*1 Arizona, Appellee, STATE of HEBERLY, Jr., Roger
Maurice Lee Thyfault, Appellants.
Louis
No. 1 CA-CR 3136. Arizona, Appeals
Court of
Division
Department A.
Oct. 1978.
Rehearing Nov. 1978. Denied
Review Denied Dec. 1978. *2 judgment
court suspended entered imposition of appellant sentence on each for years three and ordered that each pay a surcharge ap- fine and In this $244.00. peal appellants question validity of the contraband, produced search which sufficiency of the evidence to sustain a con- possession marijuana sale, viction for for and the propriety of the court’s simulta- neously placing probation them on and im- posing a fine. 11, 1977, April
On Officer Reid Honea of Department the Chandler Police was dis- patched Municipal Airport. to the Chandler Wayne He had received a call from Lind- quist, airport manager, and an attend- ant, George Lindquist Kasai. told Honea that five individuals had arrived at the air- van, port in a unloaded several suitcases aircraft, a private purchased fuel for cash, paying and had been act- ing very suspiciously. they He related that a small suitcase on the wing of while refueling aircraft Kasai was around,” “clowning and were joking, and pointing open into the suitcase. When Ka- sai walked around the of the edge wing to on, going see what was the suitcase was shut put slammed into the aircraft. this, Following the aircraft with three of runway taxied to the to take flight on a off Kansas. Two adults and a child remained in the van. behind Lind- quist also advised Honea aircraft occupants “profile” and its fit a federal for smuggling narcotics aircraft which had provided been him Officer Honea and a member of the Treasury United States De- The partment. profile details of Gen., LaSota, Jr., Wil- Atty. John A. testimony, profile established in the but the Counsel, Schafer, III, Chief Criminal liam J. of the At part itself is record. Division, Attys. Asst. Ramsey, Diane M. request, Lindquist had the tower Honea’s Gen., Phoenix, appellee. for plane to return to the terminal ask area. Phoenix, Storrs, appellants. Robert L. pilot complied occupants and the three grassy left the aircraft and sat down on a OPINION building. area near the terminal FROEB, Judge. Chief airport, After Honea arrived first talked to the two adults and child who Heberly, Jr. and Appellants, Maurice following a were inside the van. When he identified were convicted Roger Thyfault, officer, they became posses- himself as a stipulated evidence submission sale, perspired. nervous and Honea noticed that felony. marijuana for sion of shaking. chest, hands of one were Their an- inside two of the suitcases and an ice questions swers to were evasive reluc- packed also in the luggage area. tant. advised Officer Honea that officers did obtain search warrant brought the three searching airplane before or its con- from Scottsdale at tents. friend, the request of a but denied knowing *3 their names or who they were. said LAWFULNESS OF THE SEARCH waiting were so the child could watch plane Appellants the take contend that the off. Honea then search of the walked to part the south the airport baggage by of Officer Honea a terminal and without war- spoke with the three who had rant provi- been violated the search and seizure plane. inside He pilot, the asked to the see sion of the fourth amendment to the United three, Alexander, and one Arthur so argues States Constitution. The State that identified himself. Honea then asked Alex- probable coupled there was cause with exi- away ander to move the go from others and gent uphold circumstances sufficient to the the over to aircraft with him. Honea ex- and, alternative, search in the asserts that plained suppression that hearing he consent to was voluntarily given search by alone, to feeling wanted talk to him that it Alexander. was a matter on to discuss a one-to-one reject argument We the that basis. there was consent the to warrantless Officer Honea advised of Alexander the The search. events at the airport Chandler he phone nature the call had received have been recited It earlier. is true that a Lindquist from the regarding suspicious ac- may search be conducted without He tivity. advised it Alexander that was a if it brought cause is by about consent possess felony to even a small amount of voluntarily given. Schneckloth v. Busta responded in Arizona. narcotics Alexander monte, 218, 2041, 412 U.S. 93 S.Ct. 36 that he was not aware this. Honea also L.Ed.2d 854 A party appro third told him that he had no search warrant and priate may give circumstances consent to he get one, did not even know if he could search the effects of another. United try get but he if would to one Matlock, 164, 988, v. States 94 S.Ct. necessary. it deemed Alexander then asked (1974); 39 Tucker, State v. 118 what Honea he wanted him to do. Honea 76, (1978). Thus, Ariz. it is replied that by showing he could start him automatically not finding fatal to consent the on suitcase which had been here that the suitcase handed to Honea other, wing prove, way one or and actually belonged Thyfault. Alexander to whether or not contained narcotics. given by person Consent a third for the a response, Alexander took suitcase from luggage search the effects or of another pointed placed wing, it on only person possessed valid if the third it, said, you to and “There are.” Honea authority common over other suitcase, sufficient looked at noted that there was relationship premises it, to or effects bulge top unzipped slight and inspected. to sought Tucker, be State v. He and no- compartment. looked inside supra. bag Supreme plastic containing ap- explained ticed what Court marijuana. peared concept authority to be of common in United Matlock, 171, 7, v. States 415 U.S. at fn. 94 immediately of his He advised Alexander S.Ct. at at 39 250: L.Ed.2d rights requested and another officer to is, course, authority Common not to be passen- come the aircraft with two to implied property from mere interest a gers, appellants Thyfault Heberly. party third has in the rights, property. The of their They were in turn advised authority justifies frisked, third-party under arrest. air- consent law all inside the does rest craft and Marijuana property, was found with its were then searched. attendant historical 544 * * * refinements, men, technicians, legal legal but dent act.” States, proper- Brinegar rather on mutual use of the v. United 338
rests
joint
1302, 1310,
ty by persons generally having
ac-
S.Ct.
L.Ed.
Stauffer,
26, 28,
purposes,
cess or control for most
so that
112 Ariz.
recognize
1044, 1046(1975).
it is reasonable to
536 P.2d
Pacts sufficient
right
permit
the co-inhabitants has the
to show
cause to search
be
right
gathered by
after
inspection
in his own
a vehicle is
Gunter,
legally detained.
v.
have assumed the risk that one
100 Ariz.
the others
might permit
the com-
Search and sei
of their number
applicable
zure rules
to motor vehicles are
mon area to be searched.
White,
applicable
airplanes.
also
adopted
the Arizona
language
This
(App.1977).
Tucker,
Supreme Court in State
officers arrived at the
with informa
78,
Ariz. White, Moreover, supra. v. another here, exigency namely: suf van and its cause is information Probable occupants. When Honea decided to justify by a reasonable man to belief ficient luggage it was not has been com search known an offense is California, of the van had 374 83 whether the Ker v. mitted. 1623, 10 suspicioned illegal connection with activi 726 Probabil L.Ed.2d S.Ct. but, rather, transiency of these are “the ties. certainties ities are not mobility their contributed further scene and practical considerations factual exigency of the circumstances. pru- reasonable and life on which everyday
545
itself,
against
Childs,
Turning
appellants.
then to the search
marijuana
when Honea discovered the
in
Neverthe-
less,
(handed
there is no
navy
appel-
and red suitcase
evidence that either
blue
possessed
marijuana
lant
the seized
for the
him Alexander and which later was dis
purpose of sale.
belong
Thyfault),
jus
covered to
he was
placing
tified in
all three travelers under
Appellant Thyfault admitted ownership
searching the
arrest and
contents of the
navy
found in the
blue and
$1695
red
three other suitcases and ice chest found
suitcase,
suitcase.
Inside
same
officers
airplane.
aboard the
plastic
containing
grams
seized a
sack
marijuana. They
grams
also found 4.83
Appellants argue that the search of
pouch
taken from his person. There is
luggage found aboard the aircraft
after
appellant Heberly
evidence that
owned the
blue and red suitcase was
was in
blue-grey- suitcase which contained 441.98
the holding
violation of
of the United
grams
marijuana.
(There
are 453.592
Supreme Court in United
States
States
grams
alone,
pound.)
to a
Standing
Chadwick,
S.Ct.
evidence
support
does not
the conviction of
(1977),
followed
this court in
possession marijuana
for sale. A com-
Randall,
plete search of the record fails to reveal any
(App.1977). They argue that once the first
other evidence. An ice chest seized from
suitcase was searched and
three sub
grams
aircraft contained 385.41
of mari-
arrest,
jects
were
under
juana in a brown sack
grams
and 520.03
impounded
should have
un
marijuana separated
plas-
into 24 individual
*5
opened and obtained a search warrant. We
bags.
tic
The ice chest also contained an
disagree
baggage
that the search of the
at
pilot’s log
belonging
book
to Alex-
scene was
the
barred
either case.
In
ander. There is no evidence connecting ei-
Chadwick, the locked trunk was seized from
Thyfault
Heberly
use, control,
ther
or
unopened
the automobile
taken
to a
and
ownership
of the ice
chest nor
of its
building
police agents
where no one but
had
clearly
contents. Since
evidence
will
access
held for half an
and
hour before it
support a conviction of each appellant for
was broken into and searched. The Su
possession
marijuana,
modify
we
preme
held that under these circum
Court
judgment
possession
of conviction from
stances a warrant
should have been first
marijuana
possession marijua-
for sale to
obtained. The situation was different here.
na and remand the case to the superior
The suitcases and ice chest were not locked
court
sentencing upon
the lesser includ-
seques
were not first taken to a
Torres,
ed offense. Cf. State v.
Opening the
place.
baggage
tered
immedi
Eliason,
given prison
a
referring to a hold
Donahoe,
ing
OF THE EVIDENCE
to this effect
SUFFICIENCY
(App.1977).
Appellants claim that
evidence
posses
insufficient
to convict them of
opera-
was
Donahoe case so holds but its
marijuana
agree.
We
preceded
sion of
for sale.
tive facts
the amendment of
evidence,
13-1657(A)(1),
reviewing the
we have considered
effective June
A.R.S. §
light
it in the
most favorable to the State
which authorized the trial court
levy
all
inferences
probation.
and have resolved
reasonable
a fine as a term of
Prior to
amendment,
fine
interesting
a
was not assessable
committed.
It is
to note
placed
probation.
against
defendant
on
that Officer Honea himself did not believe
Pitts,
Ariz.App.
See State
probable
that he had
cause to search the
leads,
then,
This
to a
airplane or
example,
its contents. For
he
is a
consideration of whether there
conflict
pilot
testified that he
told the
that he
provisions
between the
of A.R.S.
36-
§
did
even
get
know if he could
a search
13-1657(A)(1)
§
1002.10
A.R.S.
on the
He
warrant.
also testified that he did not
question of whether
narcotics offender
believe that he would have been able to
simultaneously placed on probation
can be
enter the
aircraft on
basis of what he
and fined. We find no conflict. A.R.S.
Furthermore,
knew at that
pros-
time.
provides
36-1002.10
that
fine may
be
§
ecutor,
in his response to the motions to
given
added
but
prison
in lieu of a
suppress
court,
filed in the trial
stated that
sentence. When a
is
defendant
convicted
agreed
with the defense’s contentions
of a
pro-
narcotics offense
that
there
been no
cause to
bation,
13-1657(A)(1) applies,
A.R.S.
§
search,
solely
and relied
on the contention
sentencing
court
exercise its dis-
the search was valid because of the
impose
cretion and
a fine.
given
pilot.
agree
consent
I
with
stated,
For
reasons
are
sentences
majority’s holding
under
facts
vacated, judgments of
conviction
modi-
upheld
the search cannot be
under the con-
with
opinion,
fied in accordance
and the
exception.
sent
resentencing.
case is remanded for
appellant’s
Since
subsequent
arrest and
search of the
of the
interior
aircraft and the
DONOFRIO, J., concurs.
rest
the luggage
predicated
was
HAIRE, Presiding Judge, dissenting:
finding
marijuana
during the initial ille-
gal
I
of the
opinion
appellant
am
there was not a
intrusion
Thyfault’s
briefcase,
showing
jus-
sufficient
cause to
I would hold that
the remainder
tify the
marijuana
warrantless
search conducted in
was the fruit of this initial
this case.
illegal search
and all
it
tainted
thereby.
search,
As
an illegal
fruit of
possess
Police
probable cause to search
*6
suppressed. Wong
should have been
Sun v.
they possess
when
information sufficient to
States,
United
83 S.Ct.
a man
warrant
of reasonable caution to
that an
believe
offense has been or is
California,
committed. Ker
my opinion
there was neither
83 S.Ct.
Other circumstances suppression hearing the officer at they large loaded
were that amount paid cash gasoline, mannerisms,
for their had nervous hair,
long hair and some facial and that suspicious had acted in manner in to the briefcase that was
relation These wing.
the aircraft circumstances do
not, my opinion, warrant a man of rea- felony
sonable caution to believe that a