State v. Hackman

Luеlla, Milton and the benefi- and identified the three

ciaries Milton Luella and quitclaim

people named on deed. simultaneously

two documents were recorded County Maricopa Recorder’s Office 17, 1983;

August quitclaim shows deed recording and the

Certificate shows number 83-330002. together,

Taken these documents described subject ‍‌​‌‌‌‌​‌‌​​​‌​‌​‌‌​​​‌​‌‌‌‌​‌​​‌‌‌​‌​​‌‌‌‌‌​‌​‌​‍the benefi- matter identified

ciaries and in the Trust.

III. CONCLUSION judgment but

We affirm the for World judgment for Hall and remand proceedings

for further with this consistent

opinion. PATTERSON, JJ.,

RYAN and concur. Arizona, Appellant,

STATE of HACKMAN, Appellee.

Daniel Weldon

No. 1CA-CR 96-0581. Appeals

Court of 1, Department

Division B.

May 1997. May 23,

As Amended Sept. Denied

Review

participated videotaped in a with interview interview, Kim Brewer. In Detective his reported defendant admitted the conduct the victim but insisted tele- that she had phoned him at his friend’s house in Phoenix him to her engage and invited home to in of which complained. various acts she later The defendant also told Detective Brewer friend, Graeb, that his Calvin could confirm telephonе the victim’s call to the defendant because had on he overheard the defendant making telephone such “Oh, you up.” me to want come The defen- dant that Graeb in added resided the Phoe- nix telephone area and that Graeb’s number property jail. in was located his held at the The defendant was indictеd and the appointed represent defender to him. Be- Bowers, Jr., R. Navajo County Melvin At- trial, investigator, fore the state’s Jim Curri- torney By Taber, Kate L. Deputy County er, assigned to obtain telephone Graeb’s Attorney, Holbrook, Appellant. for jail number from the property defendant’s Parker, Myrna Navajo County J. Public and to сontact Graeb to had determine he Defender, Holbrook, Appellee. for any regarding information night question, alleged activities on the OPINION conversation between the defen- victim, dant and the and the defendant’s EHRLICH, Judge. relationship the victim. with appeals The state from trial court’s file, including Currier reviewed the stаte’s granting order the motion of Daniel Hack- videotaped He defendant’s interview. (“defendant”) testimony man to warrant, a a signed by then drafted later of Calvin Graeb. The court found that a magistrate, proper- search the violation of the defendant’s Sixth Amend- jail ty bag for at the Graeb’s num- right to counsel necessitated its action. Specifically requested ber. was a conclude that We any regarding find documents a applicable doctrine is to certain information metropolitan number Phoenix for area procured by prosecution. Accordingly Calvin Graeb. follow, and for the reasons which we affirm part part judgmеnt personally served the warrant the court. custody. who still was in He notify defense did not counsel. At the time FACTS AND PROCEDURAL HISTORY service, Currier asked the defendant the reported A woman sexu- that she had been location of Graeb’s number and ally boyfriend, assaulted her former also elicited additional statements from the defendant. The dеfendant told was arrested defendant. Currier the defendant contacted, Department, testimony taken the Show Low Graeb’s Police Graeb was Navajo where he was booked into would assist the defendant in his case. The County personal Jail possessions and his se- defendant told Currier that Graeb’s number property bag. being property bag. ad- cured After was in his checkbook his Miranda v. rights, of his vised 384 From this Currier retrieved the defen- checkbook; dant’s signed slip paper the defendant a waiver and was written on located inside. that the tele- told Currier upon a violation of his The defendant Subsequently, based counsel, check- phone be found de number could Sixth Amendment bag. According to Cur- book in his suppress any information fendant moved rier, spontaneously added the defendant of Currier’s as a result good no do Currier telephoning Graeb would granted court him.1 The trial country. Cur- was out of because Graeb and ordered all of the defendant’s the motion that “fine” told the defendant replied rier but information ob statements to Currier and him in would assist including the number suppressed, tained therefrom assist and that Graeb could locating the Graeb Graeb’s number. defending his case. the court ruled that Graeb’s name and other also regarding previously ob information Graeb spoke he with when Curriеr admitted sup need not tained Detective Brewer be the he knew that the pressed. of the order was Reconsideration and defender’s had counsel that state’s to dismiss the denied. The motion fur- investigator. Currier office its own had prejudice granted case was and without appeared that ther conceded the defendant § 13- appealed. Ariz.Rev.Stat.Ann. state irate, during talk upset, even their somewhat exchange he be- and that ended added not to become involved cause he did want DISCUSSION ob- about the case. He then a conversation property defendant’s took the trial court erred tained the that beсause, piece it of it out of and removed a when barred Graeb as a witness checkbook numbers, paper including that although was a of the with there violation defen- Graeb, counsel, of written on it. right dant’s there was an inde- pendent source for information and the guarantees ... The Sixth Amendment discovery of his number was inev- accused, at after the of least initiation itable. of the defendant’s Given violation rely charges, right to on counsel formal right, constitutional we determine whether him and as the State. a “medium” between suppressed the information need accord above, be guarantee includes As noted with the rule. obligаtion to act affirmative the State’s protec- that a manner circumvents the Right A Violation Constitutional by invoking this tions accorded the accused Counsel right____ vio- Amendment is [T]he Sixth incriminating lated when State obtains Currier testified that he was directed to circumventing by knowingly Graeb, obtain right present to have counsel the acсused’s ‍‌​‌‌‌‌​‌‌​​​‌​‌​‌‌​​​‌​‌‌‌‌​‌​​‌‌‌​‌​​‌‌‌‌‌​‌​‌​‍potential Despite fact that the witness. and a confrontation between accused execution of the warrant could be made agent. a state serving jailer rather than the defendant Moulton, opted personal make 474 U.S. personally, Currier Maine (1985) (foot- 477, 487, 88 defendant. He S.Ct. L.Ed.2d service of the warrant on the omitted), relying upon Massiah v. Unit- “practice” he note personal said that service was States, because, “[Ijdeally, if ed 377 U.S. 84 S.Ct. [he] tried “to advocate” (1964), personal and United States going to search L.Ed.2d was someone’s available, they Henry, 447 U.S. 100 S.Ct. [he] and were (1980). state, recog- let them that is what L.Ed.2d [he would like to know nizes, Sixth Amend- why doing it.” violated doing, [he was] that is was] questioned when the de- had a ment Currier informed the defendant Currier attorney being without his advised personal property for his and fendant search warrant present agreeable assist or he would him either asked the defendant counsel. locating telephone number. with the defendant without challenged validity also withdrawn. 1. The defendant subsequently allegation the warrant but that Currier’s service of the properly search war designated be fruits of that con rant on the resulting Kimball, defendant and 1278-79; conver duct.” 884 F.2d at see sation Bravo, without knowledge 364, 374-76, defense counsel’s also State v. cert, acquiеscence pardoned. cannot be denied, 762 P.2d 1328-30 given by reason why the state as to spoke (1989). with the defendant without first con tacting attorney was that Currier wanted However, concurrently with the exclusion “upfront everyone.” Given the ary developed rule there what has become clear mandate from Supreme Court con known as “the doctrine.” demning contact with a defendant without It was first enunciated Silverthorne Lum cognizance attorney of his because of the 385, 392,40 ber Co. v. United potential prejudice obvious to the defendant’s 182,183, (1920): 64 L.Ed. 319 exercise of his rights, constitutional this ra tionale completely provision is essence of a unsatisfactory. forbidding The tri aсquisition al court properly of in way excluded all evidence a certain by merely made that not acquired the defendant to evidence so Currier. shall When a agent not be like Currier used before the chooses to Court but that it violate a shall not be rights Sixth used at all. Of Amendment course this order gather information, dоes not mean that additional the facts thus he “must obtained be prepared to become sacred consequences live with the and inaccessible. If knowl- edge Kimball, gained that decision.” indepen- United them is from States v. an 1274,1280 (9th Cir.1989). they may 884 F.2d dent source proved any be like

others,____ B. Independent-source Doctrinе States, Segura 796, See v. United 468 U.S. We now review the trial court’s decision 814, 3380, 3390, 104 S.Ct. 82 L.Ed.2d 599 regarding how much of knowledge (1984); ob- States, v. Nardone United 308 U.S. by tained the state suppressed.2 must be 338, 340-41, 266, 267-68, 60 S.Ct. 84 L.Ed. that all of the informa- George- (1939); 307 see also cases cited 84 gained tion by the statements elicited 1996), (April 882, 4 p. L.J. n. 690. The town Currier must be stricken as the “fruits of the question whеther, thus becomes notwith- poisonous exclusionary tree” under the rule. standing illegality of Currier’s contact Wong States, See Sun v. United 371 U.S. with the num- 471, 487-88, 407, 417-18, 83 S.Ct. ber would have been through obtained not an (1963). Sun, “exploitation illegality,” Wong of that 417-18, but, at U.S. 83 S.Ct. at exclusionary requires rule rather, ‍‌​‌‌‌‌​‌‌​​​‌​‌​‌‌​​​‌​‌‌‌‌​‌​​‌‌‌​‌​​‌‌‌‌‌​‌​‌​‍independent source, from an thereby suppression at trial gained of evidence direct rendering legitimately acquired. ly indirectly or government as a result of a Fourth, violation of the Fifth or Sixth The trial court’s determination of States, Murray Amendments. v. United 487 what constitutes the “fruit” of the state’s 533, 537, 2529, 2533, “poisonous question tree” is a mixed of fact (1988).3 appropriate “[T]he implicating and law questiоns. constitutional remedy such, for a violation of Massiah includes As its order to evidence is only suppression not of all directly States, evidence reviewed de novo. Ornelas v. United through misconduct, governmental 690,-, 1657, 1661-62, 517 U.S. 116 S.Ct. suppression (1996). but also of all evidence that can 134 L.Ed.2d 911 While we view exclusionary applies 2. The rule exclusionary applied ”[T]he states rule to be as a through process matter of state law rule. The the due is no broader than the federal clause of the Fourteenth independent may Amendment, Ohio, source doctrine be Mapp v. 654- applied provi- under the Arizona constitutional 1684, 1691-92, 6 L.Ed.2d 1081 sion, and exclusion of evidence obtained under a (1961), Bolt, 260, 266, State v. 142 Ariz. 689 P.2d legal required warrant need not be because of by and to the Sixth Amendment Bolt, prior state constitutional violation.” Massiah, 377 U.S. at 84 S.Ct. at 1203. 142 Ariz. at 689 P.2d at 528. independent of from sources all of information evidence and draw reasonable inferences ‘fruit of the prior illegal entry is not the uphоlding find favor of the court’s factual suppressed ‍‌​‌‌‌‌​‌‌​​​‌​‌​‌‌​​​‌​‌‌‌‌​‌​​‌‌‌​‌​​‌‌‌‌‌​‌​‌​‍not legal need poison [sic] are not bound its conclusions. tree’ and ings, we Fodor, ap federal g., under the E. State Segura v. to the states. United (App.1994). plied Bolt, 142 Ariz. at 689 P.2d at supra.” ‘(T)he deterring un- society interest of police inter- lawful conduct and juries all having probativе receive est presented No evidence was properly evidence of a crime are balanced the state’s contention to contradict same, not a by putting police warrant Currier drafted worse, position they have tha[n] Detective upon the interview between based policе no error or misconduct been that Currier Brewer and the defendant and occurred____ challenged evi- When the already telephone number knew that Graeb’s source, has exclusion dence an bag at put police of such evidence would jail questioned The com before he him.5 position they than would have been worse regard to the defendant with ments made any error Nix in absent or violation.’ telephone number did the location Graeb’s Williams, 431, 443, 104 S.Ct. any provide evidence that the state (1984). 2501, 2508-09, 81 L.Ed.2d 377 during a have been obtained would not [Emphasis ellipsis original.] bag The cause search of the for the number. inde of the violation wаs Currier’s Massiah 537, Murray, 487 2533. U.S. at 108 S.Ct. at illegal with the defendant pendent, case, In this the state knew the defendant’s Amend violation of Sixth defen Detective Brewer’s interview Thus, only right. proper exclusion ment dant that Graeb’s number could is the as a result of Massiah violation property bag found in the defendant’s at made to Currier. defendant’s statements jail. This the basis for the interview was suppression The trial court’s of Graeb’s authorizing bag.4 warrant the search identity a telephone number and of Thus, proof inde the warrant is itself of the exclusionary is witness is reversed. The rule pendent knowledge, source of the un state’s inapplicable the warrant existed as because by (forthcoming) viola tainted Massiah an source of information from tion, that Graeb’s was the location of Graeb’s which the state knew apply property. the defendant’s To then not proper- number in the defendant’s instead, and, independent-source doctrine ty- puts state in invoke position had, a thаn if no violation worse Inevitable-discovery Doctrine C. 541, Murray, 108 occurred. See 487 U.S. at decision, part, The Ari The trial court based its S.Ct. at 2535. United States and Supreme have failure to establish that Graeb’s zona Courts each held on state’s a Amend number would have been inevita- context of violation of the Fourth bly other mеans. through that “evidence obtained search discovered ment argues appeal basis that the inevitable-discov- a valid warrant obtained on the under Indeed, bag inventory contents of the and he 4. did need warrant to failed to Currier not even property bag. State v. testify anything bag. search else in the was not аble to to Bible, only the defen- The fact that Currier searched cert, denied, S.Ct. not his entire dant’s checkbook and (once (1994) defendant's ‍‌​‌‌‌‌​‌‌​​​‌​‌​‌‌​​​‌​‌‌‌‌​‌​​‌‌‌​‌​​‌‌‌‌‌​‌​‌​‍contends, that is sufficient evidence legally possession property of law-enforce- solely relied on the defendant’s state- agents, agents search ment need no wаrrant to warrant ments to him rather than on the type property; of a warrantless seizure "this simple obtain number. Amend- does not violate defendant’s Fourth obliged response is that Currier neither rights.”). ment bag inventory nor was he the contents of compelled by the to search for more warrant not con- 5. The defendant that Curriеr did looking. pursuant than for which he was the warrant since that duct the search ery independent- acquired by doctrine is irrelevant search dence an untainted which doctrine, citing Segura source unlawfully United is identical to the evidence ac- 82 quired”). Murray, L.Ed.2d 599. See 487 U.S. at problem here is that of the execution S.Ct. at the inevitable- became warrant entwined with —and discovery depends only doctrine not on the tainted Massiah violation. Because —the doctrine, validity of the it the Massiah violation tainted execution of is derived from it. Id. at S.Ct. at warrant, “independent the search source” theory apply does and the State must Sincе the tainted evidence would be admis- rely discovery” theory. on an “inevitable through sible in fact discovered an inde- support But the State offered no evidence source, pendent it should be admissible theory so the trial court cannot be inevitably would have been discovered. Defendant, rejecting faulted for it. on the original). Id. (emphasis hand, proved actually other officer Nonetheless, given that the state demon- acquired by committing a this evidence rath- strated that the information from Graeb was er astounding Massiah violation. legally independently of Currier’s presented, On the facts I affirm violation of the defendant’s Sixth Amend- suрpression order. right, we need not discuss the court’s rejection inevitable-discovery of the state’s

hypothetical.

CONCLUSION grant

We affirm the trial court’s of the

defendant’s motion to all state- ments made Currier in 943 P.2d 870 violation of the defendant’s Sixth Amend- Arizona, Appellee, STATE of to counsel. we suppressing court’s order Graeb’s tele- phone number and existence as a witness GARCIA, Appellant. Ramon Fernando pursuant doctrine. We case proceedings remand this for further Nos. 1 CA-CR CA-CR 96-0333. consistent decision. of Appeals Court 1, Department Division C. J.,

GERBER, concurs. NOYES, Presiding Judge, dissenting. May Having probable cause to believe that a Sept. 1997.* Review Denied phone might garbage bag be in a having acquired not the same as that num- majority

ber. The reverses based on the “independent acquiring

State’s source” for phone number —the search warrant. I

agree source doctrine phone apply if the number had been

acquired by an untainted search. See Mur- U.S.,

ray 533, 538,108 (1988)

2533-34,101 (stating originally applied

context, “independent the term source” re- particular category

ferred “to that of evi-

* Jones, Martone, V.C.J., J., grant voted review.

Case Details

Case Name: State v. Hackman

Court Name: Court of Appeals of Arizona

Date Published: May 23, 1997

Citation: 943 P.2d 865

Docket Number: 1CA-CR 96-0581

Court Abbreviation: Ariz. Ct. App.