State v. RypkemaState v. Rypkema
OPINION
Appellant Marvin C. Rypkema and his wife, Gwenn M. Rypkema, were charged with the crime of possession of marijuana, a class six felony, in violation of
At the time set for trial, the casе against appellant’s wife was dismissed with prejudice. Appellant waived his right to jury trial and the case was submitted to the court based on the grand jury transcript and the transcript from the suppression hearing. The court found appellant guilty as charged and sentenced him to a fine of $500.00, plus a surchаrge, for a total of $685.00.
Appellant raises three issues on appeal:
(1) Whether there was sufficient probable cause to justify the issuance of the search warrant for appellant’s home;
(2) Whether the officers serving the warrant failed to comply withA.R.S. § 13-3916 (the so-called “knock and announce” statute); and
(3) Whether the magistrate was shown good cause sufficient to justify a nighttime search, as required byA.R.S. § 13-3917 .
Because we have found reversible error as to the third issue, we need not address the first two issues raised.
A brief statement of the facts will suffice to present the factual backdrop of this case. The warrant for the search of appellant’s residence near Flagstaff, Arizona, was issuеd on June 10, 1983. The warrant authorized a search of the premises during the night. The warrant was issued upon the affidavit of Sergeant Jack Judd of the Coconino County Sheriff’s Department. The affidavit stated:
That the following facts establish probable cause for believing that grounds for the issuance of a seаrch warrant for the aforementioned items exist:
On 6 May, 1983 your Affiant was contacted telephonically by his fellow officer, Detective Martin T. SMITH, Badge Number 1181, Phoenix Police Department. Detective SMITH advised your Affiant that he had received information from a confidential and reliable informаnt as follows. That within the previous several weeks Detective SMITH’S informant had been to a residence located at 142 Nakai Trail, in Kachina Village Estates, near Flagstaff, Arizona. Further, that the above described residence was occupied by Marvin Charles RYPKEMA and Gwenn Marquerita JUR-CIN [RYPKEMA], The informant further advised that RYPKEMA and JUR-CIN are actively involved in the transportation and distribution of narcotic drugs, namely cocaine. The informant further advised that during the above described visit, the informant personally observed a large quantity of cocaine, approximately several pounds, in the possession of Marvin RYPKEMA and Gwenn JURCIN at the residence.
On approximately 23 May, 1983 Detective SMITH telephoned your Affiant and advised that he had been contacted again by the same informant with information as follows; that Marvin RYPKEMA and Gwenn JURCIN had left Flagstaff, and were vacationing in Hawaii and South Dakota for sevеral weeks and would return to Flagstaff at the end of their vacation.
*587 Your Affiant and his fellow officers, Sergeant Tom HAMMARSTROM and Agent Robert PRIDA maintained a daily periodic surveillance at 142 Nakai Trial during the period between 23 May, 1983 and the present. Your Affiant and his fellow officers observed that the above residence was unoccupied during all that time and that the vehicle used by Marvin RYPKEMA and Gwenn JURCIN, a 1973 Saab, yellow in color, South Dakota plate number CAF-979 was not at the residence. On 9 May, 1983 investigation by your Affiant’s fellow officer, Robert PRIDA revealed that the electric service at 142 Nakai Trial is listed in the name of Gwenn JURCIN.
Affiant believes that the following information demonstrates good cause, pursuant toA.R.S. § 13-3917 for permitting his warrant to be served at any time of the day or night:
On 10 June, 1983 your Affiant was again contacted telephonically by Detective SMITH with the following information. That the above described informant had contacted Detective SMITH and stated that the informant had spoken with an individual within the past several hours. This individual is a distributor of cocaine who obtains cocaine on a regular basis from Marvin RYPKEMA. The individual told Detective SMITH’S informant that Marvin RYPKEMA and Gwenn JURCIN had returned to Phoenix, Arizona on or about 10 June, 1983 аnd that they are in possession of a large quantity of cocaine, and that they were planning to travel to Flagstaff with the cocaine and distribute a portion of the cocaine in Flagstaff.
At approximately 8:15 P.M. on 10 June, 1983 your Affiant’s fellow officer, Robert PRIDA, went to the residence at 142 Nakаi Trail and observed that the lights were on, and a vehicle which had been previously parked in the same location at the residence for two weeks without having been moved, had been moved to a different location at the residence, this vehicle is described as a 1967 Chevrolet Statiоn Wagon, Arizona license plate AZE-622.
Your Affiant has also learned from Detective SMITH that Marvin Charles RYPKEMA has previously been arrested in South Dakota on charges of Narcotics Possession and Sale. Detective SMITH received this information from officers of the Arizona Criminal Intelligence Agеncy-
Your Affiant believes that Detective SMITH’S informant is reliable due to facts which are set forth in another portion of this Affidavit.
Further, your Affiant’s fellow officer, Raoul OSEGUEDA, has conducted a surveillance, at 142 Nakai Trail beginning at approximately 8:30 P.M. At approximately 9:50 hours Detective OSEGUEDA observed thе yellow Saab, South Dakota license number CAF-979 registered to Gwenn JURCIN, arrive at 142 Nakai Trail, and the occupants of the vehicle enter the residence.
The warrant was executed about midnight on June 11, 1983. Approximately thirteen officers participated in the execution. The officers knew that the Rypkemas were in the house, although the lights were out and there was no noise. After knocking and waiting approximately 25 seconds, the police broke through the front and back doors. The Rypkemas were undressed, sleeping in bed, at the time. They then sat undressed on their bed for 15-30 minutes, after which they were moved to the living room. The house was extremely cold because the doors were open. After another 15-20 minutes, they were finally allowed to put something over themselves. Appellant’s wife was pregnant and her pregnancy was “quite pronounced.” Appellant’s two sons by а previous marriage had been sleeping in the loft, from which they were able to view the proceedings. The officers then approached the Rypkemas and announced that they had found a brown paper bag and appellant and his wife were placed under arrest for рossession of marijuana. The Rypkemas sat in
Upon a showing of good cause therefor, the magistrate may, in his discretion, insert a direction in the warrant that it may be served at any time of the day or night. In the absence of such direction, the warrant may be served only in the daytime. For the purposes of this section night is defined as the period from ten p.m. to six-thirty a.m.
The state’s first argument is that, although raised in the motion, “the issue [regarding
As conceded by the state, the issue was raised in the motion to suppress. Moreover, contrary to the state’s allegation that appellant did not pursue the issue at the suppression hearing, defense counsel asked Sergeant Judd what information contained in the affidavit supported a finding of good cause for a nighttime search. Judd admitted he could find nothing. The trial court’s minute entry, although expressly addressing the first two issues raised in the motion to suppress and on appeal, did not address the
This Court must take jurisdiction of this Petition for Special Action to correct the plain and obvious error by Respondent Judgе Grace in upholding the authorization of said warrant. Evidence is absolutely uncontradicted that there was no cause for authorizing said warrant for said premises at nighttime____
The memorandum accompanying the special action petition further explained the facts and law suppоrting the above allegation. In the Rypkemas’ reply to the state’s response to the petition, they reiterated that the state “presented no evidence in justification for issuance of a nighttime search warrant____” Therefore, from the record, it is clear that appellant has nоt waived the nighttime search issue.
On the merits, the state argues that several factors were apparent justifying a night search. The specific factors cited are: (1) the urgency of the moment; (2) that drug sales at night are common; (3) that appellant was a known drug trafficker; and (4) that appellаnt had allegedly just brought back to the residence a large quantity of cocaine.
The primary Arizona case on this issue is State v. Jackson,
The most recent case addressing the issue is State v. Eichorn,
A surveillance conducted since the information was obtained has revealed suspected drug transactions by the listed persons [appellee and his brother] and is continuing.
Affiant believes that the following information demonstrates good cause for permitting this warrant to be served between 10:00 p.m. and 6:30 a.m.:
A surveillаnce of the two (2) subjects listed [appellee and his brother] revealed
*589 suspected drug transactions taking place in the parking lots of two (2) local bars, from the trunk of the Dodge Challenger, between 11:00 p.m. and 1:00 a.m.
The surveillance reveals, and your affiant’s experience has shown, thаt drug transactions and use take place both day and night. In order to preserve evidence which might otherwise be sold or used, your affiant requests that a search warrant be issued for the nighttime hours.
The present case is in stark contrast with Jackson and Eichorn. There is absolutely nothing in the officer’s affidavit here to indicate why a nighttime search warrant should issue. There is no statement indicating previous nighttime drug sales or transfers. There is, in fact, no statement regarding any drug transfers from the house at any time of the day. Sergeant Judd candidly admitted at the suppression hearing that: “I don’t see anything in here that fits in for the cause for the nighttime search.”
The state’s reliance on the nature of the contraband and the allegation that drug sales often occur at night are insufficient to support a nighttime search. The court in Jackson did note that in Solis v. Superior Court,
In People v. Watson,
Becаuse a night service of a warrant is a more serious invasion of the security of a home than a daytime service, the magistrate’s exercise of discretion cannot be based solely on the nature of the contraband to be seized or the type of crime involved. Such a generalizеd rule would be repugnant to the Fourth Amendment requirement of particularity of reasons to justify the violation of the right to privacy.
We conclude that the proper standard for “good cause” as specified in Penal Code section 1553 is as follows: the affidavit furnished the magistrate must set forth specific facts which show a necessity for service of the warrant at night rather than between the hours of 7 a.m. and 10 p.m.1 This means that the magistrate must be informed of facts from which it reasonably may be concluded that the contraband to be seized will not be in the place to be searched during the hours of 7 a.m. to 10 p.m.
In our case, there was absolutely no indication in the officer’s affidavit that the sought-after cocaine would not be on the premises from 6:30 a.m. to 10:00 p.m. In fact, the affidavit made no effort whatsoever, as testified to by the affiant, to set forth any reasons why the house should be searched at night. It does not indicate drug transfers observed at any time, much less during the night, nor any facts from which the magistrate could infer that there was a possibility of a violent confrontation during a daytime search. See Tuttle v. Superior Court,
The facts of this case show the invasion of privacy which may result because of a nighttime search. By enacting
In conclusion, the affidavit acсompanying the requested warrant did not set forth “good cause” for a nighttime search and the trial court consequently erred both by authorizing nighttime service and by denying the subsequent motion to suppress. The judgment is reversed, with directions for the trial court to grant appellant’s motion to suppress items seized pursuant to the search warrant executed on June 11, 1983.
Notes
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