*1 and the fact weapon murder alleged
fired during struggle twice be-
tween defendant victim.
It long been the law in Arizona that
on appeal Court will not sub- judgment
stitute its for that of the jury only
and will if complete reverse there is a
lack probative support facts to the ver- Pittman,
dict. 71, 75, (1978); Childs, supra; Barnett,
(1975). Considering evidence, all the
find that there was substantial evidence to
support thoroughly verdict. have
reviewed pursuant the record to A.R.S. 13-4035
§ and find no fundamental error.
The judgment of conviction and the sen-
tence are affirmed.
CAMERON, J., STRUCKMEYER, C. V. J., GORDON, JJ.,
C. and HOLOHAN and
concur. Arizona, Appellee,
STATE of
Eugene JARZAB, Jr., Appellant. F. 4571-PR.
No. Arizona,
In Banc.
July
Rehearing Sept. Denied Jr., Gen., LaSota, Atty. former
John A. J. Corbin, Atty. Gen. William Robert K. Ellexson, Schafer, R. III, B. Gerald Georgia Gen., Phoenix, Grant, ap- Attys. Asst. pellee. *2 Penrod, Lane, “Q. by usually people & Are there in that
Lane Ltd. Clair W. Penrod, Craig Tempe, appellant. W. for area? No,
A. sir. STRUCKMEYER, Vice Chief Justice. Q. strange to then it would be So have a vehicle in the area? Appellant, Eugene Francis Robert Jar- correct, A. That’s sir. zab, Jr., was possession convicted of of mar- ijuana, a misdemeanor. The Ap- Court of Q. know whether or You didn’t peals, in decision, a memorandum reversed. you went truck was stolen when accepted review. Opinion of the Court you? it. Did of Appeals, 1 (filed CA-CR January No, it was why A. no sir. I had idea 11, 1979), vacated. Judgment Supe- of the time. rior Court affirmed. Q. just wanted what was You to see At 18,1977, about 1:40 a. m. on June near going on? Phoenix, Arizona, deputy sheriff’s Russell Yes, A. sir.” driving Pearce while saw overpass over an investigation It is palpably clear new Chevrolet Blazer four-wheel-drive which was rea- Pearce then entered stopped truck approximately on desert Therefore, ques- sonable and lawful. one-quarter mile off of 10. Interstate disposition tion of this governing the case Pearce headlights turned his on the truck deprived events subsequent and, when it unoccupied, vestigation continuing legality. drove over investigate. After he left his im- approached truck, Appellant argue car and it was does not appellant ap- peared proper investigate the from behind for the officer to nearby bushes. He told the position officer that status His is that the vehicle was his of the truck. and that he had abandoned2 to relieve himself. the vehicle was Appellant had a “quickly dispelled noticeable odor of alcohol should have been on his breath. defendant, Pearce virtually contemporaneously asked for identifica- tion appellant arrival, to determine whether with approached the officer’s he was of legal drinking age. Appellant belonging to the vehicle as him.” identified produced a valid Arizona driver’s license on urges operating He the officer age. which showed his Pearce then asked vague, “a hunch” or “a sus- unsubstantiated appellant for the truck’s card.1 picion” that his Fourth Amendment appellant When opened the door of the conducting rights3 by were violated a fur- get card, truck to lights the interior investigation ther because the came on and deputy plastic observed a detention did not the test for reasona- meet bag containing marijuana on the console. ble v. Hook- action set forth in State er, a suppression At hearing, Pearce testi- Hocker,
fied:
we said:
28-305(D) provides
part:
you
give
judge description
A.R.S. §
Would
Q.
vehicle?
“The
abandoned
card
motor
[of
vehicle]
occupants.
shall at all times be carried within the
A. A vehicle without
driv-
compartment
occupant
er’s
of the vehicle
an
vehicle without
SoQ.
issued,
inspection
and shall be
vehicle?
abandoned
*
”
*
*
*
highway patrol
members of the
Temporarily it
A.
is.
any peace officer.”
the Constitution
Amendment
2. Officer Pearce testified:
provides:
of the
Now, you say you
“Q.
observed an aban-
people
be secure
“The
of the
you
you
say
doned
you
observed
effects,
houses, papers,
persons,
their
overpass?
came over this
seizures,
against
unreasonable searches
my lights
A. As I came over the other side
* * *
hit it.
be violated
shall not
posi-
test of
recently
ingredient
“This Court
its
essential
elucidated
tion
reasonableness standard
action.
adopted the California
v. For-
test. State
into the
inquiry
“Terry requires a dual
tier,
(Filed
investigatory stop.
reasonableness of an
Aug.
1976), citing
Irwin
‘(1)
determine:
reviewing court must
*3
Angeles
Court of Los
1
County, Cal.3d
the intru-
warranted
whether the facts
423,
484,
Cal.Rptr.
(1969).
82
479
Constitutional
are
13, 15, 525 F.2d
Hall,
U.S.App.D.C.
v.
174
Ohio,
1,
spelled
Terry
out in
v.
392
88
U.S.
857,
(1976).
859
1868,
There,
(1968).
S.Ct.
311 all Our examination of v. Ohio ableness in the circumstances of subsequent particular governmental federal it in a cit- cases invasion of Ohio, security.’ Terry facts of this us v. personal case leads izen’s 1868, disapprove the standard in Ir enunciated U.S. S.Ct. course, Reasonableness,
win
supra,
adopted
v.
Hocker, supra,
depends
public
a balance
and State
‘on
between
Fortier,
interest,
per-
individual’s
because
inter-
unduly
restrictive of lawful
sonal
free from
police activities. When
with
law
confronted
ference
officers.’
strange
activities,
or unusual
Brignoni-Ponce,
offi
cer,
public’s
(1975).”
representative delegated
as the
L.Ed.2d
with
responsibility
maintaining
opinion
Brown v.
recent
order,
satisfy
should
as to
-
himself
-,
U.S.
*4
activity by
reasonable,
innocence of the
all
(1979),
Supreme
said
L.Ed.2d 357
Court
lawful means. We do not believe that an
these
balancing
that a central concern in
officer,
investiga
when he commences an
competing
“has been to as-
considerations
tion,
need
convinced that “criminal activ
expec-
sure that an individual’s reasonable
ity is afoot.”
arbitrary
privacy
tation of
is not
to
“The Fourth
not re-
Amendment does
solely at
discretion
invasions
the unfettered
*
quire
policeman
precise
who lacks the
of officers
level
proba-
necessary
information
standard
applying
federal
ble cause to
simply shrug
arrest
his
case,
do not
the facts of
find
shoulders and allow a
or a
crime to occur
The
were unreasonable.
Pearce’s actions
criminal to escape.
contrary,
On the
Ter-
began
the officer’s at
investigation
when
ry recognizes
that it
be the essence
parked off
to a vehicle
tention was directed
good police
work to adopt an interme-
desert
1:40 a. m. Since
the road in the
at
response.
id.,
diate
23,
at
[392 U.S.]
abandoned, there
the vehicle
A brief
suspi-
[88
1868].
could
was a reasonable
individual,
cious
in order to determine his
investigation,
During
have been stolen.
identity or to maintain
quo
the status
appellant
out of the brush.
appeared from
momentarily
obtaining
while
more infor-
produce
appellant
identifi
request
The
mation, may be
most
drink
enough to
he was old
cation to show
of the facts known to the
by the
request
clearly
was
reasonable.
Id.,
21-22,
time.
1868];
see
[88
card
officer to see
Craven,
Gaines v.
(CA9
“The such an inves analysis touchstone of under the interference our constitutionally tigation warranted.5 always Amendment ‘the reason- Appellant py” vehicle, urges Appeals and decided to make the Court of car, occupants Rosenberg, Ariz.App. decision in State check. He awoke the registration. P.2d and car here. asked for a driver’s license should control There, bags marijuana plastic inapposite. find that a Con- He observed two case County compartment opened. Deputy glove conino it was Sheriff a road- entered m., “hip- singled side motion rest area at The trial court denied the defendant’s 3:00 a. out though probable Where even suppress a motion to behavior is no has been denied, an arrest.” the lower court will reversed cause to make not be at 1880. unless the 88 S.Ct. denial constitutes clear and man- ifest error or is an abuse of discretion. See Therefore, test, the Federal even under Mosley, State v. conduct that an offi- suspicious unusual or (1978); Boyer, unusual or stops cer must be P.2d 439 Considering all the circum- possible suspicious, because it relates stances appro- and our conclusions as to the crime. law, priate sup- denial of the motion to The recent press was not error. 77-6673, opinion in Brown v. No. 25, 1979), (U.S.
To the extent reiter- that State v. Hocker and June incompatible requirement Fortier are or incon ates this the unusual decision, an inves- suspicious activity prompts sistent with this they are over detention, possible tigative ruled. relate to must case, Brown was crime. In that defendant Judgment affirmed. officers, because he two high incidence was in an area known for its HOLOHAN, JJ., concurring. HAYS and traffic, suspi- drug because he looked GORDON, (dissenting): Justice cious, never the officers had and because majority opinion. dissent Ini- When Mr. seen in the area before. him tially, perceive I do not the distinction that name, his Brown refused to tell the officers *5 the majority makes between the Federal violating a Texas law he was arrested for and Arizona determining tests for valid- the give your not name that made it a crime to ity of an investigative detention. The ma- lawfully who and address to officer jority opinion seems Terry to assert that v. requested the information. and Ohio, 88 S.Ct. application held that The (1968), 889 only requires per- an officer to to the defendant violated the Texas statute ceive unusual before he because the rights, his Fourth Amendment makes an The ma- detention. suspicion to officers lacked reasonable jority opinion states that “did not en- engaged or had believe that he was activity hold that some indication that the conduct. gaged in criminal ingredi- is related to crime was an essential Brown, supra, opinion majority The cites ent is of the test of the action.” This balancing need be proposition for the that a not the case. reason done “to assure that an individual’s holding Terry, supra, The is couched in not expectation privacy able following the terms: solely at the unfettered arbitrary invasion Seemingly, the ma merely today po- “We hold that where a discretion of officers.” Brown, that neglected lice to notice jority officer observes unusual conduct the absence supra, him to conclude in also states that leads “[i]n mis suspecting appellant of experience of his that criminal ac- basis for conduct, public the tivity may (Empha- be afoot the balance between personal appellant’s right sis 88 1884. interest and in favor of free privacy tilts and Terry also states that: “ * * * Brown v. police interference.” dom from appro- a officer in - U.S. at -, 99 priate appropri- circumstances and in an Fortier, P.2d ate Ariz. 553 approach person pur- manner In v. 113 State Hocker, Ariz. poses possible] (1976), 113 investigating criminal 1206 and State engaged suppress. reversed, occupants Appeals sleeping of the car were The Court of find- the light, supported suspicion illegal the that the in this evidence the in conduct. Viewed harassing. subterfuge that the check was check was a and that there was no evidence to show that
313 P.2d adopted way 784 the is in some connected to that type “reasonable,” same supra, activity. of test as Terry, suspicion If his Brown, supra, citing objective Irwin within an of what definition Court of Angeles Los County, Cal.3d reasonable same person under the situation Cal.Rptr. 484, (1969): only perceive, Terry, then supra would then, may pri- upon the officer the intrude “There must suspicion by be reasonable vacy person, of a the which is afforded enforcement that ‘some activity and Arizona constitutions. ordinary’ out is or has occurred, suggestion to connect the disagree majority’s with conclusion detained with the unusual activi that an officer needs to be able ty, and some indication that question an individual about unusual activi Hocker, related to crime.” 113 ty that does somehow indicate to the not 450, 457, Ariz. activity may that “criminal be supra. coming Terry, afoot.” After to this California Court has subse however, conclusion, Hocker, overruling quently rejected Irwin, dictum supra, in Fortier, supra, supra, process, which stated that the suspicious events majority attempts justify ar then must not be as consistent with innocent resting very officer’s actions under activity as activity. with criminal re C., that is articulated these cases. Tony standard Cal.Rptr. Cal.3d majority suggest poten seems to case, however, P.2d 957 That so did tial criminal was afoot and does not overrule Irwin and stated that the by stating “[sjince the vehicle holding of Irwin was based abandoned, dictum. Although this Court cited Irwin both it could have been stolen.” Hocker, Fortier and we have never adopted This is a misstatement of the facts. The the above dictum. suspicion” “reasonable car could I, therefore, disagree that Fortier and have been stolen is not inferable logically Hocker must be overruled. The distinction view of record in this case. majority opinion trys to be make *6 arresting tween At the to suppress, these motion simply cases does Moreover, not exist. officer that he no majority indicated had received is offer ing vehicles, reports any type enforcement false of stolen or other Moreover, that states do not of he believe that an disturbance in the area. “[w]e officer, when why he investiga commences an testified that had no idea the truck he tion, it; need be convinced that ‘criminal activ was there when he went to ity is afoot.’ Arizona, just Neither the going Cali he to see was on. wanted what fornia nor explained why Court The defendant officer require cases that an be officer convinced he left the vehicle unattended and showed criminal is he prove drinking age. afoot before his he license to was of makes investigatory check. There not even reason believe intoxicated or that driver acted may The officer start surveillance driving. suspected him drunk officer of chooses, that he suspicious on the basis of or merely he li- thought The officer smelled activities, even innocent-appearing he quor and checked on defendant’s breath may maintain check this or as surveillance Moreover, drinking age. if he see was of long he do wishes. cases not in the approxi- parked the defendant’s vehicle was slightest doing deter him from this. In- one mile a restaurant mately fourth stead, they merely deter the officer par- operated by his that was owned arresting from either temporarily or detain- ents, actually been may have located person, searching seizing or from' driver’s father. belonged land that to the possessions his before officer may formed a suspicion founded articulable this Although majority criminal and that the suspected afoot under these have this was vehicle, a stolen highways purpose is not for the ascertaining the proper test of the officer’s actions under whether violating the driver is the law. either state or federal case law. The test is In this we think there is a valid distinc- whether the suspected that the vehi- stop purpose tion between a made for the cle was stolen and whether suspicion his investigating already a crime known to reasonable, when weighed against stop have been committed and a for the what a expe- with similar purpose discovering crime in the first rience would suspected have under those added.) Ochoa, instance.” circumstances. Terry, supra. The arrest- Ariz. 582 at ing officer in this case never testified that suspected he the vehicle to be stolen. He Villagrana, also Ariz. stated that approached he the vehicle “be- (App.1977); v. Gutier- cause it’s a little strange at 1:40 a. m. in the rez, morning Ariz.App. have a vehicle sitting out in the desert.” An officer cannot make an inves- then, The issue before tigatory simply detention because it is 1:40 28-305(D) can be used to A.R.S. § a. m. might This be an infringement on instance,” after “discover crime in the first defendant’s travel, fundamental legitimate investigation of a vehi- which is not daytime limited to hours. The any potential cle crimi- has failed to reveal suspicious activities that an officer can activity. very nal For the reasons that vestigate must be more than the wander- Ochoa, I see no reason for discussed in ings insomniac, or one who works making such a If an officer distinction. night shift at a restaurant in the desert. a car for cannot use this statute request officer’s to see the defend- crime, is also purpose discovering ant’s was based on nothing it to able to use why no reason he should be more than an “inarticulate hunch.” The may involve ferret out crimes that Court has consist- stopped car.1 ently refused to sanction such actions. Ter- travelers protects] Constitution ry, “[The supra. Because of the absence from harass- public highways facts that would indicate that “criminal ac- is no tivity agents if there afoot,” by government ment Terry, supra, check suspicion registration, car’s founded support as an basis to investi- gative search, violated requirements re- activity. Founded criminal Arizona and Federal law. for sin- ground quires some reasonable was in- who as one gling out a
The real issue in this case is whether the
in criminal
to be involved
volved or about
legitimately asked to see the defend-
Ochoa,
ant’s
registration,
Ariz. 582
pursuant
activity.”
to A.R.S. 28-
§
*7
305(D), which states
registra-
that a car’s
the stopping upon public I concur in the dissent. travelers using arresting 1. At the re- vehicle, but was motion to offi- stolen simply suppress, although registration cer testified to discover to see the pretext he asked quest conduct was defendant’s car not crime in the first instance. This he does recall looking in marijuana. at it once It is the Court of Appeals he saw the disapproved by Rosenberg, good clear me that 24 Ariz.App. officer was checking faith of a potentially