans’s driver’s license
the facts in this
suspended
police department
had
fact been
and that there
negligent
maintaining
records,
was a valid misdemeanor
his
computer
warrant for
whereas
however,
arresting Evans,
arrest. While
in this case the
Sargent
handcuffing
difficulty
negligent
Officer
had
to inform the
him.
he asked Evans to relax Sheriff’s Office that Evans’s arrest war-
quashed.1
also
actions of the South Tucson Police De-
rant had been
The State
misconduct,
argues
partment.
If
whether
officers had
deliberate,
had
caused or
reason to know that the arrest warrant
it be
Further,
being
quashed.
contends that
notation
it
contributed
acting
police de-
*3
system,
the
officers were
on a
in the
the
responsible for not
partment
faith
the arrest warrant was
would be
belief
up
argues
keeping
computer
its
entries
to date.
valid.
the State
exception
to the
presented
based on the
faith
to the
No evidence was
trial
police depart-
exclusionary
establishing
rule and section 13-3925 of
court
that the
Statutes2,
having
Arizona Revised
the trial
ment was
in
the
blameless
granting
computer system.
in
court abused its discretion in
Ev-
notation
its
warrant
suggests that
suppress.
Although
to
the state
such
ans’s motion
case,
the
it concedes that the record
was
argues
did not
Evans
that the trial court
regard. Accordingly,
is silent in this
the
in
his motion
abuse its discretion
exclusionary
of the
rule would be
ends
suppress.
to
He contends that the facts
appreciable way by
in an
hold-
furthered
indistinguishable
case are
ing the evidence inadmissible because
Thus,
argues
he
that the
facts of Greene.
holding
tend to deter the
such a
properly granted his motion to
trial court
Department
Police
from
South Tucson
suppress.
deliberately
negligently failing
keep
or
to
up
or
to
paperwork
its
entries
I.
date, exposing persons
possible
to a
Greene,
Tucson Police De-
In
the South
wrongful arrest.
for a
partment stopped appellee’s van
traf-
Id. at
If one to look at were presented to the trial court Tuc- evidence arresting officer of the South police department was establishing that the conclusion Department, son Police having arrest no- warrant exclusion- blameless the ends of the would be that How- computer system.” Id. by hold- tation advanced ary rule would not be However, ever, presented evi- in this the State ing the inadmissible. evidence justice court em- indicating one must dence facts of this case under the Depart- Police ployees, not the Phoenix focus on the his actions and beyond look warrant, fice, quashed court, however, informing them of the indicated that two 1. The trial telephone these call be drawn from failed to record the inferences could and then different justice have clerk could court facts. court file. Evans’s inform them the Sheriffs Office to failed to call Alternatively, warrant. pp. 317-318. 2. See infra Of- Sheriffs have called the court clerk could ment, arresting inform able. See id. officers had absolutely way knowing the Sheriffs Office that arrest that Evans’s quashed. quashed. warrant For these rea- had warrant Fur- sons, distinguish- ther, facts in exclusionary Greene are rule is intended to able from facts this case. deter punish misconduct and not to judges magistrates. Id., errors of
II.
U.S. at
Similarly,
at 3417.
the exclusionary
believe that
rule is not
evidentiary hearing,
At
trial
intended to
employees
deter
court
overgeneralize
appeared
ratio-
or Sheriff’s Office
who are not
the exclusionary
nale behind
rule. The tri-
directly associated with the arresting offi-
specifically
al court
stated as follows:
police depart-
cers or the
officers’
*4
Greene
it clear
[The
court] make[s]
case,
ment.
In this
excluding
See id.
evi-
trying
that what
to deter
to do is
[it is]
dence
a
because of
clerical error outside of
negligence;
case,
in that
the
to deter
the control
the Phoenix
Depart-
of
Police
negligence of the ... South
Po-
Tucson
ment would not deter the
court em-
Department____
lice
And in this
ployees or the Sheriff’s Office employees
perhaps
negligence
the
of the Justice
from making such errors in the future.
In
Court, or
negligence
the
of the Sheriff’s
fact,
employee
a
testified that
But it is
negligence
office.
still the
this sort of error occurs
about once
the State.
every
years. Moreover,
three
four
ex-
Supreme
The United States
has
Court
re-
cluding
evidence
not deter the Phoe-
peatedly stated
purpose
that
of the
nix
Department
Police
from relying on in-
exclusionary
po-
rule is to deter unlawful
warrants,
valid arrest
because there was
Leon,
E.g.,
lice conduct.
United States v.
the arresting
indication that
officers or
897, 916,
3417,
3405,
468 U.S.
104
82
S.Ct.
Department
negli-
Phoenix Police
(1984)
added);
(emphasis
L.Ed.2d 677
Mich-
gent
relying
on Evans’s arrest warrant.
Tucker,
433,
igan
446,
417
94
v.
U.S.
S.Ct.
purpose
of the exclusionary
2364,
2357,
(1974)
41
(emphasis
L.Ed.2d 182
by
rule
excluding
would not be served
added). Although this case
an
involves
evidence
this
obtained
case.
arrest warrant and Leon and Tucker both
warrants,
involve search
Court
Arizona
III.
Appeals
may
has concluded that Leon
apply in an
also
invalid
situ-
arrest warrant
good
has
excep
Arizona also
a
faith
384,
ation.
162
See
Ariz. at
783
tion statute.
A.R.S.
See
§
Tucker,
In Michigan
P.2d at 830.
v.
pertinent part,
In
provides
section 13-3925
police
Court stated
when a
as follows:
officer
complete
faith,
good
acts in
“the deterrence
party
A.
If a
in a
proceeding
criminal
rationale
the exclusionary
loses
[of
rule]
seeks to exclude evidence from the trier
447,
its force.”
much of
318 approxi- quashed for rest warrant had been section:
C.
mately twenty-four days.
rea-
means a
faith mistake”
1. “Good
concerning the
judgmental error
sonable
162
I feel that
v.
State
if
would be
of facts which true
existence
controls
(App.1989),
date, obtained an the evidence which had been on a warrant based invalidat- (b) is later A warrant which The trial suppressed. be quashed should good faith mistake. due to a ed in com- within its discretion court was well has held Appeals The Arizona Court of Id. they that could have the conclusion within 13-3925 is “both A.R.S. section negligent. enact and legislature to power of the consti- nor federal the state directly offends neither Second, is not although the case Coats, P.2d Ariz. at dealing tutions.” point, plethora of cases excep- good faith Arizona’s 697. Under at en- warrants and invalid statute, neither the ar- Peterson, find that tion tries was collected State De- Phoenix Police resting nor the officers 333, 335, (App.1991). 830 P.2d Ariz. *5 arresting Ev- negligent in partment were “good held that Finally, Peterson person. A.R.S. searching his See or in ans exclusionary rule exception to faith” (1989). also find 13-3925 § ob of evidence permitting the introduction sup- discretion trial court abused invalid arrest warrant through an tained Moreover, id. the evidence. See pressing kind of either apply to this does not is A.R.S. section conclude that we or on the Arizona statute basis of on the the conduct of inapplicable to Leon, 468 v. of United States basis Office’s employees or the Sheriff’s court L.Ed.2d 677 U.S. in this case. See id. (1984). responsibility of It is the Therefore, trial court find that we records, a failure and such update their to granting Evans’s its discretion abused consti a defendant’s not overcome should motion to proba right to a valid warrant tutional and search. an arrest cause before ble CONCLUSION problem with growing There is a reasons, find that foregoing we For and dis electronically recorded reliance on its discretion trial court abused People files. criminal See seminated evi- motion Ill.Dec. Ill.App.3d Joseph, and remand reverse nothing dence. There N.E.2d 1303 with this consistent proceedings for further disturb justify which would in this record opinion. sup the trial discretion of I facts. these under pressing this evidence P.J.,
VOSS, concurs. affirm. dissenting. CLABORNE, Judge, record is respectfully dissent.
I points. on several
clear outstanding only because computer. Sec- by the reflected
warrant all that the
ond, not clear at it is sheriff that notify the
court failed by the
warrant Nevertheless, responsibility
court. remains valid warrant Third, the ar- effecting that arrest.
those