State v. Hanna
839 P.2d 450
Ariz. Ct. App.
1992
Check Treatment

*1 held “par- court that the definition of proceedings ties” in termination does not grandparents.

include The grandparents potential

asserted their visitation

rights if paren- would be cut off their son’s rights

tal were terminated. The court held adoption

that only would cut off visitation

rights. The court stated unlike Bech-

tel, dependency proceeding this was not a action, parental

but a termination rights party.

and the ruling state was not a applies Juvenile Action No. JS-7135

only parental rights to termination of dependency proceedings.

not to

The trial court did not abuse its discre- allowing Alagnas

tion in to intervene. accepted;

Jurisdiction relief denied. GARBARINO,

KLEINSCHMIDT and

JJ., concur.

173 Ariz. 30 Arizona, Appellee,

STATE HANNA, Douglas Appellant. David Woods, Atty. Grant Gen. Paul J. 1No. 90-1939. CA-CR McMurdie, Counsel, Div., Chief Crim. Gen., Knowles, L. Atty. Linda Asst. Phoe- Arizona, Appeals nix, appellee. 1, Department Division E. Trebesch, Dean W. Maricopa County May 1992. Public Defender Carol A. Carrigan, Dep- Review Denied Nov. Defender, uty Phoenix, Public appel- lant.

OPINION VOSS, Judge. Presiding a few a.m. Just minutes before 3:00 May Officer Donald Peelman (“Peelman”) patrolling was in his marked police car near 35th Avenue and Indian Phoenix, Road in This School Arizona. normally patrolled. he He was area on 35th headed southbound Avenue when he saw vehicle driven David Hanna. *2 attempted a officers to obtain registration sticker ever Peelman discovered the search warrant. was license vehicle plate the Hanna’s on eight April expired and therefore for had made motion appellant Before trial a pull proceeded to days before. Peelman glove the seized from his suppress well-lighted parking appellant over into a compartment, arguing that the search patrol about stopped Peelman his car lot. appel produced the evidence violated which twenty-five appellant’s parked feet behind right and lant’s under the United States Appellant stepped his car out of After vehicle. Arizona Constitutions.1 an evidentia motion, and, found upon request, presented hearing with the court ry Peelman this the search “a valid one incidental license, registration proof that was driver’s and his arrest____” A for re a lawful motion ap- of insurance. Peelman returned with appellant’s denial of consideration of the patrol to his car to pellant’s driver’s license during trial. suppress was made motion to appellant. This run a routine check on attempt appellant’s Again the court denied had appellant’s revealed license check was suppress Appellant the evidence. appel- suspended. Peelman arrested been timely He this jury. convicted a filed license, suspended driving on a lant arguing trial in appeal that the court erred put him handcuffed him and in the back suppressing seized from not the evidence patrol car. the glove compartment. We affirm his Murray (“Murray”), Brian officer the trial court. him, assist then stood called Peelman to The fourth to the amendment patrol next to the car door while Peelman that all requires States Constitution United appellant’s Be- prepared search vehicle. be reasonable. v. United searches Scott officer, began, this search another fore States, 436 U.S. 98 S.Ct. (“Lucero”), David Lucero arrived. Lucero (1978). The Arizona appellant’s and Peelman searched automo- the requires same. Constitution bile, passenger’s Peelman the side general art. rule is that Const. 8.§ and Lucero from the driver’s Lucero side. pursuant made to a a search must be nothing. got found When Peelman to the warrant to be considered reason search compartment, glove he found it locked. However, excep able. several well-defined car, patrol went Peelman back to where general tions to handcuffed, appellant sat and retrieved the States, exist. Katz United glove bag compartment to the from a 88 S.Ct. put appellant had it in arrest- he when (1967); Hampshire, New Coolidge v. proceeded glove ed. Peelman unlock the 2031-32, 443, 454-55, glove compartment. compartment In the (1971); Sardo, L.Ed.2d bag. a small red Peelman found canvas (1975). opened bag, was closed Peelman this which exceptions these the war allows One fastener, in velcro and it found vari- by a compart passenger rantless search of the drug mag- paraphernalia and a black ous of an automobile to the ar ment incident opened box box. Peelman the black netic occupants rest of one of the automo bags plastic turned and found three which Belton, New bile. York v. methamphetamine, danger- out to contain L.Ed.2d drug. court, Belton, then to where ous Peelman returned citing trial found car, in patrol sat appellant handcuffed fell within “incident warrantless search exception. that he was under arrest this and informed him to a lawful arrest” For reason, appellant’s motion to evi- dangerous drug. None exclude possession of a searched, persons things right people and to be to be in their 1. "The secure houses, effects, against papers, un persons, and IV. seized.” United States Constitution amend. seizures, not be shall reasonable searches violated, private person "No shall be disturbed in his issue, upon shall but and no Warrants invaded, affairs, authority or his home without cause, supported Oath or affirma probable tion, law.” The Arizona describing particularly place to be drugs ton, dence of the (10th Cir.1985) found his locked 751 F.2d 1147-48 glove compartment (arrestees was denied. apparently guarded by officer while other officer Search Incident to Arrest vehicle); Silva, searched United States *3 (4th Cir.1984) (arrestees 840, 745 F.2d 847 police A officer without a search guarded prior handcuffed and to search may of warrant conduct a search of an auto denied, room weapons), cert. 470 mobile arresting occupant incident to of 1031, 1404, 105 S.Ct. Belton, that 84 L.Ed.2d 791 454, automobile. 453 U.S. 101 (1985); 2860, Palumbo, United States 768; v. 735 Curiel, S.Ct. 69 L.Ed.2d State v. 1095, (8th Cir.1984) (arrestee F.2d 176, 1096-97 130 (App.1981). possibly definitely handcuffed and sur disputed issue in case is this whether by rounded prior several officers to scope may the of search that search extend to a room), denied, 934, of cert. 469 U.S. 105 glove compartment in that car. 332, (1984); S.Ct. United purpose allowing a war 1354, Roper, States v. 681 F.2d 1357-59 exception rantless search under this is to (11th Cir.1982) (arrestee handcuffed and safety ensure protect the of the officer and search), led prior into room officer to being evidence from intentionally de denied, 1207, 1197, cert. 459 U.S. 103 S.Ct. stroyed. purpose This been broadly has (1983); United States v. Belton, pointed read. In the court out that (7th Fleming, F.2d 677 606-07 Cir. under exception searches this are “valid 1982) (arrestee handcuffed and removed any because of need ‘to remove weap immediately search); from prior area to ons that might seek to use in [the arrestee] Virginia Rasool, v. Islands 657 F.2d order resist escape’ to arrest or effect his (3rd Cir.1981) (arrestee 588-89 prevent and the need to the concealment or search). prior removed from vehicle to (Citations destruction evidence.” omit Because find we and its ted.) Belton 453 U.S. at 101 S.Ct. at 2862. , progeny case, apply to this we need not The Belton court then proceeded to ob address the claim that it also a valid police serve that “the may also examine the Also, inventory search. any as we believe any contents of containers found within the “extension of ... Constitution compartment, [the passenger passen state] if the ... is a left matter for the Arizona Su- ger compartment is reach within of the preme Court”, temptation. we resist arrestee, also will so the containers in it be Calabrese, 189, 191, 157 Ariz. 755 within reach.” his Id. at 101 S.Ct. at P.2d (App.1988). 1179 We affirm. sentence, 2864. In a footnote to the above the court defined container to include a open glove compartment.” J., “closed or EUBANK, Id. concurs. at 460 n. n. 4. S.Ct. at 2864 CLABORNE, Judge, specially language interpreted This has been concurring. uphold several federal courts to warrant- I concur in the result reached less searches incident to arrest where the majority this be because seems to the fed- possibility of an grabbing arrestee’s Hatfield, However, eral rule. See et al. weapon equally were as remote logic extending a search incident to appellant’s as chances here. United States glove arrest compartment a locked in (6th Hatfield, F.2d Cir. protect police order to safety offi- 1987) (arrestee against ordered to stand integrity cers and the of evidence from an guarded by

wall and officer while other arrestee who handcuffed in back of a is vehicle); Robbs, officer Davis v. searched police twenty-five car feet from his own Cir.1986) (6th (ar 794 F.2d 1130-31 in possession vehicle and not squad restee in placed handcuffed and car glove escapes compartment unlock the me. house), prior to seizure rifle cert. denied, Also, agree majority I only must with the (1986); L.Ed.2d 593 States v. I should United Cot- because believe this court not Furthermore, po- that the protection of the the one to extend the be hind- helps “prevent lice obtain a warrant give Arizona sight coloring the evaluation interests in greater protection privacy or seizure.” reasonableness of a search given than is under the United automobiles Martinez-Fuerte, States v. United fourth amendment. Constitution’s States 3074, 3086, up Arizona Su- This should be left to the L.Ed.2d preme Court. long exceptions held that It has been Calabrese, Although State general requirement for a val- (App.1988), narrowly to the id search must be tailored pointed “any out that further extension of justify creation. circumstances that their *4 our own constitution [Arizona 491, 499-500, 460 Royer, Florida v. U.S. to limit or circumscribe § 8] 1319, 1324-1325, 103 S.Ct. set forth in v. standards United States (1983). 38 Robinson [414 out, points the need for majority As the (1973) left for the L.Ed.2d 427 is a matter ] requirement exception to the warrant Court”, Supreme I do not necessar- Arizona any weap- grew from our desire remove ily agree. Appeals of The Arizona Court ons or evidence from that area which frequently of Arizona decides violations might ar- arrestee access and either resist Constitution, and I see no reason to defer rest, escape, destroy effect an or evidence. spite appears in this case in what be California, v. Chimel rule. the federal (1969). S.Ct. register my I However write to discon recognized Washington The state of exception tent with an to the warrant re failing approach ap- it of the Belton when quirement case, logic, which in this defies plied its state constitution to this issue. justification. police common sense or supreme police may court That said that violations, arrested Hanna for two traffic weapons search an automobile for or de- him, placed during pro- him in the back the arrest structible afterward, but, immediately police cess and “... seat of a car which was located twen if the officers encounter a locked container ty-five feet behind Hanna’s vehicle. The glove compartment, they may aor police then conducted a warrantless search not unlock and search either container vehicle, nothing, of Hanna’s found and at obtaining a without search warrant.” tempted glove compart to search a locked Stroud, v. 106 Wash.2d 720 P.2d State They patrol ment. went back to the car to glove compart to the locked obtain and then returned conduct the ment court described the reason Stroud warrantless search. The reason for the holding quite clearly. They its rea- behind greater expectation is well-stated in Tru soned that there is a States, 705, privacy something indicated when one locks piano v. United container, danger into a and that the (1948): 92 L.Ed. 1663 destroying hiding arrestee evidence lo- upon rule rests the desirabili- [that] [The] grabbing a container or a cated within ty having magistrates po- rather than weapon a container is minimized lice officers determine when searches is locked. I see when that container Id. permissible and seizures are and what nothing wrong reasoning. with this placed such limitations should be ac- me, Since, applied the federal rule as In tivities. their understandable zeal to wisdom, any practical we can here lacks out crime and in the excitement of ferret our state constitu- and should turn to own capture suspected person, of a offi- tion. likely possess the cers are less detach- neutrality previously recognized ment and with which con- a Arizona has our rights suspect protection privacy must be under greater stitutional exists under the fed- than viewed. state constitution Bolt, eral constitution. 142 Ariz. State v. 839 P.2d 454 (“search” (1984) of home Arizona, STATE of ex rel. Melvin R. may be valid under federal constitution but BOWERS, County Attorney for the 2, 8); not Arizona Constitution art. State § Petitioners, County Navajo, Ault, 459, 466, v. 150 Ariz. 724 P.2d (1986)(refusal to extend inevitable dis- covery doctrine of Ari into defendant’s home SUPERIOR COURT OF State zona, based on art. in and for the NA 8 of Arizona Constitu- COUNTY OF VAJO, tion); also, Martin, Lep the Honorable Warner See G. thereof, 466, 475, pin, judge Respondent, (1984), Hendrix, State SPENCER, Shawn Real (App.1990). P.2d As one court Party in Interest. recently said: rejects A state court decision that Su- No. 1 92-0094. CA-SA preme precedent, opts Arizona, Appeals Court of greater safeguards as a matter of state 1, Department Division B. law, higher does indeed establish consti- *5 locally. tutional standards But that is a July perfectly respectable legitimate Review Denied Nov. 1992.* do, thing any does not sense signal a return to the Articles of Confed- Moreover,

eration. Bill with the federal Rights having been drawn from state antecedents,

constitutional there is natu- charters,

rally equivalency some between

but no less reason for courts to enforce respective guarantees. constitutional again years,

Time and in recent

Supreme Court as well as its individual

Justices have reminded state courts not

merely right, of their but also of their

responsibility interpret their own con-

stitutions, and where in the state courts’ provisions greater

view those afford

safeguards Supreme than the find, plain

would to make the state deci- ground unnecessary

sional so as to avoid

Supreme Court review. Scott,

People v. 79 N.Y.2d

N.Y.S.2d 593 N.E.2d Nos. (N.Y. 2, 1992),KAYE, April

1992 WL 62774 (concurring).

J. any

If fairness and common sense has law,

place in the 8 of our then type

state constitution should forbid this intrusion.

warrantless Corcoran, J., Court, V.C.J.,

* Moeller, Supreme grant voted to review.