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Ariz SPECIAL MARITIME JURISDICTION

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					                                                                                                                  Page 1
                                            136 Ariz. 1, *; 663 P.2d 992, **;
                                              1983 Ariz. LEXIS 184, ***




                                                 1 of 10 DOCUMENTS

                  STATE of Arizona ex rel. William J. EKSTROM, Jr., Mohave County Attorney,
                  Petitioner, v. The JUSTICE COURT OF the STATE OF ARIZONA, In and For
                KINGMAN PRECINCT NO. 1, The Honorable Clyde A. McCune, Former Justice of
                  the Peace thereof, and The Honorable William Gumaer, Successor Justice of the
                 Peace thereof, and Rod Henry Aguilar, Paul Michael Jones, Kendall D. Lowe, and
                      David Hugh Glen, Defendants and Real Parties in Interest, Respondents

                                                      No. 16387-SA

                                               Supreme Court of Arizona

                                      136 Ariz. 1; 663 P.2d 992; 1983 Ariz. LEXIS 184


                                                         May 4, 1983




PRIOR HISTORY: [***1]                                          on (1) the reasonableness of the procedures followed at
                                                               checkpoints making intrusions minimal; (2) the public
    SPECIAL ACTION
                                                               interest in using the checkpoint procedures; and (3) the
    Prayer for Relief Denied                                   need for the enforcement technique demonstrated by the
                                                               records. The court determined that the intrusions
                                                               generated by the state's intrusion were not minimal
DISPOSITION:                                                   because of the lack of inspection guidelines provided,
    Affirmed.                                                  and the stops were unreasonable because the state's
                                                               stipulation indicated an adequate alternative method of
                                                               enforcing the drunk driving statute and no pressing need
CASE SUMMARY:                                                  for using an intrusive roadblock.

                                                               OUTCOME: The court affirmed the lower court's
PROCEDURAL POSTURE: The state of Arizona                       decisions granting defendants' motions to suppress
petitioned for special action pursuant to Ariz. R. Civ. P.     evidence and denied the relief sought by the state.
8 when its prayer for relief was denied. The state sought
relief from defendant local justice of the peace's decision    CORE TERMS: roadblock, driver, drunk drivers,
to suppress evidence the state gathered using a roadblock      intrusion, highway, suspicion, seizure, occupant, alcohol,
to arrest drivers for DWI and drug possession.                 arrest, checkpoint, questioning, public interest, driving,
                                                               founded, roving, personal liberty, probable cause, drunk
OVERVIEW: The state petitioned for special action for          driving, inspection, reasonable suspicion, law
review of the validity of a justice's granting motions to      enforcement, investigatory, arrested, quantum, deterrent,
suppress evidence used in arresting individuals for DWI        individualized suspicion, intrusive, patrol, intoxicated
and drug possession based on random roadblock vehicle
searches. The state stipulated the searches were               LexisNexis (TM) HEADNOTES - Core Concepts:
conducted to enforce the DWI laws. The court
determined that vehicle stops made for the purpose of
potentially discovering a crime were unauthorized under        Constitutional Law > Search & Seizure > Probable
the Fourth Amendment. The court held investigative             CauseConstitutional Law > Search & Seizure > Vehicle
vehicle stops in the absence of probable cause or              SearchesCriminal Law & Procedure > Search &
reasonable suspicion were reviewed with a focus on             Seizure > Warrantless Searches > Stop &
balancing government and public interests and focused
                                                                                                                  Page 2
                                            136 Ariz. 1, *; 663 P.2d 992, **;
                                              1983 Ariz. LEXIS 184, ***

FriskConstitutional Law > Search & Seizure > Scope of          individualized encounters under circumstances giving
Protection                                                     rise to a reasonable suspicion that criminal activity may
[HN1] Both U.S. Const. Amend. IV and Ariz. Const. art.         be afoot. And in justifying the particular intrusion the
2, § 8, providing that no person shall be disturbed in his     police officer must be able to point to specific and
private affairs without authority of law, protect travelers    articulable facts which, taken together with rational
upon the public highways from harassment by                    inferences from those facts, reasonably warrant that
government agents if there is no basis to support a            intrusion.
founded suspicion of criminal activity.
                                                               Criminal Law & Procedure > Search & Seizure >
Constitutional Law > Search & Seizure > Probable               Warrantless Searches > Stop & FriskConstitutional
CauseConstitutional Law > Search & Seizure > Vehicle           Law > Search & Seizure > Scope of Protection
SearchesCriminal Law & Procedure > Search &                    [HN5] The public interest demands that all dangerous
Seizure > Warrantless Searches > Stop &                        conditions be prevented or abated, yet it is doubtful that
FriskConstitutional Law > Search & Seizure > Scope of          any other canvassing technique would achieve
Protection                                                     acceptable results. The three factors relied upon by a
[HN2] A police officer may not randomly stop the driver        court are (1) the unique government and public interest
of a motor vehicle on a public highway in Arizona to           in universal compliance with legislative standards; (2)
check his vehicle registration and operator's license for      the inability to accomplish an acceptable level of
the purpose of ascertaining whether he is violating the        enforcement under the traditional probable cause
law. A valid distinction between a stop made for the           standard; and (3) the relatively minimal invasion of
purpose of discovering a crime in the first instance and a     personal privacy and dignity attendant to periodic area
stop made to investigate a crime already known to have         inspection programs because the inspections are neither
been committed. The former is unauthorized under the           personal in nature nor aimed at the discovery of evidence
Fourth Amendment while the latter is permissible if it         of crime.
meets the test enunciated in Terry v. Ohio.
                                                               Constitutional Law > Search & Seizure > Probable
Criminal Law & Procedure > Search & Seizure >                  CauseConstitutional Law > Search & Seizure > Vehicle
Warrantless Searches > Stop & FriskConstitutional              SearchesCriminal Law & Procedure > Search &
Law > Search & Seizure > Scope of Protection                   Seizure > Warrantless Searches > Stop &
[HN3] To determine whether a particular law                    FriskConstitutional Law > Search & Seizure > Scope of
enforcement activity is permissible under the Fourth           Protection
Amendment, the facts upon which the activity is based          [HN6] A requirement of reasonable suspicion for stops
are measured against an objective standard such as             allows the government adequate means of guarding the
probable cause or some other less stringent test. In           public interest and also protects residents from
deciding what objective standard is applicable, the            indiscriminate official interference. The balance of
United States Supreme Court has employed a balancing           interests requires a reasonable suspicion for a roving
of interests technique which establishes the quantum of        patrol to stop a car.
evidence necessary to justify certain distinct types of
official action. This balancing of interests requires that     COUNSEL:
the intrusion caused by the police conduct on an
                                                                   William J. Ekstrom, Jr., Mohave County Atty. by
individual's Fourth Amendment interests be weighed
                                                               Craig R. Friesner, Kingman, for petitioner.
against its promotion of legitimate government interests.
In those situations in which the balance of interests              Michael L. Altman, Professor, Arizona State
precludes insistence upon some quantum of                      University, Tempe, and William C. Porter, Kingman, for
individualized suspicion, other safeguards are generally       respondents.
relied upon to assure that the individual's reasonable
expectation of privacy is not subject to the discretion of        Kenneth D. Freedman, Phoenix, for amicus curiae
                                                               American Citizens and Lawmen Ass'n.
the official in the field.

Constitutional Law > Search & Seizure > Probable               JUDGES:
CauseConstitutional Law > Search & Seizure > Vehicle
SearchesCriminal Law & Procedure > Search &                        En Banc. Hays, Justice. Holohan, C.J., and Gordon,
Seizure > Warrantless Searches > Stop & Frisk                  V.C.J., concur. Feldman, Justice, specially concurring.
[HN4] A "Terry" stop permits a police officer, in an           Cameron, Justice, concurring.
appropriate manner, to conduct brief, unplanned,
                                                                                                                   Page 3
                                            136 Ariz. 1, *; 663 P.2d 992, **;
                                              1983 Ariz. LEXIS 184, ***

OPINIONBY:                                                     150 yards from the port-of-entry to channel all oncoming
                                                               traffic into the roadblock. No warning signs or advance
    HAYS
                                                               flashing lights announced the roadblock or its purpose,
                                                               nor did DPS advise drivers in advance that roadblocks
OPINION:                                                       would be operated near Kingman on August 26, 1982 or
                                                               September 6, 1982.
     [*1] [**992] On August 26, 1982, from 7 p.m. to
12 p.m., and on September 6, 1982, from 3 p.m. to 9                 Drivers stopped at the roadblock were required to
p.m., every car heading south on Highway 93 near               produce their driver's license and vehicle registration
Kingman, Arizona was stopped.            The stops were        while DPS officials visually inspected the driver and the
conducted by agents and officers of the Department of          interior and exterior of his car. The officers [***4]
Public Safety (DPS), the Motor Vehicle Division of the         looked for any indication of alcohol impairment
Department of Transportation, and the Cooperative              including attempting to smell whether there was alcohol
Enforcement Unit (a drug enforcement unit) at a port-of-       on the driver's breath or alcohol in the car, inspected
entry located at the junction of U.S. 93 and Route 68.         visible cans and bottles, and shined flashlights into the
The port-of-entry consists of a building, lanes covered by     interior and on the car's occupants. Vehicles were
an awning, lighting for night hours and traffic control        detained from 30-40 seconds to 5 minutes at the
devices which flash either yellow or red when the port-        Kingman roadblocks. If the driver's papers were not in
of-entry is in operation.                                      order or there was a need for further questioning or
                                                               investigation, the car was referred to a secondary
      [*2] [***2] [**993] Each of the defendants in            inspection point where delayed for a longer period of
this matter was stopped at the Kingman roadblock on            time. If the DPS official determined there was probable
August 26 or September 6, 1982. Aguilar, Jones and
                                                               cause to believe a driver was driving while intoxicated,
Glen were arrested for driving while intoxicated (DWI),        or evidence of some other statutory violation was
A.R.S. § 28-692(A) or (B), and Lowe was arrested for           discovered, the driver was arrested.
driving while under the influence of drugs, A.R.S. § 28-
692(L) and for possession of marijuana. All the charges             DPS estimates that 5,763 vehicles were stopped at a
were filed in the Justice Court, Kingman Precinct No. 1        number of roadblocks in Arizona on September 6, 1982,
and were consolidated on identical motions to suppress.        and, as a result of those stops, fourteen persons were
The justice of the peace ruled that the roadblock as it was    arrested for driving while intoxicated. Three of the
operated in Kingman was unconstitutional under the             fourteen were arrested at the Kingman roadblock. At the
fourth amendment to the United States Constitution and         Kingman roadblocks on the two dates combined, DPS
granted the motions to suppress the evidence gathered          issued 13 DWI arrests, 71 license and registration
therefrom. This petition for special action was filed by       citations, 33 warning and repair orders, 4 drug arrests, 4
the Mohave Deputy County Attorney.              We have        liquor arrests, 3 misdemeanor arrests [***5] and one
jurisdiction pursuant to rule 8, Special Actions, Rules of     felony warrant arrest.
Procedure, 17A A.R.S.
                                                                    The parties agree that stopping an automobile and
     The parties have stipulated to the following facts.       detaining its occupants constitutes a "seizure" within the
The primary purpose in establishing the roadblock was to       meaning of the fourth and fourteenth amendments, even
enforce the state's drunk driving laws by discovering          though such investigatory stop is brief and limited in
drunk drivers; secondarily, the agents at the roadblock        purpose. Delaware v. Prouse, 440 U.S. 648, 653, 99
checked vehicle registration and licensing. The decision       S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). [HN1] "Both
to operate roadblocks in Kingman was made [***3] by            the Fourth Amendment to the Constitution of the United
Lt. John Tibbetts, a DPS officer in charge of the DPS          States and Article 2, § 8 of the Arizona Constitution,
District with headquarters in Kingman, who decided             providing that 'No person shall be disturbed in his private
when, where and how to conduct the operation. Lt.              affairs * * * without authority of law' protect travelers
Tibbetts gave the approximately six police cars and            upon the public highways from harassment by
twelve officers involved in each roadblock no                  government agents if [*3] [**994] there is no basis to
instructions regarding the procedure to be followed.           support a founded suspicion of criminal activity." State v.
"They were not told what to do if a vehicle turned around      Ochoa, 112 Ariz. 582, 584, 544 P.2d 1097, 1099 (1976).
to avoid the roadblock. They were not told whether to
                                                                    Whether the fourth amendment was violated by the
inspect visible cans or bottles. They were not told
                                                               Kingman roadblocks turns on whether a vehicle may be
whether to shine flashlights in each vehicle that was
                                                               stopped at a temporary checkpoint for brief questioning
stopped after dark. They were not told whether to smell
                                                               of its occupants even though there is no reason to believe
inside each vehicle to detect the smell of alcohol." DPS
                                                               the driver is drunk. In State v. Ochoa, supra, we held
placed pylons and lighted flares on the highway about
                                                                                                                    Page 4
                                              136 Ariz. 1, *; 663 P.2d 992, **;
                                                1983 Ariz. LEXIS 184, ***

that [HN2] a police officer may not randomly stop the                 Contemporaneously with Terry, the Court was
driver of a motor vehicle on a public highway in Arizona         confronted with another law enforcement activity, that of
to check [***6] his vehicle registration and operator's          making a routine annual inspection of an apartment
license for the purpose of ascertaining whether he is            building without probable cause to believe the city
violating the law. We noted a valid distinction between a        housing code was being violated. Camara v. Municipal
stop made for the purpose of discovering a crime in the          Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930
first instance and a stop made to investigate a crime            (1967). In determining the quantum of evidence
already known to have been committed. "The former is             necessary to sustain this activity, the Court concluded
unauthorized under the fourth amendment while the                that the balance of interests precluded insistence upon
latter is permissible if it meets the test enunciated in         some quantum of individualized suspicion because the
Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20           need to search outweighed the invasion the search
L.Ed.2d 889 (1968)." State v. Axley, 132 Ariz. 383, 390,         entailed. The Court held that reasonable standards based
646 P.2d 268, 275 (1982). However, we did not reach              upon such factors as the passage of time, the nature of
the questions presented by a roadblock-type stop                 the building or the condition of the entire area would
conducted for the purpose of ascertaining whether a              suffice to establish the right of inspection by warrant.
crime has been or is being committed. See State v.               [HN5] "[T]he public interest demands that all dangerous
Graciano, 134 Ariz. 35, 37 n. 2, 653 P.2d 683, 685               conditions be prevented or abated, yet [***9] it is
(1982).                                                          doubtful that any other canvassing technique would
                                                                 achieve acceptable results." Id. at 573, 87 S.Ct. at 1735.
      [HN3] To determine whether a particular law
                                                                 The three [*4] [**995] factors relied upon by the
enforcement activity is permissible under the fourth
                                                                 Court are (1) the unique government and public interest
amendment, the facts upon which the activity is based
                                                                 in universal compliance with housing code standards; (2)
are measured against an objective standard such as
                                                                 the inability to accomplish an acceptable level of code
probable cause or some other less stringent test. Terry v.
                                                                 enforcement under the traditional probable cause
Ohio, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880. In
                                                                 standard; and (3) the relatively minimal invasion of
deciding what objective standard is applicable, the
                                                                 personal privacy and dignity attendant to periodic area
United States Supreme [***7] Court has employed a
                                                                 inspection programs because the inspections are neither
balancing of interests technique which establishes the
                                                                 personal in nature nor aimed at the discovery of evidence
quantum of evidence necessary to justify certain distinct
                                                                 of crime. Id.
types of official action. This balancing of interests
requires that the intrusion caused by the police conduct              With this background, the United States Supreme
on an individual's fourth amendment interests be                 Court considered the legality of investigative stops of
weighed against its promotion of legitimate government           automobiles where the officer making the stop has
interests. "In those situations in which the balance of          neither probable cause nor reasonable suspicion to
interests precludes insistence upon 'some quantum of             believe the car or its occupants are violating any
individualized suspicion,' other safeguards are generally        applicable laws. In United States v. Brignoni-Ponce, 422
relied upon to assure that the individual's reasonable           U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the
expectation of privacy is not 'subject to the discretion of      Court addressed the practice of using roving patrols to
the official in the field.'" (citations omitted). Delaware v.    stop cars to search for illegal aliens based upon criteria
Prouse, supra, 440 U.S. at 654-655, 99 S.Ct. at 1396-            such as the apparent Mexican ancestry of the occupant.
1397.                                                            The Court concluded [***10] that even though the
                                                                 public interest in stemming the flow of illegal
     Two distinct lines of cases treat very limited kinds
                                                                 immigrants into the United States was substantial, the
of searches or seizures as not unreasonable in
                                                                 intrusion of roving patrols was too great. "[T]he nature
circumstances short of probable cause. In Terry v. Ohio,
                                                                 of illegal alien traffic and the characteristics of
supra, the Court held that a brief stopping for
                                                                 smuggling operations tend to generate articulable
investigation requires a lesser quantum of evidence than
                                                                 grounds for identifying violators. Consequently, [HN6]
an arrest. [HN4] A "Terry" stop permits a police officer,
                                                                 a requirement of reasonable suspicion for stops allows
in an appropriate manner, to conduct brief, unplanned,
                                                                 the government adequate means of guarding the public
individualized encounters under circumstances giving
                                                                 interest and also protects residents of the border areas
rise to a reasonable [***8] suspicion that criminal
                                                                 from indiscriminate official interference." Id. at 883, 95
activity may be afoot. "And in justifying the particular
                                                                 S.Ct. at 2581. The Court then held that the balance of
intrusion the police officer must be able to point to
                                                                 interests requires a reasonable suspicion for a roving
specific and articulable facts which, taken together with
                                                                 patrol to stop a car.
rational inferences from those facts, reasonably warrant
that intrusion." Id. at 21, 88 S.Ct. at 1880.
                                                                                                                   Page 5
                                            136 Ariz. 1, *; 663 P.2d 992, **;
                                              1983 Ariz. LEXIS 184, ***

     In United States v. Martinez-Fuerte, 428 U.S. 543,        [***13] highway patrolman and were operated without
96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Court found         specific directions or guidelines. Officers were uncertain
that the balance of interests tipped in favor of precluding    whether they should simply question the occupants of
insistence upon some quantum of evidence. The case             motor vehicles or whether they should seize the
involved a fixed checkpoint located away from the              opportunity to cursorily search the vehicles for evidence
international border with Mexico, authorized by                of a violation. Motorists were taken by surprise, not
responsible officials, where cars were briefly stopped         having had prior notice of the location and purpose of the
and the occupants questioned.           The three factors      checkpoints. We find present in the Kingman operation
discussed in Camara were persuasive: the                       the grave danger that such discretion might be abused by
reasonableness of the procedures followed [***11] at           the officer in the field, a factor which caused the Court in
the checkpoints made the intrusion minimal, the public         United States v. Prouse, supra, much concern.
interest in such checkpoints was found to be great, and ".
                                                                    The state maintains that even if the intrusion is
. . the need for this enforcement technique is
                                                               significant, such stops are reasonable under the fourth
demonstrated by the records in the cases before us." Id.
                                                               amendment because the public interest in apprehending
at 562, 96 S.Ct. at 3085. (The records before the Court
                                                               drunk drivers outweighs the intrusion entailed.
indicated that in 1973 approximately 17,000 illegal
                                                               However, the record discloses no statistics concerning
aliens were apprehended at this checkpoint. Id. at 554,
                                                               the extent of the problem of drunk drivers on Arizona
96 S.Ct. at 3081). The crucial distinction between United
                                                               highways nor does it indicate whether the Kingman
States v. Martinez-Fuerte, supra, and United States v.
                                                               roadblocks were more effective in dealing with the
Brignoni-Ponce, supra, is the lesser subjective intrusion
                                                               problem than the traditional roving patrols acting upon
("the generating of concern or even fright on the part of
                                                               reasonable suspicion. We are well aware of the danger to
lawful travelers") caused by a routine checkpoint stop
                                                               life imposed by the drunk driver and we agree that the
than by roving patrols. United States v. Martinez-Fuerte,
                                                               public has [***14] a substantial interest in ensuring that
supra, 543 U.S. at 558, 96 S.Ct. at 3083.
                                                               people who are inebriated do not operate vehicles on our
     In Delaware v. Prouse, supra, the Court recognized        highways. In the past, the foremost method of enforcing
the state's vital interest in ensuring that licensing,         the DWI laws has been by observing how the person
registration and vehicle inspection requirements are           drives. The state has stipulated that "DPS officials, by
being observed. However, the enormity of the intrusion         observing and patrolling, regularly arrest drivers for
of a program of roving spotchecking was found not              DWI when there are no roadblocks. DPS officers are
sufficiently productive to justify the invasion upon fourth    trained to detect drunk drivers on the road on the basis of
amendment interests. "Absent some empirical data to            observation. An experienced DPS officer becomes
the contrary, it must be assumed [***12] that finding an       highly skilled at detecting drunk drivers by watching
unlicensed driver among those who commit traffic               how a person drives.            Without roadblocks, an
violations is a much more likely event then finding an         experienced DPS officer can detect many drunk drivers."
unlicensed driver by choosing randomly from the entire
                                                                    By the foregoing quotation, we see that the state has
universe of drivers." 440 U.S. at 659, 99 S.Ct. at 1399. In
                                                               in effect stipulated itself out of court. If there is an
so holding, the Court stated that questioning all
                                                               adequate method of enforcing the drunk driving statute,
oncoming traffic at a roadblock-type stop might tip the
                                                               there is no pressing need for the use of an intrusive
balance of interests in favor of precluding a requirement
                                                               roadblock device. We have no empirical data in the
of reasonable suspicion because a permanent checkpoint
                                                               record before us with which to weigh the reasonableness
is less intrusive than random stops.
                                                               of the roadblock intrusion upon individual rights against
     Applying the principles of these cases, our first step    the needs of the state.
is to balance the public interest in roadblocks against the
                                                                    It is apparent from the state's pleadings and oral
individual's fourth amendment interests.         While a
                                                               argument that it hoped to sustain their position by
roadblock is, in theory, less intrusive than the roving
                                                               asserting that roadblocks are permissible to check
patrols found impermissible in [*5] [**996] United
                                                               [***15] drivers' licenses and vehicle registrations;
States v. Prouse, supra, and United States v. Brignoni-
                                                               hence, drunk driving enforcement could be an incidental
Ponce, supra, we cannot agree that the intrusion
                                                               beneficiary. The record reflects that the state stipulated
generated by the Kingman roadblocks was minimal. The
                                                               that the roadblocks were undertaken to enforce the
record establishes that the Kingman checkpoints
                                                               provisions of the DWI laws. We cannot approve
involved a not insubstantial amount of discretionary law
                                                               subterfuge even in a worthy cause. The roadblocks were
enforcement activity and that the manner in which the
                                                               for DWI enforcement; we therefore have addressed that
roadblocks were operated was somewhat irregular. The
                                                               issue and that issue alone.
roadblocks were set up at the discretion of a local
                                                                                                                       Page 6
                                            136 Ariz. 1, *; 663 P.2d 992, **;
                                              1983 Ariz. LEXIS 184, ***

    The order of the lower court granting defendants'          there was a founded suspicion or not. The issue here,
motions to suppress is affirmed. Relief denied.                therefore, is whether the fourth amendment permits
                                                               officers to stop and question persons whose conduct is
                                                               innocent, unremarkable and free from suspicion.
CONCURBY:
                                                                    The question has frightening implications. The
    FELDMAN; CAMERON
                                                               thought that an American can be compelled to "show his
                                                               papers" before exercising his right to walk the streets,
CONCUR:                                                        drive the highways or board the trains is repugnant to
                                                               American institutions and ideals. If roadblocks can be
    FELDMAN, Justice, specially concurring.                    maintained to stop all persons, regardless of how
     I concur with the result and write only because I         innocent their conduct, for the purpose of investigating
disagree with that portion of the opinion which holds that     or apprehending drunk drivers, then presumably similar
the record fails to establish sufficient grounds to uphold     stops of all citizens could be undertaken for questioning
the use of a properly instituted roadblock.                    and surveillance with regard to other crimes, such as
                                                               possession [***18] of narcotics, possession of stolen
     The roadblocks in question were established for the       property or burglary. It might be argued that if the law
purpose of discovering and apprehending drunk drivers.         did permit such stops, we would have less crime.
The rest of the reasons given for the roadblock, such as       Nevertheless, our system is based on the idea that the
administrative enforcement of driver's licensing and           risk of criminal activity is less of a danger than the risk
registration laws, were obviously ideas intended as            of unfettered interference with personal liberty. The
camouflage or support for the true purpose of the stops.       concept was succinctly expressed by a newspaper
In my view, the state would have been in a better              columnist who recently used these words in describing
position if it had faced the problem squarely [***16]          his opposition to roadblock stops for apprehension of
[*6]     [**997] and established the roadblocks in a           drunk drivers:
manner designed to achieve their true purpose, and
nothing else. It then could have argued the importance                I . . . have often thought that getting killed
of the roadblocks as a deterrent designed to keep drunk               by some intoxicated idiot who crossed the
drivers off the roads on the Labor Day weekend.                       median divider and hit me head-on would
     I agree with the majority that the roadblocks in                 be the worst and most senseless way to
question constitute a seizure under the fourth                        die.
amendment.            That     amendment,     prohibiting                  I mourn for the parents of children
"unreasonable searches and seizures," "imposes limits on              who have died at the hands of drunk
search-and-seizure powers in order to prevent arbitrary               drivers. But none of this makes a police
and oppressive interference by enforcement officials                  state acceptable. Freedom doesn't come
with the privacy and personal security of individuals."               risk-free. I'm willing to take some risks in
United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96               exchange for my freedom.
S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976). "In
delineating the constitutional safeguards applicable in        Andy Rooney, Roadblocks for Drunk Drivers Nibble
particular contexts, the [Supreme] Court has weighed the       Away at Our Freedoms, Chicago Tribune, reprinted in
public interest against the Fourth Amendment interest of       The Arizona Republic, April 4, 1983, at A7.
the individual." Id. at 555, 96 S.Ct. at 3081. Arrests
require probable cause to believe the person being                  These words reflect the spirit of the general rule that
arrested has committed a crime. Seizures short of arrest       stop and seizure involves so serious an interference with
may be made on lesser grounds, but usually require             personal liberty that it should not [***19] be permitted
"some quantum of individualized suspicion," id. at 561,        in a free society absent a founded suspicion of criminal
96 S.Ct. at [***17] 3084, most often a founded                 conduct. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct.
suspicion based upon articulable facts that the person         1391, 59 L.Ed.2d 660 (1979). However, "the Fourth
being arrested is or has engaged in criminal activity.         Amendment imposes no irreducible requirement of
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889       [individualized] suspicion." Martinez-Fuerte, 428 U.S. at
(1968); State v. Graciano, 134 Ariz. 35, 37, 653 P.2d          561, 96 S.Ct. at 3084. While the balancing of public and
683, 685 (1982).                                               private interests usually makes individualized suspicion a
                                                               prerequisite to a constitutional search or seizure, several
    The Terry exception to the probable cause                  examples of reasonable searches and seizures based on a
requirement will not support the stops made in the instant     standard other than individualized suspicion can be
cases because the roadblock stopped everyone -- whether        noted. As the majority indicates, one such exception has
                                                                                                                      Page 7
                                             136 Ariz. 1, *; 663 P.2d 992, **;
                                               1983 Ariz. LEXIS 184, ***

been enforcement of building codes [*7]             [**998]            99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)] the
through the inspection of premises.             Camara v.              Court cited those decisions in declaring,
Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18                       in the context of assessing a stopping for a
L.Ed.2d 930 (1967). Another recognized exception is the                narcotics investigation, that such a seizure
use of roadblock-type stops of all vehicles to enforce the             must be upon reasonable, individualized
immigration laws. United States v. Martinez-Fuerte,                    suspicion or "must be carried out pursuant
supra. A third exception involves airport stops and                    to a plan embodying explicit, neutral
searches. The luggage check and metal detection                        limitations on the conduct of individual
procedure with which we are all now familiar is an                     officers." This suggests that a roadblock
interference in personal liberty and is, therefore, a search           conducted in conformance with such a
under the fourth amendment. [***20] See United States                  plan might pass [***22]              Fourth
v. Davis, 482 F.2d 893 (9th Cir.1973). Nevertheless, all               Amendment muster even when not
persons are subjected to that process, even though there               directed at the apprehension of the
is no founded suspicion that they are engaged in criminal              perpetrator of a specific recent and most
activity, because the need for inspection is urgent, the               serious crime.
potential damage is great and there are few, if any,
reasonable alternatives. Thus, a non-discriminatory,            3 W. LaFave, Search and Seizure §           9.5 at 63-64
non-discretionary search of prospective travelers'              (Supp.1983).
luggage by X-ray and their bodies by metal detectors has
                                                                    It is here that I depart from the reasoning of the
been sustained as reasonable under the fourth
                                                                majority. Applying the balancing test of Camara v.
amendment. See id. at 910-912; United States v.
                                                                Municipal Court and of United States v. Martinez-
Epperson, 454 F.2d 769 (4th Cir.1972), cert. denied, 406
                                                                Fuerte, supra, I believe that we are able to hold that a
U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972).
                                                                properly conducted roadblock stop without founded
    An excellent review of the problem is contained in          suspicion is permitted by the fourth amendment when
Professor LaFave's work on search and seizure:                  used for deterrent purposes rather than traditional
                                                                investigatory purposes. I reach this conclusion upon
       It may well be, however, that a roadblock                weighing the factors mentioned by the Supreme Court in
       for general enforcement purposes, if it                  Camara and Martinez-Fuerte.
       involves nothing more than questioning of
                                                                     First, we must consider the purpose of the intrusive
       the occupants of the vehicle stopped, will
                                                                conduct. United States v. Munoz, 701 F.2d 1293, 1299
       be upheld under some circumstances. The
                                                                (9th Cir., March 22, 1983). The governmental interest
       Supreme Court has upheld the use of
                                                                sought to be protected by the roadblocks is greater than
       "reasonably located checkpoints" for the
                                                                merely detecting and apprehending drunk drivers. Given
       purpose of questioning vehicle occupants
                                                                the carnage on our highways, there is a unique societal
       to determine whether they are illegal
                                                                interest in enforcing compliance with the [*8] [**999]
       aliens [citing United States v. Martinez-
                                                                law by deterring driving while under the influence of
       Fuerte, [***21]        supra] (but not to
                                                                alcohol or other drugs. n1 [***23]
       search the vehicles for such aliens), and
       has also indicated that "questioning of all
       oncoming traffic at roadblock-type stops"
       would be a lawful means of checking                                  n1 This factor highlights the difference
                                                                       between drunk driving and other types of crime
       drivers' licenses and vehicle registrations.
       [Citing Delaware v. Prouse, supra.]                             involving motor vehicles. No doubt roadblocks
       Those cases, however, are grounded on                           would be useful in enforcing compliance with the
                                                                       laws concerning joyriding, stolen vehicles,
       the balancing test of Camara v. Municipal
       Court and a determination that, as in                           driving with improper equipment and the like.
       Camara, the particular government                               However, society's interest in law enforcement
                                                                       respecting these crimes is not of the same weight
       interests involved could not be adequately
       protected if an individualized reasonable                       as its interest in ending the death and injury
       suspicion test were applicable. This being                      which result from the mix of alcohol and
                                                                       gasoline; the weight of the competing interests
       so, it cannot be assumed that those cases
       inevitably carry over to roadblocks                             enters into the decision because the fourth
       conducted for more ordinary or traditional                      amendment forbids only "unreasonable" search
       investigative purposes.        But more                         and seizure.
       recently, in Brown v. Texas, [443 U.S. 47,
                                                                                                                 Page 8
                                            136 Ariz. 1, *; 663 P.2d 992, **;
                                              1983 Ariz. LEXIS 184, ***

     Second, the state cannot satisfy this interest by         associated with drinking problems. Alcohol Problems
traditional methods which satisfy the Terry test. The          Seem to be More Widespread in the West, The Wall
traditional system has left us far short of achieving the      Street Journal, January 25, 1983, at 25. These statistics
law's objective. While the state necessarily stipulates        make it obvious that traditional law enforcement
that training and experience enable police officers to         methods, involving the arrest by roving officers of only
recognize and apprehend many inebriated drivers upon           those whom they can stop upon a founded suspicion of
founded suspicion, I do not believe that this "stipulates      drunk driving, fall short of satisfying society's
the state out of court." [***24] It is only fortuitous that    compelling interest in enforcing compliance with the
an officer happens to be in a position to see a drunk          laws prohibiting drunk driving. n3 [*9] [**1000] This
entering the freeway on the off-ramp before that drunk         being so, more intrusive methods may be considered
happens to kill some innocent person. We are not likely        reasonable. See Delaware v. Prouse, 440 U.S. at 659, 99
ever to achieve the situation where there will be police       S.Ct. at 1399.
officers available at closing time on a Labor Day
weekend night at each of the locations where patrons
shuffle from their favorite saloon to the parking lot, nor,                n2 In Noland v. Wootan, 102 Ariz. 192, 193,
I think, would we ever desire to have that many officers              427 P.2d 143, 144 (1967), we did "take judicial
available.                                                            notice of the terrible toll taken by drivers who
                                                                      mix alcohol and gasoline."
     While the majority indicates "the record discloses no
statistics concerning the extent of the problem of drunk                   n3 One might argue that the recently enacted
drivers on Arizona highways" (at 996), I believe that                 statutes (A.R.S. § 28-692 to -692.02) increasing
readily available statistics provide us with information of           punishment for driving while intoxicated would
which we may take judicial notice. n2 In a statement                  provide a sufficient deterrent, without infringing
made before the United States Senate Subcommittee on                  upon the liberty of innocent persons. The
Surface Transportation in 1982, the Deputy                            problem is that deterrence by punishment is often
Administrator of the National Highway Traffic Safety                  ineffective unless combined with a fear of
Administration stated: "Over the past 10 years the                    apprehension. The same comment could, of
number of persons killed on our highways in motor                     course, be made with regard to all other crimes,
vehicle accidents involving alcohol has averaged 25,000               but almost all other crimes can be distinguished.
per year. In 1980, over 650,000 people were injured in                In drunk driving it is the very presence of the
accidents involving alcohol." Federal Legislation to                  vehicle on the road which is the object to be
Combat Drunk Driving Including [***25] National                       prevented and the single thing most effectively
Driver Register: Hearing on S. 671, S. 672, S. 2158                   accomplished by roadblocks. In narcotics
Before the Subcomm. on Surface Transportation of the                  enforcement, on the other hand, there is no
Senate Comm. on Commerce, Science & Transportation,                   assurance that roadblocks would prevent
97th Cong., 2nd Sess. 65 (1982). Between 40 and 55%                   possession or sale, and there is no method of
of drivers who are fatally injured have alcohol                       enforcement except by search of the person and
concentrations in their blood above the legal limit and               vehicle itself. In my opinion, this involves too
this figure rises to 55 to 65% in single-vehicle crashes.             great an infringement on personal liberty. The
Alcohol, Drugs & Driving: Hearing to Examine What                     deterrent roadblock for drunk driving would,
Effect Alcohol & Drugs Have on Individuals While                      however, force the car off the road or prevent it
Driving Before the Subcomm. on Alcoholism & Drug                      coming on the road, thus meeting the law
Abuse of the Senate Comm. on Labor & Human                            enforcement objective with a very minimal
Resources, 97th Cong., 2nd Sess. 1 (1982). Furthermore,               infringement on personal liberty.
it has been estimated that one out of every 50 drivers on
the road has a blood-alcohol content of .10 or higher; on      [***27]
Friday and Saturday nights, one out of 10 drivers is
drunk. Hearing Before the Subcomm. on Surface                       Third, the roadblock method can be planned and
                                                               operated so that it requires only a relatively minimal
Transportation, supra at 112. However, "only 1 of every
2,000 drinking drivers is caught daily, while 70 [people]      invasion of personal liberty, privacy and dignity. United
are killed." Id. at 55. Many of those killed or injured are    States v. Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. at
                                                               3083. In reaching this conclusion, I do not minimize the
innocent victims of drunk drivers. Arizonans are no less
in jeopardy than those in other states. The National           intrusion. Being stopped and questioned by police
Institute of Alcohol Abuse and Alcoholism reports              officers while exercising one's lawful rights is a
[***26] that Arizona ranks fourth highest among the            substantial infringement upon liberty of movement.
states in the proportionate number of casualties               Nevertheless, the serious dangers involved in airplane
                                                                                                                  Page 9
                                            136 Ariz. 1, *; 663 P.2d 992, **;
                                              1983 Ariz. LEXIS 184, ***

hijacking and bomb incidents have compelled us to              of probable cause for the arrest of the three defendants
accept some degree of restraint upon personal liberty          [*10] [**1001] in question in this case is tainted by
when we exercise our right to move through the airport         that illegality. I maintain, however, that the fourth
and board an airplane. An occasional stop at a roadblock       amendment would allow properly [***30] planned and
for minimal questioning and visual inspection -- not           operated roadblocks established for deterrent rather than
search -- may well be the price which we have to pay to        investigative or apprehension purposes; the object would
enforce compliance with the law and rid ourselves of the       be to enforce compliance with the laws prohibiting
presently intolerable danger created by drunk drivers. In      driving under the influence of alcohol or drugs by
my view, therefore, limited infringement on personal           deterring such people from going upon the highway at
movement in this situation is reasonable and thus              all.    Possible penal consequences would be only
permitted by the fourth amendment. However, even               incidental and secondary. See United States v. Munoz,
though the danger is great and enforcement alternatives        701 F.2d at 1299.
ineffective, the intrusion on personal liberty must be kept
                                                                    I acknowledge that the effect of the roadblock is
to [***28] a minimum by being "carried out pursuant to
                                                               often the same whether it be placed for deterrence or
a plan embodying explicit, neutral limitations on the
                                                               investigation, n4 but that there are some significant
conduct of individual officers." Brown v. Texas, 443 U.S.
                                                               differences which are the natural result of the difference
at 51, 96 S.Ct. at 2640.
                                                               in purpose.      For instance, roadblocks placed for
     It is at this point that I must rejoin the majority,      deterrence should be instituted at times and locations
because the roadblocks under consideration here do not         based upon the need to supplement random investigatory
pass such a test. The record before us does not indicate       stops with measures designed to keep drunken drivers
that the roadblocks in question were established by any        from using heavily traveled highways at all. Next, the
plan formulated or approved by executive-level officers        efficacy of a deterrent roadblock is heightened by
of the law enforcement agencies involved. See Balelo v.        advance publicity in the media and on the highways.
Baldridge, F.2d , , No. 81-5806 (9th Cir., Jan. 5,             Such publicity would warn those using the highways that
1983). No standards were provided with regard to time,         they might expect to find roadblocks designed to check
place and the number of officers required to make sure         for sobriety; the warning may well decrease the chance
delays were held to a minimum and the roadblocks               of apprehending "ordinary" criminals, [***31] but
instituted at times and places where they would be most        should certainly have a considerable deterring effect by
effective to deter drunk drivers. No procedural rules or       either dissuading people from taking "one more for the
regulations or instructions were given the individual          road," persuading them to drink at home, or inducing
officers or their immediate supervisors. Procedures to be      them to take taxicabs. Any one of these goals, if
followed in stopping vehicles and questioning their            achieved, would have the salutary effect of interfering
occupants were left to the discretion of the lower level       with the lethal combination of alcohol and gasoline.
officers; they could and did vary from roadblock to            Advance notice would limit intrusion upon personal
roadblock. No doubt as a result, the record before us          dignity and security because those being stopped would
indicates [***29] the use of methods which would be            anticipate and understand what was happening. See
doubtful in seizure of a person stopped on a founded           Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083;
suspicion of criminal activity, and which are certainly        United States v. Davis, 482 F.2d at 914. For these
highly inappropriate for a stop of someone whose               reasons, roadblock stops are less intrusive than
conduct provided the officer with no grounds for               investigatory stops by roving officers. United States v.
suspicion. For instance, the record indicates that the         Munoz, 701 F.2d at 1297.
officers did not explain the purpose of the roadblock or
stop to occupants of vehicles. Worse, the officers
refused to answer questions regarding the reason for the                   n4 Obviously, a stop for the purpose of
stop. Searches were made, some, no doubt, without                     questioning and visual inspection regarding
probable cause. Officers present included those not even              sobriety may lead to particularized suspicion
assigned to traffic enforcement duty. The record is                   justifying further police action in some cases.
replete with other details of improper operation. It is
unnecessary to recount them; the requirements of
explicit, neutral limitations on the conduct of officers is         In conclusion, therefore, drawing a balance between
                                                               an individual's right of personal liberty and the urgent
explained in Martinez-Fuerte, supra.
                                                               public [***32] interest in enforcement of the drunk
    Thus, I join in the court's conclusion that the stop of    driving laws, I would permit the use of administratively
each vehicle at these roadblocks violated the fourth           planned and properly operated roadblocks for deterrent
amendment and was illegal. The subsequent discovery            purposes in situations, like the one before us, where
                                                                                                                  Page 10
                                            136 Ariz. 1, *; 663 P.2d 992, **;
                                              1983 Ariz. LEXIS 184, ***

problems unique to motor vehicles render traditional
methods of law enforcement ineffective. Even when so
                                                                          n5 "No person shall be disturbed in his
planned and designed, such roadblocks should be
                                                                      private affairs, . . . without authority of law."
operated in a manner calculated in advance to provide
the least possible intrusion into the public's freedom and
                                                               [***33]
sense of security. Methods to achieve this are suggested
in United States v. Martinez-Fuerte, supra, and should be           I join in the holding that the order of the lower court
observed. In my view, the roadblocks in the case before        granting defendant's motions to suppress should be
us were investigatory in nature and operated as though         affirmed.
the officers were exercising some right of apprehension.
                                                                   CAMERON, Justice, concurring.
While there may be intimations in Brown v. Texas,
supra, that investigatory roadblocks are proper, I would            I concur in the opinion of Justice Feldman, except
hold that under the Arizona Constitution, art. 2, § 8, n5      the strict distinction drawn between the investigatory and
they are not, even if the United States Supreme Court          deterrence purposes of this enforcement activity.
should allow them under the fourth amendment to the
United States Constitution.
                                                2 of 10 DOCUMENTS

                    CRAIG W. PETERSEN, Plaintiff-Appellee,v. CITY OF MESA, Defendant-
                                               Appellant.

                                                   1 CA-CV 02-0016

                   COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT B

                    204 Ariz. 278; 63 P.3d 309; 2003 Ariz. App. LEXIS 30; 394 Ariz. Adv. Rep. 22; 19
                                                BNA IER CAS 1290


                                                 February 25, 2003, Filed




SUBSEQUENT HISTORY:              Review granted by           need to discover specific but hidden conditions
Petersen v. City of Mesa, 2003 Ariz. LEXIS 115 (Ariz.,       representing grave risks to the health and safety of the
Sept. 9, 2003)                                               firefighters and the public, the appellate court held that
Vacated by Petersen v. City of Mesa, 2004 Ariz. LEXIS        that the random testing component of the policy was
12 (Ariz., Jan. 27, 2004)                                    reasonable under both Ariz. Const. art. II, § 8, and the
                                                             U.S. Const. amend. IV. The strictures imposed by the
PRIOR HISTORY: [***1] Appeal from the Superior               Arizona Constitution were no greater than those of the
Court in Maricopa County. Cause No. CV2001-090218.           Fourth Amendment and random testing was not an
The Honorable Robert D. Myers, Judge.                        unreasonable search in violation of either constitution.
                                                             The testing was imposed on individuals who had
DISPOSITION: REVERSED AND REMANDED,                          substantially reduced expectations of privacy because
AND INJUNCTION WAS VACATED..                                 they worked in a highly regulated occupation.

CASE SUMMARY:                                                OUTCOME: The summary judgment in favor of the
                                                             firefighter was reversed, the injunction was vacated, and
                                                             the case was remanded.
PROCEDURAL POSTURE: Appellee firefighter
challenged the constitutionality of the random testing       CORE TERMS: testing, firefighter, drug testing,
component of appellant city's proposed drug and alcohol      random, Fourth Amendment, privacy, suspicionless,
testing policy. In awarding summary judgment to the          individualized suspicion, intrusion, random testing, drug
firefighter and permanently enjoining the city from          problem, unannounced, drug use, impaired, urine, special
implementing the random, suspicionless aspect of the         need, reasonableness, promotion, detect, deter,
policy, the Superior Court in Maricopa County (Arizona)      collection, expectations of privacy, documented, athletes,
relied on Ariz. Const. art. II, § 8. The city appealed.      testing program, public safety, alcohol, tested, probable
                                                             cause, interdiction
OVERVIEW: The trial court concluded that the city had
failed to demonstrate a compelling interest to justify the   LexisNexis (TM) HEADNOTES - Core Concepts:
intrusion on the firefighter's reasonable expectation of
privacy and therefore enjoined random, suspicionless
testing. The stated purpose of the policy was, inter alia,   Constitutional Law > Search & Seizure > Scope of
to provide firefighters "with a safe, productive working     Protection
environment"; to ensure "the safety and well-being of the    [HN1] See Ariz. Const. art. II, § 8.
general public." After balancing the firefighter's reduced
expectations of privacy against the city's compelling
                                                                                                               Page 12
                                            204 Ariz. 278, *; 63 P.3d 309, **;
                                 2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
Constitutional Law > Search & Seizure > Exclusionary         [HN8] By working in a highly regulated industry,
RuleConstitutional Law > Search & Seizure > Scope of         employees had diminished expectations of privacy, and
Protection                                                   the interest in drug and alcohol testing was "compelling,"
[HN2] Ariz. Const. art. II, § 8 bars admission of            in part because of the difficulty in detecting in any other
evidence seized during illegal search of home.               way employees who were impaired while at work.

Constitutional Law > Search & Seizure > Scope of             Constitutional Law > Search & Seizure > Scope of
Protection                                                   Protection
[HN3] See U.S. Const. amend. IV.                             [HN9] Reasonableness of a search under the Fourth
                                                             Amendment does not require employing the least
Civil Procedure > Appeals > Standards of Review > De         intrusive means.
Novo ReviewCivil Procedure > Jury Trials > Province
of Court & JuryConstitutional Law > Search & Seizure         COUNSEL: Skousen, Skousen, Gulbrandson &
> Scope of Protection                                        Patience, P.C., By David L. Abney, Esq., Mesa, Attorney
[HN4] In reviewing a trial court's ruling on the             for Plaintiff-Appellee.
reasonableness of a government search, an appellate
court defers to that court's factual findings, but the       City of Mesa Attorney's Office, Mesa, By Rosemary H.
appellate court determines de novo whether the search        Rosales, Catherine M. Bowman Attorneys for
was unreasonable and thus violated the Arizona               Defendant-Appellant.
Constitution.
                                                             JUDGES:        EDWARD           C.     VOSS,      Judge.
Governments              >           Legislation       >     CONCURRING: JOHN C. GEMMILL, Judge. HALL,
InterpretationConstitutional Law > Search & Seizure >        Judge, concurring in part and dissenting in part.
Scope of Protection
[HN5] The Arizona Supreme Court has interpreted the          OPINIONBY: EDWARD C. VOSS
words of Ariz. Const. art. II, § 8, "no person shall be
disturbed in his private affairs or his home invaded,        OPINION: [**310] [*279] VOSS, Judge
without authority of law," to provide an independent
state law ground for safeguarding the home and the            P1 Craig W. Petersen, a firefighter for the City of Mesa,
privacy interests therein against a government search.       challenged the constitutionality of the random testing
                                                             component of the City's proposed Substance Abuse
Governments              >       Legislation          >      Program Alcohol and Controlled Substance Testing
InterpretationConstitutional Law > State Constitutional      Policy and Procedures (Policy). In awarding summary
Operation & AmendmentConstitutional Law > Search             judgment to Petersen and permanently enjoining the City
& Seizure > Scope of Protection                              from implementing the random, suspicionless aspect of
[HN6] After noting that the Arizona Constitution             the Policy, the trial court relied [***2] on Article 2,
generally incorporates federal protections, the Arizona      Section 8 of the Arizona Constitution. In this context,
Supreme Court has held that Ariz. Const. art. II, § 8 is     however, we conclude that the strictures imposed by our
specific in preserving the sanctity of homes and in          constitution are no greater than those of the Fourth
creating a right of privacy.                                 Amendment of the United States Constitution and that
                                                             random testing is not an unreasonable search in violation
Constitutional Law > Search & Seizure > Scope of             of either constitution. We therefore reverse the summary
Protection                                                   judgment in favor of Petersen and vacate the injunction.
[HN7] To determine whether a government search is
                                                                  [*280] BACKGROUND
reasonable, the U.S. Supreme Court has balanced the
degree of the intrusion on individual privacy against the
                                                             P2 [**311] In response to Petersen's complaint for
extent to which the intrusion promotes legitimate
                                                             declaratory and injunctive relief, the City filed a motion
governmental interests. The precise contours of the
                                                             to dismiss. When both parties submitted additional
Fourth Amendment protection, of course, turn on the
                                                             supporting information, the trial court treated the motion
facts and may vary depending on whether the search
                                                             as one for summary judgment. After a hearing, the trial
invades expectations of privacy in a home, a vehicle,
                                                             court found that no material facts were in dispute but that
the workplace, a public school, or a park.
                                                             the random, suspicionless drug and alcohol testing
                                                             component n1 violated Article 2, Section 8 of the
Constitutional Law > Search & Seizure > Scope of
                                                             Arizona Constitution. That provision states: [HN1] "No
Protection
                                                                                                                 Page 13
                                              204 Ariz. 278, *; 63 P.3d 309, **;
                                  2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
person shall be disturbed in his private affairs, or his       court's factual findings, but we determine de novo
home invaded, without authority of law."                       whether the search was unreasonable and thus violated
                                                               the Constitution. State v. Adams, 197 Ariz. 569, 572, P
                                                               16, 5 P.3d 903, 906 (App. 2000).
             n1 The Policy allows for random breath and
       urine testing. Because the complaint, briefs, and
                                                               A. The City's Policy
       trial court's order do not distinguish between the
       two types of testing for purposes of constitutional
                                                               P5 The stated purpose of the City's [***5] Policy is to
       analysis, our decision similarly does not
                                                               provide firefighters "with a safe, productive working
       distinguish between the two types.
                                                               environment"; to ensure "the safety and well-being of the
                                                               general public"; to ensure that firefighters "receive
      [***3]                                                   educational [sic] and training on substance abuse"; and to
 [HN2]                                                         ensure that they "are well informed on the hazards of
P3 The trial court cited State v. Ault, 150 Ariz. 459, 463,    substance abuse and are provided employee assistance as
466, 724 P.2d 545, 549, 552 (1986) (Article 2, Section 8       needed."
bars admission of evidence seized during illegal search
of home), and State v. Tykwinski, 170 Ariz. 365, 371, 824      P6 Firefighters must submit n4 to testing of breath or
P.2d 761, 767 (App. 1991) (rejecting assertion that            urine n5 "on an unannounced and random basis spread
Article 2, Section 8, although more extensive than Fourth      reasonably throughout the calendar year." A computer
Amendment, requires individualized suspicion to                software program selects the employees to be tested.
conduct roadblock stop), in support of its conclusion that     Those selected are not given any advance notice and can
Arizona's Constitution "is broader and more explicit than      be notified immediately before, during, or immediately
the Fourth Amendment in safeguarding the fundamental           following work. All tests are to be conducted within
liberty of Arizona citizens." n2 The court also relied on      thirty minutes of selection, with allowance for travel time
an Alaska Supreme Court decision that interpreted the          to the collection location. When urine is to be collected,
Alaska Constitution to bar ongoing random drug testing         the employee may use a private bathroom stall. A
as overly intrusive of employee privacy because the            monitor inspects the sample for proper color and
testing was not based on "predictable, job-related             [**312] [*281] temperature and then bottles and labels
occurrences" and was not implemented in response to            the sample for shipping.
demonstrated drug abuse in the workplace. n3 See
Anchorage Police Dep't Employees Ass'n v. Municipality
                                                                           n4 Firefighters must also submit to post-
of Anchorage, 24 P.3d 547, 558-59 (Alaska 2001). The
                                                                      accident as well as reasonable suspicion testing
trial court concluded that the City failed to demonstrate a
                                                                      and, in certain circumstances, return- to-duty and
compelling interest to justify the intrusion [***4] on
                                                                      follow-up testing. Petersen does not challenge
Petersen's reasonable expectation of privacy and
                                                                      these portions of the Policy. [***6]
therefore enjoined random, suspicionless testing.

            n2 The Fourth Amendment of the United
       States Constitution provides in relevant part:                     n5 Test samples are screened only for the
       [HN3] "The right of the people to be secure in                 presence of marijuana and cocaine metabolites,
       their persons, houses, papers, and effects, against            morphine, phencyclidine, amphetamine, codeine,
       unreasonable searches and seizures, shall not be               and methamphetamine.
       violated."
            n3 The dissent also relies on this case
                                                               P7 A firefighter who refuses to submit to a test is
       although the Alaska Supreme Court expressly
                                                               terminated from employment. A firefighter whose breath
       eschewed reference to the Fourth Amendment.
                                                               test reveals an alcohol concentration of 0.04 or higher or
       Anchorage Police Dep't, 24 P.3d at 550 ("We
                                                               whose urine sample is "positive" for any of several
       base our ultimate ruling exclusively on the
                                                               specified drugs is removed from duty and evaluated by a
       Alaska Constitution.").
                                                               substance abuse professional. Any firefighter who tests
                                                               positive a second time is terminated from employment.
    DISCUSSION                                                 Information in a firefighter's drug testing records is not
                                                               released outside the department unless the firefighter
P4 [HN4] In reviewing a trial court's ruling on the            consents.
reasonableness of a government search, we defer to that
                                                                                                                   Page 14
                                               204 Ariz. 278, *; 63 P.3d 309, **;
                                   2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
B. Article 2, Section 8 of the Arizona Constitution             [***9] police and their seizure of contraband after
                                                                firefighters' valid initial entry is permitted by both
P8 We first address whether the trial court correctly           Arizona Constitution and Fourth Amendment); State v.
found that Article 2, Section 8 provides greater                Krantz, 174 Ariz. 211, 215, 848 P.2d 296, 300 (App.
protection for privacy rights than the Fourth Amendment         1992) (finding Article 2, Section 8 does not exceed
in the context of drug testing. In three criminal cases         Fourth Amendment and does not forbid warrantless
involving warrantless police entry of a home, [HN5] our         taking of blood to test its alcohol content); State v.
supreme court has interpreted the words of Article 2,           Allgood, 171 Ariz. 522, 523-24, 831 P.2d 1290, 1291-92
Section 8, "no person shall be disturbed [***7] in his          (App. 1992) (noting that more expansive reading of
private affairs or his home invaded, without authority of       Arizona's Constitution is "generally not applied beyond
law," to provide an independent state law ground for            the home" and that police interception of confrontation
safeguarding the home and the privacy interests therein         call violated neither federal nor state constitutions);
against a government search.                                    State v. Wedding, 171 Ariz. 399, 407, 831 P.2d 398, 406
                                                                (App. 1992) (distinguishing Bolt, Ault, and Martin as
P9 [HN6] In Ault, after noting that the Arizona                 concerned with warrantless entry of a home); State v.
Constitution "generally . . . incorporates federal              Calabrese, 157 Ariz. 189, 190-91, 755 P.2d 1177, 1178-
protections," the court held that Article 2, Section 8 is       79 (App. 1988) (declining to narrow, on Arizona
"specific in preserving the sanctity of homes and in            constitutional grounds, right of police to seize evidence
creating a right of privacy." 150 Ariz. at 466, 724 P.2d at     found during warrantless search incident to lawful
552. Thus, police could not enter a home without a              arrest).
warrant or any exigency, illegally arrest the occupant,
and seize evidence in plain view. 150 Ariz. at 464, 466,        P13 While our courts have vigorously guarded the
724 P.2d at 550, 552. The court also observed that the          sanctity of the home from warrantless intrusions [***10]
inevitable discovery doctrine had been limited to               by law enforcement officers, [**313] [*282] nothing
searches of a car and of a hotel room. Id. at 465, 724          in the cited cases or in the text of Article 2, Section 8
P.2d at 551.                                                    persuades us that the latter provides more protection than
                                                                the Fourth Amendment when the government conducts a
P10 Concern that the Fourth Amendment might not bar a           search of a firefighter's urine for the presence of illegal
warrantless entry for police to "secure" and inspect a          drugs. See Bolt, 142 Ariz. at 264, 689 P.2d at 523
home while awaiting a warrant led the court, in State v.        (recognizing need for uniformity between federal and
Bolt, to clarify that "such entries are 'per se unlawful'       state courts and that our constitution generally
under our state constitution." 142 Ariz. 260, 264-65, 689       incorporates federal protections); State v. Pelosi, 68 Ariz.
P.2d 519, 523-24 (1984) (quoting [***8] State v. Cook,          51, 57, 199 P.2d 125, 129 (1948), overruled in part on
115 Ariz. 188, 194, 564 P.2d 877, 883 (1977)). But, the         other grounds, Adams v. Bolin, 74 Ariz. 269, 275, 247
court rejected as "poor judicial policy" adoption of            P.2d 617, 621 (1952) (Article 2, Section 8's purpose is to
inconsistent state and federal exclusionary rules and held      preserve Fourth Amendment rights); Malmin v. State, 30
that the state rule would mirror that of the federal courts.    Ariz. 258, 261, 246 P. 548, 549 (1926) (although its
142 Ariz. at 269, 689 P.2d at 528.                              language may differ from Fourth Amendment, Article 2,
                                                                Section 8 has "same general effect and purpose" and will
P11 Finally, in State v. Martin, police entered a home          be similarly interpreted).
and conducted a "sweep" without a warrant. 139 Ariz.
466, 470, 679 P.2d 489, 493 (1984). The court cited the         P14 Accordingly, we hold that in the context of the
Fourth Amendment's chief purpose, to guard against              City's drug and alcohol testing program, the bounds of
intrusion of the home and the associated privacy rights of      Article 2, Section 8 do not exceed those of the Fourth
the occupant, id. at 473, 679 P.2d at 496, to hold that         Amendment. We now turn to whether the random aspect
under either the federal or state Constitution, the entry       of the testing [***11] is an unreasonable search
was illegal. Id. at 474, 679 P.2d at 497.                       prohibited by the Fourth Amendment and by the
                                                                coextensive reach of the Arizona Constitution.
P12 Thus, despite suggestions that Article 2, Section 8
may exceed the scope of the Fourth Amendment, in                C. Validity of Random, Suspicionless Drug Testing
general our courts have found Arizona's Constitutional
protection of privacy to be consistent or coextensive with      P15 At the outset, we note that although the United
that of the Fourth Amendment. See, e.g., Mazen v.               States Supreme Court has approved employee drug
Seidel, 189 Ariz. 195, 199, 940 P.2d 923, 927 (1997)            testing in some contexts, it has not yet addressed random
(holding warrantless entry of rented storage unit by            drug testing of firefighters. Therefore, we begin with a
                                                                                                                   Page 15
                                                204 Ariz. 278, *; 63 P.3d 309, **;
                                    2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
brief overview of the Court's general analysis of drug           "compelling," in part because of the difficulty in
testing programs. Government-compelled collection and            detecting in any other way employees who were
testing of urine for evidence of illegal drug use is a           impaired while at work. Id. at 628-29.
search subject to the Fourth Amendment. Vernonia Sch.
Dist. 47J v. Acton, 515 U.S. 646, 652, 132 L. Ed. 2d 564,         [***14] P19 The Supreme Court similarly found a
115 S. Ct. 2386 (1995) (allowing random drug testing of          special need to exist when the United States Customs
high school athletes); Skinner v. Railway Labor                  Service adopted a drug testing program for employees
Executives' Ass'n, 489 U.S. 602, 617, 633, 103 L. Ed. 2d         who sought a transfer or promotion to positions that were
639, 109 S. Ct. 1402 (1989) (upholding drug and alcohol          directly involved in drug interdiction or law enforcement
testing of railroad employees after accidents or violations      or that required the employee to carry a firearm or to
of safety rules). [HN7] To determine whether a                   handle classified material. Nat'l Treasury Employees
government search is reasonable, the Court has balanced          Union v. Von Raab, 489 U.S. 656, 660-61, 666, 103 L.
the degree of the intrusion on individual privacy against        Ed. 2d 685, 109 S. Ct. 1384 (1989). n6 The program's
the extent to which the intrusion promotes legitimate            aim was to deter drug use among those seeking
[***12] governmental interests. Skinner, 489 U.S. at             promotion and to bar drug users from being promoted to
619. The precise contours of the Fourth Amendment                such positions, thus serving governmental interests apart
protection, of course, turn on the facts and may vary            from those of law enforcement. Id. at 666. As in
depending on whether the search invades expectations             Skinner, no special facts demanded a magistrate's
of privacy in a home, a vehicle, the workplace, a public         evaluation: testing was automatic and anticipated by
school, or a park. See Vernonia, 515 U.S. at 654.                applicants for the specified positions, and requiring a
                                                                 warrant would deflect valuable resources from the
P16 Generally, a government search for evidence of               agency's primary mission. Id. at 666-67.
criminal conduct is reasonable if a neutral magistrate
first determines that probable cause exists to believe
                                                                              n6 Compare Chandler v. Miller, 520 U.S.
described evidence may be found in the place to be
                                                                        305, 318-22, 137 L. Ed. 2d 513, 117 S. Ct. 1295
searched. See, e.g., Payton v. New York, 445 U.S. 573,
                                                                        (1997), in which the Court held that no special
586 n. 24, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980); Ault,
                                                                        need supported state-mandated, suspicionless
150 Ariz. at 466-67, 724 P.2d at 552- 53. But, neither a
                                                                        drug testing of candidates for state offices. No
search warrant nor probable cause are necessary if
                                                                        drug problem existed among officials; public
"'special needs,'" beyond law enforcement's normal
                                                                        scrutiny could as effectively detect and deter
concerns with crime detection, render the warrant or
                                                                        illicit drug use; and most officials did not perform
probable cause requirement "impracticable." Vernonia,
                                                                        "high risk, safety sensitive tasks"; thus, the
515 U.S. at 653 (quoting Griffin v. Wisconsin, 483 U.S.
                                                                        special need was largely symbolic rather than
868, 873, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987)
                                                                        real.
(approving warrantless search of a probationer's home)).

P17 For example, [***13] in Skinner, the railroads had                [***15]
a special need, in order to prevent drug or alcohol-related
accidents, to ban workers' use of alcohol or drugs and to        P20 Additionally, the Court found that traditional ideas
test their blood or urine to assure the ban's effectiveness.     of probable cause "may be unhelpful in analyzing the
489 U.S. at 620-21. Because the authorizing regulations          reasonableness of routine administrative functions,
identified the circumstances justifying the testing and the      especially where the Government seeks to prevent . . .
conditions under which it occurred, "there [were]                hazardous conditions or to detect violations that rarely
virtually no facts for a neutral magistrate to evaluate." Id.    generate articulable grounds for searching any particular
at 622. More importantly, when delay to seek a warrant           place or person." 489 U.S. 656 at 668 (citations omitted).
would seriously impede the collection of critical                The strong interest in ensuring the integrity, judgment,
evidence, the balance tipped in favor of finding a               and fitness of employees who were directly involved in
warrantless intrusion reasonable. Id. at 623-24.                 drug interdiction or were going to be armed, and in
                                                                 protecting the public from impaired employees, 489 U.S.
P18 The testing in Skinner was not random, but it was            656 at 670-71, outweighed the privacy interests of those
also not based on individualized suspicion. Id. at 624.          subject to testing. 489 U.S. 656 at 672. "Because
The Court nevertheless concluded that [HN8] by                   successful performance of their duties depends uniquely
working in a highly regulated industry, the employees            on their judgment and dexterity, these employees cannot
had diminished expectations of privacy, id. at 627, and          reasonably expect to keep from the Service personal
that [**314]      [*283] the interest in testing was             information that bears directly on their fitness." Id.
                                                                                                                  Page 16
                                              204 Ariz. 278, *; 63 P.3d 309, **;
                                  2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
                                                               to impose discipline. Id. at, 122 S. Ct. at 2566-67.
P21 In the instant case, Petersen and our dissenting           Similarly, in Vernonia, 515 U.S. at 658, the Court found
colleague strenuously contend that neither Skinner nor         the privacy invasion minor because the students giving
Von Raab approved random testing and that the City             urine samples, who remained fully clothed and not
cannot institute a drug and alcohol testing program            subject to direct observation by the monitor, encountered
unless it is founded on individualized [***16] suspicion       conditions much like those in public restrooms. The
and a history of drug or alcohol abuse in the workplace.       samples were tested only for specified drugs and did not
Von Raab clearly held, however, that when the                  reveal any other information; test results were disclosed
Government's purpose is to discover or prevent from            to a limited group of persons and were not given to
arising hidden conditions that create safety concerns,         police.
such as employees' impairment by drugs or alcohol while
at work, its purpose may justify searches "without any         P25 On the other side of the scale, the Court accepted as
measure of individualized suspicion." 489 U.S. 656 at          well-known the health and safety risks of drug use and
668 (emphasis added). The "compelling interest" in             added that "it would make little sense" to require that a
avoiding the public harm from impaired employees, 489          problem be allowed to develop before the school district
U.S. 656 at 670-71, particularly in light of the "special,     could seek to prevent it. Id. at, 122 S. Ct. at 2568. See
and obvious, physical and ethical demands" on those            also Von Raab, 489 U.S. at 675 n.3 (when government
employees, 489 U.S. 656 at 679, outweighed the                 aims to deter "highly hazardous conduct, a low incidence
intrusion on the employees' privacy, even if no drug           of such conduct, far from impugning the validity of the
abuse problem had prompted the testing program. 489            [testing] scheme . . ., is more logically viewed as a
U.S. 656 at 660.                                               hallmark [***19] of success"). The Court also noted that
                                                               some teachers had reported seeing students who
P22 More recently, and again in the absence of a serious       appeared to be under the influence of drugs at school. Id.
drug problem, the Supreme Court upheld drug testing of         at, 122 S. Ct. at 2567. It concluded that in light of a
middle and high school students who participated in            "nationwide epidemic of drug use," neither "a
extracurricular activities. Bd. of Educ. of Indep. Sch.        particularized or pervasive drug problem," id. at , 122 S.
Dist. No. 92 v. Earls, 536 U.S. 822,   122 S. Ct. 2559,        Ct. at 2568 (emphasis added), nor individualized
2562-63, 153 L. Ed. 2d 735 (2002). The school district's       suspicion was necessary to support random drug testing.
testing policy allowed both random testing and testing
based on reasonable [***17] suspicion "at any time." Id.       P26 In fact, the Court warned that requiring
at, 122 S. Ct. at 2563.                                        individualized suspicion might have unintended
                                                               consequences such as targeting unpopular groups or
P23 The students challenging the policy argued that            causing the district, out of fear of litigation over whether
testing should at least require a minimal level of             the suspicion was justified in a particular case, to less
individualized suspicion, but the Court cited Von Raab         vigorously enforce the testing and so lose its benefits.
and Skinner to reach a contrary conclusion. Id. at, 122 S.     Id. at, 122 S. Ct. at 2568-69. The Court further held that,
Ct. at 2564. As in both of those cases, the Court cited the    "in any case, [HN9] this Court has repeatedly stated that
compelling need to detect "'latent or hidden conditions,       reasonableness under the Fourth Amendment does not
or to prevent their development,'" so that searches could      require employing the least intrusive means." Id. at, 122
take place without any indicia of individualized [**315]       S. Ct. at 2569 (emphasis added). The testing was "a
[*284] suspicion or probable cause. Id. (quoting Von           reasonably effective means of addressing the School
Raab, 489 U.S. at 668).                                        District's legitimate concerns in preventing, deterring,
                                                               and [***20] detecting drug use." Id.
P24 In evaluating the degree of intrusion on privacy, the
students' privacy interests were deemed diminished, as         P27 The four dissenting justices in Earls objected not to
were the interests of workers in closely regulated             the lack of individualized suspicion so much as to the
industries, by the public school district's custodial role     perversity of testing arguably those "least likely to be at
and by the students' compliance with additional rules          risk from illicit drugs." Id. at, 122 S. Ct. at 2572
governing participation in extracurricular activities. Id.     (Ginsburg, J., dissenting). The dissent also contended
at, 122 S. Ct. at 2565-66. Also, the character of the          that the balance of the school district's interests against
intrusion was termed negligible because students could         the students' privacy interests was improperly struck
produce a urine sample in a closed bathroom stall while a      when the nature of student participation in choir, band, or
faculty monitor waited outside, and despite [***18]            academic team, as contrasted with participation in
claims that test results were not carefully guarded, the       athletics, did not necessarily reduce the students' privacy
school did not either give results to police or use results    expectations, and no documented drug problem bolstered
                                                                                                                   Page 17
                                                204 Ariz. 278, *; 63 P.3d 309, **;
                                    2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
the need for testing. Id. at, 122 S. Ct. at 2574-75. Justice     de corps, that camaraderie may make testing [***23]
Ginsburg distinguished Skinner and Von Raab because              dependent on individualized suspicion less effective or
testing in those cases sought to avoid enormous health           less likely to occur. As Justice Breyer reiterated in his
and safety risks to others; she distinguished Vernonia           concurring opinion in Earls, testing based on
because physical exertion by drug-using athletes created         individualized suspicion, while seemingly more
serious risk of injury to the athletes and to other players.     reasonable, might instead result in use of "subjective
Id. at, 122 S. Ct. at 2575-76.                                   criteria" to identify who will be tested or in stigmatizing
                                                                 those actually selected. 536 U.S. at, 122 S. Ct. at 2571
P28 Here, as in Skinner and Von Raab, the testing is             (Breyer, J., concurring). In Vernonia, the Court noted
imposed on individuals who have substantially [***21]            that the athletes' parents found random testing less
reduced expectations of privacy because they work in a           objectionable than suspicion-based testing because the
highly regulated occupation, and if impaired, place              latter "transformed the process into a badge of shame."
themselves, co-workers, and the public at grave risk.            515 U.S. at 663.
Thus, we disagree with the dissent's suggestion that
firefighters' rights to privacy are only slightly diminished     P31 Other courts faced with constitutional challenges to
compared to those of other adults. Moreover, we see              drug testing programs have upheld random and/or
little ground to distinguish approval [**316] [*285] of          suspicionless testing of firefighters and those who
a school district's random drug testing to detect and deter      occupy safety-sensitive positions. In Doe v. City and
illegal drug use by student athletes (Vernonia) or by            County of Honolulu, 8 Haw. App. 571, 816 P.2d 306,
students engaged in after school activities (Earls) from         310-11 (Haw. Ct. App. 1991), for example, a firefighter
the City's random drug testing of firefighters to detect         challenged a suspicionless drug testing program. After
and deter illegal drug use.                                      citing Harmon v. Thornburgh, 278 U.S. App. D.C. 382,
                                                                 878 F.2d 484, 489 (D.C. Cir. 1989), n7 the court stated
P29 The dissent characterizes the City's interest in             that random testing should [***24] not be analyzed
testing its firefighters as merely "symbolic" and suggests       differently than the pre-transfer or pre- promotion testing
without elaboration that the risks to public safety that the     in Von Raab or the post-accident testing in Skinner. 816
City seeks to avoid through its testing program are not          P.2d at 314. The court considered the public safety as
"substantial and real." The dissent notes that employees         well as the firefighters' "health, safety and job
in a number of other positions identified as "safety             performance" to find that testing served a special need.
sensitive" are subject to testing. However, testing of           Id. It also found the firefighters' privacy expectations
firefighters is the sole issue here, and our colleague           diminished by the giving of blood and urine during
seriously underestimates the rigorous nature of                  annual physicals, by regulation of their off-duty conduct,
firefighters' duties and the potential harm that impaired        and by their need for strength, stamina, judgment, and
firefighters [***22] might inflict. Thus, we do not doubt        alertness on the job. 816 P.2d at 314-15. The court
that the City's interest in ensuring that its firefighters are   finally rejected a claim that less intrusive means could
in optimum condition is compelling. Firefighters must be         detect drug use or impairment, citing Skinner, 489 U.S.
mentally alert at all times in order to instantly respond to     at 629 n.9 (possibility of a less intrusive means of
a crisis and grasp and follow orders, particularly when a        conducting a search is not the touchstone) and concluded
split-second decision or error in judgment may prove             that a compelling interest in safety outweighed the
fatal; they also must be physically fit in order to perform      minimal intrusion on privacy. 816 P.2d at 316.
under the extremely demanding and dangerous
conditions that jeopardize their own lives, the lives of
                                                                             n7 In Harmon, the court found no
their co-workers, and the lives and property of the public.
                                                                        constitutional violation in random testing of
Furthermore, even off-duty drug or alcohol consumption
                                                                        government employees holding top secret
may imperil safety interests if firefighters can be recalled
                                                                        national security clearances. 878 F.2d at 496.
to duty in an emergency. Given the daunting
responsibilities they must shoulder on a moment's notice,
firefighters expect, and necessarily accede to, more                  [***25]
governmental regulation than most workers. Because the
trust placed in them is so great, the need to detect a           P32 Many federal and state courts have similarly found
firefighter who is impaired at work is equally great.            employee drug testing programs constitutional. See
                                                                 Hatley v. Dep't of the Navy, 164 F.3d 602, 603-04 (Fed.
P30 Additionally, although the firefighters' communal            Cir. 1998) (random drug testing of firefighter working on
working environment reduces their expectations of                military base); Aubrey v. Sch. [**317] [*286] Bd. of
privacy and engenders camaraderie and a certain esprit           Lafayette Parish, 148 F.3d 559, 563-65 (5th Cir.
                                                                                                                 Page 18
                                              204 Ariz. 278, *; 63 P.3d 309, **;
                                  2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
1998)(suspicionless and random testing of school               Arizona Constitution and the Fourth Amendment of the
custodians when no general drug problem existed); Knox         United States Constitution. We reverse the trial court's
County Educ. Ass'n v. Knox County Bd. of Educ., 158            grant of summary judgment, vacate the injunction, and
F.3d 361, 384 (6th Cir. 1998) (suspicionless but not           remand for entry of summary judgment for the City.
random drug testing of teaching applicants without any
documented workplace drug problem); Wilcher v. City of         EDWARD C. VOSS, Judge
Wilmington, 139 F.3d 366, 373-78 (3rd Cir. 1998)
(random drug testing of firefighters that required direct      CONCURRING:
supervision of urine collection); Saavedra v.
Albuquerque, 73 F.3d 1525, 1532 (10th Cir. 1996)               JOHN C. GEMMILL, Judge
(reasonable      suspicion-based     testing   of    City's
firefighters); Bluestein v. Skinner, 908 F.2d 451, 456-57      CONCURBY: PHILIP HALL (In Part)
(9th Cir. 1990) (random nature of testing of airline
personnel is relevant to reasonableness of program but         DISSENTBY: PHILIP HALL (In Part)
also may be more effective deterrent and does not
[***26] render testing unreasonable); Nat'l Fed'n of           DISSENT: HALL, Judge, [***28] concurring in part
Fed. Employees v. Cheney, 280 U.S. App. D.C. 164, 884          and dissenting in part.
F.2d 603, 610-13 (D.C. Cir. 1989) (suspicionless random
testing of civilians employed by military in aviation and      P35 I agree with my colleagues that the Arizona
police functions); Policeman's Benev. Ass'n of New             Constitution affords no greater protection against drug
Jersey v. Washington Township, 850 F.2d 133, 141 (3rd          testing than does the Fourth Amendment. State v. Juarez,
Cir. 1988) (suspicionless random drug testing of police        203 Ariz. 441, 444, P 14, 55 P.3d 784, 787 (App. 2002).
officers); Rushton v. Nebraska Pub. Power Dist., 844           Thus, I concur in section B of the majority opinion. I
F.2d 562, 566-67 (8th Cir. 1988) (suspicionless random         believe, however, that the City's public safety interest in
testing of nuclear power plant engineers). But see             requiring firefighters to submit to random, unannounced,
Anchorage Police Dep't, 24 P.3d at 557-58 (relying on          and suspicionless drug testing does not outweigh
state constitution to approve post-accident or event-          Petersen's Fourth Amendment "right to be let
related testing of police officers but finding random          alone___the most comprehensive of rights and the right
testing creates "'fear and surprise'" and that, without        most valued by civilized men." Olmstead v. United
extant drug problem, privacy interests outweigh                States, 277 U.S. 438, 478, 72 L. Ed. 944, 48 S. Ct. 564
government's less immediate need); Guiney v. Police            (1928) (Brandeis, J., dissenting). Therefore, I
Comm'r of Boston, 411 Mass. 328, 582 N.E.2d 523, 525-          respectfully dissent from the majority's holding that the
26 (Mass. 1991) (relying on state law to strike down           City-compelled collection and testing of urine and breath
random drug testing of police officers because no drug         is constitutionally reasonable.
problem existed); Beattie v. City of St. Petersburg Beach,
733 F. Supp. 1455, 1458-59 (M.D. Fla. 1990) [***27]            P36 The Fourth Amendment protects "the right of the
(city's safety interest not sufficiently compelling to test    people to be secure in their persons, houses, papers, and
all firefighters for drug use, without any individualized      effects, against unreasonable searches and seizures." The
suspicion, during annual physicals when no drug                Amendment safeguards the privacy, dignity, and security
problem had been documented).                                  of persons against certain arbitrary [***29] and invasive
                                                               acts by state officers, Skinner, 489 U.S. at 613-14, even
P33 If firefighters must be ever-vigilant, we think the        when the government is acting in its [**318] [*287]
City can be no less vigilant in detecting impaired             capacity as an employer, O'Connor v. Ortega, 480 U.S.
firefighters and removing them from the workforce.             709, 717, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987)
Therefore, we conclude that the City's interests are           (plurality opinion). See also Camara v. Mun. Court of
sufficiently compelling to permit random testing.              San Francisco, 387 U.S. 523, 528, 18 L. Ed. 2d 930, 87
                                                               S. Ct. 1727 (1967) ("The basic purpose of this
CONCLUSION                                                     Amendment, as recognized in countless decisions of this
                                                               Court, is to safeguard the privacy and security of
P34 After balancing Petersen's reduced expectations of         individuals against arbitrary invasions by governmental
privacy against the City's compelling need to discover         officials.").
specific but hidden conditions representing grave risks to
the health and safety of the firefighters and the public,      P37 Because state-compelled collection and testing of
we hold that the random testing component of the Policy        urine "intrudes upon expectations of privacy that
is reasonable under both Article 2, Section 8 of the           society has long recognized as reasonable," Skinner, 489
                                                                                                                 Page 19
                                              204 Ariz. 278, *; 63 P.3d 309, **;
                                  2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
U.S. at 617-18, such intrusions are "searches" under the       combating the documented incidence of drug and alcohol
Fourth Amendment:                                              use by railroad employees [***32] presented "special
                                                               needs" that overrode the right of a citizen to be protected
     There are few activities in our society more personal
                                                               against arbitrary governmental intrusions on his or her
or private than the passing of urine. Most people describe
                                                               privacy and justified dispensing with the warrant
it by euphemisms if they talk about it at all. It is a
                                                               requirement or need for individualized suspicion. Id. at
function traditionally performed without public
                                                               620. The Court believed that a warrant, which assures a
observation; indeed, its performance in public is
                                                               citizen subject to its reach that any intrusion on privacy
generally prohibited by law as well as social custom.
                                                               is "narrowly limited in its objective and scope," was
                                                               unnecessary because "the circumstances justifying
Id. (quoting [***30] Nat'l Treasury Employees Union v.
                                                               toxicological testing and the permissible limits of such
Von Raab, 816 F.2d 170, 175 (5th Cir. 1987), aff'd in
                                                               intrusions [were] defined narrowly[]" in the policy. Id.
part, vacated in part, 489 U.S. 656, 103 L. Ed. 2d 685,
                                                               at 622. Further, "the delay necessary to procure a warrant
109 S. Ct. 1384 (1989)). n8 Not all governmental
                                                               [might] result in the destruction of valuable evidence"
searches are proscribed by the Fourth Amendment, only
                                                               pertaining to an accident, incident, or rule violation. Id.
those that are unreasonable. Skinner, 489 U.S. at 619.
                                                               at 622-23. n9
Reasonableness "depends on all of the circumstances
surrounding the search or seizure and the nature of the
search or seizure itself." Id. (quoting United States v.                   n9 Justice O'Connor, who joined in the
Montoya de Hernandez, 473 U.S. 531, 537, 87 L. Ed. 2d                 opinion, later described Skinner as being based
381, 105 S. Ct. 3304 (1985)).                                         "on the firm understanding that a requirement of
                                                                      individualized suspicion for testing train
                                                                      operators for drug or alcohol impairment
            n8 Likewise, subjecting a person to the
                                                                      following serious train accidents would be
       compelled production of alveolar or "deep lung"
                                                                      unworkable because 'the scene of a serious rail
       breath "implicates [] concerns about bodily
                                                                      accident is chaotic.'" Vernonia, 515 U.S. at 674-
       integrity" and is deemed a search. Skinner, 489
                                                                      75 (O'Connor, J., dissenting) (quoting Skinner,
       U.S. at 617.
                                                                      489 U.S. at 631).

P38 The reasonableness of a particular search is                    [***33]
determined, as my colleagues correctly state, by
"balancing the degree of the intrusion on individual            [**319] [*288] P40 In contrast, the City's Policy,
privacy against the extent to which the intrusion              which compels firefighters to submit to random testing
promotes legitimate [***31] governmental interests."           without advance notice, requires no "justifying"
Ante P 15 (citing Skinner, 489 U.S. at 619). Although the      triggering event. Although the City's goals of both
majority states the standard accurately, it then misapplies    discerning and deterring drug use are laudable, it can
the standard by according too little significance to the       hardly be claimed that these ends justify the means of
degree to which random, unannounced, and suspicionless         dispensing with the warrant requirement or the need for
drug testing infringes on a person's bodily integrity and      reasonable suspicion in the absence of any triggering
human dignity and by characterizing the Policy as              event, the immediacy of which in Skinner made it
meeting a "compelling" safety need in the complete             constitutionally "reasonable" to conduct drug testing
absence of any facts demonstrating any actual problem          without a warrant or reasonable suspicion that the
that would justify dispensing with the "right of the           particular employee was impaired. Id. at 631.
people to be secure in their persons." U.S. Const. amend.
IV.                                                            P41 Likewise, Von Raab provides only limited support
                                                               for the majority's conclusion that the Policy will not
P39 Skinner does not support the imposition of a               violate the Fourth Amendment's reasonableness
random, unannounced, and suspicionless drug-testing            requirement. As in Skinner, the drug tests performed on
regimen for firefighters. First, as acknowledged by the        Customs employees in Von Raab were not random.
majority, the testing at issue in Skinner was not random.      Instead, only employees that had been accepted for
Instead, a railroad employee, in the absence of any            promotion or transfer to one of three categories of
individualized suspicion, could only be tested if the          covered positions were tested. n10 Von Raab, 489 U.S. at
employee was involved in a "triggering event" such as a        672 n.2. The Court identified several factors that it
train accident or incident, or a safety-rule violation. 489    believed were sufficiently compelling to justify [***34]
U.S. at 609-11. Second, the government's interest in           conducting suspicionless testing of employees who
                                                                                                                  Page 20
                                              204 Ariz. 278, *; 63 P.3d 309, **;
                                  2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
applied for promotion to positions directly involving the      "without some form of individualized suspicion or some
interdiction of illegal drugs or requiring the incumbent to    compelling reason beyond a hypothetical future
carry a firearm: n11 (1) "the Customs Service is our           problem"). As stated in Skinner, the requirement of
Nation's first line of defense against one of the greatest     individualized suspicion may be jettisoned only in
problems affecting the health and welfare of our               limited circumstances:
population[[],[]]" i.e., the "smuggling of illicit
                                                                    Where the privacy interests implicated by the search
narcotics[[],[]]" (2) the exposure of Customs employees
                                                               are minimal, and where an important governmental
to drug traffickers and the controlled substances they
                                                               interest furthered by the intrusion would be placed in
seek to smuggle into the country create corresponding
                                                               jeopardy by a requirement of individualized suspicion, a
problems involving the safety and integrity of the
                                                               search may be reasonable despite the absence of such
employees, (3) the irreparable damage to the "national
                                                               suspicion.
interest in self-protection" if drug users were not barred
from positions involving the interdiction of illegal drugs,
                                                                [**320] [*289] 489 U.S. at 624. More recently, in
and (4) the public interest "demands effective measures
                                                               Chandler v. Miller, 520 U.S. 305, 309, 137 L. Ed. 2d
to prevent the promotion of drug users to positions that
                                                               513, 117 S. Ct. 1295 (1997), [***37] the Court
require the incumbent to carry a firearm[[].[]]" Id. at
                                                               characterized the narrow exception from the usual
668-70 (internal quotations omitted). In concluding that
                                                               individualized suspicion requirement as a "closely
the government's compelling interest in waging the drug
                                                               guarded category of constitutionally permissible
war and safeguarding our borders outweighed the
                                                               suspicionless searches."
privacy interests of the affected Customs employees, the
Court [***35] emphasized that the requirement that
                                                               P43 Unlike the majority, I do not believe the City's
employees be notified in advance of the scheduled
                                                               symbolic need to portray its employees as being drug-
sample collection reduced to a minimum any "unsettling
                                                               free is the type of "special need" that justifies dispensing
show of authority" that may be associated with an
                                                               with traditional Fourth Amendment safeguards. Even if
unannounced intrusion on privacy, id. at 672 n.2
                                                               the special-needs exception presents as low of a hurdle as
(quoting Delaware v. Prouse, 440 U.S. 648, 657, 59 L.
                                                               the City apparently believes, n12 the blanket
Ed. 2d 660, 99 S. Ct. 1391 (1979)), and "contributed
                                                               suspicionless searches at issue here are not reasonable
significantly to diminish the program's intrusion on
                                                               means to protect society in the absence of any showing
privacy[[],[]]" 489 U.S. 656 at 676 n.4.
                                                               that public safety is actually in jeopardy. The majority's
                                                               observation that firefighters, "if impaired, place
            n10 The covered positions were those that          themselves, co-workers, and the public at grave
       met one or more of three criteria: (1) direct           risk[[],[]]" ante P 28, while accurate, is equally true of
       involvement in drug interdiction or enforcement         anyone who operates a motor vehicle on a public
       of related laws, (2) carrying a firearm, and (3)        roadway while under the influence of intoxicants.
       handling classified material. Von Raab, 489 U.S.
       at 660-61, 678.
                                                                          n12 Among the positions identified by the
           n11 The Court remanded the case to                         City as safety- sensitive in the Policy are meter
       determine whether the third category was                       reader, paint striper, tire service worker, and
       reasonably limited in scope. Id. at 678.                       customer service representative.

                                                                    [***38]
P42 In comparison, the City's Policy, which requires all
firefighters to submit to random and unannounced
                                                               P44 The majority also relies on the United States
testing, [***36] is both broader and more intrusive than
                                                               Supreme Court decisions in Vernonia and Earls, both of
the drug-screening program upheld in Von Raab. The
                                                               which addressed the constitutionality of suspicionless
majority's interpretation of Von Raab, ante P 21, as
                                                               drug testing of students in public schools. Neither of
"justifying searches 'without any measure of
                                                               these cases substantially supports the constitutionality of
individualized suspicion'" whenever the government's
                                                               the City's Policy. In Vernonia, the Supreme Court upheld
purpose is to discover or deter drug use by employees,
                                                               a school district's suspicionless drug testing of student
effectively enables the City to bootstrap its desire to
                                                               athletes. 515 U.S. at 665. In Earls, the Court, relying on
combat a nonexistent drug problem into a "compelling"
                                                               Vernonia, upheld a drug-testing policy that required all
justification that trumps the legitimate privacy rights of
                                                               students who participated in any extracurricular activity
its employees. Compare Beattie, 733 F. Supp. at 1458
                                                               to submit to drug testing. 536 U.S. at ___, 122 S. Ct. at
(holding that drug testing of firefighters unjustified
                                                               2562. In both cases, the Court repeatedly emphasized the
                                                                                                                 Page 21
                                              204 Ariz. 278, *; 63 P.3d 309, **;
                                  2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
unique nature of the public school environment, where                 Saavedra, 73 F.3d at 1532 (testing of firefighters
the Fourth Amendment is interpreted more leniently with               based on reasonable suspicion); Doe, 816 P.2d at
respect to searches. Earls, 536 U.S. at ___, 122 S. Ct. at            310 (urine routinely collected from firefighters
2565 ("Fourth Amendment rights . . . are different in                 and tested as part of their annual physical); (2)
public schools than elsewhere; the 'reasonableness'                   fail to conduct a careful analysis of the competing
inquiry cannot disregard the schools' custodial and                   private and public interests, e.g., Hatley, 164 F.3d
tutelary responsibility for children[].") (quoting                    at 604 (summarily upholding random drug testing
Vernonia, 515 U.S. at 656); id. ("Central . . [***39] . is            of firefighters); (3) interpret Supreme Court
the fact that the subjects of the Policy are (1) children,            precedent in this area in a more limited manner
who (2) have been committed to the temporary custody                  than does the majority, e.g., Harmon, 878 F.2d
of the State as schoolmaster.") (quoting Vernonia, 515                at 490 ("Von Raab [] suggests that the
U.S. at 654); id. ("When the government acts as guardian              government may search its employees only when
and tutor the relevant question is whether the search is              a clear, direct nexus exists between the nature of
one that a reasonable guardian and tutor might                        the employee's duty and the nature of the feared
undertake.") (quoting Vernonia, 515 U.S. at 665).                     violation."); or (4) uphold suspicionless searches
Obviously, unlike a public school student, a firefighter's            conducted in response to risks to public safety
right to privacy, although limited in some respects, is not           that are substantial and real, e.g., Cheney, 884
inherently "subject[] to greater controls than those                  F.2d at 610-12 (suspicionless random testing of
appropriate for adults." Id.                                          civilians employed by military in aviation and
                                                                      police functions);     Rushton, 844 F.2d at 567
P45 Unlike my colleagues, I have little trouble                       (engineers at nuclear power plants); see also
distinguishing the mandatory drug testing of students                 United States v. Edwards, 498 F.2d 496, 500 (2d
involved in extracurricular activities from the drug                  Cir. 1974) (search of passengers and baggage
testing of firefighters pursuant to the Policy. The school            before boarding commercial airliners).
districts in both Vernonia and Earls adopted their testing
regimes in the face of a documented drug problem within
                                                                    [***41]
their districts and against the background of a nationwide
drug epidemic afflicting our children that "makes the war
                                                               P47 Instead, I find persuasive the analysis in Anchorage
against drugs a pressing concern in every school." Earls,
                                                               Police Department, which involved an almost identical
536 U.S. at ___, 122 S. Ct. at 2567. [***40] Further,
                                                               testing program to the one at issue here. In that case, the
even though a history of pervasive drug use is not a
                                                               Supreme Court of Alaska held that the portion of the
prerequisite for the institution of suspicionless drug
                                                               municipality's substance abuse testing policy that
testing, such evidence, which is lacking here, "shores up"
                                                               required police and fire department employees to submit
the need for a government drug-testing program. Id. at
                                                               to random and unannounced testing violated the Alaska
___, 122 S. Ct. at 2567-68 (quoting Chandler, 520 U.S.
                                                               Constitution . 24 P.3d at 558. Applying the special-
at 319).
                                                               needs balancing test as articulated by the United States
                                                               Supreme Court, the court first upheld the superior court's
P46 The majority's reliance on Earls is particularly
                                                               finding that the municipality's interest in ensuring public
problematic given that Justice Breyer, who joined in the
                                                               safety outweighed the privacy intrusion that occurs when
5-4 decision, wrote a separate concurrence emphasizing
                                                               the employees are subjected to suspicionless urine testing
his reliance on the nondisciplinary nature of the testing
                                                               for job-related events, such as application for
program, which "preserves an option for a conscientious
                                                               employment, promotion, demotion, transfer, or after a
objector. He can refuse testing while paying a price
                                                               vehicular accident. Id. at 556-57. However, the court
(nonparticipation) that is serious, but less severe than
                                                               then concluded that the balance shifted in favor of
expulsion from the school." Id. at ___, 122 S. Ct. at
                                                               individual privacy rights in the case of an indefinite
2571. In contrast, pursuant to the City's Policy, a
                                                               requirement of random testing. Id. at 557.
firefighter who refuses to provide a urine sample on
demand is automatically [**321] [*290] terminated.
                                                               P48 In determining that the municipality failed to
n13
                                                               establish a special need for the random-testing [***42]
                                                               component of its policy, the court cited three
            n13 Other cases cited by the majority are          considerations. Id. First, the municipality's random
       distinguishable because they: (1) do not address        testing, which the court described as "a continuous and
       random drug testing, e.g., Wilcher, 139 F.3d at         unrelenting government scrutiny that exposes the
       374 (firefighters consented to random drug              employee to unannounced testing at virtually any
       testing in bargaining agreement with city);             time[[],[]]" placed increased demands on employees'
                                                                                                                 Page 22
                                              204 Ariz. 278, *; 63 P.3d 309, **;
                                  2003 Ariz. App. LEXIS 30, ***; 394 Ariz. Adv. Rep. 22
reasonable expectations of privacy. Id. at 557-58.             suspicionless drug testing program is not supported by
Second, unannounced random testing is more intrusive           the relevant United States Supreme Court cases.
and has a broader reach than testing triggered by              Moreover, its application of the "special-needs" rationale
predictable, job- related occurrences such as promotion        to dispense with any requirement of particularized
or transfer. Id. at 558. Third, because random testing has     suspicion, even though there is no evidence in the record
no nexus to any job-related occurrence, it reduces the         of any past or ongoing drug problem among the City's
immediacy of the government's need for suspicionless           firefighters, goes too far in eroding the Fourth
testing:                                                       Amendment protections enjoyed by all citizens. See
                                                               Camara, 387 U.S. at 530 ("It is surely anomalous to say
 In the absence of a documented history of substance           that the individual and his private property are fully
abuse, then, the Municipality can claim no immediate,          protected by the Fourth Amendment only when the
job-contextual need to know the results of a randomly          individual is suspected of criminal behavior."). Instead, I
drawn urinalysis; it can only claim a more attenuated          conclude that the City's asserted special need to deter
institutional interest in checking.                            drug abuse, the incidence of which is hypothetical, does
                                                               not outweigh Petersen's right to be let alone absent
Id. These same privacy considerations are magnified in         individualized suspicion. Therefore, I would uphold the
the context of the City's Policy, which requires that any      trial court's grant of summary judgment and affirm its
"conscientious     objector"    be    terminated    from       order enjoining [**322]          [*291] the City from
employment.                                                    implementing the random, suspicionless part of its
                                                               Policy.
P49 In summary, [***43] the majority's conclusion that
the City's interests are sufficiently compelling to justify    PHILIP HALL, Judge [***44]
imposition of its random, unannounced, and
                                                    3 of 10 DOCUMENTS

                     CRAIG W. PETERSEN, Plaintiff-Appellee, v. CITY OF MESA, Defendant-
                                                Appellant.

                                       Arizona Supreme Court No. CV-03-0100-PR

                                            SUPREME COURT OF ARIZONA

                      83 P.3d 35; 2004 Ariz. LEXIS 12; 418 Ariz. Adv. Rep. 75; 20 BNA IER CAS 1586

                                                   January 27, 2004, Filed



PRIOR HISTORY: [**1] Court of Appeals, Division                  the city's generalized and unsubstantiated interest in
One, No. 1 CA-CV 02-0016. Maricopa County Superior               deterring and detecting alcohol and drug use among the
Court No. CV 2001-090218. Appeal from Superior Court             city's firefighters by conducting random drug tests was
in Maricopa County. No. CV 2001-090218. The                      insufficient to overcome even the lessened privacy
Honorable Robert D. Myers. Opinion of Court of                   interests of the firefighters. The program's random
Appeals, Division One, 204 Ariz. 278, 63 P.3d 309                testing component was unreasonable and therefore
(App. 2003). Petersen v. City of Mesa, 204 Ariz. 278, 63         violated the Fourth Amendment to the United States
P.3d 309, 2003 Ariz. App. LEXIS 30 (Ariz. Ct. App.,              Constitution.
2003)
                                                                 OUTCOME: The Arizona Supreme Court vacated the
DISPOSITION: Court of appeals' opinion vacated and               court of appeals' opinion and affirmed the trial court's
trial court's judgment affirmed.                                 judgment enjoining the city from enforcing the random,
                                                                 suspicionless component of the program.
CASE SUMMARY:
                                                                 CORE TERMS: firefighter, testing, privacy, random,
                                                                 random testing, suspicionless, Fourth Amendment,
PROCEDURAL POSTURE: A firefighter filed a                        intrusion, drug use, alcohol, drug testing, deterring,
complaint in the trial court, seeking declaratory and            collection,    customs     service,   testing  program,
injunctive relief, alleging that random testing violated his     participating, laboratory, detecting, tested, duty,
rights under both the Arizona and federal constitutions.         individualized suspicion, scheduled, safety-sensitive,
The trial court held that random drug testing violated the       extracurricular activities, expectation of privacy, law
Arizona constitution. The Court of Appeals, Division             enforcement, school district, occasioned, seizure,
One (Arizona) reversed. The firefighter appealed.                reasonable suspicion

OVERVIEW: The firefighter maintained that the city               LexisNexis (TM) HEADNOTES - Core Concepts:
could not enforce the random drug testing component
because the city's alleged "special needs" offered in
support of the program were insufficient to overcome the         Constitutional Law > Search & Seizure > Scope of
privacy intrusion occasioned by the search. The city             Protection
conceded the record was devoid of any indication that            [HN1] The Fourth Amendment to the United States
the city had ever encountered any drug problem                   Constitution protects the right of the people to be secure
involving its firefighters. The city failed to define any        in their persons, houses, papers, and effects, against
real and substantial risk that random, suspicionless             unreasonable searches and seizures. U.S. Const. amend.
testing was designed to address. Balancing the                   IV. It guarantees the privacy, dignity, and security of
firefighter's privacy interests against the interests the city   persons against certain arbitrary and invasive acts by
advanced in favor of its program's random component,
                                                                                                                Page 24
                                        83 P.3d 35, *; 2004 Ariz. LEXIS 12, **;
                                    418 Ariz. Adv. Rep. 75; 20 BNA IER CAS 1586

officers of the government or those acting at their           City of Mesa Attorney's Office, by Deborah J. Spinner,
direction.                                                    Mesa City Attorney, Rosemary H. Rosales, Catherine M.
                                                              Bowman, Mesa, Attorneys for City of Mesa.
Constitutional Law > Search & Seizure > Scope of
Protection                                                    JUDGES: Ruth V. McGregor, Vice Chief Justice.
[HN2] As the language of the Fourth Amendment makes           CONCURRING: Charles E. Jones, Chief Justice,
clear, the ultimate measure of the constitutionality of a     Rebecca White Berch, Justice, Michael D. Ryan, Justice,
governmental search is reasonableness. To be                  Andrew D. Hurwitz, Justice.
reasonable, a search generally must be based upon some
level of individualized suspicion of wrongdoing. The          OPINIONBY: Ruth V. McGregor
purpose of requiring individualized suspicion is to
protect privacy interests by assuring citizens subject to a   OPINION:
search or seizure that such intrusions are not the random
                                                                   [*36] En Banc
or arbitrary acts of government agents. The U.S.
Supreme Court, however, has recognized limited
                                                              McGREGOR, Vice Chief Justice
exceptions to this general rule when special needs,
beyond the normal need for law enforcement, make the               P1 This case requires us to determine the
warrant and probable-cause requirement impracticable.         constitutionality of a city's random, suspicionless drug
In limited circumstances, where the privacy interests         testing of its firefighters. We exercise jurisdiction
implicated by the search are minimal, and where an            pursuant to Article VI, Section 5.3 of the Arizona
important governmental interest furthered by the              Constitution, Arizona Revised Statutes (A.R.S.) section
intrusion would be placed in jeopardy by a requirement        12-120.24 [**2] , and Rule 23 of the Arizona Rules of
of individualized suspicion, a search may be reasonable       Civil Appellate Procedure.
despite the absence of such suspicion.
                                                                  I.
Constitutional Law > Search & Seizure > Scope of                   P2 Craig Petersen works as a firefighter for the City
Protection                                                    of Mesa. In 2001, after Peterson was hired, the City
[HN3] When presented with an alleged "special need" in        implemented a substance abuse program (the Program)
support of a particular Fourth Amendment intrusion, a         for the Mesa Fire Department. The Program requires
court must weigh the individual's Fourth Amendment            testing of firefighters (1) if the Department has
interests against the proffered governmental interests to     reasonable suspicion to believe an individual firefighter
determine whether the search in question fits within the      has abused drugs or alcohol; (2) after a firefighter is
closely guarded category of constitutionally permissible      involved in an accident on the job; (3) following a
suspicionless searches.                                       firefighter's return to duty or as a follow-up to "a
                                                              determination that a covered member is in need of
Criminal Law & Procedure > Search & Seizure >                 assistance"; and (4) "on an unannounced and random
Expectation of Privacy                                        basis spread reasonably throughout the calendar year."
[HN4] Individuals who elect to become firefighters
should anticipate a diminished expectation of privacy             P3 Under the Program's random testing provision, a
and should reasonably expect some intrusion into matters      computer program selects the firefighters to be tested.
involving their health and fitness.                           The Department notifies firefighters of their selection for
                                                              random testing immediately before, during, or after
Criminal Law & Procedure > Search & Seizure >                 work; the firefighters are to be tested within thirty
Expectation of Privacy                                        minutes of their notification, with allowance for travel
[HN5] Random, suspicionless drug testing, while not per       time to the laboratory for collection. Once at the
se unreasonable, invades reasonable privacy interests         laboratory, firefighters are permitted to use private
even when the government collects the urine sample in a       bathroom stalls when providing urine samples, which are
relatively unintrusive manner and takes steps to protect      [**3] then inspected by a monitor for the proper color
employees' privacy interests by limiting the information      and temperature.
that is disclosed.                                                P4 The laboratory tests the sample for the presence
                                                              of marijuana, cocaine, opiates, amphetamines, [*37]
COUNSEL: Skousen, Skousen, Gulbrandsen &                      and phencyclidine. n1 The laboratory initially tests the
Patience, P.C., by David L. Abney, Esq., Mesa,                specimens by using an immunoassay test that meets the
Attorneys for Craig W. Petersen.                              requirements of the Food and Drug Administration for
                                                              commercial distribution. The laboratory then confirms all
                                                                                                                 Page 25
                                        83 P.3d 35, *; 2004 Ariz. LEXIS 12, **;
                                    418 Ariz. Adv. Rep. 75; 20 BNA IER CAS 1586

positive test results using the gas chromatography/mass       reasonable under the Fourth Amendment. Id. at 290-91
spectrometry technique and reports positive results to a      P49, 63 P.3d at 321-22 (Hall, J., concurring in part and
Medical Review Officer (MRO), who has a "detailed             dissenting in part).
knowledge of possible alternate medical explanations."
The MRO reviews the results before giving the
information to the Department's administrative official.                   n2 Petersen does not challenge testing on the
Only confirmed tests are reported to the Department as                basis of reasonable suspicion, after an on-the-job
positive for a specific drug. Before verifying a positive             accident, following a return to duty, or as a
result, however, the MRO must contact the firefighter on              follow-up to "a determination that a covered
a confidential basis.                                                 member is in need of assistance." As a result, we
                                                                      express no opinion regarding the constitutionality
                                                                      of these Program provisions.
            n1 In addition, twenty percent of those tested
       are selected for an alcohol breath test.               [**6]
                                                                   P8 Under the analysis set forth below, we hold that
     P5 The Department does not release information           the Program's random testing component is unreasonable
[**4] in a firefighter's drug testing record outside the      and therefore violates the Fourth Amendment to the
Department without the firefighter's consent. A               United States Constitution. n3
firefighter whose test reveals a blood alcohol
concentration in excess of that allowed under the
Program or who tests positive for any of several                           n3 Petersen argues that Article II, Section 8
specified drugs is removed from all covered positions                 of the Arizona Constitution, which expressly
and is evaluated by a substance abuse professional. The               provides that "no person shall be disturbed in his
Department may discipline or terminate the employment                 private affairs . . . without authority of law,"
of a firefighter who tests positive a second time or who              affords greater protection against drug testing
refuses to submit to a required test.                                 than does the Fourth Amendment. Our conclusion
                                                                      that the random testing component violates the
     P6 According to section 8 of the Program, the
                                                                      Fourth Amendment obviates the need to consider
primary purpose of the random testing component "is to
                                                                      whether the protections granted by the Arizona
deter prohibited alcohol and controlled substance use and
                                                                      Constitution extend beyond those afforded
to detect prohibited use for the purpose of removing
                                                                      defendants by the federal constitution. Although
identified users from the safety-sensitive work force."
                                                                      the Arizona Constitution may impose stricter
This purpose advances the City's goal of establishing "a
                                                                      standards on searches and seizures than does the
work environment that is totally free of the harmful
                                                                      federal constitution, Arizona courts cannot
effects of drugs and the misuse of alcohol."
                                                                      provide less protection than does the Fourth
     P7 Petersen filed a complaint in superior court                  Amendment. See, e.g., Cooper v. California, 386
seeking declaratory and injunctive relief, alleging that              U.S. 58, 62, 17 L. Ed. 2d 730, 87 S. Ct. 788
the random testing component of the Program violated                  (1967) ("Our holding, of course, does not affect
his rights under both Article II, Section 8 of the Arizona            the State's power to impose higher standards on
Constitution and the Fourth Amendment to the United                   searches and seizures than required by the
States [**5] Constitution. n2 The trial court held that the           Federal Constitution if it chooses to do so.");
Program violated the Arizona Constitution and                         Arnold v. City of Cleveland, 67 Ohio St. 3d 35,
permanently enjoined the Department from continuing                   616 N.E.2d 163, 169 (Ohio 1993) ("In the areas
random, suspicionless drug and alcohol testing of the                 of individual rights and civil liberties, the United
City's firefighters. The court of appeals reversed, holding           States Constitution, where applicable to the
that the Program's random testing component is                        states, provides a floor below which state court
reasonable under both the Arizona and United States                   decisions may not fall.").
Constitutions. The court reasoned that the City's
"compelling need to discover specific but hidden              [**7]
conditions representing grave risks to the health and
                                                                   [*38] II.
safety of the firefighters and the public" outweighed
Petersen's privacy interests. Petersen v. City of Mesa,            P9 [HN1] The Fourth Amendment to the United
204 Ariz. 278, 286 P34, 63 P.3d 309, 317 (App. 2003).         States Constitution protects "the right of the people to be
Judge Hall dissented from the majority's conclusion that      secure in their persons, houses, papers, and effects,
the random testing component of the Program is                against unreasonable searches and seizures." U.S. Const.
                                                                                                               Page 26
                                        83 P.3d 35, *; 2004 Ariz. LEXIS 12, **;
                                    418 Ariz. Adv. Rep. 75; 20 BNA IER CAS 1586

amend. IV. "The Amendment guarantees the privacy,             to overcome the privacy intrusion occasioned by the
dignity, and security of persons against certain arbitrary    search. Based on the record in this case, we agree.
and invasive acts by officers of the Government or those
                                                                  A.
acting at their direction."       Skinner v. Ry. Labor
Executives' Ass'n, 489 U.S. 602, 613-14, 103 L. Ed. 2d             P13 Neither the Supreme Court nor this court has
639, 109 S. Ct. 1402 (1989). In this case, the parties        considered the reasonableness of random, suspicionless
agree that the City's collection and testing of a             testing of city firefighters. The Supreme Court, however,
firefighter's urine and breath constitutes a "search" under   has examined the constitutionality of suspicionless drug
the Fourth Amendment. See, e.g., id. at 617 ("Because it      testing requirements analogous to the procedures
is clear that the collection and testing of urine intrudes    Petersen challenges. See Bd. of Educ. of Indep. Sch.
upon expectations of privacy that society has long            Dist. No. 92 v. Earls, 536 U.S. 822, 153 L. Ed. 2d 735,
recognized as reasonable . . . these intrusions must be       122 S. Ct. 2559 (2002) (high [**10] school students
deemed searches under the Fourth Amendment.").                participating in competitive extracurricular activities);
                                                              Chandler v. Miller, 520 U.S. 305, 137 L. Ed. 2d 513, 117
     P10     [HN2] As the language of the Fourth
                                                              S. Ct. 1295 (1997) (candidates for political office);
Amendment makes clear, "the ultimate measure of the
                                                              Vernonia, 515 U.S. 646, 132 L. Ed. 2d 564, 115 S. Ct.
constitutionality of a governmental search is
                                                              2386 (high school students participating in
'reasonableness.'" Vernonia Sch. Dist. 47J v. Acton, 515
                                                              interscholastic athletics); Skinner, 489 U.S. 602, 103 L.
U.S. 646, 652, 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995).
                                                              Ed. 2d 639, 109 S. Ct. 1402 (railway employees); Von
To be reasonable, [**8] a search generally must be
                                                              Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384
based upon some level of individualized suspicion of
                                                              (customs service agents); see also Ferguson v. City of
wrongdoing. Skinner, 489 U.S. at 624. The purpose of
                                                              Charleston, 532 U.S. 67, 149 L. Ed. 2d 205, 121 S. Ct.
requiring individualized suspicion "is to protect privacy
                                                              1281 (2001) (holding unconstitutional a state hospital's
interests by assuring citizens subject to a search or
                                                              drug testing of pregnant patients that involved hospital
seizure that such intrusions are not the random or
                                                              personnel notifying the police of patients who tested
arbitrary acts of government agents." Id. at 621-22.
                                                              positive for cocaine). As each of these decisions
     P11 The Supreme Court, however, has recognized           illustrates, [HN3] when [*39] presented with an alleged
limited exceptions to this general rule "when 'special        "special need" in support of a particular Fourth
needs, beyond the normal need for law enforcement,            Amendment intrusion, a court must weigh the
make the warrant and probable-cause requirement               individual's Fourth Amendment interests against the
impracticable.'"    Id. at 619 (quoting        Griffin v.     proffered governmental interests to determine whether
Wisconsin, 483 U.S. 868, 873, 97 L. Ed. 2d 709, 107 S.        the search in question "fit[s] within the closely guarded
Ct. 3164 (1987)). "In limited circumstances, where the        category of constitutionally permissible suspicionless
privacy interests implicated by the search are minimal,       searches." Chandler, 520 U.S. at 309.
and where an important governmental interest furthered
                                                                   P14 Applying [**11] this "special needs" balancing
by the intrusion would be placed in jeopardy by a
                                                              test to the facts presented in this case, we begin by
requirement of individualized suspicion, a search may be
                                                              analyzing the City's proffered interests. Although the
reasonable despite the absence of such suspicion." Id. at
                                                              City need not present a "compelling" interest, the City's
624.
                                                              interest must be "important enough" to justify the
     P12 The City concedes that its use of random,            government's intrusion into the firefighters' legitimate
suspicionless testing is not based on any level of            expectations of privacy. Vernonia, 515 U.S. at 661.
individualized suspicion. The City argues, however, that
                                                                   P15 The City asserts that it has a "special need" to
[**9] such testing is reasonable under the Fourth
                                                              test firefighters because they occupy safety-sensitive
Amendment because the search "serves special
                                                              positions. The City alleges that random testing furthers
governmental needs, beyond the normal need for law
                                                              this interest by deterring "prohibited alcohol and
enforcement." Nat'l Treasury Employees Union v. Von
                                                              controlled substance use" and detecting "prohibited use
Raab, 489 U.S. 656, 665, 103 L. Ed. 2d 685, 109 S. Ct.
                                                              for the purpose of removing identified users from the
1384 (1989). Because the Department does not disclose
                                                              safety-sensitive work force." We agree that the City has
test results to law enforcement officers or to other third
                                                              an interest in deterring and detecting prohibited alcohol
parties without the firefighter's consent, Petersen
                                                              and drug use among the City's firefighters.
recognizes that the Program is unrelated to the normal
need for law enforcement. Petersen maintains, however,             P16 Fourth Amendment analysis, however, requires
that the City cannot enforce the Program's random             that we do more than recognize that the City has an
testing component because the City's alleged "special         interest in deterring drug use among employees in safety-
needs" offered in support of the program are insufficient     sensitive positions. In addition, we must look to the
                                                                                                                Page 27
                                         83 P.3d 35, *; 2004 Ariz. LEXIS 12, **;
                                     418 Ariz. Adv. Rep. 75; 20 BNA IER CAS 1586

nature and immediacy of the City's concern. Id. at 660.        suspicionless drug testing." Earls, 536 U.S. at 835. The
That is, has the City identified a real and substantial        City's argument accurately reflects language from the
[**12] risk? Chandler, 520 U.S. at 323. If so, will the        cases upon which it relies. These cases, however,
City's proposed invasion of its firefighters' privacy          focused on a number of important factors that differ from
interests further the City's interest in deterring and         the facts of this case [*40] and therefore offer limited
detecting drug use among its firefighters? Skinner, 489        support for the City's argument.
U.S. at 624. Answering that question requires that we
                                                                    P19 In Von Raab, the Court examined the
consider the efficacy of the Program in meeting the
                                                               constitutionality of a United States Customs Service
City's concern, Vernonia, 515 U.S. at 660, and whether
                                                               program requiring Customs Service employees to submit
the invasion of privacy is calibrated to the defined risk,
                                                               to suspicionless testing upon promotion or transfer to
Chandler, 520 U.S. at 321-23.
                                                               positions directly involved in the interdiction of illegal
     P17 The record before us provides little information      drugs or positions that required carrying a firearm. 489
about the City's reasons for adopting random testing and       U.S. at 660. Although the Customs Service did not adopt
provides no evidence to explain the City's perceived need      its policy in response to a history of drug and alcohol
to conduct such testing. As the City conceded at oral          abuse problems, id., the plan was developed for an
argument, the record is devoid of any indication that the      agency that the Court recognized as "our Nation's first
City has ever encountered any problem involving drug           line of defense against one of the greatest problems
use by its firefighters. The record lacks not only evidence    affecting the health and welfare of our population.
of even a single instance of drug use among the                [**15] " Id. at 668. The Court reasoned that those
firefighters to be tested but also any evidence of             employees directly involved in drug interdiction or
accidents, fatalities, injuries, or property damage that can   carrying a firearm could jeopardize the agency's "almost
be attributed to drug or alcohol use by the City's             unique mission." Id. at 674. As a result, the Court
firefighters. No evidence of record suggests that the          concluded that the Customs Service had a compelling
firefighters [**13] asked for or consented to the testing      interest in assuring that users of illegal drugs would not
policy, and the record includes not even an allegation or      be placed in these positions. Id. at 670-71. In upholding
rumor that the City's firefighters used or abused drugs or     the testing regime, the Court also noted that the testing
alcohol. Based on this record, we detect no real and           program provided advance notice of the scheduled
substantial risk that the public safety is threatened by       sample collection. Id. at 672 n.2. In addition, the Court
drug or alcohol use among the firefighters to be tested.       focused on the context in which the Service's testing
The absence of evidence of drug use, at least as reflected     program was implemented, which the Court described as
in the record, provides no basis for us to conclude that       an environment in which "it is not feasible to subject
random, suspicionless testing is calibrated to respond to      employees and their work product to the kind of day-to-
any defined risk. At most, the Program's random testing        day scrutiny that is the norm in more traditional office
component furthers only a generalized, unsubstantiated         environments." Id. at 674. Given these particular facts,
interest in deterring and detecting a hypothetical drug        as the Court later emphatically stated, "[Von Raab is]
abuse problem among the City's firefighters. n4                hardly a decision opening broad vistas for suspicionless
                                                               searches [and it] must be read in its unique context."
                                                               Chandler, 520 U.S. at 321.
              n4 While we recognize and applaud the
                                                                    P20 Unlike the Customs Service [**16] employees
         City's interest in deterring drug use among
                                                               in Von Raab, the City's firefighters are not directly
         firefighters, the Program also requires testing
                                                               involved in drug interdiction, do not carry a firearm, and
         upon reasonable suspicion, after an accident on
                                                               are not required to use deadly force in the regular course
         the job, and following a return to duty or as a
                                                               of their duties. In addition, the firefighters' communal
         follow-up to "a determination that a covered
                                                               work environment provides a better opportunity for
         member is in need of assistance." The record
                                                               supervisors to detect drug use and therefore develop
         before us provides no basis for concluding that
                                                               reasonable suspicion to conduct a test under appropriate
         these testing alternatives fail to deter and detect
                                                               circumstances. This environment reduces the risk that a
         drug use among the City's firefighters.
                                                               firefighter could cause "great human loss before any
                                                               signs of impairment become noticeable to supervisors or
[**14]
                                                               others." Skinner, 489 U.S. at 628. Finally, as we discuss
    P18 Nonetheless, relying primarily upon Von Raab,          below, the element of "fear and surprise" inherent in the
Vernonia, and Earls, the City asserts that the Supreme         Program's random testing procedures results in a broader
Court "has not required a particularized or pervasive          and more intrusive privacy invasion than did the testing
drug problem before allowing the government to conduct         procedures approved in Von Raab. Von Raab, 489 U.S.
                                                                                                                     Page 28
                                           83 P.3d 35, *; 2004 Ariz. LEXIS 12, **;
                                       418 Ariz. Adv. Rep. 75; 20 BNA IER CAS 1586

at 672 n.2 (noting that the advance notice given of the           extent of Petersen's acknowledged Fourth Amendment
scheduled sample collection reduces "to a minimum any             privacy interests and then balance these interests against
'unsettling show of authority'" (quoting Delaware v.              the City's generalized, unsubstantiated interest in
Prouse, 440 U.S. 648, 657, 59 L. Ed. 2d 660, 99 S. Ct.            deterring and detecting substance abuse among the City's
1391 (1979)).                                                     firefighters.
     P21 Vernonia and Earls also provide limited support              B.
for the City's random [**17] testing of its firefighters. In
                                                                       P25 The collection of urine and breath samples for
Vernonia and Earls, the Court upheld school district
                                                                  purposes of drug and alcohol testing "infringes an
policies that required students participating in
                                                                  expectation of privacy that society is prepared to
extracurricular activities to submit to random drug tests.
                                                                  recognize as reasonable." Skinner, 489 U.S. at 616.
Earls, 536 U.S. at 838 (finding school district policy,
                                                                  Nevertheless, "'operational realities of the workplace'
which included random testing of students participating
                                                                  may render entirely reasonable certain work-related
in extracurricular activities, to be constitutional);
                                                                  intrusions by supervisors and co-workers that might be
Vernonia, 515 U.S. at 664-65 (upholding school district's
                                                                  viewed as unreasonable in other contexts." Von Raab,
policy authorizing random drug testing of students
                                                                  489 U.S. at 671 (quoting O'Connor v. Ortega, 480 U.S.
participating in interscholastic athletics). In upholding
                                                                  709, 717, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987)). In
the policies, the Court emphasized in both decisions that
                                                                  Skinner, for example, the Court found that railway
"'Fourth Amendment rights . . . are different in public
                                                                  employees' expectation of privacy is "diminished by
schools than elsewhere; the 'reasonableness' inquiry
                                                                  reason of their [**20] participation in an industry that is
cannot disregard the schools' custodial and tutelary
                                                                  regulated pervasively to ensure safety, a goal dependent,
responsibility for children.'" Earls, 536 U.S. at 829-30
                                                                  in substantial part, on the health and fitness of covered
(quoting Vernonia, 515 U.S. at 656).
                                                                  employees." 489 U.S. at 627.
     P22 Firefighters, of course, have little in common
                                                                       P26 As was true of the railway employees in
with students entrusted to the government's care. As
                                                                  Skinner, the City's firefighters possess a diminished
Judge Hall correctly noted, "unlike a public school
                                                                  expectation of privacy. The safety risks associated with
student['s right to privacy], a firefighter's right to privacy,
                                                                  becoming a firefighter are well known. We entrust
although limited in some respects, is not inherently
                                                                  firefighters with protecting both the community at large
'subject[] [**18]       to greater controls than those
                                                                  and their colleagues from danger, while putting their own
appropriate for adults.'" Petersen, 204 Ariz. at 289 P44,
                                                                  well-being at great risk of harm. A firefighter's ability to
63 P.3d at 320 (Hall, J., concurring in part and dissenting
                                                                  do this job in a safe and effective manner depends, in
in part) (quoting Earls, 536 U.S. at 831). [*41] On this
                                                                  substantial part, on his or her health and fitness. In
basis alone, we have little trouble distinguishing
                                                                  addition, a firefighter, while on duty, lives in a
Vernonia and Earls from this case.
                                                                  communal environment. Given all these factors, we
     P23 Moreover, unlike the record in this case, the            conclude that [HN4] individuals who elect to become
records in both the Earls and Vernonia actions presented          firefighters should anticipate a diminished expectation
specific evidence of drug use that supported the districts'       of privacy and should reasonably expect some intrusion
decisions to institute the testing regimes. In Vernonia, an       into matters involving their health and fitness.
"immediate crisis," 515 U.S. at 663, brought about by a
                                                                       P27 The strength of any asserted privacy interest
"sharp increase in drug use," id. at 648, sparked
                                                                  also turns upon the "character of the intrusion."
installation of the testing program. Similarly, the Earls
                                                                  Vernonia, 515 U.S. at 658. Although any program that
Court noted that the "School District had provided
                                                                  compels urinalysis affects privacy [**21] interests, the
sufficient evidence to shore up the need for its testing
                                                                  City has designed its Program to reduce its intrusion
program." 536 U.S. at 835.
                                                                  upon the firefighters' privacy interests. See, e.g., id.
     P24 Given the dearth of evidence by which we can             (concluding that "the degree of intrusion depends upon
measure the strength of the City's proffered "special             the manner in which production of the urine sample is
need" and the City's failure to articulate how the                monitored"). The Program permits firefighters providing
Program's random testing procedures further its interests,        samples to use private bathroom stalls at the designated
we conclude that the City has failed to define any real           testing facility, where they are not subject to direct
and substantial [**19] risk that random, suspicionless            monitoring. The firefighter then gives the sample to an
testing is designed to address. Nonetheless, because the          authorized monitor for color and temperature testing.
Supreme Court has stated that a lack of empirical data,           The laboratory confirms any initial positive test by using
by itself, is not fatal to a suspicionless testing program,       gas chromatography/mass spectrometry techniques,
Von Raab, 489 U.S. at 673-75, we now consider the                 which reduces the specter of a "false positive" test result.
                                                                                                                Page 29
                                         83 P.3d 35, *; 2004 Ariz. LEXIS 12, **;
                                     418 Ariz. Adv. Rep. 75; 20 BNA IER CAS 1586

See, e.g., Karen Manfield, Imposing Liability on Drug                 show of authority" that may be associated
Testing Laboratories for "False Positives": Getting                   with unexpected intrusions on privacy.
Around Privity, 64 U. Chi. L. Rev. 287, 290-92 (1997)
(stating that retesting positive results with a properly       Id. (quoting Delaware, 440 U.S. at 657).
administered gas chromatography test "would eliminate
                                                                    P31 Consistent with the Court's statements in Von
virtually all the false positives"). [*42] The MRO
                                                               Raab, [**24] a number of federal and state courts have
reviews the results and contacts the firefighter on a
                                                               acknowledged the increased privacy concerns occasioned
confidential basis. In addition, the Department does not
                                                               by random testing. See, e.g., Bluestein v. Skinner, 908
release testing records outside the Department without
                                                               F.2d 451, 456-57 (9th Cir. 1990) (finding the fact that
the firefighter's [**22] consent.
                                                               the challenged testing program provided for
     P28 These procedures, which attempt to guard the          unannounced and random tests added "some weight to
firefighters' privacy interests to the extent possible, all    the 'invasion of privacy' side of the Fourth Amendment
work to reduce the intrusiveness of the privacy invasion.      balance"); Harmon v. Thornburgh, 278 U.S. App. D.C.
Nonetheless, given the random nature of these searches,        382, 878 F.2d 484, 489 (D.C. Cir. 1989) ("Certainly the
we cannot conclude that "the privacy interests implicated      random nature of the . . . testing plan is a relevant
by the search are minimal." Skinner, 489 U.S. at 624.          consideration; and, in a particularly close case, it is
                                                               possible that this factor would tip the scales.");
     P29 The Supreme Court has not examined random
                                                               Anchorage Police Dep't Employees Ass'n v. Municipality
testing procedures outside of the unique school setting.
                                                               of Anchorage, 24 P.3d 547 (Alaska 2001). In Anchorage,
Earls, 536 U.S. 822, 153 L. Ed. 2d 735, 122 S. Ct. 2559;
                                                               for example, the Alaska Supreme Court, relying upon the
Vernonia, 515 U.S. 646, 132 L. Ed. 2d 564, 115 S. Ct.
                                                               Alaska Constitution, concluded that the random testing
2386. In both Vernonia and Earls, the Court upheld
                                                               of firefighters is qualitatively different from
school district policies requiring students participating in
                                                               suspicionless testing that occurs prior to employment,
extracurricular activities to submit to random drug
                                                               upon promotion, demotion or transfer, and after a traffic
testing. In both cases, without directly addressing the
                                                               accident. Anchorage, 24 P.3d at 557. The court
privacy implications of a random search, the Court
                                                               reasoned:
upheld the challenged searches based primarily upon
"'the schools' custodial and tutelary responsibility for
                                                                      Because the policy's provision for random
children.'" Earls, 536 U.S. at 829-30 (quoting Vernonia,
                                                                      testing [**25] could subject employees to
515 U.S. at 656).
                                                                      "unannounced" probing throughout the
     P30 Outside the school context, the Court has                    course of their employment, the tests are
recognized that notification in advance of a scheduled                peculiarly capable of being viewed as
search minimizes the intrusiveness [**23] of the search.              "unexpected intrusions on privacy." For
Von Raab, 489 U.S. at 672 n.2; see also United States v.              example, it might seem manifestly
Martinez-Fuerte, 428 U.S. 543, 559, 49 L. Ed. 2d 1116,                unreasonable for any person applying for
96 S. Ct. 3074 (1976) (noting that the intrusion on                   a safety-sensitive position in a heavily
privacy occasioned by routine checkpoints is minimized                regulated field of activity not to
by the fact that motorists "are not taken by surprise as              anticipate-and implicitly agree to-a
they know, or may obtain knowledge of, the location of                probing inquiry into the applicant's
the checkpoints and will not be stopped elsewhere"). In               capacity to perform job-related duties; the
Von Raab, for example, the Court identified the advance               same would hold true for any employee
notice given as a factor in upholding the suspicionless               who might be promoted, demoted,
testing of Customs Service employees. 489 U.S. at 672                 transferred, or become involved in a job-
n.2. The Von Raab Court stated:                                       related accident. But a job applicant or
                                                                      employee who anticipated such inquiries
       Only employees who have been                                   [*43] might nevertheless expect not to be
       tentatively accepted for promotion or                          subjected to a continuous and unrelenting
       transfer to one of the three categories of                     government scrutiny that exposes the
       covered positions are tested, and                              employee to unannounced testing at
       applicants know at the outset that a drug                      virtually any time. Such expectations
       test is a requirement of those positions.                      cannot be so readily dismissed as patently
       Employees are also notified in advance of                      unreasonable.
       the scheduled sample collection, thus
       reducing to a minimum any "unsettling                   Id. at 557-58 (citations omitted).
                                                                                                                Page 30
                                         83 P.3d 35, *; 2004 Ariz. LEXIS 12, **;
                                     418 Ariz. Adv. Rep. 75; 20 BNA IER CAS 1586

     P32 Although the Alaska Supreme Court analyzed            intrusion would be placed in jeopardy by a requirement
the Anchorage plan under its state constitution, we find       of individualized suspicion, [and in which] a search may
the court's reasoning about the difference between             be reasonable despite the absence of such suspicion."
random and announced or scheduled tests persuasive.            Skinner, 489 U.S. at 624. Rather, the increased intrusion
The very nature of random, suspicionless searches              occasioned by the Program's random, suspicionless
[**26] precludes any advance notification and subjects         testing component represents the very type of "arbitrary
employees to continuous government scrutiny. Random            and invasive acts by officers of the Government or those
testing, therefore, necessarily raises the specter of the      acting at their direction" against which the Fourth
"'unsettling show of authority' that may be associated         Amendment is meant to guard. Id. at 613-14. We
with unexpected intrusions on privacy." Von Rabb, 489          therefore hold, on the record before us, that the
U.S. at 672 n.2 (quoting Delaware, 440 U.S. at 657).           Program's random component falls outside the "closely
Accordingly, we conclude that            [HN5] random,         guarded category of constitutionally permissible
suspicionless drug testing, while not per se unreasonable,     suspicionless searches," Chandler, 520 U.S. at 309, and
invades reasonable privacy interests even when the             violates the Fourth Amendment to the United States
government collects the urine sample in a relatively           Constitution.
unintrusive manner and takes steps to protect employees'
                                                                   IV.
privacy interests by limiting the information that is
disclosed.                                                         P34 For the foregoing reasons, we vacate the court
                                                               of appeals' opinion and affirm the trial court's judgment
    III.
                                                               enjoining the City from enforcing the random,
     P33 Balancing Petersen's privacy interests against        suspicionless component of the Program.
the interests the City advances in favor of the Program's
                                                                   Ruth V. McGregor, Vice Chief Justice
random component, we conclude that the City's
generalized and unsubstantiated interest in deterring and
                                                               CONCURRING:
detecting alcohol and drug use among the City's
firefighters by conducting random drug tests is
                                                               Charles [**28] E. Jones, Chief Justice
insufficient to overcome even the lessened privacy
interests of the firefighters in this case. The situation we
                                                               Rebecca White Berch, Justice
consider, on this record, cannot be described as one of
the "limited circumstances, where [**27] the privacy
                                                               Michael D. Ryan, Justice
interests implicated by the search are minimal, and where
an important governmental interest furthered by the
                                                               Andrew D. Hurwitz, Justice
                                                4 of 10 DOCUMENTS

                        STATE of Arizona, Appellee, v. Eugene F. JARZAB, Jr., Appellant

                                                    No. 4571-PR

                                             Supreme Court of Arizona

                                   123 Ariz. 308; 599 P.2d 761; 1979 Ariz. LEXIS 316


                                                      July 27, 1979




SUBSEQUENT HISTORY: [***1]                                  conviction, contending that the trial court erred in
                                                            denying his motion to suppress the marijuana evidence.
    Rehearing Denied September 11, 1979.
                                                            The court of appeals reversed his conviction. The state
                                                            sought review of that decision, and the court accepted
PRIOR HISTORY:                                              review. The court determined that the officer's
                                                            investigation was reasonable, lawful, and constitutionally
    Appeal from the Superior Court of Maricopa County       warranted. It did not violate defendant's Fourth
    Cause No. CR-99460                                      Amendment rights under the federal Terry standard
                                                            because the scope of the officer's intrusion was fleeting,
    Honorable Thomas C. Kleinschmidt, Judge                 minimal, and reasonably related to the circumstances
    Memorandum decision of the Court of Appeals,            justifying it. The court overruled state cases to the extent
Division One, 1 CA-CR 3395, filed January 11, 1979          that they were incompatible or inconsistent with the
Vacated.                                                    decision herein. The court reversed the court of appeals
                                                            and affirmed the judgment of the trial court.
DISPOSITION:                                                OUTCOME: The court reversed the memorandum
    Affirmed.                                               decision of the court of appeals. The judgment of the trial
                                                            court that convicted defendant of possession of
                                                            marijuana, a misdemeanor, was affirmed.
CASE SUMMARY:
                                                            CORE TERMS: registration, criminal activity,
                                                            suspicious, afoot, truck, Fourth Amendment, abandoned,
PROCEDURAL POSTURE: The State of Arizona                    stolen, investigative detention, reasonable suspicion,
sought review of the memorandum decision of the Court       police officer, suspicion, investigate, driver, motion to
of Appeals (Arizona) that reversed defendant's              suppress, reasonableness, intrusion, suspected, hunch,
conviction for possession of marijuana, a misdemeanor.      marijuana, occupant, desert, personal security, first
The court accepted review.                                  instance, police action, investigatory, convinced,
                                                            detention, balancing, invasion
OVERVIEW: As an officer approached a seemingly
abandoned vehicle, believing that it was possibly stolen,   LexisNexis (TM) HEADNOTES - Core Concepts:
defendant stepped out of the brush to claim ownership of
the vehicle. The officer asked to see the vehicle
registration, and when defendant opened the glove box to    Criminal Law & Procedure > Criminal Offenses >
remove the registration, the officer saw marijuana.         Vehicular Crimes > Unlicensed OperationCriminal
Defendant subsequently was convicted of possession of       Law & Procedure > Search & Seizure > Expectation of
marijuana, a misdemeanor. Defendant appealed from his       Privacy
                                                                                                                  Page 32
                                            123 Ariz. 308, *; 599 P.2d 761, **;
                                               1979 Ariz. LEXIS 316, ***

[HN1] Ariz. Rev. Stat. § 28-305(D) provides in part: The        able to point to specific and articulable facts which,
registration card of a motor vehicle shall at all times be      taken together with rational inferences from those facts,
carried within the driver's compartment of the vehicle for      reasonably warrant that intrusion."
which issued, and shall be subject to inspection by
members of the highway patrol or any peace officer.             Criminal Law & Procedure > Search & Seizure >
                                                                Warrantless Searches > Investigatory Stops
Criminal Law & Procedure > Search & Seizure >                   [HN5] Whether an officer's conduct was "reasonable" or
Expectation of PrivacyConstitutional Law > Search &             "appropriate" depends on the facts and circumstances of
Seizure > Scope of Protection                                   the particular case, so that the decision in one case
[HN2] The Fourth Amendment to the Constitution of the           seldom furnishes a pat answer in another case. A
United States provides: The right of the people to be           principle to be applied generally is that in judging the
secure in their persons, houses, papers, and effects,           reasonableness of the actions of the officer the
against unreasonable searches and seizures, shall not be        circumstances before him are not to be dissected and
violated.                                                       viewed singly; rather they must be considered as a
                                                                whole. So considered they are to be viewed through the
Criminal Law & Procedure > Search & Seizure >                   eyes of a reasonable and cautious officer on the scene,
Warrantless           Searches         >    Investigatory       guided by his experience and training. An investigative
StopsConstitutional Law > Search & Seizure > Scope of           stop is deemed reasonable when the officer demonstrates
Protection                                                      some basis from which the court can determine that the
[HN3] While it is true that a temporary investigative           police were not arbitrary or harassing.
detention is allowed under certain circumstances, these
circumstances have to be "such as to distinguish the            Criminal Law & Procedure > Search & Seizure >
activity of the detained person from that of any other          Warrantless          Searches          > Investigatory
citizen" and have to be based on an "objective perception       StopsConstitutional Law > Search & Seizure > Scope of
of events rather than the subjective feelings of the            Protection
detaining officer." In order to justify the intrusion, the      [HN6] The Supreme Court of Arizona's examination of
state has to be able to point to specific and articulable       Terry v. Ohio and federal cases subsequent to it led the
facts, which may be combined with rational inferences           Supreme Court of Arizona to disapprove the standard
from those facts. Thus, even in the absence of bad faith,       enunciated in Irwin v. Superior Court of Los Angeles
detention based on a "mere hunch" is illegal. There has         County, 462 P.2d 12 (1969), and adopted in State v.
to be a reasonable suspicion by the law enforcement             Hocker and State v. Fortier because it is unduly
officer that "some activity out of the ordinary" is or has      restrictive of lawful police activities.
occurred, some suggestion to connect the detained
person with the unusual activity, and some indication           Criminal Law & Procedure > Search & Seizure >
that the activity is related to crime.                          Warrantless         Searches        >        Investigatory
                                                                StopsConstitutional Law > Search & Seizure > Scope of
Criminal Law & Procedure > Search & Seizure >                   Protection
Warrantless          Searches         >       Investigatory     [HN7] The Fourth Amendment does not require a
StopsConstitutional Law > Search & Seizure > Scope of           policeman who lacks the precise level of information
Protection                                                      necessary for probable cause to arrest to simply shrug his
[HN4] Constitutional perimeters are spelled out in Terry        shoulders and allow a crime to occur or a criminal to
v. Ohio. There, the United States Supreme Court held            escape. On the contrary, Terry recognizes that it may be
that a police officer may effect a limited detention of an      the essence of good police work to adopt an intermediate
individual, not amounting to an arrest, if the officer's        response. A brief stop of a suspicious individual, in order
actions were reasonable under the circumstances. The            to determine his identity or to maintain the status quo
court did not hold that "some indication that the activity      momentarily while obtaining more information, may be
is related to crime" was an essential ingredient of the test    most reasonable in light of the facts known to the officer
of the police action. Terry requires a dual inquiry into the    at the time.
reasonableness of an investigatory stop. The reviewing
court must determine: (1) whether the facts warranted the       Constitutional Law > Search & Seizure > Scope of
intrusion on the individual's Fourth Amendment rights,          Protection
and (2) whether the scope of the intrusion was                  [HN8] The touchstone of the analysis under the Fourth
reasonably related to the circumstances which justified         Amendment is always "the reasonableness in all the
the interference in the first place. A police officer cannot    circumstances of the particular governmental invasion of
base his actions on "inarticulate hunches"; he "must be         a citizen's personal security." Reasonableness, of course,
                                                                                                                    Page 33
                                           123 Ariz. 308, *; 599 P.2d 761, **;
                                              1979 Ariz. LEXIS 316, ***

depends on a balance between the public interest, and the      approximately one-quarter mile off of Interstate 10.
individual's right to personal security free from arbitrary    Pearce turned his headlights on the truck and, when it
interference by law officers.                                  appeared to be unoccupied, drove over to investigate.
                                                               After he left his car and approached the truck, appellant
Criminal Law & Procedure > Pretrial Motions >                  appeared from behind some nearby bushes. He told the
Suppression of EvidenceCriminal Law & Procedure >              officer that the vehicle was his and that he had stopped to
Appeals > Standards of Review > Abuse of                       relieve himself. Appellant had a noticeable odor of
DiscretionCriminal Law & Procedure > Appeals >                 alcohol on his breath. Pearce asked for identification
Standards of Review > Clearly Erroneous Review                 from appellant to determine whether he was of legal
[HN9] Where a motion to suppress has been denied, the          drinking age. Appellant produced a valid Arizona
lower court will not be reversed unless the denial             driver's license which showed his age. Pearce then asked
constitutes clear and manifest error or is an abuse of         appellant for the truck's registration card. n1 When
discretion.                                                    appellant opened the door of the truck to get the card, the
                                                               interior lights came on and the deputy observed a plastic
Criminal Law & Procedure > Search & Seizure >                  bag containing marijuana on the console.
Warrantless        Searches        >       Investigatory
StopsConstitutional Law > Search & Seizure > Scope of
Protection                                                                   n1 [HN1] A.R.S. § 28-305(D) provides in
[HN10] To the extent that State v. Hocker, 556 P.2d 784                 part:
(1976), and State v. Fortier, 553 P.2d 1206 (1976), are
incompatible or inconsistent with the decision of the                            "The registration card [of a motor
Supreme Court of Arizona, they are overruled.                                    vehicle] shall at all times be
                                                                                 carried    within    the    driver's
COUNSEL:                                                                         compartment of the vehicle for
                                                                                 which issued, and shall be subject
     John A. LaSota, Jr., former Atty. Gen., Robert K.
                                                                                 to inspection by * * * members of
Corbin, Atty. Gen. by William J. Schafer, III, Georgia B.
                                                                                 the highway patrol or any peace
Ellexson, Gerald R. Grant, Asst. Attys. Gen., Phoenix,
                                                                                 officer."
for appellee.
    Lane & Penrod, Ltd. by Clair W. Lane, Craig W.             [***3]
Penrod, Tempe, for appellant.
                                                                   At a suppression hearing, Pearce testified:
                                                                            "Q. Are there usually people in that
JUDGES:
                                                                        area?
     In Banc. Struckmeyer, Vice Chief Justice. Hays
                                                                            A. No, sir.
and Holohan, JJ., concurring.          Gordon, Justice
(dissenting). Cameron, Chief Justice (concurring).                          Q. So then it would be strange to
                                                                        have a vehicle in the area?
OPINIONBY:                                                                  A. That's correct, sir.
    STRUCKMEYER                                                             Q. You didn't know whether or not
                                                                        the truck was stolen when you went to
                                                                        investigate it. Did you?
OPINION:
                                                                             A. No, sir. I had no idea why it was
     [*309] [**762] Appellant, Eugene Francis Robert
                                                                        there at that time.
Jarzab, Jr., was convicted of possession of marijuana, a
misdemeanor. The Court of Appeals, in a memorandum                          Q. You just wanted to see what was
decision, reversed. We accepted review. Opinion of the                  going on?
Court of Appeals, 1 CA-CR 3395 (filed January 11,
1979), vacated.     Judgment of the Superior Court                          A. Yes, sir."
affirmed.
                                                               It is palpably clear that the investigation which Pearce
    At about 1:40 a. m. on June 18, 1977, near Phoenix,        then entered upon was reasonable and lawful. Therefore,
Arizona, sheriff's deputy Russell Pearce while driving         the question governing the disposition of this case is
over an overpass saw a new Chevrolet Blazer [***2]
four-wheel-drive truck stopped on the desert
                                                                                                                   Page 34
                                            123 Ariz. 308, *; 599 P.2d 761, **;
                                               1979 Ariz. LEXIS 316, ***

whether subsequent events deprived the investigation of                1976), citing Irwin v. Superior Court of
continuing legality.                                                   Los Angeles County, 1 Cal.3d 423, 82
                                                                       Cal.Rptr. 484, 462 P.2d 12 (1969).
     Appellant does not argue that it was improper for the
                                                                       [HN3] While it is true that a temporary
officer to investigate the status of the truck. His position
                                                                       investigative detention is allowed under
is that any suspicion that the vehicle was abandoned n2
                                                                       certain         circumstances,         these
should have been "quickly dispelled when the defendant,
                                                                       circumstances must be 'such as to
virtually contemporaneously with the officer's arrival,
                                                                       distinguish the activity of the detained
approached and identified the vehicle as belonging to
                                                                       person from that of any other citizen' and
him." He urges that the officer was operating on "a
                                                                       must be based on an 'objective perception
hunch" or "a vague, unsubstantiated suspicion" and that
                                                                       of events rather than the subjective
his Fourth Amendment rights n3 were violated by
                                                                       feelings of the detaining officer.' In order
conducting a further investigation because [***4] the
                                                                       to justify the intrusion, the state must be
investigative detention did not meet the test for
                                                                       able to point to specific and articulable
reasonable police action set forth in State v. Hocker, 113
                                                                       facts, which may be combined with
Ariz. 450, 556 P.2d 784 (1976).
                                                                       rational inferences from those facts.
                                                                       Thus, even in the absence of bad faith,
                                                                       detention based on a 'mere hunch' is
            n2 Officer Pearce testified:
                                                                       illegal. There must be a reasonable
                   "Q. Now, you say you                                suspicion by the law enforcement officer
               observed an abandoned vehicle                           that 'some activity out of the ordinary' is
               and you say you observed it as you                      or had occurred, some suggestion to
               came over this overpass?                                connect the detained person with the
                                                                       unusual activity, and some indication that
                    A. As I came over the other                        the activity is related to crime. State v.
               side my lights hit it.                                  Fortier, 113 Ariz. 332, 553 P.2d at 1208."
                    ***                                                113 Ariz. at 456-57, 556 P.2d at 790-791.
                                                                       (Emphasis added.)
                   Q. Would you give the judge
               a description of an abandoned                         The federal test for determining the validity of an
               vehicle?                                         investigative detention is different from California's.
                                                                [***6] n4 See United States v. Contreras-Diaz, 575
                   A. A vehicle without any                     F.2d 740 (9th Cir.), cert. denied, 439 U.S. 855, 99 S.Ct.
               occupants.                                       167, 58 L.Ed.2d 161 (1978); United States v. Walling,
                   Q. So any vehicle without an                 486 F.2d 229 (9th Cir. 1973), cert. denied, 415 U.S. 923,
               occupant is an abandoned vehicle?                94 S.Ct. 1427, 39 L.Ed.2d 479 (1974).                [HN4]
                                                                Constitutional perimeters are spelled out in Terry v.
                    A. Temporarily it is. * * *"                Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
          n3 [HN2] The Fourth Amendment to the                  There, the Supreme Court of the United States held that a
       Constitution of the United States provides:              police officer may effect a limited detention of an
                                                                individual, not amounting to an arrest, if the officer's
                   "The right of the people to be               actions were reasonable under the circumstances. The
               secure in their persons, houses,                 Court did not hold that "some indication that the activity
               papers, and effects, against                     is related to crime" was an essential ingredient of the test
               unreasonable      searches      and              of the police action.
               seizures, shall not be violated * *
               *"                                                      "Terry requires a dual inquiry into the
                                                                       reasonableness of an investigatory stop.
    In Hocker, we said:                                                The reviewing court must determine: '(1)
                                                                       whether the facts warranted the intrusion
        [*310] [**763] "This Court recently                            on the individual's Fourth Amendment
       elucidated     its   position      on   the                     rights, and (2) whether the scope of the
       reasonableness standard and adopted the                         intrusion was reasonably related "to the
       California test. State v. Fortier, 113 Ariz.                    circumstances which justified the
       332, 553 P.2d 1206 (Filed [***5] Aug. 6,                        interference in the first place."' Carpenter
                                                                       v. Sigler, 419 F.2d 169, 171 (8th Cir.
                                                                                                               Page 35
                                          123 Ariz. 308, *; 599 P.2d 761, **;
                                             1979 Ariz. LEXIS 316, ***

       1969)." United States v. Stevie, [***7]                            [HN7] "The Fourth Amendment
       578 F.2d 204, 207 (8th Cir. 1977).                            does not require a policeman who lacks
                                                                     the precise level of information necessary
                                                                     for probable cause to arrest to simply
                                                                     shrug his shoulders and allow a crime to
           n4 See In re Tony C., 21 Cal.3d 888, 148
                                                                     occur or a criminal to escape. On the
       Cal.Rptr. 366, 582 P.2d 957 (1978) for a detailed
                                                                     contrary, Terry recognizes that it may be
       exposition of the current California test.
                                                                     the essence of good police work to adopt
                                                                     an intermediate response. See id., [392
     A police officer cannot base his actions on                     U.S.] at 23, [88 S.Ct. 1868]. A brief stop
"inarticulate hunches"; he "must be able to point to                 of a suspicious individual, in order to
specific and articulable facts which, taken together with            determine his identity or to maintain the
rational inferences from those facts, reasonably warrant             status quo momentarily while obtaining
that intrusion." Terry v. Ohio, supra, 392 U.S. at 21-22,            more information, may be most
88 S.Ct. at 1880, 20 L.Ed.2d at 906. (Footnote omitted.)             reasonable in light of the facts known to
          [HN5]                                                      the officer at the time. Id., at 21-22, [88
        "Whether an officer's conduct was                            S.Ct. 1868]; see Gaines v. Craven, 448
        'reasonable' or 'appropriate' depends on                     F.2d 1236 (CA9 1971); United States v.
        the facts and circumstances of the                           Unverzagt, 424 F.2d 396 (CA8 1970)."
        particular case, so that the decision in one                 Adams v. Williams, 407 U.S. 143, 145-46,
        case seldom furnishes a pat answer in                        92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-
        another case. (Cites omitted.) A principle                   17 (1972).
        to be applied generally however is that in
                                                                   The Supreme Court of the United States in
        judging the reasonableness of the actions
                                                              Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct.
        of the officer the circumstances before
                                                              330, 332, 54 L.Ed.2d 331, 335-36 (1977), set forth the
        him are not to be dissected and viewed
                                                              test for Fourth Amendment violations in this fashion:
        singly; rather they must be considered as a
                                                                         [HN8]
        whole. So considered they are to be
                                                                       "The touchstone of our analysis [***10]
        viewed through the eyes of [***8] a
                                                                       under the Fourth Amendment is always
        reasonable and cautious officer on the
                                                                       'the    reasonableness      in    all    the
        scene, guided by his experience and
                                                                       circumstances       of    the     particular
        training. See United States v. Davis, 147
                                                                       governmental invasion of a citizen's
        U.S.App.D.C. 400, 458 F.2d 819 (1972)."
                                                                       personal security.' Terry v. Ohio, 392 U.S.
        United States v. Hall, 174 U.S.App.D.C.
                                                                       1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889
        13, 15, 525 F.2d 857, 859 (1976).
                                                                       (1968). Reasonableness, of course,
     An investigative stop will be deemed reasonable                   depends 'on a balance between the public
where the officer demonstrates some basis from which                   interest, and the individual's right to
the court can determine that the police were not arbitrary             personal security free from arbitrary
or harassing. United States v. Walling, supra; Wilson v.               interference by law officers.' United
Porter, 361 F.2d 412, 415 (9th Cir. 1966).                             States v. Brignoni-Ponce, 422 U.S. 873,
                                                                       878, 95 S.Ct. 2574, 45 L.Ed.2d 607
      [*311] [HN6] [**764] Our examination of Terry
                                                                       (1975)."
v. Ohio and federal cases subsequent to it in the light of
the facts of this case leads us to disapprove the standard    In the recent opinion of Brown v. Texas,    U.S. , 99
enunciated in Irwin v. Superior Court, supra, and
                                                              S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979), the Supreme
adopted in State v. Hocker, supra, and State v. Fortier,      Court said that a central concern in balancing these
113 Ariz. 332, 553 P.2d 1206 (1976), because it is            competing considerations "has been to assure that an
unduly restrictive of lawful police activities. When
                                                              individual's reasonable expectation of privacy is not
confronted with strange or unusual activities, a police       subject to arbitrary invasions solely at the unfettered
officer, as the public's representative delegated with the    discretion of officers * * *"
responsibility of maintaining law and order, should
satisfy himself as to the innocence of the activity by all         In applying the federal standard to the facts of this
reasonable, lawful means. We do not believe that an           case, we do not find that Pearce's actions were
officer, when [***9] he commences an investigation,           unreasonable. The investigation began when the officer's
need be convinced that "criminal activity is afoot."          attention was directed to a vehicle parked off the road in
                                                                                                                  Page 36
                                          123 Ariz. 308, *; 599 P.2d 761, **;
                                             1979 Ariz. LEXIS 316, ***

the desert at 1:40 a. m. Since the vehicle appeared to be     DISSENTBY:
abandoned, there was a reasonable suspicion that
                                                                  GORDON; CAMERON
[***11]      it could have been stolen. During the
investigation, appellant appeared from out of the brush.
The request that appellant produce identification to show     DISSENT:
he was old enough to drink was clearly reasonable. The
request by the officer to see the registration card of the        GORDON, Justice (dissenting):
Chevrolet Blazer was in response to appellant's claim of           I dissent from the majority opinion. Initially, I do
ownership.      Officer Pearce was not compelled to           not perceive the distinction that the majority makes
terminate his investigation of the apparently abandoned       between the Federal and Arizona tests for determining
vehicle because of appellant's asserted ownership. The        the validity of an investigative detention. The majority
scope of the intrusion was fleeting and minimal and           opinion seems to assert that Terry v. Ohio, 392 U.S. 1, 88
reasonably related to the circumstances justifying it.        S.Ct. 1868, 20 L.Ed.2d 889 (1968), only requires an
Balancing the public's interest in law enforcement            officer to perceive unusual circumstances before he
against appellant's right to be free from arbitrary           makes an investigative detention. The majority opinion
interference by law officers, such an investigation was       states that Terry "did not hold that some indication that
constitutionally warranted. n5                                the activity is related to crime was an [***13] essential
                                                              ingredient of the test of the police action." This is not the
                                                              case.
            n5 Appellant urges that the Court of Appeals
       decision in State v. Rosenberg, 24 Ariz.App. 341,           The holding of Terry, supra, is couched in the
       538 P.2d 770 (1975), should control here. We           following terms:
       find that case inapposite. There, a Conconino
       County Deputy Sheriff entered a roadside rest                  "We merely hold today that where a
       area at 3:00 a. m., singled out a "hippy" vehicle,             police officer observes unusual conduct
                                                                      which leads him reasonably to conclude
       and decided to make a registration check. He
       awoke the occupants of the car, asked for a                    in light of his experience that criminal
       driver's license and car registration. He observed             activity may be afoot * * *." (Emphasis
                                                                      added.) 88 S.Ct. at 1884.
       two plastic bags of marijuana in the glove
       compartment when it was opened. The trial court
       denied the defendant's motion to suppress. The         Terry also states that:
       Court of Appeals reversed, finding that the
       evidence supported the suspicion that the                      "* * * a police officer may in appropriate
       registration check was a subterfuge and that there             circumstances and in an appropriate
       was no evidence to show that the sleeping                      manner approach a person for purposes of
       occupants of the car were engaged in illegal                   investigating possibl[e] criminal behavior
                                                                      even though there is no probable cause to
       conduct. Viewed in this light, the registration
       check was arbitrary and harassing.                             make an arrest." (Emphasis added.) 88
                                                                      S.Ct. at 1880.
[***12] [HN9]
                                                              Therefore, even under the Federal test, the unusual or
     [*312] [**765] Where a motion to suppress has            suspicious conduct that an officer stops to investigate
been denied, the lower court will not be reversed unless      must be unusual or suspicious, because it relates to
the denial constitutes clear and manifest error or is an      possible crime.
abuse of discretion. See State v. Mosley, 119 Ariz. 393,
581 P.2d 238 (1978); State v. Boyer, 106 Ariz. 32, 470             The recent United States Supreme Court opinion in
                                                              Brown v. Texas, No. 77-6673, (U.S. Supreme Court, June
P.2d 439 (1970). Considering all the circumstances and
our conclusions as to the appropriate law, the denial of      25, 1979), reiterates this requirement that the unusual or
the motion to suppress was not error.                         suspicious activity which prompts an investigative
                                                              detention, must relate to possible crime. In that case,
     [HN10] To the extent that State v. Hocker and State      defendant Brown was stopped by two police officers,
v. Fortier are incompatible or inconsistent with this         [***14] because he was in an area known for its high
decision, they are overruled.                                 incidence of drug traffic, because he looked suspicious,
                                                              and because the officers had never seen him in the area
    Judgment affirmed.
                                                              before. When Mr. Brown refused to tell the officers his
                                                              name, he was arrested for violating a Texas law that
                                                                                                                Page 37
                                           123 Ariz. 308, *; 599 P.2d 761, **;
                                              1979 Ariz. LEXIS 316, ***

made it a crime to not give your name and address to an        that criminal activity is afoot before he makes an
officer who lawfully stopped and requested the                 investigatory check.
information. The Supreme Court held that application of
                                                                    The officer may start any surveillance that he
the Texas statute to the defendant violated his Fourth
                                                               chooses, on the basis of suspicious or even innocent-
Amendment rights, because the officers lacked any
                                                               appearing activities, and he may maintain this check or
reasonable suspicion to believe that he was engaged or
                                                               surveillance as long as he wishes. The cases do not in
had engaged in criminal conduct.
                                                               the slightest deter him from doing this. Instead, they
     The majority opinion cites Brown, supra, for the          merely deter the police officer from either arresting or
proposition that a balancing need be done "to assure that      temporarily detaining a person, or from searching or
an individual's reasonable expectation of privacy is not       seizing his possessions before the officer has formed a
subject to arbitrary invasion solely at the unfettered         founded articulable suspicion that some criminal activity
discretion of officers." Seemingly, the majority has           is afoot and that the person is in some way connected to
neglected to notice that Brown, supra, also states that        that activity. If his suspicion is "reasonable," [***17]
"[i]n the absence of any basis for suspecting appellant of     within an objective definition of what a reasonable
misconduct, the balance between the public interest and        person under the same situation would perceive, Terry,
appellant's right to personal security and privacy tilts in    supra then and only then, may the officer intrude upon
favor of freedom from police interference." Brown v.           the privacy of a person, which is afforded by the United
Texas [***15] , U.S. at , 99 S.Ct. at 2641.                    States and Arizona constitutions.
     In State v. Fortier, 113 Ariz. 332, 553 P.2d 1206              I disagree with the majority's conclusion that an
(1976), and State v. Hocker, 113 Ariz. 450, [*313]             officer needs to be able to stop and question an
[**766] 556 P.2d 784 (1976), we adopted the same type          individual about unusual activity that does not somehow
of test as Terry, supra, and Brown, supra, citing Irwin v.     indicate to the officer that "criminal activity may be
Superior Court of Los Angeles County, 1 Cal.3d 423, 82         afoot." Terry, supra. After coming to this conclusion,
Cal.Rptr. 484, 462 P.2d 12 (1969):                             however, and overruling Hocker, supra, and Fortier,
                                                               supra, in the process, the majority then attempts to
       "There must be a reasonable suspicion by                justify the arresting officer's actions under the very
       the law enforcement officer that 'some                  standard that is articulated in these cases. The majority
       activity out of the ordinary' is or has                 seems to suggest that potential criminal activity was
       occurred, some suggestion to connect the                afoot and does so by stating that "[s]ince the vehicle
       detained person with the unusual activity,              appeared to be abandoned, there was a reasonable
       and some indication that the activity is                suspicion that it could have been stolen." This is a
       related to crime." State v. Hocker, 113                 misstatement of the facts. The "reasonable suspicion"
       Ariz. 450, 457, 556 P.2d 784, 791.                      that the car could have been stolen is not logically
                                                               inferable from any view of the record in this case.
     The California Supreme Court has subsequently
rejected dictum in Irwin, supra, which stated that the              At the motion to suppress, the arresting officer
suspicious events must not be as consistent with innocent      indicated that he had [***18] received no reports of
activity as with criminal activity. In re Tony C., 21          stolen vehicles, or any other type of disturbance in the
Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957 (1978).            area. Moreover, he testified that he had no idea why the
That case, however, did not overrule Irwin and stated          truck was there when he went to investigate it; he just
that the holding of Irwin was not based upon the dictum.       wanted to see what was going on. The defendant
Although this Court cited Irwin in both Fortier and            explained to the officer why he left the vehicle
Hocker, we have never adopted the [***16] above                unattended and showed his license to prove he was of
dictum.                                                        drinking age. There is not even any reason to believe
                                                               that the driver acted intoxicated or that the officer
     I, therefore, disagree that Fortier and Hocker must
                                                               suspected him of drunk driving. The officer merely
be overruled. The distinction that the majority opinion
                                                               thought he smelled liquor on the defendant's breath and
trys to make between Terry and these cases simply does
                                                               checked to see if he was of drinking age. Moreover, the
not exist. Moreover, the majority is offering law
                                                               defendant's vehicle was parked approximately one fourth
enforcement false security when it states that "[w]e do
                                                               mile from a restaurant that was owned and operated by
not believe that an officer, when he commences an
                                                               his parents, and may actually have been located on land
investigation, need be convinced that 'criminal activity is
                                                               that belonged to the driver's father.
afoot.'" Neither the Arizona, California nor United States
Supreme Court cases require that an officer be convinced           Although the majority of this Court may have
                                                               suspected under these circumstances [*314] [**767]
                                                                                                                   Page 38
                                             123 Ariz. 308, *; 599 P.2d 761, **;
                                                1979 Ariz. LEXIS 316, ***

that this was a stolen vehicle, that is not the proper test of          added.) Ochoa, 112 Ariz. 582 at 584, 544
the officer's actions under either state or federal case law.           P.2d 1097 at 1099.
The test is whether the officer suspected that the vehicle
was stolen and whether his suspicion was reasonable,             See also State v. Villagrana, 115 Ariz. 285, 564 P.2d
when weighed against what a reasonable [***19] person            1252 (App.1977); State v. Gutierrez, 27 Ariz.App. 226,
with similar experience would have suspected under               553 P.2d 1211 (1976).
those circumstances. Terry, supra. The arresting officer
                                                                      The issue before this Court, then, is whether A.R.S. §
in this case never testified that he suspected the vehicle
                                                                 28-305(D) can be used to "discover crime in the first
to be stolen. He stated that he approached the vehicle
                                                                 instance," after a legitimate investigation of a stopped
"because it's a little strange at 1:40 a. m. in the morning
                                                                 vehicle has failed to reveal [***21] any potential
to have a vehicle sitting out in the desert." An officer
                                                                 criminal activity. For the very reasons that we discussed
cannot make an investigatory detention simply because it
                                                                 in Ochoa, I see no reason for making such a distinction.
is 1:40 a. m. This might be an infringement on
                                                                 If an officer cannot use this statute to stop a car for the
defendant's fundamental right to travel, which is not
                                                                 purpose of discovering crime, there is also no reason
limited to daytime hours. The suspicious activities that
                                                                 why he should be able to use it to ferret out crimes that
an officer can investigate must be more than the
                                                                 may involve a stopped car. n1
wanderings of an insomniac, or one who works night
shift at a restaurant in the desert.
                                                                        "[The Constitution protects] travelers
     The officer's request to see the defendant's                       upon the public highways from
registration was based on nothing more than an                          harassment by government agents if there
"inarticulate hunch." The United States Supreme Court                   is no basis to support a founded suspicion
has consistently refused to sanction such actions. Terry,               of criminal activity. Founded suspicion
supra. Because of the absence of any facts that would                   requires some reasonable ground for
indicate that "criminal activity may be afoot," Terry,                  singling out a person as one who was
supra, the check of the car's registration, as an                       involved or about to be involved in
investigative search, violated the requirements of                      criminal activity." Ochoa, 112 Ariz. 582
Arizona and Federal law.                                                at 584, 544 P.2d 1097 at 1099.
     The real issue in this case is whether the [***20]
officer legitimately asked to see the defendant's
registration, pursuant to A.R.S. § 28-305(D), which                          n1 At the motion to suppress, the arresting
states that a car's registration is subject to inspection by            officer testified that although he asked to see the
members of the highway patrol or any peace officer.                     defendant's car registration he does not recall
                                                                        looking at it once he saw the marijuana. It is clear
     In State v. Ochoa, 112 Ariz. 582, 544 P.2d 1097
                                                                        to me that this officer was not in good faith
(1976), however, we held that officers may not randomly
                                                                        checking the registration of a potentially stolen
stop vehicles to inspect for vehicle registrations. We
                                                                        vehicle, but was simply using the request for
stated that:
                                                                        registration as a pretext to discover crime in the
                                                                        first instance. This conduct was disapproved by
        "$(A.R.S. §        28-305(D) does not
                                                                        the Court of Appeals in State v. Rosenberg, 24
        authorize] the stopping of travelers upon
                                                                        Ariz.App. 341, 538 P.2d 770 (1975).
        public highways for the purpose of
        ascertaining whether the driver is
                                                                 [***22]
        violating the law. In this we think there is
        a valid distinction between a stop made                       I believe that the Court of Appeals opinion properly
        for the purpose of investigating a crime                 disposed of this case. I would, therefore, have denied
        already known to have been committed                     review of the Court of Appeals opinion.
        and a stop for the purpose of discovering
                                                                     CAMERON, Chief Justice (concurring):
        crime in the first instance." (Emphasis
                                                                     I concur in the dissent.
                                                 5 of 10 DOCUMENTS

               STATE OF ARIZONA, Appellant, v. MICHAEL WEEKLEY (A), JOHN HERMAN
                                      JANSEN (B), Appellees.

                                                    1 CA-CR 99-0897

                   COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT D

                       200 Ariz. 421; 27 P.3d 325; 2001 Ariz. App. LEXIS 94; 349 Ariz. Adv. Rep. 3


                                                     June 5, 2001, Filed




SUBSEQUENT HISTORY: [***1]                    Petition for    Defendants no longer had a justifiable privacy interest in
Review Denied October 3, 2001.                                the hotel room or its contents. Accordingly, the officers'
                                                              search of the hotel room and seizure of the items therein
PRIOR HISTORY: Appeal from the Superior Court of              did not violate the defendants' Fourth Amendment rights.
Maricopa County. Cause Nos. CR 99-01563 and CR 99-
01770. The Honorable Bernard J. Dougherty, Judge.             OUTCOME: The trial court's suppression order was
                                                              reversed and remanded. Because of the nature of its
DISPOSITION: REVERSED AND REMANDED.                           ruling, the trial court did not reach all evidentiary issues.
                                                              Thus, the case was remanded for a resolution of those
CASE SUMMARY:                                                 issues.

                                                              CORE TERMS: hotel, hotel room, Fourth Amendment,
PROCEDURAL POSTURE: The State sought review                   rental agreement, chemicals, noon, housekeeping,
of the judgment of the Superior Court of Maricopa             seizure, door, reasonably foreseeable, warrantless search,
County (Arizona) granting defendants' motions to              storage unit, minutes, checkout, rented, reasonable
suppress in their entirety.                                   expectation of privacy, suppression order, intrusion,
                                                              occupant, hotel employees, implicate, re-keyed, arrived,
OVERVIEW: The State charged defendants with                   rental, bottle, guest, expectation of privacy, private party,
manufacturing drugs and possession of equipment to            exigent circumstances, privacy interest
manufacture drugs. One defendant was also charged with
possession of methamphetamine for sale. The trial court       LexisNexis (TM) HEADNOTES - Core Concepts:
granted defendants' motion to suppress all evidence
seized following a search of their hotel room and the
State appealed. The appellate court reasoned that the first   Criminal Law & Procedure > Evidence > Admission,
and second entries into the hotel room by the police did      Exclusion & PreservationCriminal Law & Procedure >
not constitute searches as defendants could reasonably        Appeals > Standards of Review > Substantial Evidence
have foreseen that hotel employees would enter the room       Review
in response to the sign requesting housekeeping service       [HN1] In reviewing a trial court's suppression order, the
and because the police officers' activities while in the      appellate court may consider only the testimony
room did not exceed the scope of the private search           presented at the suppression hearing. The appellate court
conducted by hotel staff. By the time any Fourth              views that evidence in the light most favorable to
Amendment search of the hotel room occurred, hotel            sustaining the trial court's ruling.
management had already terminated defendants'
occupancy both because of the apparently illegal conduct
and because the rental agreement had expired.
                                                                                                                Page 40
                                             200 Ariz. 421, *; 27 P.3d 325, **;
                                  2001 Ariz. App. LEXIS 94, ***; 349 Ariz. Adv. Rep. 3
Criminal Law & Procedure > Search & Seizure >
Warrantless Searches > Private SearchesConstitutional         Kerrie M. Droban, Cave Creek, Attorney for Appellee
Law > Search & Seizure > Scope of Protection                  Weekley.
[HN2] U.S. Const. amend. IV prohibits the government,
either directly or through its agents, from engaging in       JUDGES:       JON    W.     THOMPSON, Judge.
unreasonable searches and seizures. U.S. Const. amend.        CONCURRING: MICHAEL D. RYAN, Presiding
IV's proscription against unreasonable searches and           Judge, PHILIP L. HALL, Judge.
seizures, however, is wholly inapplicable to a search or
seizure, even an unreasonable one, effected by a private      OPINIONBY: JON W. THOMPSON
individual not acting as an agent of the government or
with the participation or knowledge of any governmental       OPINION: [**326]
official.                                                      [*422]
                                                              THOMPSON, Judge
Criminal Law & Procedure > Search & Seizure >
                                                                   P1 The state charged Michael Weekley and John
Warrantless Searches > Private SearchesConstitutional
                                                              Herman Jansen with one count of manufacture of
Law > Search & Seizure > Scope of Protection
                                                              dangerous drugs and one count of possession of
[HN3] Clearly, a private search may invade a person's
                                                              equipment and/or chemicals for the purpose of
reasonable expectation of privacy. Nevertheless, if that
                                                              manufacturing dangerous drugs. The state also charged
invasion of privacy is purely the result of non-
                                                              Weekley with an additional [***2] count of possession
governmental action, once frustration of the original
                                                              of methamphetamine for sale. Both defendants moved to
expectation of privacy occurs, U.S. Const. amend. IV
                                                              suppress all evidence seized by Phoenix police officers
does not prohibit governmental use of the information
                                                              following a search of a hotel room they jointly occupied.
obtained. U.S. Const. amend. IV is implicated only if the
                                                              Defendants likewise sought to suppress evidence seized
authorities obtain information with respect to which the
                                                              from their persons, from Weekley's backpack and
expectation of privacy has not already been frustrated.
                                                              vehicle, and from a storage unit rented in Weekley's
In such a case the authorities have not relied on what is
                                                              name.
in effect a private search, and therefore presumptively
violate U.S. Const. amend. IV if they act without a                P2 The trial court granted defendants' motions to
warrant. Thus, in a private search case, the legality of      suppress in their entirety, and the state filed a timely
later governmental intrusions must be tested by the           notice of appeal. We have jurisdiction pursuant to
degree to which they exceeded the scope of the private        Arizona Revised Statutes Annotated (A.R.S.) § § 13-4031
search.                                                       and 13-4032(6). For the reasons that follow, we reverse
                                                              the trial court's suppression order and remand for further
Constitutional Law > Search & Seizure > Scope of              proceedings consistent with this decision.
Protection
[HN4] U.S. Const. amend. IV is designed to protect                FACTS
reasonable expectations of privacy.                                 P3 [HN1] In reviewing the trial court's suppression
                                                              order, we may consider only the testimony presented at
Criminal Law & Procedure > Search & Seizure >                 the suppression hearing. See State v. Flower, 161 Ariz.
Expectation of PrivacyCriminal Law & Procedure >              283, 286 n.1, 778 P.2d 1179, 1182 n.1 (1989). We view
Search & Seizure > Standing                                   that evidence in the light most favorable to sustaining the
[HN5] Upon the expiration of the rental period, a hotel       trial court's ruling. State v. Moore, 183 Ariz. 183, 186,
guest no longer has a right to use the room and loses any     901 P.2d 1213, 1216 (App. 1995).
privacy interest associated with it. A hotel may terminate
a guest's rental agreement if he engages in unlawful or            P4 On January 12, 1999, Jansen [***3] rented a
objectionable conduct.                                        room for himself and Weekley at a hotel in Phoenix. He
                                                              rented the room for one night and paid the hotel's
COUNSEL: Janet Napolitano, Attorney General,                  assistant manager in cash. He also allowed the manager
Phoenix, by Randall M. Howe, Chief Counsel, Criminal          to take an imprint of his credit card. He indicated on the
Appeals Section and Robert A. Walsh, Assistant                registration card that he would be parking a Nissan
Attorney General, Attorneys for Appellant.                    Maxima in the hotel's parking lot. The following day,
                                                              Jansen extended his rental of the room until January 19.
James J. Haas, Maricopa County, Public Defender,                  P5 The hotel's housekeeping staff eventually became
Phoenix, by Paul J. Prato, Deputy Public Defender,            concerned because defendants repeatedly refused maid
Attorneys for Appellee Jansen.                                service and twice requested that housekeeping bring a
                                                                                                                Page 41
                                              200 Ariz. 421, *; 27 P.3d 325, **;
                                   2001 Ariz. App. LEXIS 94, ***; 349 Ariz. Adv. Rep. 3
vacuum cleaner to their room late in the evening. On           Weekley. Moments later, they arrested Jansen, who was
January 15, the housekeeping supervisor, B.P., expressed       waiting by the hotel room door.
these concerns to the assistant [*423]           [**327]
                                                                   P11 Additional law enforcement officers
manager, G.I. B.P. indicated that she wanted to enter the
                                                               subsequently arrived at the hotel and entered defendants'
room to check for possible damage. G.I. agreed to
                                                               room. Phoenix firefighters also responded to the scene to
inspect the room with B.P. as soon as his schedule
                                                               determine whether the air in the [***6] hotel room was
permitted.
                                                               safe to breathe. The police eventually seized the
     P6 On January 19, the last day for which Jansen had       chemicals and other drug-related items discovered in the
reserved the room, G.I. and B.P. met to conduct their          room.
inspection. They arrived at the room some time between
                                                                    P12 At no time did the police attempt to obtain a
10:00 and 11:00 a.m. and discovered that someone had
                                                               warrant to permit them to search defendants' hotel room
placed a sign on the doorknob requesting housekeeping
                                                               or to seize the items found there. Moreover, several
services. Upon entering the room, they observed "lots of
                                                               hours after defendants' arrests, officers conducted a
[***4] boxes" containing empty vials, beakers, and
                                                               warrantless search of Weekley's vehicle in the hotel
prescription medication bottles in plain view. G.I.
                                                               parking lot. They obtained keys to the vehicle while
opened the doors of the television cabinet and discovered
                                                               searching Weekley subsequent to his arrest. In the
what he believed to be chemicals stored in various jars
                                                               vehicle, the officer discovered a copy of a rental
and containers. The label of one of the jars indicated that
                                                               agreement to a storage unit facility. The rental agreement
it contained sodium cyanide. G.I. also discovered a bottle
                                                               was in Weekley's name. A search warrant was obtained
containing an unidentified liquid in the room's
                                                               for the storage unit and methamphetamine and additional
refrigerator. In addition, G.I. and B.P. found a plastic
                                                               chemicals were found there.
plate, covered with a burnt, powdery substance, sitting
on the bathroom counter.                                           PROCEDURAL HISTORY
     P7 Believing that they had discovered a "drug lab,"            P13 Following a hearing on defendants' motion to
G.I. and B.P. requested that the employee working the          suppress, the trial court issued an order suppressing all
front desk call 9-1-1. The two then remained in the room       evidence seized from the hotel room, from defendants'
for as long as twenty minutes while they waited for the        persons, from Weekley's vehicle, and from the storage
police to arrive. Eventually, they left the room to return     unit. The court found that the police had engaged in a
to the front office to await the police. Before leaving,       warrantless search of the hotel room without defendants'
however, G.I. re-keyed the door's electronic lock to           consent. It further found that the hotel's employees
prevent the defendants from entering the room.                 lacked authority to consent to the [***7] search.
    P8 Phoenix police officer Alvin Jackson arrived at             P14 The court reasoned that exigent circumstances
the hotel at approximately 11:40 a.m. G.I. immediately         provided the only possible justification for the
took Jackson to the room to show him what he and B.P.          warrantless search. However, it rejected the state's
had discovered. Jackson remained in the room for               argument that the volatile nature of the chemicals
approximately one to two minutes [***5] while G.I.             discovered in defendants' hotel room gave rise to an
showed him the items he and B.P. had found. Jackson            emergency situation which required the police to [*424]
then returned with G.I. to the hotel's office.                 [**328] act quickly to insure the safety of both the
                                                               public and the police:
     P9 Approximately five minutes later, Phoenix police
officer Rick Massey arrived at the hotel. Officer Jackson           The immediate police reaction was surveillance
apprised Massey of the situation and both officers then        rather than any emergency actions to protect life or
moved their patrol cars approximately one block from           property. Officers remained in the room or immediate
the hotel so as not to alert the defendants in the event       area even after determining the danger involved with
they returned to the hotel. Shortly after noon, G.I.           some of the disclosed materials. Police conduct belies
accompanied Massey and Jackson to the room. While              their statements [that] they were reacting to exigent
there, Massey wrote down the names of the chemicals in         circumstances in conducting a warrantless search.
the labeled bottles. The officers did not move anything
while in the room, nor did they search areas of the room       The court concluded that the unlawful search of
not previously searched by G.I. and B.P.                       defendants' hotel room tainted all evidence subsequently
                                                               seized by the police.
     P10 The officers left the room and returned to the
hotel office by 12:16 p.m., at which time Weekley                  DISCUSSION
approached the front desk to inquire as to why his
electronic key was not working. The officers arrested
                                                                                                                 Page 42
                                              200 Ariz. 421, *; 27 P.3d 325, **;
                                   2001 Ariz. App. LEXIS 94, ***; 349 Ariz. Adv. Rep. 3
     P15 The state's appeal challenges the trial court's       Amendment does not prohibit governmental" use of the
suppression order on two grounds. The state argues first       information obtained. See, 466 U.S. at 117.
that G.I. and B.P. had authority to consent to the police
                                                                    The Fourth Amendment is implicated only if the
officers' subsequent search of the hotel room. The state
                                                               authorities [obtain] information with respect to which the
argues in the alternative that the officers' warrantless
                                                               expectation of privacy has not already been frustrated.
entry [***8] into the hotel room did not constitute
                                                               In such a case the authorities have not relied on what is
"searches" for purposes of the Fourth Amendment
                                                               in effect a private search, and therefore presumptively
because none of those searches exceeded the scope of the
                                                               violate the Fourth Amendment if they act without a
initial private search conducted by G.I. and B.P. As we
                                                               warrant. Id. at 117-18. Thus, in a private search case, the
explain below, we find the second argument advanced by
                                                               legality of later governmental intrusions "must be tested
the state to be dispositive of the police searches prior to
                                                               by the degree to which they exceeded the scope of the
noon and the first argument dispositive of the police
                                                               private search." Id. at 115; see also Walter, 447 U.S. at
search and seizure after the noon checkout deadline. n1
                                                               657.
                                                                    P17 The Supreme Court's decision in Jacobsen
            n1 The state's brief does not address the          involved a freight carrier's private search of a package
       argument that exigent circumstances justified a         containing cocaine. 466 U.S. at 111. The Supreme Court
       warrantless search of defendants' hotel room. The       has not addressed whether the "beyond-the-scope-of-the-
       state thus has abandoned that argument for              private-search" test [*425] [**329] would apply when
       purposes of appeal. See State v. McCall, 139            what is searched is an entire dwelling, as opposed to a
       Ariz. 147, 163, 677 P.2d 920, 926 (1983).               package, envelope or container. One federal appellate
                                                               court has refused to expand Jacobsen to encompass such
                                                               a situation. See United States v. Allen, 106 F.3d 695,
I. THE HOTEL EMPLOYEES' SEARCH OF                              699 [***11] (6th Cir.) (refusing to apply Jacobsen
DEFENDANTS'     ROOM      CONSTITUTED                          analysis to search of motel room). Other circuit courts of
PRIVATE, RATHER THAN STATE, ACTION AND                         appeal, however, have found the reasoning of Jacobsen
THUS DID NOT IMPLICATE THE FOURTH                              applicable to residential searches. See United States v.
AMENDMENT. BECAUSE THE SUBSEQUENT                              Miller, 152 F.3d 813, 815-16 (8th Cir. 1998) (holding
ENTRIES INTO THE ROOM BY OFFICERS                              that police search of defendant's efficiency apartment at
JACKSON AND MASSEY DID NOT EXCEED THE                          halfway house did not implicate Fourth Amendment
SCOPE OF THE HOTEL EMPLOYEES' INITIAL                          because it did not exceed prior search conducted by
PRIVATE SEARCH, THOSE [***9]   ENTRIES                         employees of the halfway house); United States v. Paige,
LIKEWISE DID NOT CONSTITUTE FOURTH                             136 F.3d 1012 (5th Cir. 1998) (holding that police search
AMENDMENT "SEARCHES."                                          of defendant's attic did not implicate Fourth Amendment
                                                               because it followed and did not exceed a private search
     P16 [HN2] The Fourth Amendment prohibits the
                                                               that was reasonably foreseeable to the defendant). The
government, either directly or through its agents, from
                                                               Fifth Circuit Court of Appeals found in Paige that a
engaging in unreasonable searches and seizures. United
                                                               relevant factor in determining whether a governmental
States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85,
                                                               search of a residence subsequent to a private search
104 S. Ct. 1652 (1984). The Fourth Amendment's
                                                               implicates the Fourth Amendment is whether the initial
proscription against unreasonable searches and seizures,
                                                               private invasion of privacy was reasonably foreseeable to
however, "is wholly inapplicable 'to a search or seizure,
                                                               the defendant:
even an unreasonable one, effected by a private
individual not acting as an agent of the Government or              We find that the proper Fourth Amendment inquiry,
with the participation or knowledge of any governmental        when confronted with a police search of a home that
official.'" Id. (quoting Walter v. United States, 447 U.S.     extends no further than a previously-conducted private
649, 662, 65 L. Ed. 2d 410, 100 S. Ct. 2395 (1980)             [***12] party search, is to determine whether the
(Blackmun, J., dissenting)); see also         Burdeau v.       homeowner or occupant continues to possess a
McDowell, 256 U.S. 465, 65 L. Ed. 1048, 41 S. Ct. 574          reasonable expectation of privacy after the private
(1921) (wrongful search or seizure conducted by private        search occurs. In making this determination,
party does not violate Fourth Amendment). [HN3]                consideration must be given to whether the activities of
Clearly, a private search may invade a person's                the home's occupants or the circumstances within the
reasonable expectation of privacy. Nevertheless, if that       home at the time of the private search created a risk of
invasion of privacy is purely the result of non-               intrusion by the private party that was reasonably
governmental action, "once frustration of the original         foreseeable. If indeed the private party's intrusion was
expectation of privacy [***10] occurs, the Fourth              reasonably foreseeable (based on such activities or
                                                                                                                   Page 43
                                                200 Ariz. 421, *; 27 P.3d 325, **;
                                    2001 Ariz. App. LEXIS 94, ***; 349 Ariz. Adv. Rep. 3
circumstances), the occupant will no longer possess a            Jackson's first entry into the room. Officer Massey wrote
reasonable expectation of privacy in the area or thing           down the names of the chemicals in the labeled bottles.
searched, and the subsequent police search will not
                                                                      P22 On this record, we are convinced that the first
trigger the Fourth Amendment. If, however, the private
                                                                 and second entries into the hotel room by Officers
party's initial intrusion was not reasonably foreseeable,
                                                                 Jackson and Massey did not constitute "searches" within
the occupant's reasonable expectation of privacy will
                                                                 the meaning of the Fourth Amendment because the
survive, and the subsequent police search will indeed
                                                                 defendants could [***15] reasonably have foreseen that
activate the Fourth Amendment.
                                                                 hotel employees would enter the room in response to the
                                                                 sign requesting housekeeping service and because the
Paige, 136 F.3d at 1020 (emphasis in original).
                                                                 police officers' activities while in the room did not
     P18 We find the reasoning of Miller and Paige               exceed the scope of the private search conducted by G.I.
persuasive. [HN4] The Fourth Amendment is designed               and B.P.
to protect reasonable expectations of privacy. Here, the
defendants left extensive [***13] evidence of obvious            II. ONCE THE HOTEL TERMINATED THE
drug-related activity in their hotel room and then placed        DEFENDANTS' STAY AFTER THE EXPIRATION
a sign on the door requesting housekeeping service. At           OF THE RENTAL PERIOD AND IN RESPONSE
the very least, once the defendants placed the sign on the       TO THE DISCOVERY OF DANGEROUS
door, they could reasonably have foreseen that an                CHEMICALS, HOTEL MANAGEMENT HAD THE
employee of the hotel would enter the room, particularly         AUTHORITY TO CONSENT TO THE SEARCH
when invited by the sign, and observe the drug-related           OF THE ROOM AND TO THE SEIZURE OF THE
chemicals and equipment present there.                           ITEMS DISCOVERED THERE.
     P19 The evidence further reveals that, when the                  P23 Jansen's rental agreement with the hotel was
hotel employees entered the defendants' room, they were          due to expire at 12:00 p.m. on January 19, the day G.I.
not acting as agents of the government. Rather, they were        and B.P. conducted their search of the defendants' room.
motivated by their private concern, brought on by the            Upon discovering the chemicals, vials and other
defendants' repeated refusal to accept housekeeping              equipment in the defendants' hotel room, G.I. re-keyed
services, that the defendants might have damaged the             the electronic lock to the door to prevent the defendants
hotel's property. The record in this case thus establishes       from entering. This event occurred before noon. Officer
that G.I. and B.P.'s initial entry into the room was a           Jackson's initial entry into the hotel room likewise
private search that was reasonably foreseeable to                occurred before noon. All subsequent entries, however,
defendants.                                                      occurred after the noon checkout deadline.
     P20 It follows, then, that the subsequent entries into           P24 The trial court rejected the state's argument that
the room by Officers Jackson and Massey constituted              G.I. effectively terminated the hotel's rental agreement
"searches" for purposes of the Fourth Amendment only if          with [***16] Jansen when he re-keyed the door and that
the officers engaged in an exploration of the room that          the hotel management thereafter had actual authority to
exceeded the scope of the initial search conducted by            consent to a search of the defendants' room:
G.I. and B.P. Nothing in [***14] the record, however,
                                                                      The case law is legion that an invited guest has an
suggests that this occurred. G.I. testified that, in addition
                                                                 expectation of privacy under our fact circumstances.
to examining the items in plain view, he and B.P. opened
                                                                 The Defendants were not aware of any termination of the
the television cabinet and the refrigerator during the
                                                                 rental by the hotel, and the Defendants retained their
approximately twenty minutes they remained in the hotel
                                                                 rights to privacy until noon of the day of the search or
room. In contrast, Officer Jackson's initial entry into the
                                                                 within a reasonable time thereafter, based on the history
room lasted only one to two minutes and consisted of a
                                                                 of the rental agreement and general hotel policy.
brief viewing of the items already discovered by the
hotel employees.                                                      P25 The state challenges this ruling on appeal,
                                                                 arguing that, despite the fact that Jansen's rental
     P21 Jackson's and Massey's subsequent entry into
                                                                 agreement had not yet expired when G.I. re-keyed the
the room likewise remained within the scope of the
                                                                 lock, the hotel nevertheless had the right to terminate the
initial private search. The [*426] [**330] officers
                                                                 rental agreement once hotel employees discovered a
apparently spent less than ten minutes in the room.
                                                                 possible methamphetamine lab in the defendants' room.
During that time, G.I. showed Officer Jackson the plastic
                                                                 We have already held that the initial police entries into
plate bearing the burnt, powdery substance. G.I. had
                                                                 the defendants' room did not constitute "searches" within
discovered the plate during his initial search of the room,
                                                                 the meaning of the Fourth Amendment. The evidence in
but apparently had failed to show it to Jackson during
                                                                 this case reveals that the only Fourth Amendment
                                                                                                                 Page 44
                                            200 Ariz. 421, *; 27 P.3d 325, **;
                                  2001 Ariz. App. LEXIS 94, ***; 349 Ariz. Adv. Rep. 3
searches of the hotel room by the Phoenix police             had already terminated defendants' occupancy both
occurred after 12:00 p.m. By that time, Jansen's rental      because of the apparently illegal conduct and because
agreement with the hotel had [***17] lapsed. Nothing in      Jansen's rental agreement had expired. Defendants no
the record suggests that Jansen had a reasonable             longer had a justifiable privacy interest in the hotel room
expectation "based on the history of the rental agreement    or its contents. Accordingly, the officers' search of the
and general hotel policy" that his tenancy, and thus his     hotel room and seizure of the items therein did not
privacy interest in the room, would continue after the       violate the defendants' Fourth Amendment rights.
expiration of his rental agreement. To the contrary, the
                                                                 CONCLUSION
record reveals that Jansen renewed his rental agreement
only once, and that he did so prior to the noon checkout.          P29 We reverse the trial court's suppression order.
In fact, housekeeping records prepared at 6:49 a.m. on       We hold that, [***19] under the facts of this case, the
January 13, 1999, the morning after Jansen's arrival at      seizure of evidence from the defendants' hotel room did
the hotel, already showed Jansen's expected checkout as      not violate their Fourth Amendment rights. Because the
January 19, 1999.                                            trial court believed that the illegality of the search of the
                                                             hotel room tainted all evidence subsequently obtained by
     P26 Thus, nothing in the record before us suggests
                                                             the police, it ordered the suppression of all the evidence
that the hotel had a history of allowing Jansen to renew
                                                             seized in this case, including evidence obtained from the
his rental agreement after the noon checkout time.
                                                             defendants' persons, from Weekley's automobile, and
Moreover, by noon on January 19, the hotel management
                                                             from the storage unit rented in Weekley's name. Our
was aware that Jansen and Weekley were using their
                                                             holding necessarily vitiates that portion of the trial
hotel room for what appeared to be a drug manufacturing
                                                             court's ruling. Weekley, however, independently argued
operation. At the very least, they were aware that
                                                             that, regardless of the legality of the search of his hotel
defendants [*427] [**331] had dangerous chemicals,
                                                             room, the subsequent warrantless search of his
sodium cyanide and acid, in the room.
                                                             automobile and the resulting search of the storage unit
     P27 [HN5] Upon the expiration of the rental period,     rented in his name violated his right to be free from
a hotel guest no longer has a right to use the room and      unreasonable searches and seizures. Because of the
loses any privacy interest associated with it. [***18]       nature of its ruling, the trial court did not reach these
State v. Ahumada, 125 Ariz. 316, 318, 609 P.2d 586, 588      issues. We therefore remand this matter to the trial court
(App. 1980). A hotel may terminate a guest's rental          for a resolution of these issues and for further
agreement if he engages in unlawful or objectionable         proceedings consistent with this decision.
conduct. See, e.g., United States v. Allen, 106 F.3d 695,
                                                                 JON W. THOMPSON, Judge
699 (6th Cir. 1997) (defendant's tenancy in motel
lawfully ceased "both because he was not allowed to
                                                             CONCURRING:
store illegal drugs on the premises and because his pre-
paid rental period had elapsed"); People v. Minervini, 20
                                                             MICHAEL D. RYAN
Cal. App. 3d 832, 840, 98 Cal. Rptr. 107 (1971) (motel
has right to exclude guest from premises because of his
                                                             Presiding Judge
unlawful conduct).
    P28 In this case, by the time any Fourth Amendment       PHILIP L. HALL, Judge
search of the hotel room occurred, the hotel management
                                                 6 of 10 DOCUMENTS

                   In re the Matter of 1977 CESSNA 206, LICENSE NO. N756HQ, SERIAL NO.
                    U20604107. Joseph NUNEZ, Real Party in Interest-Appellant, v. STATE of
                                                Arizona, Appellee

                                                   No. 1 CA-CIV 6530

                              Court of Appeals of Arizona, Division One, Department D

                                 142 Ariz. 196; 688 P.2d 1088; 1984 Ariz. App. LEXIS 459


                                                        July 19, 1984




SUBSEQUENT HISTORY: [***1]                                    held that the warrantless search of the airplane was
                                                              justified. There was substantial evidence from which the
    Review Denied September 27, 1984.
                                                              trial court could have concluded that the officer saw
                                                              marijuana inside of the airplane and was authorized to
PRIOR HISTORY:                                                conduct an immediate warrantless search of the aircraft.
                                                              There was evidence that the aircraft was parked at a
    Appeal from the Superior Court of Maricopa County         public airport, and the officer had a right to be at the
    Cause No. C-434842                                        place where he viewed the marijuana. The legislature
                                                              properly placed the burden of proving lack of guilty
    The Honorable Thomas C. Kleinschmidt, Judge               knowledge of the unlawfulness of the use of the property
    The Honorable Ed. W. Hughes, Judge                        on the owner. The owner presented no evidence, and the
                                                              State presented sufficient evidence to support the
                                                              forfeiture.
DISPOSITION: AFFIRMED
                                                              OUTCOME: The court affirmed the judgment.
CASE SUMMARY:
                                                              CORE TERMS: aircraft, airplane, marijuana, claimant,
                                                              forfeiture, airport, warrantless search, motion to
PROCEDURAL POSTURE: Appellant owner                           suppress, burden of proving, parked, inside, unlawful
challenged an order of the Superior Court of Maricopa         use, debris, forfeiting, diminished, innocent, reasonable
County (Arizona), which forfeited an airplane to appellee     expectation of privacy, expectation of privacy,
State of Arizona pursuant to Ariz. Rev. Stat. § 36-1041       constitutionally required, warrant requirement, forfeiture
et seq.                                                       statute, lack of knowledge, unlawful purpose, motor
                                                              vehicle, illegal use, third party, forfeited, innocence,
OVERVIEW: A customs officer observed marijuana                scienter, occupants
debris inside an airplane aircraft and called an officer of
the Arizona Department of Public Safety was called to         LexisNexis (TM) HEADNOTES - Core Concepts:
the airport to view the aircraft. The officer looked
through the airplane's windows and saw marijuana
debris. He determined that the aircraft contained             Criminal Law & Procedure > Search & Seizure >
marijuana and was being used to transport or conceal          Warrantless Searches > Airport SearchesCriminal Law
marijuana. He promptly seized and conducted a search of       & Procedure > Search & Seizure > Warrantless
the aircraft. The trial court denied the owner's motion to    Searches > Vehicle Searches
suppress and forfeited the airplane to the State. The court
                                                                                                                Page 46
                                           142 Ariz. 196, *; 688 P.2d 1088, **;
                                            1984 Ariz. App. LEXIS 459, ***

[HN1] The motor vehicle exception to the warrant               been used in violation of a forfeiture statute, regardless
requirement of the Fourth Amendment applies equally to         of lack of knowledge or innocence of the owner. Thus,
airplanes. The exception is grounded both on the               any exception or exemption allowing recovery is a
mobility of the vehicle and, more importantly, on the          matter of grace on the part of the State and not
diminished expectation of privacy which surrounds a            constitutionally required by the Due Process Clause of
motor vehicle.                                                 the Fourteenth Amendment.

Criminal Law & Procedure > Search & Seizure >                  Governments > Legislation > Interpretation
Warrantless Searches > Airport Searches                        [HN7] It is presumed that the legislature, by retaining
[HN2] A parked airplane, whose occupants are removed,          statutory language upon which a court's decision is
is arguably less mobile than a similarly situated              based, approves of that interpretation.
automobile, but an airplane is even more mobile in terms
of its ability to cover great distances in a short time and    Governments > State & Territorial Governments >
its capacity to move without being restricted to discrete      LegislaturesCivil Procedure > Remedies > Forfeitures
roadways. There is no reasonable expectation of                [HN8] Ariz. Rev. Stat. § 13-106(G) provides that the
privacy when the airplane is at a public airport and its       claimant shall prove, by a preponderance of the
contents are within easy view through the airplane's door.     evidence, that the use of the offending property was
                                                               lawful or that the unlawful possession or use was without
Criminal Law & Procedure > Search & Seizure >                  consent of the claimant. The legislative decision to place
Warrantless Searches > Plain ViewCriminal Law &                the burden of proving lack of knowledge on the owner or
Procedure > Search & Seizure > Warrantless Searches            claimant furthers the legislative policy concerning the
> Vehicle Searches                                             confiscation of vehicles used to transport contraband.
[HN3] The rationale for the diminished expectation of          The public interest must be protected against illegal
privacy is not so much a vehicle's mobility as the fact        drugs and the interest of the potential victims outweighs
that the vehicle is on public thoroughfares where both its     the losses suffered by those who permit the use their
occupants and contents are in plain view.                      vehicles to facilitate drug related crimes. Forfeiture
                                                               statutes are enacted to curb the illegal transportation of
Criminal Law & Procedure > Search & Seizure >                  narcotics and the forfeiture of vehicles used in such
Warrantless Searches > Airport Searches                        activities is a method deemed necessary by the
[HN4] The fact that an plane is parked and has been            legislature to restrain the commission of those offenses
secured by the police does not render the exception to the     and to aid in their prevention. The legislature may
warrant requirement inapplicable.                              reasonably conclude that it is legitimate and reasonable
                                                               to suppose that owners will be more circumspect in
Civil Procedure > Remedies > Forfeitures                       permitting the use of their vehicles by others or in using
[HN5] A statute, construed literally, permits the interest     their own vehicles when the illegal act may bring about
of an innocent owner to be forfeited, but the legislature      the forfeiture of the vehicle.
intended to permit such an innocent person to prove lack
of scienter. If a claimant desires to raise defenses going     COUNSEL:
to the underlying illegal use of a vehicle, or to the
                                                                   Thomas A. Thinnes, P.A. by Thomas A. Thinnes,
claimant's lack of knowledge of such use, he must file a
                                                               Eleanor L. Miller, Phoenix, for real party in interest-
verified answer under Ariz. Rev. Stat. § 36-1044. A
                                                               appellant.
defendant is required to prove his lack of knowledge
regarding the unlawful use of the property subject to               Robert K. Corbin, Atty. Gen. by Diane D. Hienton,
forfeiture. 1979 Ariz. Sess. Laws ch. 103. The Arizona         Jessica Gifford, Asst. Attys. Gen., Phoenix, for appellee.
legislature requires the "innocent" owner or claimant to
carry the burden of proving his innocence or lack of
knowledge with respect to the forbidden use of the             JUDGES:
property. Ariz. Rev. Stat. § § 13-106, 13-3409.                    Brooks, Presiding Judge. Greer and Contreras, JJ.,
                                                               concur.
Civil Procedure > Remedies > Forfeitures
[HN6] There are no constitutional objections to placing
the burden upon the owner to prove that he is entitled to      OPINIONBY:
recovery of the vehicle by virtue of any exemption or               BROOKS
exception provided by statute. No constitutional
objections exist to the forfeiture of a vehicle once it has
                                                               OPINION:
                                                                                                                   Page 47
                                            142 Ariz. 196, *; 688 P.2d 1088, **;
                                             1984 Ariz. App. LEXIS 459, ***

     [*197] [**1089] OPINION                                    Finally, Stevens observed that the rear two seats of the
                                                                aircraft had been removed.
     This is an appeal from an order forfeiting the
captioned airplane to the State of Arizona pursuant to               Appellant argues that whether Stevens had probable
A.R.S. § 36-1041 et seq. n1 Appellant has raised two            cause to believe the aircraft contained contraband was
issues:                                                         irrelevant because there were no exigent circumstances
                                                                justifying the warrantless search. Appellant also argues
         1. The trial judge erred in denying                    that he had a reasonable expectation of privacy in the
         appellant's motion to suppress.                        aircraft, even though it was parked at a public airport.
                                                                Finally, appellant argues that the police should simply
         2. The evidence was insufficient to                    have secured the aircraft and obtained a search warrant
         support the judgment forfeiting the                    before conducting a search.
         airplane.
                                                                     The trial judge, in denying the motion to suppress,
                                                                correctly applied the holding in [***4] State v. White,
                                                                118 Ariz. 47, 574 P.2d 840 (App.1977). There, this court
              n1 References to the forfeiture statutes are to   held that [HN1] the motor vehicle exception to the
         those in effect prior to their amendment effective     warrant requirement of the fourth amendment applied
         July 1, 1981. Laws 1952, Ch. 57, § 7.                  equally to airplanes. 118 Ariz. at 52, 574 P.2d 840. The
                                                                court recognized that the exception was grounded both
[***2]                                                          on the mobility of the vehicle and, more importantly, on
                                                                "the diminished expectation of privacy which surrounds
    MOTION TO SUPPRESS
                                                                a motor vehicle." 118 Ariz. at 52, 574 P.2d 840.
     At the hearing on the motion to suppress, Officer
                                                                     In United States v. Gooch, 603 F.2d 122 (10th
Michael D. Stevens, Department of Public Safety (DPS),
                                                                Cir.1979), the defendant argued that the warrantless
testified regarding the events surrounding the seizure and
                                                                search of his airplane was violative of the fourth
search of the aircraft which occurred at Sky Harbor
                                                                amendment. 603 F.2d at 124. The court recognized that
Airport on April 15, 1981. Officer Stevens had been
                                                                [HN2] a parked airplane, whose occupants are removed,
involved in the investigation of drug smuggling for
                                                                is arguably less mobile than a similarly situated
approximately 6 1/2 years. He was called to the airport
                                                                automobile, but stated that "an airplane is even more
to view the aircraft by a customs officer who had
                                                                mobile in terms of its ability to cover great distances in a
observed marijuana debris inside the aircraft.
                                                                short time and its capacity to move without being
     Stevens testified that when he arrived at the airport      restricted to discrete roadways." 603 F.2d at 125.
he examined the aircraft in question at the request of the      Furthermore, the court stated that there was no
customs officer. When he viewed the inside of the               reasonable expectation of privacy when the airplane
aircraft through its windows, Stevens saw marijuana             was at a public airport and its contents were within easy
debris, including seeds and dust particles, on the              view through the airplane's door. See also, United States
armrests, windowsills and fuselage area of the airplane.        v. Mackey [***5] , 626 F.2d 684, 685-86 (9th Cir.1980)
Based upon his extensive experience with aircraft drug          [the court held that Chambers v. Maroney, 399 U.S. 42,
traffickers, he determined that the aircraft contained          90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), formulated a
marijuana and that the aircraft was being used to               practical rule that does not draw fine distinctions among
transport or conceal marijuana whereupon he promptly            searches conducted after a car is stopped on a street or
seized and conducted a search of the aircraft. [*198]           highway and those conducted at a later time and place];
[**1090] Stevens' testimony reveals that he disabled the        United States v. Bellina, 665 F.2d 1335, 1341 (4th
aircraft by placing a "prop lock" on the propeller [***3]       Cir.1981) [holding that the rule of limited or diminished
of the aircraft. He testified the "prop lock" would assist      expectation of privacy that exists in connection with
in disabling the aircraft by making it unstable in flight.      automobiles has been consistently held to attach to
He also immediately opened the cargo bay door and               airplanes].
seized marijuana debris and seeds. Furthermore, he
                                                                     The court in Bellina, noted that [HN3] the rationale
testified that the aircraft was of a configuration
                                                                for the diminished expectation of privacy was not so
commonly used in aircraft smuggling. In that regard, the
                                                                much the vehicle's mobility as the fact that the vehicle
aircraft had been modified with a "STOL" kit, which was
                                                                was on public thoroughfares where both its occupants
used to assist in short takeoffs and landings. In addition,
                                                                and contents were in plain view. 665 F.2d at 1340. In
fuel tanks were attached to the wing tips which increased
                                                                Bellina, the court reversed a finding by the district court
handling performance and the range of the aircraft.
                                                                that the defendants had a reasonable expectation of
                                                                                                                    Page 48
                                           142 Ariz. 196, *; 688 P.2d 1088, **;
                                            1984 Ariz. App. LEXIS 459, ***

privacy in their airplane and that police officers had         when a verified response is filed." He also argues that
violated that expectation by peering into the plane by         "once an innocent owner avows no knowledge of the
standing on its wings. There, as here, an officer              illegal use of a vehicle subject to forfeiture, the burden
observed the interior of an airplane parked and left in a      shifts to the state to show otherwise."
public parking lot at a public airport. The [***6] court
                                                                   Although appellant argues that the burden of
upheld the immediate search and seizure of the aircraft.
                                                               proving lack of knowledge was on the state, we find that
See also, Adoue v. State, 408 So.2d 567 (Fla.1982). In
                                                               conclusion to be unsupported by the law in Arizona as
Adoue the defendant argued that the court should have
                                                               well as other jurisdictions. Division 2 of this court In the
granted his motion to suppress because the officers
                                                               Matter of 1977 Honda Motorcycle made the following
conducted an illegal, warrantless search of his aircraft.
                                                               observation:
He argued there were no exigent circumstances to justify
the search. In Adoue, the officers looked through the                       The question presented in this appeal
window of the airplane and saw marijuana. Finding that                 is whether the state must prove the
the officers had viewed the marijuana debris inside the                owner's scienter or whether this is in the
airplane while it was "in open view", the court concluded              nature of an affirmative defense. We
that the [*199] [**1091] officers had probable cause                   believe it to be the latter. In the [ In re
for the search. The court stated:                                      One 1965] Ford Mustang [105 Ariz. 293,
                                                                       463 P.2d 827 (1970)] case, the court
            [HN4] The fact that the plane was
                                                                       observed that         [HN5] the statute,
       parked and had been secured by the police
                                                                       construed literally, permitted the interest
       does not render the Carroll exception to
                                                                       of an innocent owner to be forfeited, but
       the warrant requirement inapplicable.
                                                                       held that the legislature intended to permit
                                                                       such an innocent person to prove lack of
408 So.2d at 571.
                                                                       scienter. Nowhere in the opinion is it
     We find that these decisions and State v. White,                  suggested that the owner's knowledge is
support the trial judge's determination in the instant case            an additional element to be proven by the
that the warrantless search of the airplane was justified.             state. Appellant has not referred to any
The officer testified that he viewed marijuana inside the              authority so holding. In the [***9]
aircraft. There was evidence that the aircraft was parked              Matter of 1969 Ford Truck, 122 Ariz. 442,
at a public airport and the officer had a right to [***7]              595 P.2d 674 (App.1979) contains the
be at the place where he viewed the marijuana. There                   following statement, with which we
was substantial evidence from which the trial court could              agree:
have concluded that the officer saw marijuana inside of
the airplane and, at that point, was authorized to conduct             ". . . if a claimant desires to raise defenses
an immediate warrantless search of the aircraft.                       going to the underlying illegal use of the
Therefore, we will not disturb the trial court's finding on            vehicle, or to the claimant's lack of
appeal.                                                                knowledge of such use, he must file a
                                                                       verified answer under A.R.S. § 36-1044."
   SUFFICIENCY OF THE                  EVIDENCE        TO
                                                                       (citation omitted)
SUPPORT THE JUDGMENT
     Appellant argues that a vehicle cannot be forfeited        131 Ariz. at 181, 639 P.2d 369.
under the laws of Arizona unless there is evidence
                                                                    The case law interpreting the forfeiture statute, and
produced to establish that the owner committed an
                                                               its statutory history, has consistently required the
unlawful act with the vehicle or that the owner intended
                                                               defendant to prove his lack of knowledge regarding the
to permit a third party to use the vehicle for an unlawful
                                                               unlawful use of the property subject to forfeiture. See,
purpose or that the owner knew the vehicle was going to
                                                               Laws 1979, ch. 103, (adding A.R.S. § 36-2544(A)(4)(b)
be used for an unlawful purpose by a third party.
                                                               and repealing A.R.S. § 36-1041 et seq.,) and Laws 1981,
Appellant contends that his verified "response," denying
                                                               ch. 264, (adding A.R.S. § 13-3409(A)(3)). These
"the unlawful use of the vehicle or any knowledge of the
                                                               statutory enactments and In the Matter of 1977 Honda
unlawful use of the vehicle," placed the burden on the
                                                               Motorcycle, leave little doubt that our legislature requires
state of proving that he had knowledge of the unlawful
                                                               the "innocent" owner or claimant to carry the burden of
use of the airplane. Appellant attempts to distinguish the
                                                               proving his innocence or lack [*200] [**1092] of
holding In the Matter of 1977 Honda Motorcycle, 131
                                                               knowledge with respect to the forbidden use of the
Ariz. 179, 639 P.2d 369 (App.1981), by stating that "the
                                                               property. See A.R.S. § § 13-106, 13-3409.
ultimate burden of proof is [***8] upon the state, at least
                                                                                                                 Page 49
                                           142 Ariz. 196, *; 688 P.2d 1088, **;
                                            1984 Ariz. App. LEXIS 459, ***

     Applicable statutes in other states, as well as federal   In the Matter of 1977 Honda Motorcycle and [HN7] it is
statutes (Sections 781-789,         [***10]      Title 49,     presumed that the legislature, by retaining statutory
U.S.Code), which have been upheld on numerous                  language upon which the court's decision is based,
occasions, have gone even further than our statute. See,       approves of that interpretation. Altamirano v. Industrial
e.g. Annot. 50 A.L.R.3d 172 (1973). They have permitted        Commission, 22 Ariz.App. 379, 527 P.2d 1096 (1974).
forfeiture of vehicles used in the unlawful conveyance of      We note that A.R.S. § 13-3409 was amended by Laws
controlled substances where the owner has not taken part       1983, ch. 258, § 1. No attempt was made to either
and have held that any exception based upon a defense of       amend that statute or A.R.S. § 13-106(G) [HN8] that the
lack of knowledge of the owner is a matter of grace on         claimant shall prove, "by a preponderance of the
the part of the state and is not constitutionally required     evidence," that the use of the offending property was
by due process. State v. 1974 Chevrolet Camaro, 7              lawful or that the unlawful possession or use was without
Ohio.Misc.2d 39, 454 N.E.2d 991 (1983); Fell v.                consent of the claimant.
Armour, 355 F.Supp. 1319 (D.C.Tenn.1972). In Fell, the
                                                                    The legislative decision to place the burden of
court found:
                                                               proving lack of knowledge on the [***12] owner or
            [HN6] [N]o constitutional objections               claimant furthers the legislative policy concerning the
       to placing the burden upon the owner to                 confiscation of vehicles used to transport contraband.
       prove that he is entitled to recovery of the            The public interest must be protected against illegal
       vehicle by virtue of any exemption or                   drugs and the interest of the potential victims outweighs
       exception provided by the Act, § 52-                    the losses suffered by those who permit the use their
       1444. Under the current state of the law,               vehicles to facilitate drug related crimes. State v. 1974
       no constitutional objections exist to the               Chevrolet Camaro, 454 N.E.2d at 993. Forfeiture statutes
       forfeiture of a vehicle once it has been                are enacted to curb the illegal transportation of narcotics
       used in violation of a forfeiture statute,              and the forfeiture of vehicles used in such activities is a
       regardless of lack of knowledge or                      method deemed necessary by the legislature to restrain
       innocence of the owner . . . . (citations               the commission of those offenses and to aid in their
       omitted)                                                prevention. The legislature may reasonably conclude
                                                               that it is legitimate and reasonable to suppose that
           Thus, under the weight of authority,
                                                               owners will be more circumspect in permitting the use of
       any exception or exemption allowing
                                                               their vehicles by others or in using their own vehicles
       recovery is a matter of grace [***11] on
                                                               when the illegal act may bring about the forfeiture of the
       the part of the State and not
                                                               vehicle.
       constitutionally required by the Due
       Process Clause of the Fourteenth                             We conclude that the legislature properly placed the
       Amendment.                                              burden of proving lack of guilty knowledge on the
                                                               claimant opposing forfeiture. No evidence whatsoever
355 F.Supp. at 1331-32. (Emphasis added.)                      was presented by the claimant in this case and, therefore,
                                                               we find that the state presented sufficient evidence to
     Our legislature has clearly intended to place the
                                                               support [***13] the trial court's judgment forfeiting the
burden of proving lack of knowledge of the unlawfulness
                                                               aircraft to the state.
of the use of the property on the owner or claimant. We
find the history of the act, as set out above, to be               For the foregoing reasons, the judgment of the trial
instructive in arriving at this conclusion. In addition, the   court is affirmed.
legislature is deemed to be aware of the court's decision
                                                  7 of 10 DOCUMENTS

                        STATE of Arizona, Appellee, v. Rudolph Brito BALTIER, Appellant

                                           Nos. 2 CA-CR 278, 2 CA-CR 281-2

                                       Court of Appeals of Arizona, Division Two

                                498 P.2d 515; 1972 Ariz. App. LEXIS 726; 17 Ariz. App. 441

                                                       June 28, 1972



SUBSEQUENT HISTORY: [**1]
                                                               CORE TERMS: jacket, park, walking, seizure,
    Review Denied December 12, 1972.
                                                               interrogation, police officer, armed, seized, frisk,
                                                               intrusion, Fourth Amendment, identification, suspicious,
CASE SUMMARY:                                                  arrest, blue, suspicion, encounter, shoulder, driving,
                                                               fatigue, weapon, patrol car, belligerent, marijuana, arm,
                                                               reasonableness, policeman, observe, walk, date of birth
PROCEDURAL POSTURE: Defendant sought review
of the decision of the Pima County Court (Arizona),            LexisNexis (TM) HEADNOTES - Core Concepts:
which convicted him of unlawful possession of
dangerous drugs and unlawful possession of marijuana.
                                                               Criminal Law & Procedure > Search &
OVERVIEW: Twice defendant attempted to flee from               SeizureConstitutional Law > Search & Seizure > Scope
police officers. The second time, the officers drove in his    of Protection
direction and defendant again fled from the officers.          [HN1] See U.S. Const. amend IV.
They pulled alongside defendant and asked him to wait a
minute, but defendant ignored their request and                Criminal Law & Procedure > Search & Seizure >
continued walking. The officers commanded him to stop          Warrantless Searches > Stop & Frisk
and alighted from their vehicle for the purpose of a field     [HN2] Each case will, of course, have to be decided on
interrogation. At this time, defendant's jacket was draped     its own facts. Where a police officer observes unusual
over his shoulder in a manner concealing his arm. The          conduct which leads him reasonably to conclude in light
officers asked defendant to remove his arm from under          of his experience that criminal activity may be afoot and
the jacket so that they could be sure that he did not have     that the persons with whom he is dealing may be armed
a weapon. Defendant refused and one of the officers            and presently dangerous, where in the course of
went to remove the jacket. A fight ensued that                 investigating this behavior he identifies himself as a
culminated in the arrest of defendant for assaulting a         policeman and makes reasonable inquiries, and where
police officer. Following the arrest, defendant's jacket       nothing in the initial stages of the encounter serves to
was searched and found to contain the drugs. The court         dispel his reasonable fear for his own or others' safety, he
reviewed defendant's contentions that the evidence was         is entitled for the protection of himself and others in the
inadmissible because it was discovered during an illegal       area to conduct a carefully limited search of the outer
search. Defendant's action in going to abnormal extremes       clothing of such persons in an attempt to discover
to avoid uniformed police officers was sufficient to           weapons which might be used to assault him.
justify a limited field interrogation. His refusal to remove
his jacket justified a search.                                 Criminal Law & Procedure > Search & Seizure >
                                                               Seizure of Persons
OUTCOME: The court affirmed the trial court's
decision.
                                                                                                                  Page 51
                                        498 P.2d 515, *; 1972 Ariz. App. LEXIS 726, **;
                                                      17 Ariz. App. 441, ***
[HN3] It must be recognized that whenever a police               [HN8] Events may occur during even the most informal
officer accosts an individual and restrains his freedom to       and pleasant confrontation between police and citizen
walk away, he has seized that person.                            which drastically alter the course which the officer is
                                                                 justified in taking.
Constitutional Law > Search & Seizure > Scope of
Protection                                                       COUNSEL:
[HN4] No right is held more sacred, or is more carefully
                                                                     Gary K. Nelson, Atty. Gen., by John S. O'Dowd,
guarded, by the common law, than the right of every
                                                                 Asst. Atty. Gen., Tucson, for appellee.
individual to the possession and control of his own
person, free from all restraint or interference of others,           Edward P. Bolding, Pima County Public Defender,
unless by clear and unquestionable authority of law.             by Albert G. Freeman, Jr., Deputy Public Defender,
                                                                 Tucson, for appellant.
Criminal Law & Procedure > Search & Seizure >
Expectation of PrivacyCriminal Law & Procedure >
Search & Seizure > Warrantless Searches > Stop &                 JUDGES:
FriskConstitutional Law > Search & Seizure > Scope of                Howard, Judge. Krucker, C. J., and Hathaway, J.,
Protection                                                       concur.
[HN5] Wherever an individual may harbor a reasonable
expectation of privacy, he is entitled to be free from
unreasonable governmental intrusion. This freedom from           OPINIONBY:
intrusion applies to a person's right to be free from an             HOWARD
unlawful interrogation as well as an unlawful search. In
the first place, if the frisk is justified in order to protect
the officer during an encounter with a citizen, the officer      OPINION:
must first have constitutional grounds to insist on an                [***443]       [*517] Defendant, Rudolph Brito
encounter, to make a forcible stop. Any person, including        Baltier, was convicted of unlawful possession of
a policeman, is at liberty to avoid a person he considers        dangerous drugs (LSD) in Pima County Cause No. A-
dangerous. If and when a policeman has a right instead to        18872 and unlawful possession of marijuana in Pima
disarm such a person for his own protection, he must first       County Cause No. A-18694 and was sentenced to not
have a right not to avoid him but to be in his presence.         less than one (1) nor more than three (3) years in the
That right must be more than the liberty (again,                 Arizona State Prison on each conviction; these sentences
possessed by every citizen) to address questions to other        to run concurrently. The only question before this court
persons, for ordinarily the person addressed has an equal        on appeal is whether the trial court properly denied
right to ignore his interrogator and walk away; he               defendant's pretrial motion to suppress.
certainly need not submit to a frisk for the questioner's
protection. The right to frisk in this case depends upon              On October 15, 1970, at approximately 10:00 a. m.,
the reasonableness of a forcible stop to investigate a           the defendant was observed by Officers Bright and Crum
suspected crime.                                                 of the Tucson Police Department at Himmel Park in
                                                                 Tucson. The officers, who were traveling through the
Criminal Law & Procedure > Search & Seizure >                    park in a marked patrol car, saw the defendant get out of
Warrantless Searches > Stop & Frisk                              a blue Chevrolet and begin walking through the park. He
[HN6] There must be a rational suspicion by the police           then suddenly turned, ran back [**2] to the car, and
officer that some activity out of the ordinary is or has         entered on the passenger side whereupon the car
taken place, some indication to connect the person under         hurriedly left the park. Because it appeared to the
suspicion with the unusual activity, and some suggestion         officers that the defendant had turned and run upon
that the activity is related to crime.                           sighting their patrol car they tried to follow the blue
                                                                 Chevrolet but were unable to locate it after it left the
Criminal Law & Procedure > Search & Seizure >                    park. At approximately 2:00 p. m. that afternoon,
Warrantless Searches > Stop & Frisk                              Officers Bright and Crum, still in their patrol car, again
[HN7] The "frisk" which Terry allows can only be                 observed the defendant in Himmel Park sitting on the
justified where the officer has a rational basis to support      side of a small hill with four other individuals. With the
his suspicion that the suspect is armed and dangerous.           idea of questioning the defendant as to why he had run
                                                                 from them earlier in the day the officers drove in the
Criminal Law & Procedure > Search & Seizure >                    defendant's direction whereupon he got up and started
Warrantless Searches > Stop & Frisk                              hurriedly walking away as if to leave the park. The
                                                                 officers then pulled alongside the defendant and asked
                                                                                                                   Page 52
                                         498 P.2d 515, *; 1972 Ariz. App. LEXIS 726, **;
                                                       17 Ariz. App. 441, ***
him to "wait a minute" but the defendant ignored the              necessary to [**5] determine whether defendant was in
request and continued walking. At that point the officers         fact armed.
commanded him to stop and they both alighted from
                                                                       The Fourth Amendment to the United States
their vehicle and approached the defendant for the
                                                                  Constitution provides that [HN1] "The right of the
purpose of conducting a field interrogation. At this time
                                                                  people to be secure in their persons, houses, papers, and
defendant's fatigue jacket, which he had been wearing in
                                                                  effects, against unreasonable searches and seizures, shall
the morning, was draped over his left shoulder in a
                                                                  not be violated . . . ." Here, as in Terry, defendant was
manner which concealed his left arm.
                                                                  entitled to the protection of the Fourth Amendment as he
     Upon [**3] being asked for identification by                 walked through Himmel Park in Tucson. The question is
Officer Crum the defendant replied, "Leave me alone, I            whether in light of all the circumstances of this on-the-
haven't done anything wrong." The officers again asked            street encounter, his right to personal security was
for identification at which time the defendant became             violated by an unreasonable search and seizure.
abusive and belligerent in his language even though the
                                                                      The Court in Terry set forth the following test which
officers were able to get his name and date of birth. The
                                                                  must be met before the fruits of a search resulting from a
officers then asked the defendant to remove his left arm
                                                                  "stop and frisk" may be admitted as evidence against the
from under his jacket so that they could be sure that he
                                                                  person from whom they were taken:
didn't have a weapon and upon his refusal to do so
Officer Crum reached for the jacket but the defendant
                                                                          [HN2] "Each case of this sort will, of
stepped backward so that the officer's initial attempt fell
                                                                         course, have to be decided on its own
short. Both officers then grabbed the jacket whereupon a
                                                                         facts. We merely hold today that where a
fight ensued which culminated in the arrest of defendant
                                                                         police officer observes unusual conduct
for assaulting a police officer. Following the arrest the
                                                                         which leads him reasonably to conclude
jacket was searched and found to contain a bottle of pills
                                                                         in light of his experience that criminal
which proved to contain LSD. A search of defendant's
                                                                         activity may be afoot and that the persons
person resulted in a finding of marijuana.
                                                                         with whom he is dealing may be armed
     At the hearing on the motion to suppress the                        and presently dangerous, where in the
introduction into evidence of the LSD and marijuana                      course of investigating this behavior he
both Officers Crum and Bright testified that they had                    identifies [**6] himself as a policeman
asked defendant to either remove the jacket or let them                  and makes reasonable inquiries, and
see his hand because they feared he might have had a                     where nothing in the initial stages of the
gun. They further [**4] testified that this belief was                   encounter serves to dispel his reasonable
based upon the fact that an undercover police officer had                fear for his own or others' safety, he is
been shot in Himmel Park two or three days before this                   entitled for the protection of himself and
incident and also defendant's belligerent attitude towards               others in the area to conduct a carefully
the officers upon being interrogated.                                    limited search of the outer clothing of
                                                                         such persons in an attempt to discover
     Defendant maintains that the facts of the instant
                                                                         weapons which might be used to assault
case, even when viewed in a light most favorable to the
                                                                         him." 392 U.S. at 30, 88 S.Ct. at 1885. n1
State's position, do not satisfy the test set forth in Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),
which must be met before a police officer may conduct a
"frisk." Thus, defendant contends that he had every right                     n1 The Supreme Court, in Adams v.
to resist the officers' attempt to seize his jacket and that             Williams, 405 U.S. 143, 92 S.Ct. 1921, 32
the arrest and subsequent search were therefore both                     L.Ed.2d 612 (1972), recently held that
illegal.                                                                 information received by an officer from an
                                                                         informant may also justify an investigative stop
     The State, on the other hand, contends that
                                                                         and frisk, even though the officer himself has not
defendant's suspicious activities warranted [***444]
                                                                         personally observed any suspicious activity.
[*518]     a field interrogation and that defendant's
belligerent attitude coupled with the previous shooting of
an officer in the park supported the officers' conclusion             However, as in Terry, it must first be established at
that defendant might have been carrying a weapon under            what point in this encounter the Fourth Amendment
the jacket. Thus, the State contends that once the                becomes relevant. That is, we must decide whether and
defendant refused to remove his hand from under the               when Officers Bright and Crum "seized" the defendant
jacket the officers had a right to do whatever was                and whether and when they conducted a "search" of his
                                                                                                                   Page 53
                                       498 P.2d 515, *; 1972 Ariz. App. LEXIS 726, **;
                                                      17 Ariz. App. 441, ***
person. As was [**7] stated by the Court in Terry,                                McFadden's initiation of physical
[HN3] "It must be recognized that whenever a police                               contact for purposes of searching
officer accosts an individual and restrains his freedom to                        Terry for weapons, and we thus
walk away, he has 'seized' that person." 392 U.S. at 16,                          may assume that up to that point
88 S.Ct. at 1877. The officers here involved testified at                         no intrusion upon constitutionally
the hearing on the motion to suppress that defendant was                          protected rights had occurred."
not required to stop for them, was not required to answer                         392 U.S. at 19, 88 S.Ct. at 1879.
their questions and was not being held against his will
until such time as they actually grabbed his jacket and           [**9]
the fight ensued. We find this contention to be wholly
                                                                      We will first consider the facts leading to the
without merit. When two uniformed police officers in a
                                                                 "seizure" of defendant. From Officer Crum's testimony
marked patrol car pull alongside an individual walking
                                                                 at the hearing the officers first observed defendant
on a sidewalk and upon their request for that person to
                                                                 between 9:00 and 10:00 a. m. on the morning of October
"wait a minute" having been ignored, order him to stop,
                                                                 15 at Himmel Park in the following manner:
alight from their car and confront him on the sidewalk,
that person has been "seized." And no citizen, when                            "Q What was it that drew your
confronted with such circumstances, would logically                       attention to Mr. Baltier at the early
believe that he was "free to go on his way."                              morning time you first saw him?
     There can be no question that Officers Bright and                         A I don't know of any special reason
Crum "seized" the defendant when they ordered him to                      that I happened to see him.
stop and initiated their interrogation and, upon his failure
                                                                              Q And how was he dressed at that
to cooperate, subjected him to a "search" when the
officers grabbed the [**8] fatigue jacket from his                        hour?
shoulder to see if he was armed. Thus, in determining                         A He had a green fatigue army jacket
whether the seizure and search were "unreasonable" our                    and a green fatigue shirt.      I don't
inquiry is a dual one -- [***445]           [*519] firstly,               remember what pants he had on.
whether the officers' act of "seizing" the defendant for
interrogation was justifiable, and secondly, if so, whether                    Q What was he doing?
the officers were justified in conducting a "search" by                       A He was getting out of the car in the
forcing the removal of defendant's jacket. It must be                     north parking lot.
noted that the primary question here, the propriety of the
"seizure" of defendant's person, was not addressed by the                      Q Do you know the color of the car
Court in Terry. n2                                                        or anything about it?
                                                                               A It was a blue '65 or '66 Chevy.

            n2 Footnote 16 of Terry provides:                                  Q And did you observe how many
                                                                          people were in the car other than Mr.
                    "We thus decide nothing                               Baltier?
               today         concerning         the
               constitutional propriety of an                                A Several.      I don't remember how
               investigative 'seizure' upon less                          many.
               than probable cause for purposes                                Q What was it that Mr. Baltier did
               of 'detention' and/or interrogation.                       after he got out of the car?
               Obviously, not all personal
               intercourse between policemen                                  A Started walking southward into the
               and citizens involves 'seizures' of                        park.
               persons. Only when the officer,                                Q And where were you relative to
               by means of physical force or                              Mr. Baltier when he began walking
               show of authority, has in some                             southward?
               way restrained the liberty of a
               citizen may we conclude that a                                A Almost directly south in the park.
               'seizure' has occurred. We cannot                          We was driving on the grass, driving
               tell with any certainty upon this                          down the center of the park.
               record whether any such 'seizure'
               took place here prior to Officer
                                                                                                                    Page 54
                                      498 P.2d 515, *; 1972 Ariz. App. LEXIS 726, **;
                                                      17 Ariz. App. 441, ***
            Q Would it be fair to say that you                               Q What did you and Officer Bright
       were -- [**10] or did it come into the                           (sic) do?
       line of vision of Mr. Baltier?
                                                                               A Officer Crum and myself?
            A Yes.
                                                                               Q Crum. Excuse me.
            Q At this point in time what
                                                                            A Pulled up to the -- where Mr.
       occurred? In other words, when you
                                                                        Baltier was walking and asked him to stop
       came within the line of vision of Mr.
                                                                        and show us some identification.
       Baltier?
                                                                            Q When you asked Mr. Baltier to
            A Well, he appeared to see us and he
                                                                        stop and show some identification, where
       turned around and ran back to the blue car
                                                                        were you relative to your police unit?
       that he had gotten out of, and the car
       started up and exited -- excuse me -- to                                A I was speaking from the window.
       the north side of the parking lot."
                                                                               Q Who was driving?
     Officer Bright testified that upon this occasion his
attention had been drawn to the defendant by Officer                           A He was driving.
Crum as defendant entered the blue Chevrolet and he                         Q Now, did Mr. Baltier respond to
noticed that there were two or three others in the car.                 your request to show identification?
The officers attempted to follow the car but because they
were forced to exit the park via a different route they                      A I -- the first time we asked him to
were unable to locate the car again.                                    stop he kept walking.

    Officer Bright further testified that at about 2:00 p.                  Q (By Mr. Druke) He continued to
m. on the same day, while the officers were again driving               walk and --
through Himmel Park, the following occurred:                                   A We yelled at him to stop again.
           "Q All right. When you observed or                               Q By, 'we' do you mean in fact both
       came in contact with Mr. Baltier about                           of you yelled?
       two o'clock in the afternoon, where was it
       you first observed him?                                                 A Yes.

            [***446] [*520] A He was sitting                                Q All right. And how did Mr. Baltier
       on the grass on the east portion of the hill                     respond to the yelling?
       in Himmel Park with another group of                                    A He stopped.
       persons.
                                                                             Q Were you at [**12] the time of the
            Q And how was he dressed [**11] at                          yelling still in your vehicle?
       that time?
                                                                            A I was in the process of exiting
            A He had a army fatigue shirt on,                           myself at the second time. The first time I
       blue bell-bottom pants, and tennis shoes,                        was in the vehicle."
       as I recall, and O.D. army field's jacket in
       his possession.                                                Once the officers had stopped defendant they
                                                                 immediately asked him for some identification, to which
           Q And after you first observed Mr.                    he replied, "I didn't do anything, leave me alone, quit
       Baltier sitting there with a number of                    hassling me." The officers continued to question the
       other people, what happened; what did he                  defendant and although he did give them his name and
       do?                                                       date of birth, he became increasingly belligerent and
           A He stood up and began walking                       abusive in his language while continually repeating that
       away quite rapidly as our vehicle                         he just wanted to be left alone. The officers testified that
       approached.                                               the only reason they had stopped him was to conduct a
                                                                 field interrogation and to ask why he had run from them
            Q What -- which direction?                           earlier in the day. They did not suspect him of having
           A He started walking to the north                     committed or of being in the process of committing any
       toward the north parking lot.                             crime. At the preliminary hearing on the charge for
                                                                 illegal possession of LSD, Officer Bright, upon cross-
                                                                 examination, gave the following testimony:
                                                                                                                        Page 55
                                        498 P.2d 515, *; 1972 Ariz. App. LEXIS 726, **;
                                                        17 Ariz. App. 441, ***
            "Q Did you approach the defendant to                       As has been previously pointed out, the Fourth
       arrest him at that time?                                    Amendment provides that "The right of the people to be
                                                                   secure in their persons . . . against unreasonable . . .
            A No, we did not.
                                                                   seizures, shall not be violated . . . ." The Supreme Court
           Q Well, assuming that he had just                       recognized in Union Pac. Ry. v. Botsford, 141 U.S. 250,
       stood there and said, 'I don't care to join in              11 S.Ct. 1000, 35 L.Ed. 734 (1891), and reiterated in
       a field interrogation,' what would you                      Terry, that:
       have done at that point?
                                                                                [HN4] "No right is held more sacred,
           A There was [**13]           nothing we                        or is more carefully guarded, by the
       could have done.                                                   common law, than the right of every
                                                                          individual to the possession and control of
            Q Isn't this what he did?                                     his own person, free from all restraint or
            A No. He told us his name and his                             interference of others, unless by clear and
       date of birth.                                                     unquestionable authority of law." 141
                                                                          U.S. 250, 251, 11 S.Ct. 1000, 1001, 392
            Q Didn't he just say, 'I don't want to                        U.S. at 9, 88 S.Ct. 1868, 1873.
       talk to you. Quit hasseling me,' or, 'Leave
       me alone,' or words to that effect?                         The Court went on to say in Terry that [HN5] wherever
            A Words to that effect.                                an individual may harbor a reasonable expectation of
                                                                   privacy, he is entitled to be free from unreasonable
            Q You persisted nonetheless and got                    governmental intrusion. We believe that this freedom
       his name?                                                   from intrusion applies to a person's right to be free from
           A He was cooperative. He was                            an unlawful [**15] interrogation as well as an unlawful
       saying that, but he still was cooperating.                  search. Justice Harlan, in his concurring opinion in
                                                                   Terry v. Ohio, supra, discussed the problem now before
            Q It was pretty apparent, was it not,                  us:
       that he just didn't want to talk to you?
                                                                               "In the first place, if the frisk is
            A It was apparent that he didn't care                         justified in order to protect the officer
       to talk to any police officer, yes.                                during an encounter with a citizen, the
             [***447]     [*521] Q Okay, But                              officer must first have constitutional
       when you walked up to him there was no                             grounds to insist on an encounter, to make
       reason to arrest him in your own mind. Is                          a forcible stop. Any person, including a
       that right?                                                        policeman, is at liberty to avoid a person
                                                                          he considers dangerous. If and when a
            A Not at that time, no.                                       policeman has a right instead to disarm
           Q And it wasn't until you snatched at                          such a person for his own protection, he
       the coat that he had on his shoulder that                          must first have a right not to avoid him
       anything      bad   happened,   anything                           but to be in his presence. That right must
       physical, at least?                                                be more than the liberty (again, possessed
                                                                          by every citizen) to address questions to
            A That's correct."                                            other persons, for ordinarily the person
     We think it is clear from the above and from the                     addressed has an equal right to ignore his
entire transcripts of hearings in this case that defendant                interrogator and walk away; he certainly
was not only "seized" but that he was questioned against                  need not submit to a frisk for the
his will and that he had, in every way short of fleeing, let              questioner's protection. I would make it
the officers know that he did not wish to cooperate in a                  perfectly clear that the right to frisk in this
field investigation. It remains then for us to ascertain                  case depends upon the reasonableness of a
what, if any, test [**14] must be met before an officer                   forcible stop to investigate a suspected
can make a forcible stop and retain an individual once it                 crime." 392 U.S. at 32-33, 88 S.Ct. at
is apparent that the person does not wish to cooperate                    1885.
and further to determine whether the facts before us meet               In order to assess the reasonableness of the officers'
such a test.                                                       conduct here "it is necessary [**16] 'first to focus upon
                                                                   the governmental interest which allegedly justifies
                                                                   official intrusion upon the constitutionally protected
                                                                                                                    Page 56
                                        498 P.2d 515, *; 1972 Ariz. App. LEXIS 726, **;
                                                      17 Ariz. App. 441, ***
interests of the private citizen,' for there is 'no ready test          detection of thievery from stores in this
for determining reasonableness other than by balancing                  same neighborhood to have failed to
the need to search [or seize] against the invasion which                investigate this behavior further." 392
the search [or seizure] entails.' Camara v. Municipal                   U.S. at 22-23, 88 S.Ct. at 1881.
Court, 387 U.S. 523, 534-535, 536-537, 87 S.Ct. 1727,
                                                                      It can readily be seen that the officer in Terry was
1735, 18 L.Ed.2d 930 (1967)." Terry v. Ohio, 392 U.S. at
                                                                 confronted with a good deal more upon which to justify a
20-21, 88 S.Ct. at 1879. The protections of the Fourth
                                                                 "stop and frisk" than were the officers in the case sub
Amendment become meaningful only when it is assured
                                                                 judice. Here we have the officers observing defendant
that at some point the conduct of the officers is subjected
                                                                 leaving a car in a public park, sighting the officers and
to the more detached, neutral scrutiny of a judge who
                                                                 running back to the car which thereupon exited the park.
must evaluate the reasonabless of the search or seizure in
                                                                 Later in the same day, upon sighting the officers
light of the particular circumstances. See, e. g., Katz v.
                                                                 approaching him, defendant again turns from the officers
United States, [***448] 389 U.S. 347, [*522] 88 S.Ct.
                                                                 in an obvious attempt to avoid them and begins hurriedly
507, 19 L.Ed.2d 576 (1967); Johnson v. United States,
                                                                 walking from the park. The officers were of course
333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). In order
                                                                 further aware that an undercover officer had been shot in
to justify an intrusion the police must be able to point to
                                                                 the park only a few days before.
"specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant              The California Supreme Court, since Terry, has
that intrusion." Terry v. Ohio, 392 [**17] U.S. at 21, 88        adopted the following test to determine whether [**19] a
S.Ct. at 1880; Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223,          forced stop for interrogation or investigative purposes is
13 L.Ed.2d 142 (1964). The Court in Terry noted the              justified: [HN6] There must be a rational suspicion by
basic governmental interest of effective crime prevention        the police officer that some activity out of the ordinary is
and detection which underlies the recognition that a             or has taken place, some indication to connect the person
police officer may, in appropriate circumstances and in          under suspicion with the unusual activity, and some
an appropriate manner, approach a person for purposes            suggestion that the activity is related to crime. Irwin v.
of investigating possible criminal behavior even though          Superior Court, 1 Cal.3d 423, 82 Cal.Rptr. 484, 462
there is no probable cause to make an arrest.                    P.2d 12 (1969). We believe that the above is a well
                                                                 founded test in that it allows valid field investigation by
     The court, in analyzing the facts in Terry, pointed
                                                                 the police while at the same time protects the individual
out that:
                                                                 citizen's Fourth Amendment rights.
        "There is nothing unusual in two men                          In light of the above we believe that Officers Bright
        standing together on a street corner,                    and Crum were justified in stopping defendant for the
        perhaps waiting for someone. Nor is                      purpose of conducting a limited field interrogation. His
        there anything suspicious about people in                action in going to abnormal extremes to avoid uniformed
        such circumstances strolling up and down                 police officers was not only suspicious conduct but also
        the street, singly or in pairs. Store                    more consistent with criminal than innocent behavior.
        windows, moreover, are made to be
        looked in. But the story is quite different                   We must now consider whether the officers, having
                                                                 justifiably stopped defendant, were justified in seizing
        where, as here, two men hover about a
        street corner for an extended period of                  his jacket to determine whether he was armed. [HN7]
        time, at the end of which it becomes                     The "frisk" which Terry allows can only be justified
                                                                 where the officer has a rational basis to support his
        apparent that they are not waiting for
        anyone or anything; where these men                      suspicion [**20]      that the suspect is armed and
        pace alternately along an identical route,               dangerous. Cunha v. [***449] [*523] Superior Court,
                                                                 2 Cal.3d 352, 85 Cal.Rptr. 160, 466 P.2d 704 (1970).
        pausing to stare in the same store window
        roughly 24 times; where each completion                  We can envision many instances where an officer might
        of this route is followed immediately by a               observe suspicious conduct which, while warranting a
                                                                 stop for further investigation, would not warrant that
        conference [**18] between the two men
        on the corner; where they are joined in                  degree of intrusion upon the person of the individual
        one of these conferences by a third man                  which is necessitated by a "frisk."
        who leaves swiftly; and where the two                        When Officers Bright and Crum stopped defendant
        men finally follow the third and rejoin                  he had done nothing which would support a suspicion
        him a couple of blocks away. It would                    that he was armed, nor was there any reason for
        have been poor police work indeed for an                 suspecting that he had committed or was in the act of
        officer of 30 years' experience in the                   committing any crime of violence, as was the case in
                                                                                                                 Page 57
                                      498 P.2d 515, *; 1972 Ariz. App. LEXIS 726, **;
                                                    17 Ariz. App. 441, ***
Terry. And while it is true that the officers were aware       hand.     Defendant replied "None of your fucking
that an undercover officer had been shot in the park just a    business," and the officers immediately seized the jacket
few days before, there was no reason to suspect that the       from his shoulder in order to uncover the arm and hand.
defendant was connected to that crime. Nor do we               Under the unique circumstances of this case the seizure
believe that the mere fact that the defendant was walking      of the jacket was the only way in which the officers
with his jacket slung over his shoulder in a manner            could have readily determined whether defendant did, in
concealing his left arm would justify a suspicion that he      fact, have a weapon in his hand and therefore such action
was armed.                                                     was not improper.
     However, it would be totally unrealistic if we failed          We conclude that the marijuana and LSD seized
to recognize that [HN8] events may occur during even           from defendant were properly admitted into evidence
the most informal and pleasant confrontation [**21]            against him. At the time the officers stopped [**22]
between police and citizen which drastically alter the         defendant they had reasonable grounds to suspect that he
course which the officer is justified in taking. See Terry     might be engaged in criminal activity and his subsequent
v. Ohio, 392 U.S. at 13, 88 S.Ct. 1868. Here, it is            conduct, when coupled with his suspicious actions,
apparent from the record that, when approached by the          constituted a justification for the officers "to take swift
officers and questioned, defendant was not merely              measures to discover the true facts and neutralize the
uncooperative but rather that he was abusive in his            threat of harm if it materialized." Terry v. Ohio, 392 U.S.
language to the point of being threatening. This conduct,      at 30, 88 S.Ct. at 1884. Defendant's resistance of the
when considered in light of the above mentioned facts,         officers' attempt and the resulting assault upon them was
was such that would support a rational belief that the         therefore unlawful and the subsequent search of
defendant might be armed and dangerous. The officers           defendant's person was valid incident to a lawful arrest.
at that point expressed their fears to defendant and asked
                                                                   Affirmed.
him if they could see what was concealed in his left
                                                8 of 10 DOCUMENTS

                          STATE of Arizona, Appellee, v. Juan Luna CASTRO, Appellant

                                                  No. 1 CA-CR 1226

                             Court of Appeals of Arizona, Division One, Department A

                               554 P.2d 919; 1976 Ariz. App. LEXIS 609; 27 Ariz. App. 323

                                                  September 9, 1976



CASE SUMMARY:                                                OUTCOME: The court affirmed the conviction and
                                                             sentencing imposed by the trial court for defendant's
                                                             possession of marijuana for sale. The court ordered that
PROCEDURAL POSTURE: Defendant challenged the                 defendant's convictions and sentences for transporting
judgment of the trial court (Arizona), which entered a       and importing marijuana be vacated.
jury verdict convicting him of importing marijuana as a
violation of Ariz. Rev. Stat. § 36-1002.07, transporting     CORE TERMS: border, marijuana, sentence, fence,
marijuana in violation of Ariz. Rev. Stat. § 36.1007.07,     possession of marijuana, probable cause, transporting,
and possession of marijuana for sale for violating Ariz.     alien, lesser, functional equivalent, contraband, crossed,
Rev. Stat. § 36-1002.06. Defendant contended that            prison sentence, resentencing, customs, immigration,
evidence used in his convictions was seized in violation     eligibility, importing, vacated, parole, prison, drag strip,
of his Fourth Amendment rights.                              suspended sentence, border search, combined, occupant,
                                                             arrest, suspended imposition of sentence, state prison,
OVERVIEW: Defendant sought review of his                     sentencing
convictions and the sentences imposed for importing,
transporting, and possession of marijuana for sale,          LexisNexis (TM) HEADNOTES - Core Concepts:
contending that evidence was seized from his vehicle in
violation of the Fourth Amendment and should have
been suppressed. The court on appeal determined that the     Criminal Law & Procedure > Search & Seizure >
search of defendant's car occurred at the Mexico-U.S,        Warrantless Searches > Vehicle Searches
border in an area generally known to have a high             [HN1] For the purposes of the Fourth Amendment, there
incidence of smuggling and thereby justified the officer's   is a constitutional difference between houses and cars,
stopping and searching of defendant's car without            which in certain cases will justify a warrantless search.
probable cause. The court also found that, because the       The difference turns primarily on the mobility of an
three convictions imposed had very nearly the same           automobile and the impracticability of obtaining a
elements, Ariz. Rev. Stat. § 13-1641 had been violated       warrant in many instances. Warrantless examinations of
by the imposition of multiple punishments for the same       automobiles have been upheld in circumstances in which
acts. The court noted that the trial court had suspended     a search of a home or office would not.
imposition of sentence on the crime carrying the greatest
maximum sentence and given a prison sentence on the          Constitutional Law > Search & Seizure > Probable
crimes carrying the least maximum potential sentence.        CauseConstitutional Law > Search & Seizure > Vehicle
Because the court was precluded by Ariz. R. Crim. P.         SearchesCriminal Law & Procedure > Search &
26.14 from imposing a greater sentence on resentencing       Seizure > Warrantless Searches > Vehicle Searches
than that originally imposed, the court affirmed the         [HN2] As to the search of cars by law enforcement
conviction and sentence on the possession charge and         authorities in areas not associated with the United States
vacated the other two convictions.                           border, absent a valid warrant, a car may be searched
                                                                                                               Page 59
                                     554 P.2d 919, *; 1976 Ariz. App. LEXIS 609, **;
                                                   27 Ariz. App. 323, ***
only where there is probable cause to believe that the car    SubstancesCriminal Law & Procedure > Sentencing >
is carrying contraband or illegal merchandise.                Sentencing Ranges
                                                              [HN8] Ariz. Rev. Stat. § 36-1002.06 provides for a
Criminal Law & Procedure > Search & Seizure >                 sentence of not less than two nor more than 10 years in
Warrantless Searches > Border Searches                        the state prison, with the further condition that a
[HN3] For searches at the border between the United           minimum of two years be served before parole
States and Mexico conducted by customs and                    eligibility.
immigration officers, probable cause is not required.
"Mere suspicion" is sufficient to justify a border search.    Criminal Law & Procedure > Sentencing > Alternatives
Nevertheless, the search must still meet the minimum          > ProbationCriminal Law & Procedure > Sentencing >
Fourth Amendment standard of "reasonableness."                Concurrent Sentences
                                                              [HN9] A concurrent term of probation under one count
Criminal Law & Procedure > Search & Seizure >                 and prison on another is, standing by itself, an erroneous
Warrantless Searches > Border Searches                        sentencing, as the two are in conflict.
[HN4] While the authority of immigration and customs
officials to search without probable cause is statutory in    Criminal Law & Procedure > Double Jeopardy >
origin, it has not been found violative of the Fourth         Attachment JeopardyGovernments > Legislation >
Amendment when invoked at the border or its functional        Statutory Remedies & Rights
equivalent. The potential infringement upon Fourth            [HN10] Ariz. Rev. Stat. § 13-1641 prohibits double
Amendment rights is outweighed by legitimate                  punishment for the same act. This has been construed to
governmental interest in the detection of aliens and          bar not only a double sentence, but also an underlying
discovery of contraband crossing an international border.     double conviction.

Criminal Law & Procedure > Search & Seizure >                 Criminal Law & Procedure > Sentencing > Multiple
Warrantless Searches > Border Searches                        Convictions
[HN5] A search permissible "at the border" will, in           [HN11] In deciding whether the facts of a case will
certain circumstances, be permissible at the functional       support more than one conviction, the test is to eliminate
equivalent of the border.                                     the elements contained in one charge and determine
                                                              whether the facts left would support the other charge.
Criminal Law & Procedure > Search & Seizure >
Warrantless Searches > Border Searches                        Criminal Law & Procedure > Sentencing >
[HN6] For a border search to be valid, it is sufficient if    Corrections,   Modifications    &     Reductions    >
there are articulable facts which make it appear with         Corrections,    Modifications       &     Reductions
reasonable certainty from the circumstances that a            GenerallyCriminal Law & Procedure > Sentencing >
vehicle or its occupants have crossed the border. These       Appeals
facts are measured against an objective reasonable man        [HN12] On resentencing, a defendant may not be given a
standard and are not necessarily dependent upon the           greater sentence than that which was meted out
subjective impression of a particular officer. Where it       originally.
appears with reasonable certainty that a vehicle or its
occupants have crossed the border illegally, an ensuing       Criminal Law & Procedure > Sentencing >
search may be made on suspicion alone.                        Corrections,   Modifications     &    Reductions   >
                                                              Corrections,     Modifications      &     Reductions
Criminal Law & Procedure > Criminal Offenses >                GenerallyCriminal Law & Procedure > Sentencing >
Controlled Substances > Delivery, Distribution &              Appeals
SaleCriminal Law & Procedure > Sentencing >                   [HN13] See Ariz. R. Crim. P. 26.14.
Sentencing Ranges
[HN7] Ariz. Rev. Stat. § 36-1002.07 provides for a            Criminal Law & Procedure > Criminal Offenses >
sentence of not less than five years nor more than life in    Controlled Substances > Delivery, Distribution &
a state prison for importing marijuana, with the further      SaleCriminal Law & Procedure > Sentencing >
condition that a minimum of three years be served before      Sentencing Ranges
parole eligibility.                                           [HN14] The statute relating to the crime of transporting
                                                              marijuana (Ariz. Rev. Stat. § 36-1002.07) provides for a
Criminal Law & Procedure > Criminal Offenses >                sentence of not less than five years nor more than life
Controlled Substances > Possession of Controlled              imprisonment, with the condition that the defendant
                                                              serve a minimum of three years before parole eligibility.
                                                                                                                   Page 60
                                     554 P.2d 919, *; 1976 Ariz. App. LEXIS 609, **;
                                                   27 Ariz. App. 323, ***
                                                                    Officer Monwell Fuller, a United States customs
COUNSEL: [**1]                                                patrol officer, was on duty the night of December 19,
                                                              1974, in the area described. After parking his car about
     Bruce E. Babbitt, Atty. Gen. by William J. Schafer,
                                                              100 yards from the international fence, he noticed a 1965
III, Chief Counsel, Shirley H. Frondorf, Asst. Atty. Gen.,
                                                              Buick driving west along the fence on a sandy track
Phoenix, for appellee.
                                                              known as a "drag strip." While not a road, the "drag
    Westover, Choules, Shadle & Bowen by Allen J.             strip" is traversable by car and is used [**3] by border
Clark, Yuma, for appellant.                                   patrol agents to patrol the international fence and to
                                                              detect alien traffic. There is no indication from the
                                                              record whether the drag strip is used by the public for car
JUDGES:                                                       travel, but there is an implication that it is not so used, as
    Froeb, Judge.      Donofrio, P. J., and Ogg, J.,          it is periodically dragged smooth to detect tire and foot
concurring.                                                   prints. There is no showing, one way or the other, as to
                                                              whether the drag strip is posted against public use.
                                                              When appellant's car was seen proceeding along the
OPINIONBY:                                                    fence, Fuller started his car and followed it to the paved
    FROEB                                                     road, where he stopped it. He approached the driver,
                                                              identified himself and asked appellant, the driver and
                                                              sole occupant, to open the trunk. When Fuller saw the
OPINION:                                                      load of 221 marijuana bricks in the compartment, he
     [***325] [*921] OPINION                                  placed appellant under arrest and called on the radio for
                                                              an interpreter, as appellant spoke to him only in Spanish.
     The appellant, Juan Luna Castro, was found guilty        Meanwhile, narcotics agents were notified and appeared
by a jury on Count I, importing marijuana (A.R.S. § 36-       on the scene. The appellant was arrested and the
1002.07), Count II, transporting marijuana (A.R.S. § 36-      marijuana seized for evidence.
1002.07), and Count III, possession of marijuana for sale
(A.R.S. § 36-1002.06). The trial court sentenced                   While unknown to Officer Fuller prior to the arrest,
appellant to a term of not less than two nor more than six    he later learned from other agents that there was an
years on Count III, possession of marijuana for sale, and,    opening in the international fence about one mile from
after determining that for the purpose of sentencing          where he first noticed appellant's car and that [**4] an
Count I, importing marijuana, should be combined with         entry across the border had been made through it. Since
Count II, transporting marijuana, suspended imposition        this knowledge on the part of Fuller did not precede his
of sentence on Count II and placed appellant on               arrest of appellant, it cannot be given any significance in
probation for a period of five years. On appeal from the      evaluating the circumstances [***326] [*922] of the
convictions and sentence the appellant contends that          arrest in terms of compliance with the requirements of
evidence was seized from his possession in violation of       the fourth amendment.
the fourth amendment of the United States Constitution             It is well to state at the outset that, [HN1] for the
and should have been suppressed. On review we                 purposes of the fourth amendment, there is a
consider [**2] this issue as well as the propriety of the     constitutional difference between houses and cars, which
sentence which, although not briefed, was raised by           in certain cases will justify a warrantless search. State v.
counsel at oral argument.                                     Benge, 110 Ariz. 473, 520 P.2d 843 (1974). The
     The undisputed facts indicate that the search            difference turns primarily on the mobility of the
involved here occurred near the international border at       automobile and the impracticability of obtaining a
San Luis, Mexico, which the parties stipulated was an         warrant in many instances. "Warrantless examinations
area known for a high incidence of smuggling. The             of automobiles have been upheld in circumstances in
specific area does not appear from the record to be           which a search of a home or office would not." South
inhabited, with the exception that in the vicinity there      Dakota v. Opperman, U.S. , 96 S.Ct. 3092, 49 L.Ed.2d
was a tent used by the United Farm Workers union as a         1000 (Decided July 6, 1976). One reason, as this recent
station for members assigned to watch the general area        United States Supreme Court case points out, is that
for illegal aliens, an effort apparently made by the union    there is, with an automobile, a lesser expectation of
to assist the Border Patrol. There is a dirt road leading     privacy. In upholding the search here, this factor would
away from the area of the tent which extends away from        most certainly be present.
the border and eventually connects with other roads.              We turn, then, to whether the search and seizure
None of the events of the case involve the use of this        [**5] were lawful.
road.
                                                                                                                Page 61
                                     554 P.2d 919, *; 1976 Ariz. App. LEXIS 609, **;
                                                   27 Ariz. App. 323, ***
     The law is well-settled [HN2] as to the search of        the person or vehicle crossed the border without
cars by law enforcement authorities in areas not              inspection. See United States v. Weil, 432 F.2d 1320 (9th
associated with the United States border. Absent a valid      Cir. 1970).
warrant, a car may be searched only where there is
probable cause to believe that the car is carrying
contraband or illegal merchandise. Carroll v. United                        n2 Title 8 U.S.C. § 1357(a) authorizes a
States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925);               United States immigration officer under
State v. Sardo, 112 Ariz. 509, 543 P.2d 1138 (1975). We                regulations prescribed by the Attorney General to
assume, without deciding, that the circumstances which                 search a car for aliens within a reasonable
were apparent to Officer Fuller on the night here in                   distance of the border. A reasonable distance has
question did not rise to that level. n1                                been defined by the Attorney General as within
                                                                       100 air miles of the border. 8 C.F.R. 287.1(a)(2)
                                                                       (1964).
           n1 The search was sustained, however, by
                                                                           n3 Nevertheless, at fixed checkpoints away
       the trial court on the basis of a finding of
                                                                       from the border, the Supreme Court has recently
       probable cause.
                                                                       approved stops for questioning (as distinguished
                                                                       from searches) which are routinely conducted.
     The law is less settled with respect to searches                  United States v. Martinez-Fuerte,      U.S. , 96
associated with the border. With respect to this category,             S.Ct. 3074, 49 L.Ed.2d 1116 (Decided July 6,
a distinction must be drawn between searches for aliens                1976). Earlier, the court had approved such stops
and illegal contraband conducted some distance from the                by a roving patrol at the border or its functional
border and those conducted at the border or "its                       equivalent. United States v. Brignoni-Ponce, 422
functional equivalent." While we place the search here in              U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).
[**6] the latter category, some mention of the former is
warranted.                                                     [**8]
     The United States Supreme Court has ruled that a              Turning to [HN3] searches at the border conducted
search made by a roving patrol unit without probable          by customs and immigration officers, it is well-settled
cause on a California state highway 25 miles north of the     that probable cause is not required. See Witt v. United
Mexican border violated the fourth amendment, even            States, 287 F.2d 389 (9th Cir. 1961). "Mere suspicion" is
though conducted by the United States Border Patrol in        sufficient to justify a border search. Cervantes v. United
performance of its duties under United States                 States, 263 F.2d 800 (9th Cir. 1959). Nevertheless, the
immigration laws. Almeida-Sanchez v. United States,           search must still meet the minimum fourth amendment
413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).           standard of "reasonableness." See Denton v. United
Prior to Almeida-Sanchez, it had frequently been held         States, 310 F.2d 129 (9th Cir. 1962).
that a causeless search for aliens could be conducted
                                                                   The absence of a constitutional requirement for
within 100 miles of the border. n2 In 1975, the Supreme
                                                              probable cause in searches at the border is traceable to
Court decided that the Almeida-Sanchez rule also applied
                                                              the early days of the nation. Since 1789, customs
to searches at fixed checkpoints located away from the
                                                              officers have been allowed to search vehicles, persons
border. United States v. Ortiz, 422 U.S. 891, 95 S.Ct.
                                                              and baggage brought into the United States on the
2585, 45 L.Ed.2d 623 (1975). n3 Searches of vehicles for
                                                              suspicion that contraband or merchandise subject to duty
aliens and contraband away from the border made
                                                              was being concealed. Act of July 31, 1789, Ch. 5, § 24,
without probable cause also have been approved in
                                                              1 Stat. 29, 43. The same authority is in effect today. 19
certain limited instances where the search is reasonably
                                                              U.S.C. § 482. Immigration officials were authorized in
equivalent to a search at the border. One example is a
                                                              1875 to search at the border for aliens seeking entry into
"deferred" border search, where a vehicle is known to
                                                              the United States. Act of March 3, 1875, Ch. 141 § 5,
have crossed the border without inspection and is [**7]
                                                              18 Stat. 477. They have this authority today also. 8
kept in view after it leaves the border. If the ensuing
                                                              U.S.C. § 1357(a)(3). For a general review of the [**9]
search uncovers contraband which was, with reasonable
                                                              history of border search legislation, see Barnett, A Report
certainty, [***327] [*923] in the vehicle at the time of
                                                              on Search and Seizure at the Border, 1 Am.Crim.L.Q. 36
the border crossing, it has been upheld. See Alexander v.
                                                              (1963). In 1971, immigration and customs searches were
United States, 362 F.2d 379 (9th Cir. 1966). Another
                                                              merged when Border Patrol agents became authorized to
instance is where the person or vehicle searched has not
                                                              act as customs officers. See United States v. Thompson,
been seen to cross the border, but, from the
                                                              475 F.2d 1359 (5th Cir. 1973), which outlines the basis
circumstances, it appears with reasonable certainty that
                                                              of this authority.      [HN4] While the authority of
                                                                                                                   Page 62
                                       554 P.2d 919, *; 1976 Ariz. App. LEXIS 609, **;
                                                     27 Ariz. App. 323, ***
immigration and customs officials to search without             just crossed the border when Officer Fuller took action.
probable cause is statutory in origin, it has not been          It was approximately eleven o'clock at night in an area
found violative of the fourth amendment when invoked            not intended for travel by the public; the location was at
at the border or its functional equivalent. See Almeida-        the international fence approximately 100 yards from the
Sanchez v. United States, supra. It is here that the            port of entry; there was no other vehicular traffic; the
potential infringement upon fourth amendment rights is          general area is known to have a high incidence of
outweighed by legitimate governmental interest in the           smuggling. Officer Fuller was therefore justified in
detection of aliens and discovery of contraband crossing        stopping appellant's [**12] car and conducting a search
the international border.                                       of the trunk compartment without probable cause. We
                                                                find the search and subsequent seizure of the 221 bricks
     The extent of the causeless search zone at the
                                                                of marijuana from the trunk of the car was reasonable
border, or its functional equivalent, is potentially a
                                                                and did not violate the fourth amendment. The trial court
difficult issue. We are referred to no decision drawing
                                                                was justified in denying the motion to suppress and
exact limits. It appears that [HN5] a search permissible
                                                                permitting the marijuana to be received in evidence.
"at the border" will, in certain circumstances, be
permissible at "the functional equivalent" of the border.            We turn next to the validity of the convictions and
See Almeida-Sanchez v. [**10] United States, supra;             sentences arising from proceedings in the trial court.
United States v. Tilton, 534 F.2d 1363 (9th Cir. 1976);         Appellant was convicted by the jury of three counts, all
United States v. Solmes, 527 F.2d 1370 (9th Cir. 1976).         arising from the same factual circumstances, namely:
Whatever the outer limits of a search at the border or its      Count I, importing marijuana; Count II, transporting
functional equivalent may be, we have no difficulty in          marijuana; and Count III, possession of marijuana for
deciding that the search here occurred at the border or its     sale. Counts I and II represent convictions of the same
functional equivalent. n4 The car was no more than five         statutory section (A.R.S. § 36-1002.07) which [HN7]
to ten feet from the international fence, traveling on a        provides for a sentence of not less than five years nor
sandy drag strip not more than 100 yards from the               more than life in the state prison, with the further
official border crossing or port of entry. The essential        condition that a minimum of three years be served before
question is whether the lack of knowledge by Officer            parole eligibility. As previously noted, the trial court
Fuller either that the car or the defendant had actually        combined the conviction of importing marijuana with the
crossed the border without inspection prevents the search       conviction for transporting marijuana for purposes of
from being a "border search." We do not think it does.          sentencing and suspended imposition of sentence on the
                                                                combined Counts I and II [**13] for a period of five
                                                                years. On the other hand, Count III, possession of
             n4 The search was in a sense deferred from         marijuana for sale, represents a conviction of a different
         the point at the international fence to a paved        statutory section (A.R.S. § 36-1002.06) which [HN8]
         road a short distance away. The defendant's car        provides for a sentence of not less than two nor more
         was, however, under constant surveillance by           than ten years in the state prison, with the further
         Officer Fuller from the point at the fence until it    condition that a minimum of two years be served before
         reached the paved road.                                parole eligibility. In contrast to Count II, the trial court
                                                                imposed sentence on Count III for a term of not less than
[**11]                                                          two nor more than six years in the state prison. n5
     [HN6] It is sufficient if there are articulable facts
which make it appear with reasonable certainty from the
                                                                            n5 [HN9] A concurrent term of probation
circumstances that the vehicle or its occupants have
                                                                       under one count and prison on another is,
crossed the border. United States v. Weil, supra. These
                                                                       standing by itself, an erroneous sentencing, as the
facts are measured against [***328]           [*924] an
                                                                       two are in conflict. We deem this to be the effect
objective reasonable man standard and are not
                                                                       of the holding in State v. Pakula, 113 Ariz. 122,
necessarily dependent upon the subjective impression of
                                                                       547 P.2d 476 (1976). The problem in this case is
the particular officer. United States v. Mallides, 473
                                                                       made moot, however, since we conclude that the
F.2d 859 (9th Cir. 1973). Where it appears with
                                                                       suspended sentence and term of probation on
reasonable certainty the vehicle or its occupants have
                                                                       Count II must be vacated for other reasons.
crossed the border illegally, the ensuing search may be
made on suspicion alone. United States v. Markham,
440 F.2d 1119 (9th Cir. 1971).                                      The question presented by these sentence
                                                                proceedings is whether only one conviction can be
    The facts and circumstances here made it appear
                                                                allowed [**14] to stand under the facts, and, if so, which
reasonably certain that the vehicle, or its occupants, had
                                                                                                                    Page 63
                                       554 P.2d 919, *; 1976 Ariz. App. LEXIS 609, **;
                                                     27 Ariz. App. 323, ***
one, with the further question of whether the case should           This disposition is not open to us, however, because
be remanded to the trial court for resentencing.                it would violate the due process clause of the fourteenth
                                                                amendment as announced by the United States Supreme
     The first issue is brought about by reason of A.R.S. §
                                                                Court in North Carolina v. Pearce, 395 U.S. 711, 89
13-1641 which [HN10] prohibits double punishment for
                                                                S.Ct. 2072, 23 L.Ed.2d 656 (1969). The rule of Pearce,
the same act. This has been construed to bar not only a
                                                                simply stated, is that [HN12] on resentencing a
double sentence, but also the underlying double
                                                                defendant may not be given a greater sentence than that
conviction. State v. Ballez, 102 Ariz. 174, 427 P.2d 125
                                                                which was meted out originally (with certain limited
(1967).
                                                                exceptions not applicable to this case). n6 Resentencing
     [HN11] In deciding whether the facts of the case           on Count II (transportation of marijuana) would
will support more than one conviction, the Arizona              necessarily produce this result.
Supreme Court has held that the test is to eliminate the
elements contained in one charge and determine whether
the facts left would support the other charge. State v.                       n6 The rule of North Carolina v. Pearce,
Mendoza, 107 Ariz. 51, 481 P.2d 844 (1971).                               supra, is also embodied in Arizona Criminal Rule
                                                                          26.14 which states:
     The three convictions in this case have very nearly
the same elements. If the facts supporting the elements                               [HN13] Where a judgment or
of any one are eliminated, there are insufficient facts to                       sentence, or both, have been set
[***329] [*925] support either of the other two. The                             aside on appeal, by collateral
Arizona Supreme Court has so held under identical                                attack or on a post-trial motion,
charges. State v. Benge, supra.                                                  the court may not impose a
                                                                                 sentence for the same offense, or a
     As only one conviction can stand, the question is,
                                                                                 different offense based on the
which one? The Arizona Supreme Court has held
                                                                                 same conduct, which is more
generally that the lesser conviction should [**15] be
                                                                                 severe than the prior sentence
vacated. State v. Ballez, State v. Mendoza, State v.
                                                                                 unless it concludes, on the basis of
Benge, supra. State v. Arce, 197 Ariz. 156, 483 P.2d
                                                                                 evidence concerning conduct by
1395 (1971); State v. George, 108 Ariz. 5, 491 P.2d 838
                                                                                 the defendant occurring after the
(1971); State v. Scarborough, 110 Ariz. 1, 514 P.2d 997
                                                                                 original sentencing proceeding,
(1973); State v. Lippi, 108 Ariz. 342, 498 P.2d 209
                                                                                 that the prior sentence is
(1972); State v. Mitchell, 106 Ariz. 492, 478 P.2d 517
                                                                                 inappropriate.
(1970). In most, but not all, such cases, the lesser
conviction is the crime for which the statute provides the
                                                                 [**17]
lesser maximum potential sentence. Likewise, in most
such cases, equal concurrent sentences have been                      [HN14] The statute relating to the crime of
imposed on each count. In those instances where the             transporting marijuana (A.R.S. § 36-1002.07) provides
actual sentences are not the same, the lesser sentence has      for a sentence of not less than five years nor more than
been imposed for the lesser conviction.                         life imprisonment, with the condition that the defendant
                                                                serve a minimum of three years before parole eligibility.
     These cases offer no guide in a situation where, as
                                                                Resentencing of appellant on this count would
here, the trial court has suspended imposition of sentence
                                                                necessarily require the trial court to pass a greater
on the crime carrying the greater maximum potential
                                                                sentence than originally imposed for two reasons. Since
sentence and given a prison sentence on the crimes
                                                                the sentence was originally suspended, any prison
carrying the lesser maximum potential sentence.
                                                                sentence on resentencing would exceed the suspended
      In deciding what disposition to make of the               sentence on this count. Alternatively, if we were to take
erroneous sentencing proceeding here, we find that if we        the prison sentence on Count III (possession of
were to order the "lesser conviction," Count III                marijuana for sale) as the measure for the purpose of
(possession of marijuana for sale), set aside, we would         applying Pearce, resentencing on Count II is barred
then be disposed [**16] to order, in addition, that the         because the lowest prison sentence possible under the
suspended sentence and probation on Count II                    statute would exceed, in terms of years in prison, the
(transportation of marijuana) be vacated and that the case      original sentence on Count III. This is so because the
be remanded for resentencing on Count II. This is               statute relating to transporting marijuana (Count II)
because it clearly appears to have been the intent of the       requires a minimum of three years in prison before
trial court in this case that appellant serve a term of years   parole eligibility, whereas the statute relating to
in prison for his conduct.                                      possession of marijuana for sale (Count III), under which
                                                                                                                   Page 64
                                      554 P.2d 919, *; 1976 Ariz. App. LEXIS 609, **;
                                                    27 Ariz. App. 323, ***
appellant is presently [***330] [*926] serving the             Count III (possession of marijuana for sale) and to order
prison sentence, requires [**18] a minimum of two              that the conviction and suspended sentence on Count II
years in prison before parole eligibility.                     (transporting marijuana) be vacated. Likewise, the
                                                               conviction for Count I, importing marijuana, (which was
    In view of this, we reject the foregoing as a potential
                                                               combined with Count II by the trial court) is also
disposition of the sentencing error in this case. Instead,
                                                               vacated, as it constitutes a violation of the same statute (§
we deem it appropriate and within the discretion of an
                                                               36-1002.07) as Count II, transporting marijuana.
appellate court to affirm the conviction and prison
sentence of two to six years entered by the trial court on         AFFIRMED IN PART; REVERSED IN PART.
                                                 9 of 10 DOCUMENTS

                         STATE of Arizona, Appellee, v. David Douglas HANNA, Appellant

                                                 No. 1 CA-CR 90-1939

                              Court of Appeals of Arizona, Division One, Department E

                      173 Ariz. 30; 839 P.2d 450; 1992 Ariz. App. LEXIS 147; 113 Ariz. Adv. Rep. 32


                                                        May 21, 1992




SUBSEQUENT HISTORY: [***1]                                    search of the glove compartment was unreasonable in
                                                              violation of U.S. Const. amend. IV and Ariz. Const. art.
    Review Denied November 17, 1992.
                                                              2, § 8. The state countered that the search was incident
                                                              to a lawful arrest. The motion was denied, and defendant
PRIOR HISTORY:                                                was convicted. The court affirmed, holding that under
                                                              the search incident to arrest exception to the search
    Appeal from the Superior Court of Maricopa                warrant requirement, the police could examine the
County. Cause No. CR-90-05970. The Honorable Jeffrey
                                                              contents of any containers found within the passenger
S. Cates, Judge                                               requirement, for if the passenger compartment was
                                                              within reach of the arrestee to grab weapons or conceal
DISPOSITION:                                                  evidence, the containers were within reach as well. A
                                                              container included a closed or open glove compartment.
    AFFIRMED                                                  Warrantless searches incident to an arrest were allowed
                                                              even where the possibility of an arrestee grabbing a
CASE SUMMARY:                                                 weapon or evidence was remote.

                                                              OUTCOME: The court affirmed defendant's conviction
PROCEDURAL POSTURE: Defendant sought review                   for possession of a dangerous drug.
of his conviction in the Superior Court for Maricopa
County (Arizona) for possession of a dangerous drug.          CORE TERMS: arrestee, glove compartment,
The trial court had overruled defendant's motion to           handcuffed, locked, container, patrol car, weapon, arrest,
suppress the drugs, which defendant filed on the basis        warrant requirement, warrantless search, state
that the drugs were found in a locked glove compartment       constitution, searched, seizure, bag, passenger
after defendant's arrest for an unrelated offense, and that   compartment, guarded, resist, search warrant, federal
such a search violated defendant's U.S. Const. amend. IV      rule, police car, twenty-five, proceeded, license, unlock,
right against an unreasonable search.                         federal constitution, common sense, warrantless,
                                                              grabbing, occupant, motion to suppress
OVERVIEW: Defendant was arrested for driving while
his license was suspended. The arresting officers             LexisNexis (TM) HEADNOTES - Core Concepts:
searched defendant's car without a warrant, and one of
the officers took the glove compartment key and
unlocked the glove compartment. The glove                     Constitutional Law > Search & Seizure > Scope of
compartment contained illegal drugs, and defendant was        Protection
indicted for possession of a dangerous drug. Defendant        [HN1] The right of the people to be secure in their
filed a motion to suppress the drugs, arguing that the        persons, houses, papers, and effects, against
                                                              unreasonable searches and seizures, shall not be violated,
                                                                                                                    Page 66
                                                173 Ariz. 30, *; 839 P.2d 450, **;
                                   1992 Ariz. App. LEXIS 147, ***; 113 Ariz. Adv. Rep. 32
and no Warrants shall issue, but upon probable cause,            Criminal Law & Procedure > Search &              Seizure >
supported by Oath or affirmation, and particularly               Warrantless Searches > Search Incident           to Lawful
describing the place to be searched, and the persons or          Arrest
things to be seized. U.S. Const. amend. IV.                      [HN6] Warrantless searches incident to           arrest are
                                                                 allowed where the possibility of an arrestee's   grabbing a
Constitutional Law > Search & Seizure > Scope of                 weapon or evidence are remote.
Protection
[HN2] No person shall be disturbed in his private affairs,       COUNSEL:
or his home invaded, without authority of law. Ariz.
                                                                     Grant Woods, Atty. Gen. by Paul J. McMurdie,
Const. art. 2, § 8.
                                                                 Chief Counsel, Crim. Div., and Linda L. Knowles, Asst.
                                                                 Atty. Gen., Phoenix, for appellee.
Constitutional Law > Search & Seizure > Vehicle
SearchesCriminal Law & Procedure > Search &                          Dean W. Trebesch, Maricopa County Public
Seizure > Warrantless Searches > Search Incident to              Defender by Carol A. Carrigan, Deputy Public Defender,
Lawful ArrestCriminal Law & Procedure > Search &                 Phoenix, for appellant.
Seizure > Warrantless Searches > Vehicle Searches
[HN3] U.S. Const. amend. IV requires that all searches
be reasonable. Ariz. Const. art. 2, § 8 requires the same.       JUDGES:
The general rule is that a search must be made pursuant              Voss, Presiding Judge.        Eubank, J., concurs.
to a search warrant to be considered reasonable.                 Claborne, Judge, specially concurring.
However, several well-defined exceptions to the general
warrant requirement exist. One of these exceptions
allows the warrantless search of the passenger                   OPINIONBY:
compartment of an automobile incident to the arrest of               VOSS
one of the occupants of the automobile.

Criminal Law & Procedure > Search & Seizure >                    OPINION:
Warrantless Searches > Search Incident to Lawful                      [*30] [**450] OPINION
ArrestCriminal Law & Procedure > Search & Seizure >
Warrantless Searches > Vehicle Searches                               Just a few minutes before 3:00 a.m. on May 8, 1990,
[HN4] A police officer without a search warrant may              Officer Donald Peelman ("Peelman") was patrolling in
conduct a search of an automobile incident to arresting          his marked police car near 35th Avenue and Indian
an occupant of that automobile.                                  School Road in Phoenix, Arizona. This was the area he
                                                                 normally patrolled. He was headed southbound on 35th
Constitutional Law > Search & Seizure > Vehicle                  Avenue when he saw a vehicle driven by David Hanna.
SearchesCriminal Law & Procedure > Search &                      [*31]     [**451] Peelman discovered the registration
Seizure > Warrantless Searches > Search Incident to              sticker on the license plate of Hanna's vehicle was for
Lawful ArrestCriminal Law & Procedure > Search &                 April and had therefore expired eight days before.
Seizure > Warrantless Searches > Vehicle Searches                Peelman proceeded to pull appellant over into a well-
[HN5] The purpose of allowing a warrantless search               lighted parking lot. Peelman stopped his patrol car about
under the incident to lawful arrest exception is to ensure       twenty-five feet behind appellant's parked vehicle.
the safety of the officer and protect evidence from being        Appellant stepped out of his car and, upon request,
intentionally destroyed. Searches under this exception           [***2] presented Peelman with his driver's license,
are valid because of the need to remove any weapons              registration and proof of insurance. Peelman returned
that the arrestee might seek to use in order to resist arrest    with appellant's driver's license to his patrol car to run a
or effect his escape and the need to prevent the                 routine check on appellant. This check revealed that
concealment or destruction of evidence. The police may           appellant's license had been suspended.            Peelman
also examine the contents of any containers found within         arrested appellant for driving on a suspended license,
the passenger compartment, for if the passenger                  handcuffed him and put him in the back of the patrol car.
compartment is within reach of the arrestee, so also will            Brian Murray ("Murray"), an officer called by
the containers in it be within his reach. A container            Peelman to assist him, then stood next to the patrol car
includes a closed or open glove compartment.                     door while Peelman prepared to search appellant's
                                                                 vehicle. Before this search began, another officer, David
                                                                 Lucero ("Lucero"), arrived.      Lucero and Peelman
                                                                 searched appellant's automobile, Peelman from the
                                                                                                               Page 67
                                            173 Ariz. 30, *; 839 P.2d 450, **;
                                 1992 Ariz. App. LEXIS 147, ***; 113 Ariz. Adv. Rep. 32
passenger's side and Lucero from the driver's side.          rule is that a search must be made pursuant to a search
Lucero found nothing. When Peelman got to the glove          warrant to be considered reasonable. However, several
compartment, he found it locked. Peelman went back to        well-defined exceptions to the general warrant
the patrol car, where appellant sat handcuffed, and          requirement exist. Katz v. United States, 389 U.S. 347,
retrieved the key to the glove compartment from a bag he     357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Coolidge
had put it in when appellant was arrested. Peelman           v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022,
proceeded to unlock the glove compartment. In the glove      2031-32, 29 L.Ed.2d 564 (1971); State v. Sardo, 112
compartment Peelman found a small red canvas bag.            Ariz. 509, 513, 543 P.2d 1138, 1142 (1975). One of these
Peelman opened this bag, which was closed by a velcro        exceptions allows the warrantless search of the passenger
fastener, and in it found various [***3]            drug     compartment of an automobile incident to the arrest of
paraphernalia and a black magnetic box. Peelman              one of the occupants of the automobile. New York v.
opened the black box and found three plastic bags which      Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768
turned out to contain methamphetamine, a dangerous           (1981). [***5] The trial court, citing Belton, found that
drug. Peelman then returned to where appellant sat           the warrantless search fell within the "incident to a
handcuffed in the patrol car, and informed him that he       lawful arrest" exception. For this reason, appellant's
was under arrest for possession of a dangerous drug.         motion to exclude evidence [*32] [**452] of the drugs
None of the officers ever attempted to obtain a search       found in his locked glove compartment was denied.
warrant.
                                                             Search Incident to Arrest
     Before trial appellant made a motion to suppress the
evidence seized from his glove compartment, arguing               [HN4] A police officer without a search warrant
that the search which produced the evidence violated         may conduct a search of an automobile incident to
appellant's right under the United States and Arizona        arresting an occupant of that automobile. Belton, 453
Constitutions. n1 After an evidentiary hearing on this       U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768; State v.
motion, the court found that the search was "a valid one     Curiel, 130 Ariz. 176, 634 P.2d 988 (App.1981). The
incidental to a lawful arrest . . . ." A motion for          disputed issue in this case is whether the scope of that
reconsideration of the denial of appellant's motion to       search may extend to a locked glove compartment in that
suppress was made during trial. Again the court denied       car.
appellant's attempt to suppress the evidence. Appellant
                                                                  [HN5] The purpose of allowing a warrantless search
was convicted by a jury. He filed this timely appeal
                                                             under this exception is to ensure the safety of the officer
arguing that the trial court erred in not suppressing the
                                                             and protect evidence from being intentionally destroyed.
evidence seized from his locked glove compartment. We
                                                             This purpose has been broadly read. In Belton, the court
affirm the trial court.
                                                             pointed out that searches under this exception are "valid
                                                             because of the need 'to remove any weapons that [the
                                                             arrestee] might seek to use in order to resist arrest or
            n1 [HN1] "The right of the people to be
                                                             effect his escape' and the need to prevent [***6] the
       secure in their persons, houses, papers, and
                                                             concealment or destruction of evidence." (Citations
       effects, against unreasonable searches and
                                                             omitted.) 453 U.S. at 457, 101 S.Ct. at 2862. The Belton
       seizures, shall not be violated, and no Warrants
                                                             court then proceeded to observe that "the police may also
       shall issue, but upon probable cause, supported
                                                             examine the contents of any containers found within the
       by Oath or affirmation, and particularly
                                                             passenger compartment, for if the passenger
       describing the place to be searched, and the
                                                             compartment is within reach of the arrestee, so also will
       persons or things to be seized." United States
                                                             the containers in it be within his reach." Id. at 460, 101
       Constitution amend. IV.
                                                             S.Ct. at 2864. In a footnote to the above sentence, the
            [HN2] "No person shall be disturbed in his       court defined container to include a "closed or open
       private affairs, or his home invaded, without         glove compartment." Id. at 460 n. 4, 101 S.Ct. at 2864 n.
       authority of law." The Arizona Constitution, art.     4.
       2, § 8.
                                                                  This language has been interpreted by several
                                                             federal courts to uphold [HN6] warrantless searches
[***4] [HN3]
                                                             incident to arrest where the possibility of an arrestee's
    The fourth amendment to the United States                grabbing a weapon or evidence were equally as remote
Constitution requires that all searches be reasonable.       as appellant's chances here. United States v. Hatfield,
Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717,    815 F.2d 1068, 1071 (6th Cir.1987) (arrestee ordered to
1723, 56 L.Ed.2d 168 (1978). The Arizona Constitution        stand against wall and guarded by officer while other
requires the same. Ariz. Const. art. 2, § 8. The general     officer searched vehicle); Davis v. Robbs, 794 F.2d
                                                                                                                    Page 68
                                                173 Ariz. 30, *; 839 P.2d 450, **;
                                    1992 Ariz. App. LEXIS 147, ***; 113 Ariz. Adv. Rep. 32
1129, 1130-31 (6th Cir.1986) [***7]               (arrestee           Although State v. Calabrese, 157 Ariz. 189, 191,
handcuffed and placed in squad car prior to seizure of           755 P.2d 1177, 1179 (App.1988), pointed out that "any
rifle in house), cert. denied, 479 U.S. 992, 107 S.Ct. 592,      further extension of our own constitution [Arizona
93 L.Ed.2d 593 (1986); United States v. Cotton, 751              Constitution, art. 2, § 8] to limit or circumscribe the
F.2d 1146, 1147-48 (10th Cir.1985) (arrestees                    standards set forth in United States v. Robinson [414
handcuffed and apparently guarded by officer while               U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)] is a
other officer searched vehicle); United States v. Silva,         matter left for the Arizona Supreme Court", I do not
745 F.2d 840, 847 (4th Cir.1984) (arrestees handcuffed           necessarily agree. The Arizona Court of Appeals
and guarded prior to search of room for weapons), cert.          frequently decides violations of the Arizona Constitution,
denied, 470 U.S. 1031, 105 S.Ct. 1404, 84 L.Ed.2d 791            and I see no reason to defer in this case in spite of what
(1985); United States v. Palumbo, 735 F.2d 1095, 1096-           appears to be the federal rule.
97 (8th Cir.1984) (arrestee possibly handcuffed and
                                                                      However I write to register my discontent with an
definitely surrounded by several officers prior to search
                                                                 exception to the warrant requirement which in this case
of room), cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83
                                                                 [***10] , defies logic, common sense or justification.
L.Ed.2d 268 (1984); United States v. Roper, 681 F.2d
                                                                 The police arrested Hanna for two traffic violations,
1354, 1357-59 (11th Cir.1982) (arrestee handcuffed and
                                                                 handcuffed him, and placed him in the back seat of a
led into room by officer prior to search), cert. denied,
                                                                 police car which was located twenty-five feet behind
459 U.S. 1207, 103 S.Ct. 1197, 75 L.Ed.2d 440 (1983);
                                                                 Hanna's vehicle.      The police then conducted a
[***8] United States v. Fleming, 677 F.2d 602, 606-07
                                                                 warrantless search of Hanna's vehicle, found nothing,
(7th Cir.1982) (arrestee handcuffed and removed from
                                                                 and attempted to search a locked glove compartment.
immediately area prior to search); Virginia Islands v.
                                                                 They went back to the patrol car to obtain the key to the
Rasool, 657 F.2d 582, 588-89 (3rd Cir.1981) (arrestee
                                                                 locked glove compartment and then returned to conduct
handcuffed and removed from vehicle prior to search).
                                                                 the warrantless search. The reason for the warrant
     Because we find that Belton and its progeny apply to        requirement is well-stated in Trupiano v. United States,
this case, we need not address the claim that it was also a      334 U.S. 699, 705, 68 S.Ct. 1229, 1232, 92 L.Ed. 1663
valid inventory search. Also, as we believe any                  (1948):
"extension of . . . [the state] Constitution . . . is a matter
left for the Arizona Supreme Court", we resist the                      [The] rule [that] rests upon the desirability
temptation. State v. Calabrese, 157 Ariz. 189, 191, 755                 of having magistrates rather than police
P.2d 1177, 1179 (App.1988). We affirm.                                  officers determine when searches and
                                                                        seizures are permissible and what
                                                                        limitations should be placed on such
CONCURBY:
                                                                        activities. In their understandable zeal to
    CLABORNE                                                            ferret out crime and in the excitement of
                                                                        the capture of a suspected person, officers
                                                                        are less likely to possess the detachment
CONCUR:                                                                 and      neutrality    with    which     the
    CLABORNE, Judge, specially concurring.                              constitutional rights of the suspect must
                                                                        be viewed.
     I concur in the result reached by the majority
because this seems to be the federal rule. See Hatfield, et      Furthermore, the requirement that the [***11] police
al. However, the logic of extending a search incident to         obtain a warrant helps "prevent hindsight from coloring
arrest to a locked glove compartment in order to protect         the evaluation of the reasonableness of a search or
the safety of police officers and the integrity of evidence      seizure." United States v. Martinez-Fuerte, 428 U.S. 543,
from an arrestee who is handcuffed in the back of a              565, 96 S.Ct. 3074, 3086, 49 L.Ed.2d 1116 (1976).
police car twenty-five feet from his own vehicle and not
in possession [***9] of the key to unlock the glove                   It has long been held that exceptions to the general
compartment escapes me.                                          warrant requirement for a valid search must be narrowly
                                                                 tailored to the circumstances that justify their creation.
     Also, I must agree with the majority only because I         Florida v. Royer, 460 U.S. 491, 499-500, 103 S.Ct. 1319,
believe that this court should not [*33] [**453] be the          1324-1325, 75 L.Ed.2d 229 (1983).
one to extend the protection of the Arizona Constitution,
art. 2, § 8, to give greater protection to privacy interests          As the majority points out, the need for the
in automobiles than is given under the United States             exception to the warrant requirement grew from our
Constitution's fourth amendment. This should be left up          desire to remove any weapons or evidence from that area
to the Arizona Supreme Court.                                    which an arrestee might access and either resist arrest,
                                                                                                                  Page 69
                                               173 Ariz. 30, *; 839 P.2d 450, **;
                                  1992 Ariz. App. LEXIS 147, ***; 113 Ariz. Adv. Rep. 32
effect an escape, or destroy evidence. Chimel v.                Ariz. 580, 582, 799 P.2d 1354, 1356 (App.1990). As one
California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685         court recently said:
(1969).
                                                                           A state court decision that rejects
     The state of Washington recognized the failing of                 Supreme Court precedent, and opts for
the Belton approach when it applied its state constitution             greater safeguards as a matter of state law,
to this issue. That supreme court said that police may                 does indeed establish higher constitutional
search an automobile for weapons or destructible                       standards locally. But that is a perfectly
[***12]      evidence during the arrest process and                    respectable and legitimate thing to do, and
immediately afterward, but, ". . . if the officers encounter           does not in any sense signal a return to the
a locked container or a locked glove compartment, they                 Articles of Confederation. Moreover,
may not unlock and search either container without                     with the federal Bill of Rights having
obtaining a search warrant." State v. Stroud, 106                      been drawn from state constitutional
Wash.2d 144, 720 P.2d 436, 441 (1986).                                 antecedents, there is naturally some
                                                                       equivalency between charters, but no less
     The Stroud court described the reason behind its
                                                                       reason for courts to enforce the respective
holding quite clearly. They reasoned that there is a
                                                                       constitutional guarantees.
greater expectation of privacy indicated when one locks
something into a container, and that the danger of the                      Time and again in recent years, the
arrestee destroying or hiding evidence located within a                Supreme Court as well as its individual
container or grabbing a weapon from a container is                     Justices have reminded state courts not
minimized when that container is locked. Id. I see                     merely [***14] of their right, but also of
nothing wrong with this reasoning.                                     their responsibility to interpret their own
                                                                       constitutions, and where in the state
     Since, to me, the federal rule as applied here lacks
                                                                       courts' view those provisions afford
any practical wisdom, we can and should turn to our own
                                                                       greater safeguards than the Supreme
state constitution.
                                                                       Court would find, to make plain the state
     Arizona has previously recognized a greater                       decisional ground so as to avoid
protection for privacy under our state constitution than               unnecessary Supreme Court review.
exists under the federal [*34] [**454] constitution.
State v. Bolt, 142 Ariz. 260, 689 P.2d 519 (1984)                People v. Scott, 79 N.Y.2d 477, 583 N.Y.S.2d 920, 593
("search" of home may be valid under federal                    N.E.2d 1328, Nos. 6, 27, 1992 WL 62774 (N.Y. April 2,
constitution but not Arizona [***13] Constitution art. 2,       1992), KAYE, J. (concurring).
§ 8); State v. Ault, 150 Ariz. 459, 466, 724 P.2d 545, 552
                                                                    If fairness and common sense has any place in the
(1986) (refusal to extend inevitable discovery doctrine
                                                                law, then art. 2, § 8 of our state constitution should
into defendant's home based on art. 2, § 8 of Arizona
                                                                forbid this type of warrantless intrusion.
Constitution); See also, State v. Martin, 139 Ariz. 466,
475, 679 P.2d 489, 498 (1984), and State v. Hendrix, 165
                                               10 of 10 DOCUMENTS

                STATE OF ARIZONA, Appellee, v. JAMES EDWARD DAVOLT, II, Appellant.

                                        Supreme Court No. CR-00-0508-AP

                                        SUPREME COURT OF ARIZONA

                                 84 P.3d 456; 2004 Ariz. LEXIS 25; 419 Ariz. Adv. Rep. 3

                                              February 17, 2004, Filed



SUBSEQUENT HISTORY: Reconsideration denied by               evidence in the room may never have been obtained
State v. Davolt, 2004 Ariz. LEXIS 30 (Ariz., Mar. 16,       lawfully. However, the introduction of the illegally
2004)                                                       seized evidence was harmless. The court found that
                                                            substantial evidence supported the verdicts. The State
PRIOR HISTORY: [**1] Mohave County, Superior                could not seek the death penalty against a juvenile
Court No. CR-98-1243. Appeal from the Superior Court        pursuant to Arizona's Automatic Filing Statute without
in Mohave County. The Honorable Steven F. Conn,             an individual assessment of his maturity and moral
Judge. State v. Ring, 204 Ariz. 534, 65 P.3d 915, 2003      responsibility at the time of the offense. The trial court
Ariz. LEXIS 29 (Ariz., 2003)                                also erred by refusing to consider defendant's age as a
                                                            statutory mitigating circumstance when sentencing on
DISPOSITION: Affirmed in part, vacated in part and          the non-capital counts.
remanded.
                                                            OUTCOME: The court affirmed defendant's
CASE SUMMARY:                                               convictions, but remanded to the trial court to determine
                                                            whether, at the time of the offense, defendant possessed
                                                            moral responsibility and culpability sufficient to render
PROCEDURAL POSTURE: Defendant appealed from                 him eligible for the death penalty. The court also vacated
a judgment of the Superior Court in Mohave County           the sentences imposed on defendant's non-capital
(Arizona), which convicted him of two counts of first-      convictions and remanded the non-capital counts for
degree murder, one count of first-degree burglary, one      resentencing.
count of theft of property valued at $ 1,000 or more, one
count of arson of an occupied structure, and one count of   CORE TERMS: juvenile, juror, death penalty, garage,
theft of means of transportation. Defendant was             morning, adult, blood, newspaper, motel room, minutes,
sentenced to death for each of the murder counts.           sentence, culpability, Fifth Amendment, crime scene,
                                                            non-capital, maturity, inside, abuse of discretion,
OVERVIEW: Two days before the victims' bodies were          individualized,    training,    moral    responsibility,
discovered, bank video cameras captured defendant, who      interrogation, cigarette, kitchen, murder, admitting,
was 16 years old, attempting to withdraw money from         presumed, Eighth Amendment, juror misconduct, first
the victims' bank account. DNA and fingerprint evidence     degree murder
placed defendant inside the victims' home. Several days
after the bodies were discovered, defendant was found in    LexisNexis (TM) HEADNOTES - Core Concepts:
California, in possession of the victims' car and other
items. The court agreed with the trial court that Fourth
Amendment and Fifth Amendment violations occurred           Criminal Law & Procedure > Pretrial Motions >
during defendant's arrest and initial detention. Although   Suppression of EvidenceCriminal Law & Procedure >
the State proved that the location of defendant's motel     Appeals > Standards of Review > Abuse of
room inevitably would have been discovered, the
                                                                                                                 Page 71
                                           84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                     419 Ariz. Adv. Rep. 3
DiscretionCriminal Law & Procedure > Appeals >                 be voluntary. Voluntariness is a question of fact to be
Standards of Review > De Novo Review                           determined from the totality of the circumstances.
[HN1] The appellate court reviews for abuse of                 However, evidence obtained based on voluntary consent
discretion the trial court's factual findings on a motion to   must still be suppressed if the unconstitutional conduct
suppress but reviews de novo the trial court's ultimate        was not sufficiently attenuated from the subsequent
legal determination that a search complied with the            seizure to avoid exclusion of the evidence.
requirements of the Fourth Amendment to the United
States Constitution.                                           Criminal Law & Procedure > Search & Seizure >
                                                               Warrantless Searches > Consent to Search
Constitutional Law > Search & Seizure > Scope of               [HN9] To determine whether there was sufficient
Protection                                                     attenuation between the illegal police conduct and the
[HN2] See U.S. Const. amend. IV.                               defendant's consent to a search, the reviewing court
                                                               examines (1) whether Miranda warnings were
Constitutional Law > Search & Seizure > Scope of               administered; (2) the temporal proximity between the
Protection                                                     initial illegality and the defendant's consent; (3) whether
[HN3] The Fourth Amendment applies to action by state          there were intervening circumstances; and (4) the
officers under the Due Process Clause of the Fourteenth        purpose and flagrancy of the official conduct.
Amendment.
                                                               Criminal Law & Procedure > Search & Seizure >
Constitutional Law > Search & Seizure > Scope of               Exclusionary Rule Exceptions > Inevitable Discovery
Protection                                                     [HN10] Illegally obtained physical evidence may be
[HN4] Hotel guests are entitled to full constitutional         admitted if the State can demonstrate by a preponderance
protection against unreasonable searches and seizures.         of the evidence that such evidence inevitably would have
                                                               been discovered by lawful means.
Criminal Law & Procedure > Search & Seizure >
Expectation of PrivacyConstitutional Law > Search &            Criminal Law & Procedure > Search & Seizure >
Seizure > Scope of Protection                                  Exclusionary Rule Exceptions > Inevitable Discovery
[HN5] Ariz. Const. art. II, § 8 protects the right to          [HN11] The inevitable discovery doctrine requires the
privacy in temporary residences. To be lawful, a search        State to prove, by a preponderance, that absent the initial
of a motel room must have been based on a valid                illegality, the evidence would nonetheless have been
warrant, exigent circumstances, or valid consent.              discovered by lawful means.

Criminal Law & Procedure > Interrogation > Miranda             Criminal Law & Procedure > Search & Seizure >
Rights > Right to Counsel During QuestioningCriminal           Exclusionary Rule Exceptions > Inevitable Discovery
Law & Procedure > Interrogation > Miranda Rights >             [HN12] Arizona has adopted the broad view of the
Voluntary Waiver                                               inevitable discovery rule. Under that view, the State is
[HN6] Once an accused asserts his right to counsel, the        not required to demonstrate that police initiated lawful
interrogation must cease until counsel is present or until     means to acquire evidence prior to its seizure.
the accused validly waives his request. A valid waiver of
the right to counsel cannot be established by showing          Criminal Law & Procedure > Search & Seizure >
only that the defendant responded to further police-           Exclusionary Rule Exceptions > Inevitable Discovery
initiated custodial interrogation, even if he has been         [HN13] The Supreme Court of Arizona has never
advised of his rights.                                         applied the inevitable discovery doctrine to cure multiple
                                                               constitutional violations.
Criminal Law & Procedure > Interrogation >
Voluntariness                                                  Criminal Law & Procedure > Appeals > Standards of
[HN7] A confession obtained by any direct or implied           Review > Harmless & Invited ErrorsCriminal Law &
promises, however slight, is involuntary.                      Procedure > Pretrial Motions > Suppression of
                                                               Evidence
Criminal Law & Procedure > Search & Seizure >                  [HN14] The appellate court assesses a trial court's
Warrantless Searches > Consent to Search                       erroneous denial of a motion to suppress for harmless
[HN8] A search conducted without a warrant, based on           error.
probable cause, is nonetheless per se unreasonable,
subject only to a few specifically established exceptions.     Criminal Law & Procedure > Appeals > Standards of
One of these is valid consent. To be valid, consent must       Review > Harmless & Invited Errors
                                                                                                                Page 72
                                           84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                     419 Ariz. Adv. Rep. 3
[HN15] Error is harmless if the reviewing court can say        Criminal Law & Procedure > Juries & Jurors > Voir
beyond a reasonable doubt that the error did not               DireCriminal Law & Procedure > Appeals > Standards
contribute to the verdict.                                     of Review > Abuse of Discretion
                                                               [HN21] A trial court's decision concerning voir dire will
Criminal Law & Procedure > Jurisdiction & Venue >              not be overturned absent a clear abuse of the judge's
VenueCriminal Law & Procedure > Appeals >                      discretion. Ariz. R. Crim. P. 18.5 requires a thorough
Standards of Review > Abuse of Discretion                      examination of potential jurors and allows parties
[HN16] The appellate court reviews the denial of a             reasonable time to conduct further oral examination upon
motion for change of venue for abuse of discretion and         request. While the rule allows the use of written jury
resulting prejudice to the defendant.                          questionnaires, it does not require it.

Criminal Law & Procedure > Jurisdiction & Venue >              Criminal Law & Procedure > Juries & Jurors > Jury
Venue                                                          DeliberationsCriminal Law & Procedure > Appeals >
[HN17] A criminal defendant is entitled to a change of         Standards of Review > Abuse of Discretion
venue if there is a probability the dissemination of           [HN22] The appellate court reviews a trial court's
prejudicial information will deprive the defendant of a        decision to investigate allegations of juror misconduct
fair and impartial trial. Ariz. R. Crim. P. 10.3(b). The       for abuse of discretion.
court determines whether under the totality of the
circumstances the publicity attendant to defendant's trial     Criminal Law & Procedure > Juries & Jurors > Jury
was so pervasive that it caused the proceeding to be           Deliberations
fundamentally unfair. Prejudice may be presumed or             [HN23] A trial court's duty to investigate alleged
actual.                                                        incidents of juror misconduct arises only if there is an
                                                               allegation that newspaper articles related to a material
Criminal Law & Procedure > Jurisdiction & Venue >              fact or law at issue in the case.
Venue
[HN18] Prejudice may be presumed if the publicity              Criminal Law & Procedure > Juries & Jurors > Jury
attendant to defendant's trial was so extensive or             DeliberationsCriminal       Law      &      Procedure  >
outrageous that it permeated the proceeding or created a       Postconviction Proceedings > Motions for New Trial
carnival-like atmosphere. The adverse publicity must be        [HN24] Juror misconduct warrants a new trial only if the
so extensively pervasive and prejudicial that the court        defense shows actual prejudice or if prejudice may be
cannot give credibility to the jurors' attestations, during    fairly presumed from the facts. In a criminal case,
voir dire, that they could decide fairly. This is a high       prejudice may be presumed from any private
standard and it is rarely met. The Supreme Court of            communication, contact or tampering directly or
Arizona has refused to presume prejudice when the              indirectly, with a juror during a trial about the matter
publicity was primarily factual and non-inflammatory or        pending before the jury. Once the defendant shows that
if the publicity did not occur close in time to the trial.     the jury has received and considered extrinsic evidence,
                                                               prejudice must be presumed and a new trial granted
Criminal Law & Procedure > Jurisdiction & Venue >              unless the prosecutor proves beyond a reasonable doubt
Venue                                                          that the extrinsic evidence did not taint the verdict.
[HN19] In the absence of presumed prejudice from
pretrial publicity, the defendant must demonstrate that        Evidence > Procedural Considerations > Rulings on
the pretrial publicity was actually prejudicial and likely     EvidenceCriminal Law & Procedure > Evidence >
deprived him of a fair trial. To establish actual prejudice,   Admission, Exclusion & PreservationCriminal Law &
the defendant must show that the jurors have formed            Procedure > Appeals > Standards of Review > Abuse of
preconceived notions concerning the defendant's guilt          Discretion
and that they cannot leave those notions aside.                [HN25] The admission of evidence is within the trial
                                                               court's discretion and will not be disturbed absent an
Criminal Law & Procedure > Juries & Jurors >                   abuse of discretion.
Disqualification & Removal of Jurors
[HN20] Prior knowledge of the case alone is insufficient       Evidence > Relevance > Confusion, Prejudice & Waste
to disqualify a juror. The critical inquiry is the effect of   of TimeCriminal Law & Procedure > Evidence >
publicity on a juror's objectivity.                            Scientific Evidence > Photographs
                                                               [HN26] The court assesses the admissibility of
                                                               photographs under a three-part test, examining (1)
                                                               relevance, (2) tendency to incite or inflame, and (3) the
                                                                                                               Page 73
                                         84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                  419 Ariz. Adv. Rep. 3
probative value versus the potential to cause unfair
prejudice.                                                   Evidence > Witnesses > Expert TestimonyCriminal Law
                                                             & Procedure > Evidence > Scientific Evidence > DNA
Criminal Law & Procedure > Criminal Offenses >               [HN35] DNA evidence based on the product rule method
Homicide > MurderCriminal Law & Procedure >                  of calculating the probability of a match is acceptable
Trials > Burdens of Proof > Prosecution                      when the database satisfies Frye requirements.
[HN27] The State has the burden of proving every
element of first degree murder.                              Criminal Law & Procedure > Pretrial Motions >
                                                             Pretrial Motions Generally
Evidence > Relevance > Relevant Evidence                     [HN36] Under Ariz. R. Crim. P. 16.1(b), all motions are
[HN28] Evidence that has any tendency to make the            to be submitted at least 20 days before trial.
existence of any fact that is of consequence to the
determination of the action more probable or less            Evidence > Procedural Considerations > Rulings on
probable than it would be without the evidence is            EvidenceCriminal Law & Procedure > Evidence >
relevant. Ariz. R. Evid. 401.                                Expert TestimonyCriminal Law & Procedure > Appeals
                                                             > Standards of Review > Abuse of Discretion
Criminal Law & Procedure > Criminal Offenses >               [HN37] The appellate court reviews the trial court's
Homicide > MurderEvidence > Relevance > Relevant             admission of expert testimony for an abuse of discretion.
Evidence
[HN29] The fact and cause of death are always relevant       Evidence > Witnesses > Expert Testimony
in a murder case.                                            [HN38] See Ariz. R. Evid. 702.

Evidence > Relevance > Confusion, Prejudice & Waste          Evidence > Witnesses > Expert TestimonyCriminal Law
of TimeCriminal Law & Procedure > Evidence >                 & Procedure > Evidence > Weight & Sufficiency
Scientific Evidence > Photographs                            [HN39] The test of whether a person is an expert is
[HN30] The probative value of relevant evidence is           whether a jury can receive help on a particular subject
minimal when the defendant does not contest a fact that      from the witness. The degree of qualification goes to the
is of consequence. In such a circumstance, gruesome          weight given the testimony, not its admissibility.
photographs may have little use or purpose except to
inflame, and their prejudicial effect can be significant.    Criminal Law & Procedure > DefensesEvidence >
                                                             Relevance > Relevant Evidence
Criminal Law & Procedure > Appeals > Standards of            [HN40] Third-party evidence depends on relevance and
Review > Harmless & Invited ErrorsEvidence >                 the effect the evidence has on the defendant's culpability.
Procedural Considerations > Rulings on Evidence              Third-party evidence is relevant if it tends to create a
[HN31] The appellate court assesses the erroneous            reasonable doubt as to the defendant's guilt.
admission of evidence for harmless error.
                                                             Criminal Law & Procedure > Appeals > Standards of
Criminal Law & Procedure > Appeals > Standards of            Review > Standards GenerallyCriminal Law &
Review > Harmless & Invited Errors                           Procedure > Trials > Judicial Discretion
[HN32] Error is harmless if the appellate court can          [HN41] Matters of courtroom security are left to the
conclude, beyond a reasonable doubt, that the error did      discretion of the trial court. The appellate court will
not contribute to or affect the jury's verdict.              uphold a trial court's decision concerning trial security
                                                             measures when the decision is supported by the record.
Evidence > Procedural Considerations > Rulings on
EvidenceCriminal Law & Procedure > Appeals >                 Criminal Law & Procedure > Trials > Motions for
Standards of Review > Abuse of Discretion                    AcquittalCriminal Law & Procedure > Evidence >
[HN33] The appellate court reviews the trial court's         Weight & Sufficiency
exclusion of evidence for an abuse of discretion.            [HN42] A judgment of acquittal shall be entered if no
                                                             substantial evidence supports the conviction. Ariz. R.
Evidence > Witnesses > Expert Testimony                      Crim. P. 20.
[HN34] When scientific evidence has been found to meet
the Frye standard, a Frye inquiry is necessary only when     Criminal Law & Procedure > Evidence > Weight &
the opposing party makes a timely request for such an        Sufficiency
inquiry supported by authorities indicating there may not    [HN43] Substantial evidence is that which reasonable
be general scientific acceptance of the technique.           persons could accept as sufficient to support a guilty
                                                                                                                 Page 74
                                            84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                      419 Ariz. Adv. Rep. 3
verdict beyond a reasonable doubt. If reasonable persons        found and there are no mitigating circumstances
may fairly differ as to whether certain evidence                sufficiently substantial to call for leniency. Ariz. Rev.
establishes a fact in issue, then such evidence must be         Stat. § 13-703 (Supp. 2002). Thus, as a consequence of
considered as substantial. In determining the sufficiency       Arizona's Automatic Filing Statute, a 16- or 17-year-old
of the evidence, the court views the evidence in the light      juvenile charged with first degree murder is
most favorable to sustaining the verdict and resolves all       automatically tried as an adult for the offense of first
inferences against the defendant.                               degree murder which could be punishable by death if the
                                                                state determines, in its discretion, to seek the death
Criminal Law & Procedure > Jury Instructions >                  penalty.
Particular Instructions > Lesser Included Offenses
[HN44] Where the evidence unquestionably establishes            Constitutional Law > The Judiciary > Case or
that the defendant is guilty of a serious, violent offense --   Controversy > Constitutionality of LegislationCriminal
but leaves some doubt with respect to an element that           Law & Procedure > Appeals > Standards of Review >
would justify conviction on a capital offense -- the            De Novo Review
failure to give the jury the "third option" of convicting on    [HN50] The appellate court reviews the validity of a
a lesser included offense would seem inevitably to              statute de novo and construes it, whenever possible, to
enhance the risk of an unwarranted conviction. However,         uphold its constitutionality.
this rule does not require a trial court to instruct on a
lesser included offense that is unsupported by the              Criminal Law & Procedure > Sentencing > Capital
evidence.                                                       Punishment > Cruel & Unusual Punishment
                                                                [HN51] The State is clearly vested with the authority to
Criminal Law & Procedure > Criminal Offenses >                  define crimes, fix punishments, and establish procedure
Homicide > Felony MurderCriminal Law & Procedure                for criminal trials. However, state laws, including state
> Criminal Offenses > Miscellaneous Offenses > Lesser           constitutional provisions, are subject to the overriding
Included Offenses                                               authority of the United States Constitution, which
[HN45] There is no lesser included offense to felony            imposes special limitations when a state imposes the
murder.                                                         death penalty for a crime.

Criminal Law & Procedure > Juries & Jurors > Jury               Criminal Law & Procedure > Sentencing > Capital
Deliberations                                                   Punishment > Aggravating CircumstancesCriminal
[HN46] Jury coercion exists when the trial court's actions      Law & Procedure > Sentencing > Capital Punishment
or remarks, viewed in the totality of the circumstances,        > Cruel & Unusual PunishmentCriminal Law &
displaced the independent judgment of the jurors or             Procedure > Sentencing > Capital Punishment >
when the trial judge encourages a deadlocked jury to            Mitigating Circumstances
reach a verdict.                                                [HN52] The Eighth Amendment prohibits punishments
                                                                that are cruel and unusual. U.S. Const. amend. VIII. In
Criminal Law & Procedure > Appeals > Standards of               death penalty jurisprudence, the amendment prohibits
Review > Plain Error                                            punishment that is excessive -- that is, disproportionate
[HN47] Fundamental error is error of such dimension             to the crime. There is a threshold below which the death
that it cannot be said it is possible for a defendant to have   penalty cannot be imposed. A societal consensus that the
a fair trial.                                                   death penalty is disproportionate to a particular offense
                                                                prevents a state from imposing the death penalty for that
Criminal Law & Procedure > Juvenile Offenders >                 offense. In the absence of such consensus, the
Trial as Adult                                                  proportionality analysis requires that courts compare the
[HN48] See Ariz. Rev. Stat. § 13-501(A)(1).                     gravity of the offense, understood to include not only the
                                                                injury caused, but also the defendant's culpability, with
Criminal Law & Procedure > Criminal Offenses >                  the harshness of the penalty.
Homicide > MurderCriminal Law & Procedure >
Juvenile Offenders > Capital PunishmentCriminal Law             Criminal Law & Procedure > Juvenile Offenders >
& Procedure > Juvenile Offenders > Trial as Adult               Capital PunishmentCriminal Law & Procedure >
[HN49] Under Arizona law, first degree murder is a class        Sentencing > Capital Punishment > Cruel & Unusual
1 felony that is punishable by death or life imprisonment.      Punishment
Ariz. Rev. Stat. §        13-1105(C). Arizona's capital         [HN53] The United States Supreme Court has held that
sentencing statute requires that the death sentence shall       the Eighth Amendment's prohibition against cruel and
be imposed if one or more aggravating circumstances are         unusual punishment did not erect a per se bar to the
                                                                                                                  Page 75
                                            84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                      419 Ariz. Adv. Rep. 3
execution of juveniles at age 16 or 17 years at the time of          P1 James Edward Davolt II was convicted April 20,
their crimes primarily because no national consensus            2000 of two counts of first degree murder -- the first for
then existed against the execution of such defendants.          the killing of N.Z. predicated on the felony murder rule,
                                                                and the second for the killing of E.Z., predicated on both
Criminal Law & Procedure > Juvenile Offenders >                 felony murder and premeditation. Davolt was also
Capital PunishmentCriminal Law & Procedure >                    convicted of one count of first degree burglary, one
Sentencing > Capital Punishment > Cruel & Unusual               count [**2] of theft of property valued at $ 1,000 or
PunishmentCriminal Law & Procedure > Sentencing >               more, one count of arson of an occupied structure, and
Capital Punishment > Mitigating Circumstances                   one count of theft of means of transportation. Following
[HN54] Because the consideration of age alone as a              a sentencing hearing, the trial judge sentenced Davolt to
statutory mitigating factor is insufficient in the context of   death for each of the murder counts and to consecutive
Arizona's capital sentencing scheme to provide juvenile         sentences of twenty-one years for the burglary, two years
defendants with the individualized consideration                for the theft, ten years for the arson of an occupied
mandated by the Eighth Amendment, the State may not             structure, and seven years for the theft of means of
seek the death penalty against a juvenile pursuant to           transportation. The direct appeal came to this court
Arizona's Automatic Filing Statute, Ariz. Rev. Stat. §          pursuant to Arizona Rule of Criminal Procedure 31.2(b).
13-501, without an individual assessment of the                 We have jurisdiction under Article 6, Section 5(3) of the
juvenile's maturity and moral responsibility at the time of     Arizona Constitution and Arizona Revised Statutes
the offense.                                                    (A.R.S.) sections 13-4031 and -4033 (2001). For the
                                                                following reasons we affirm Davolt's convictions but
Criminal Law & Procedure > Sentencing >                         remand Davolt's death sentences to determine whether
AppealsCriminal Law & Procedure > Appeals >                     Davolt, a juvenile, possessed the maturity and moral
Standards of Review > Abuse of Discretion                       responsibility at the time of the offenses sufficient to
[HN55] Sentencing determinations are reviewed for               make him eligible for the death penalty. Also, because
abuse of discretion.                                            the record does not demonstrate that the trial court
                                                                considered Davolt's age as a mitigating factor as to the
Criminal Law & Procedure > Sentencing > Imposition              sentences for the non-capital counts, we remand for
> Evidence                                                      resentencing on those counts.
[HN56] Arizona law requires that the trial court consider
                                                                     FACTS [**3] n1
the age of the defendant as a statutory mitigating
circumstance when determining sentences imposed for
non-capital offenses. Ariz. Rev. Stat. § 13-702(D).
                                                                            n1 We view the facts in the light most
COUNSEL: Janet Napolitano, Former Arizona Attorney                      favorable to sustaining the verdict. State v.
General, Terry Goddard, Arizona Attorney General, by                    Gallegos, 178 Ariz. 1, 9, 870 P.2d 1097, 1105
                                                                        (1994).
Kent E. Cattani, Chief Counsel, Capital Litigation
Section, and James P. Beene, Assistant Attorney
General, Phoenix, Attorneys for Appellee.                            1. The Crime Scene

Julie S. Hall, Arizona Capital Representation Project, by            P2 Early Thanksgiving morning, November 26,
Jennifer Bedier, Tucson, Attorneys for Appellant.               1998, a paper delivery man noticed water streaming out
                                                                from under the garage door and down the driveway of a
JUDGES: Charles E. Jones, Chief Justice.                        house on Pueblo Drive in Lake Havasu, Arizona.
CONCURRING: Ruth V. McGregor, Vice Chief Justice,               Thinking perhaps the water heater had burst, he
Rebecca White Berch, Justice, Michael D. Ryan, Justice,         contacted police to do a welfare check. On arrival, the
M. Jan Florez, Judge.                                           police discovered the house had sustained a fire. An
                                                                interior inspection revealed the charred bodies of an
OPINIONBY: Charles E. Jones                                     elderly man and woman, respectively N.Z. and E.Z.,
                                                                lying on the kitchen floor. Burnt file folders were found
OPINION:                                                        on top of the bodies, a red metal gas can was between
                                                                them, and an oscillating fan was at their feet. A melted
     [*464] En Banc                                             candle was in front of the fan. Water was leaking from
                                                                under the sink and had flooded the house.
JONES, Chief Justice
                                                                     P3 Police found three .22 caliber shell casings in the
                                                                living room and kitchen area of the house, as well as
                                                                                                               Page 76
                                         84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                   419 Ariz. Adv. Rep. 3
[**4] spots of blood in the dining room and kitchen, and     left home as usual that Monday morning on his bicycle
in the backyard near the hose. They also found a ceramic     with a book bag, he never arrived at school.
bowl filled with partially smoked Marlboro cigarettes on
                                                                  P9 A workman testified that he had seen Davolt
a table near an easy chair in the living room. A wine box
                                                             riding a green mountain bike with a book bag on his back
sat on the same table. E.Z.'s walker was facing away
                                                             on Pueblo Drive around 9:00 a.m. that morning. He
from the kitchen counter. The phone in the dining area
                                                             recalled that N.Z. had been walking his dog and Davolt
was off the hook and had red duct tape on it. The victims'
                                                             had introduced himself to N.Z. The workman overheard
dog was found alive, locked inside the master bathroom.
                                                             N.Z. ask Davolt where he lived and Davolt pointed to the
     P4 In the garage, police discovered a bloody roofing    intersection with Sweetgrass Road. The workman saw
hatchet and a fresh strike mark on the door between the      Davolt speak with N.Z., ride up and down Pueblo Drive
kitchen and the garage. A significant quantity of blood      on his bike, lie on an air mattress under some power lines
was splattered around the inside perimeter of the garage.    for a short time, then go back to speak to N.Z. again. One
Some of the blood was smeared in a linear pattern as if      of the conversations occurred in N.Z.'s garage. At
someone had tried to clean it up with a mop. An empty        another point, Davolt played with N.Z.'s dog for about
camping fuel can was found on the washing machine,           forty-five minutes.
alongside N.Z.'s bloody glasses. The victims' automobile
                                                                  4. The California Arrest
was missing.
                                                                  P10 On Friday, November 27, 1998, Lake Havasu
    2. The Bank Withdrawal
                                                             detectives matched Davolt's fingerprints with those
     P5 After learning of the deaths of their customers,     found at the crime scene on the ceramic bowl used as an
Bank One officials notified police that a withdrawal had     ashtray, the gas can in the garage, and [**7] a mop
been made from the victims' bank account Tuesday,            handle. An arrest warrant was issued for Davolt in
November 24, 1998. Further investigation revealed that a     connection with the homicides and the missing vehicle.
$ 1,500 check, made payable to James Davolt and signed
                                                                  P11 At about 10:30 p.m. Sunday, November 29,
[**5] by E.Z., had been cashed on the [*465] account
                                                             1998, in Beaumont, California, a local police officer
at 10:46 a.m. that day. Davolt gave his thumb print and
                                                             spotted an oddly parked vehicle in the vacant parking lot
driver's license to the bank teller in order to cash the
                                                             of a nursery store. A plate check revealed that the vehicle
check. At trial, the bank teller positively identified
                                                             had been reported stolen and that an arrest warrant had
Davolt as the person who had cashed the check that
                                                             issued for a James Davolt in connection with a theft and
morning.
                                                             two homicides. While the officer was investigating, a
     P6 Bank records indicated that three unsuccessful       young man walked up and stated he was the owner of the
ATM withdrawal attempts had been made on the victims'        car. The young man identified himself as James Davolt.
account earlier that morning. Bank security pictures from    The officer placed Davolt under arrest and handcuffed
the drive-up ATM machine showed Davolt, driving the          him.
victims' car, attempting to make a withdrawal from their
                                                                 P12 A pat down produced a key with the number
account at 9:55 a.m. The picture clearly showed a short
                                                             "101" that looked like a motel room key. The officer
person riding in the passenger seat of the vehicle. A
                                                             immediately questioned Davolt about the key, asking
different picture showed Davolt attempting to make a
                                                             whether it was to a hotel room, and, if so, which hotel.
withdrawal from the victims' account at the walk-up
                                                             Davolt responded that the key was to a room at the
ATM a few minutes later. An hour later, at 10:46 a.m., a
                                                             Windsor Motel in Beaumont, California.
bank security camera captured Davolt, inside the bank,
cashing the $ 1,500 check. He was wearing a Green Bay             P13 Davolt was first advised of his Miranda rights
Packers shirt and cap.                                       at approximately 1:00 a.m. Monday, November 30,
                                                             1998, when he was booked into custody at the police
     P7 Davolt's mother viewed the videotape, but told
                                                             station in Beaumont. He invoked both his right to
police she could not identify her son. She informed
                                                             counsel and his right to remain [**8] silent. He was then
officers that Davolt did not own a Green Bay Packers'
                                                             placed in a holding cell until police officers from Lake
shirt. However, N.Z. was an "extreme" Packers fan.
                                                             Havasu, Arizona, arrived at approximately 5:30 a.m.
    3. Sightings of Davolt, N.Z., and E.Z. [**6]             These officers also advised Davolt of his Miranda rights.
                                                             Once again he invoked his right to remain silent and
    P8 Davolt was sixteen years old and an eleventh
                                                             asked to speak with a public defender. Police officers
grader at Lake Havasu High School. He was reported
                                                             then promised Davolt that anything he said could not be
missing as of Monday afternoon, November 23, 1998,
                                                             used against him and proceeded to question Davolt about
when he failed to return home from school. Although he
                                                             the homicides for approximately forty-five minutes,
                                                                                                               Page 77
                                          84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                    419 Ariz. Adv. Rep. 3
during which time Davolt made several inculpatory             before the fire began because no trace of smoke or soot
statements.                                                   was found in the trachea of either victim. Medical
                                                              experts testified that E.Z. died sometime between
     P14 [*466] Within minutes of obtaining Davolt's
                                                              Tuesday and Wednesday evening and that N.Z.
inculpatory statements, officers again approached Davolt
                                                              predeceased her by twenty-four to forty-eight hours.
and requested that he sign a written consent to search the
motel room. Davolt signed the consent form, and police             P19 Davolt's right palm print was positively
relied on it to enter the room later that morning, at which   identified on the mop handle found in the kitchen of the
time they seized the following items: a toy remote            victims' home. Davolt's fingerprints were positively
control vehicle; a Green Bay Packers shirt, jacket and        identified on the camping fuel can found in the garage
cap; red duct tape; a black duffel bag containing clothing    and on the wine box and ceramic bowl found in the
belonging to N.Z.; cut-off jean shorts stained with           living [**11]      room. In addition, Davolt's DNA,
Davolt's blood; a crossword puzzle book and files             matching at all fourteen loci tested, was found on the 10
belonging to E.Z. and N.Z.; and two medallions, each          to 15 partially smoked Marlboro cigarettes in the ceramic
with numbers written on the reverse side.                     bowl.
     P15 The vehicle was identified as belonging [**9]             6. Last sightings of N.Z. and E.Z.
to the victims. The passenger compartment contained
                                                                   P20 A neighbor reported last seeing N.Z. on
Davolt's school books, food wrappers, packs of Marlboro
                                                              Monday or possibly Tuesday, around noon. E.Z.'s son
cigarettes, the book, Masters of Deceit, by J. Edgar
                                                              testified that he spoke on the phone with his mother on
Hoover, and a lunch ticket from Lake Havasu High
                                                              Tuesday. He recalled that she had responded with one-
School. A bank card and insurance documents belonging
                                                              word answers, which was unusual. The mail carrier
to E.Z. and N.Z. were found in the glove compartment,
                                                              recalled that water had been running down the driveway
and a partially dismantled mountain bike was found in
                                                              when she delivered the mail on Wednesday around 11:15
the trunk.
                                                              a.m. Although N.Z. usually greeted her, she did not see
    5. The Forensic Investigation                             him that day. She thought perhaps N.Z. was washing his
                                                              car inside the garage with the door closed. Three
     P16 The forensic investigation revealed that the
                                                              unopened newspapers were in the driveway when police
blood in the garage, kitchen, dining room, and backyard
                                                              arrived at the residence Thanksgiving morning.
belonged to N.Z. A flame accelerant, such as camping
fuel or lighter fluid, was detected on the clothing samples        DISCUSSION
taken from the victims. The fire had originated between
                                                                   I. PRETRIAL ISSUES
the victims' bodies and reached a temperature of at least
300 degrees. The fire and heat caused a leak in the
                                                              A. Motion to Suppress
reverse osmosis system under the sink, and water from
the sink area had flooded the house. The arson                     1. The Interrogation and Room Search
investigator testified the fire had eventually extinguished
itself due to a lack of oxygen.                                    P21 Davolt claims the trial court erroneously denied
                                                              his motion to suppress [*467] evidence seized during a
     P17 The autopsy results established that N.Z. had        search of his room at the Windsor Motel in Beaumont.
sustained three lacerations to the head: one on the front     [HN1] We review for abuse of discretion the trial court's
part of the left scalp, one to the top of the head, and one   factual findings on a motion to suppress, State v. Peters,
to the midline back of the head. [**10] The wounds            189 Ariz. 216, 218, 941 P.2d 228, 230 (1997), [**12]
were caused by a sharp-edged instrument and were              but review de novo the trial court's ultimate legal
consistent with the shape of the bloody hatchet found in      determination that the search complied with the
the garage. These wounds were not immediately fatal.          requirements of the Fourth Amendment to the United
N.Z. also sustained three gunshot wounds to his chest         States Constitution, see State v. Valle, 196 Ariz. 324,
from .22 caliber shot pellets. Similarly, these wounds        326, P6, 996 P.2d 125, 127 (App. 2000).
were not immediately fatal. All three shots were fired
from the same firearm.                                            P22 The trial court found that one Fourth
                                                              Amendment and two Fifth Amendment violations
     P18 The autopsy results established that E.Z.            occurred during Davolt's arrest and initial detention. We
sustained a blow to the back of her head and had been         agree. But we disagree with the trial court's legal
strangled manually. It would have taken several minutes       conclusion that each of the three violations was curable
for her to lose consciousness and several more minutes to     under the doctrine of inevitable discovery.
die. Skin missing from both E.Z.'s wrists was consistent
with abrasions from adhesive tape. Both victims died               P23 The Fourth Amendment provides: [HN2] "the
                                                              right of the people to be secure in their persons, houses,
                                                                                                              Page 78
                                         84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                   419 Ariz. Adv. Rep. 3
papers, and effects, against unreasonable searches and           P27 Also, this interrogation violated Davolt's rights
seizures, shall not be violated." U.S. Const. amend. IV.     because his statements to police were involuntary (a
[HN3] The provision applies to action by state officers      point conceded by the State at trial). After Davolt
under the Due Process Clause of the Fourteenth               invoked Miranda, police [**15] expressly promised
Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 6 L. Ed.         Davolt that anything he said could not be used against
2d 1081, 81 S. Ct. 1684, 86 Ohio Law Abs. 513 (1961).        him. [HN7] A confession "obtained by any direct or
[HN4] Hotel guests are entitled to full constitutional       implied promises, however slight," is involuntary. Hutto
protection against unreasonable searches and seizures.       v. Ross, 429 U.S. 28, 30, 50 L. Ed. 2d 194, 97 S. Ct. 202
Stoner v. California, 376 U.S. 483, 490, 11 L. Ed. 2d        (1976); see also State v. Amaya-Ruiz, 166 Ariz. 152,
856, 84 S. Ct. 889 (1964); Eng Fung Jem v. United            165, 800 P.2d 1260, 1273 (1990).
States, 281 F.2d 803, 805 (9th Cir. 1960) [**13] (the
                                                                  P28 In addition, a Fourth Amendment violation
transience of a defendant's stay in a temporary residence
                                                             occurred when police searched the motel room solely on
does not dilute the constitutional protection afforded).
                                                             the strength of a consent that had been tainted by the
     P24 Article 2, section 8 of the Arizona Constitution,   earlier interrogation violation under the Fifth
as well, protects [HN5] the right to privacy in temporary    Amendment. Within minutes of obtaining Davolt's
residences. See State v. Gissendaner, 177 Ariz. 81, 84,      involuntary [*468] inculpatory statements, officers
865 P.2d 125, 128 (App. 1993) (overnight guest has an        approached Davolt requesting that he sign a written
expectation of privacy under the state and federal           consent to search the room. Davolt then signed the form
constitutions). To be lawful, the search of the motel room   and police officers obtained the items of physical
must have been based on a valid warrant, exigent             evidence in the motel search later that morning.
circumstances, or valid consent. State v. Castaneda, 150
                                                                  P29 [HN8] A search conducted without a warrant,
Ariz. 382, 389, 724 P.2d 1, 8 (1986). Our examination of
                                                             based on probable cause, is nonetheless per se
the record reveals not one of them was present in this
                                                             unreasonable, subject only to a few specifically
case.
                                                             established exceptions. Katz v. United States, 389 U.S.
     P25 Police learned of the location of Davolt's motel    347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). One of
as a consequence of improper custodial interrogation, in     these is valid consent. Id. To be valid, consent must be
violation of Fifth Amendment requirements under              voluntary. Schneckloth v. Bustamonte, 412 U.S. 218,
Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694,     249, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). [**16]
86 S. Ct. 1602 (1966). After arresting Davolt and placing    Voluntariness is a question of fact to be determined from
him in handcuffs, with no Miranda warning, the               the totality of the circumstances.         Id. at 248-49.
arresting officer questioned Davolt about the key found      However, evidence obtained based on voluntary consent
in his pocket. This interrogation took place after the       must still be suppressed if "the unconstitutional conduct
arrest, while Davolt was in custody, but prior to the        was not sufficiently attenuated from the subsequent
Miranda [**14] warning, a clear violation of the             seizure to avoid exclusion of the evidence." United
requirements of Miranda and the Fifth Amendment. Id.         States v. Taheri, 648 F.2d 598, 601 (9th Cir. 1981)
                                                             (citing Brown v. Illinois, 422 U.S. 590, 602, 45 L. Ed. 2d
     P26 A second Fifth Amendment violation occurred
                                                             416, 95 S. Ct. 2254 (1975)); see also United States v.
at the police station immediately after Davolt invoked his
                                                             Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th Cir.
Miranda rights a second time at approximately 5:55 a.m.
                                                             1988) (consent that meets the threshold voluntariness
on Monday, November 30. In this instance, officers from
                                                             determination for Fifth Amendment purposes was not
Lake Havasu, Arizona, questioned Davolt about the
                                                             valid under the Fourth Amendment where consent was
murders for about forty-five minutes, during which time
                                                             given almost immediately after illegal arrest).
Davolt made several inculpatory statements. [HN6]
Once an accused asserts his right to counsel, the                 P30 [HN9] To determine whether there was
interrogation must cease until counsel is present or until   sufficient attenuation between the illegal police conduct
the accused validly waives his request. Id. at 473-74;       and the defendant's consent, we examine 1) whether
State v. Eastlack, 180 Ariz. 243, 250, 883 P.2d 999, 1006    Miranda warnings were administered; 2) the temporal
(1994). A valid waiver of the right to counsel cannot be     proximity between the initial illegality and the
established by showing only that the defendant               defendant's consent; 3) whether there were intervening
responded to further police-initiated custodial              circumstances; and 4) the purpose and flagrancy of the
interrogation, even if he has been advised of his rights.    official conduct. Brown, 422 U.S. at 602. [**17]
Edwards v. Arizona, 451 U.S. 477, 487, 68 L. Ed. 2d
                                                                 P31 As discussed, Davolt was advised of his
378, 101 S. Ct. 1880 (1981).
                                                             Miranda rights on two occasions before he signed the
                                                             consent form. He invoked his Fifth Amendment right to
                                                                                                                  Page 79
                                           84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                     419 Ariz. Adv. Rep. 3
counsel and right to remain silent both times. The             S. Ct. 2501 (1984); State v. Lamb, 116 Ariz. 134, 138,
temporal proximity between the custodial interrogation         568 P.2d 1032, 1036 (1977). The trial court found that
and his consent was less than one hour. This time period       the State proved by a preponderance of the evidence that
alone is insufficient to break the causal chain. See           the location of Davolt's motel room inevitably would
United States v. Perez-Esparza, 609 F.2d 1284, 1290            have been discovered without the initial illegal custodial
(9th Cir. 1980) (consent to search given within three          interrogation. We agree. Davolt was arrested near the
hours after illegal detention was invalid).                    motel, there were only four motels in Beaumont, and the
                                                               key had the room number "101" on it.
     P32 Furthermore, there were no intervening events
to break the chain between improper interrogation and               P36 We disagree, however, with the trial court's
consent, such as a subsequent release from custody, an         further conclusion that the inevitable discovery doctrine
appearance before a magistrate, discussions with a             cures the additional Fourth and Fifth Amendment
lawyer, or a subsequent conviction on unrelated charges.       violations. [**20] [HN11] The doctrine requires the
See DeSales v. Woo, 860 F. Supp. 1436, 1444 (N.D. Cal.         State to prove, by a preponderance, that absent the initial
1994). After invoking his right to counsel, Davolt's           illegality, the evidence would nonetheless have been
interrogation continued for approximately forty-five           discovered by lawful means. Nix, 467 U.S. at 444
minutes. Police then placed Davolt in a cell, where, less      (emphasis added). Even assuming the police inevitably
than fifteen minutes later, officers approached him with       would have discovered the location of the motel room,
the consent form to sign.                                      no information was adduced that the evidence discovered
                                                               in the room might ever have been obtained lawfully. n2
     P33 Finally, we note that the police misconduct was
                                                               No effort was made to obtain a search warrant, and we
extreme. During the period [**18] of Davolt's arrest and
                                                               must reject the notion that the State relied on Davolt's
initial interrogation, police twice violated Miranda,
                                                               tainted consent in good faith. The constitutional
violated the Fifth Amendment by obtaining Davolt's
                                                               violations in this case are clear.
involuntary statements and then, within a matter of
minutes, approached Davolt requiring that he sign the
written consent form on which they later relied to search
                                                                              n2 We note that the means by which the
the motel room. On these facts, we conclude that
                                                                         motel room evidence was obtained in this case
Davolt's consent was severely tainted by the prior Fifth
                                                                         cannot be characterized as lawful, even under a
Amendment violations and could not provide sufficient
                                                                         narrow interpretation of that term, because the
basis for police to search the room. See State v. King,
                                                                         means by which police actually discovered the
140 Ariz. 602, 604, 684 P.2d 174, 176 (1984) (consent to
                                                                         evidence violated Davolt's personal rights. Cf.
search obtained after Edwards violation could not serve
                                                                         United States v. Scott, 270 F.3d 30, 45 (1st Cir.
to legitimize a warrantless search).
                                                                         2001) ("a means by which challenged evidence
     P34 Thus, the search was presumptively illegal                      would inevitably have been discovered that itself
because it was conducted without a warrant, without                      violates the law is not, by that violation alone,
exigent circumstances, and without valid consent. As                     unlawful as to a defendant if those means did not
such, the search violated the Fourth Amendment of the                    violate that defendant's personal rights").
United States Constitution and Article 2, section 8 of the
Arizona Constitution, and the evidence obtained should          [**21]
therefore have been suppressed as fruit of the poisonous
                                                                    P37 [HN12] Arizona has adopted the broad view of
tree. See Schneckloth, 412 U.S. at 233 (search of home
                                                               the inevitable discovery rule. Under that view, the State
without a warrant or consent is unreasonable unless
                                                               is not required to demonstrate that police initiated lawful
exigent circumstances [**19] exist); State v. Bolt, 142
                                                               means to acquire evidence prior to its seizure. See State
Ariz. 260, 265, 689 P.2d 519, 524 (1984) (evidence
                                                               v. Paxton, 186 Ariz. 580, 586, 925 P.2d 721, 727 (App.
seized as a result of a warrantless entry into a defendant's
                                                               1996). However, we distinguish the instant case from a
home without the excuse of               [*469]      exigent
                                                               situation in which we assume the police would have
circumstances is per se unlawful under the Arizona
                                                               complied with subsequent constitutional requirements
Constitution and should have been suppressed).
                                                               after an initial illegality. Here, there is hard evidence
    2. The Inevitable Discovery Doctrine                       they did not. The State cannot claim inevitable discovery
                                                               and thereupon be excused from all constitutional
    P35 [HN10] Illegally obtained physical evidence
                                                               requirements. Such a claim amounts to the unacceptable
may be admitted if the State can demonstrate by a
                                                               assertion that police would have done it right had they
preponderance of the evidence that such evidence
                                                               not done it wrong. The deterrence rationale of the
inevitably would have been discovered by lawful means.
                                                               exclusionary rule is especially important in this case in
Nix v. Williams, 467 U.S. 431, 444, 81 L. Ed. 2d 377, 104
                                                                                                                    Page 80
                                            84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                      419 Ariz. Adv. Rep. 3
which constitutional violations occurred on three               cigarettes, n4 Davolt's Mohave County Library Card, and
separate occasions, that is, the two interrogations and the     a remote control toy car. Incriminating items included a
motel entry and search. n3                                      crossword puzzle book that belonged to the victims; a
                                                                roll of red duct tape that appeared to match duct tape
                                                                found on the telephone cord at the victims' residence;
              n3 On appeal, Davolt argued that the              two medallions with numbers on the reverse sides that
         inevitable discovery doctrine cannot be applied to     matched telephone numbers dialed from the victims'
         cure the taint of evidence illegally seized from his   residence at approximately 3:00 a.m. Wednesday,
         motel room based on State v. Ault, 150 Ariz. 459,      November 25, 1998; a Green Bay Packers' shirt and
         466, 724 P.2d 545, 552 (1986). In Ault, we held        jacket; and clothing belonging to N.Z.
         the inevitable discovery doctrine will not cure the
         taint of evidence obtained in the illegal search of
         a person's home based on the heightened                              n4 Although Marlboro cigarettes were found
         protection afforded a home by Article 2, section 8               in an ashtray in the victims' living room, DNA
         of the Arizona Constitution. Because we find that                evidence directly linked Davolt to those partially
         the State failed to demonstrate by a                             smoked cigarettes.
         preponderance of the evidence that inevitably it
         would have obtained the motel room evidence by          [**24]
         lawful means, we need not reach the question
                                                                     P41 The significance of these items, however, is
         whether a motel room would receive the same
                                                                diminished by other evidence. Davolt had been reported
         degree of protection accorded a home by the
                                                                missing on the Monday before the victims were
         Arizona Constitution.
                                                                discovered, after he failed to appear at school. A
                                                                workman had seen him talking to N.Z. on Pueblo Drive
[**22]
                                                                that Monday morning between 9:00 and 11:00 a.m. On
     P38 Prior opinions of this court dealing with the          Tuesday morning, Bank One security cameras captured
inevitable discovery doctrine support today's ruling. In        Davolt attempting to withdraw money from the victims'
each case, we have consistently allowed the introduction        bank account from the drive-up and walk-up ATM
of evidence that inevitably would have been lawfully            machines. An hour later, Bank One security cameras
discovered, absent initial illegality. See Castaneda, 150       captured Davolt inside the bank cashing a $ 1,500 check
Ariz. at 388, 724 P.2d at 7 (although defendant was             written by E.Z. He was wearing a Green Bay Packers
coerced into telling police where the body was, the             shirt. Davolt's mother informed police that her son did
evidence was admissible because the body inevitably             not own any Packers attire, but E.Z.'s son testified that
would have been discovered as soon as it became light);         N.Z. was an "extreme" Packers fan. The thumbprint
Lamb, 116 Ariz. at 138, 568 P.2d at 1036 (evidence              given the bank teller to cash the check positively
obtained during an illegal pat down search was                  identified Davolt as the person who cashed the check.
admissible because defendant [*470] would have been
                                                                     P42 On Wednesday, the mail carrier saw water
arrested on independent grounds and the evidence would
                                                                running out of the garage just before noon, suggesting
inevitably have been discovered during a lawful search
                                                                that the fire had already occurred. N.Z. and E.Z. were
incident to that arrest). But [HN13] we have never
                                                                discovered dead in their kitchen Thursday morning,
applied the inevitable discovery doctrine to cure multiple
                                                                victims of a violent double homicide. The house had
constitutional violations and decline to do so here.
                                                                been set on fire and Davolt's fingerprints were found on
    3. Harmless Error                                           [**25] the camp fuel can in the garage, the mop handle
                                                                with a square sponge head that matched the outline of
     P39 [HN14] We assess a trial court's erroneous
                                                                mop strokes in the blood on the floor of the garage, the
denial of a motion to suppress for harmless error.
                                                                wine box found on a table in the living room, and the
Castaneda, 150 Ariz. at 387, 724 P.2d at 6. [HN15]
                                                                ceramic bowl used as a makeshift ashtray found in the
Error is harmless if the reviewing court can say beyond a
                                                                living room. Davolt's DNA was found on 10 to 15
reasonable doubt that the error [**23] did not contribute
                                                                Marlboro cigarettes inside the makeshift ashtray in the
to the verdict. Chapman v. California, 386 U.S. 18, 24,
                                                                victims' home.
17 L. Ed. 2d 705, 87 S. Ct. 824 (1967); State v.
Ashelman, 137 Ariz. 460, 466, 671 P.2d 901, 907 (1983).             P43 On Sunday, Davolt was found in possession of
                                                                the victims' vehicle in California. The vehicle contained
    P40 Probative evidence obtained from the motel
                                                                Marlboro cigarettes, a bank card and insurance papers
room was largely cumulative. Some items were without
                                                                belonging to the victims, and Davolt's disassembled
significant probative value, for example, the Marlboro
                                                                green mountain bike. Medical experts agreed that E.Z.
                                                                                                                     Page 81
                                             84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                        419 Ariz. Adv. Rep. 3
died between Tuesday and Wednesday night and that                      P47 Our review indicates that media coverage of the
N.Z. predeceased E.Z. by at least twenty-four to forty-           trial was not particularly pervasive, inflammatory, or
eight hours. Although the properly admitted evidence              prejudicial. Davolt produced twenty newspaper articles
was circumstantial, its probative weight was substantial,         and thirteen radio reports that were published or
easily sufficient to justify the verdicts of the jury. Thus,      broadcast about the case in [**28] Lake Havasu,
even without evidence that should have been excluded,             Kingman, and Mohave Valley, Arizona, during the
the verdicts would not have been different. Upon review           period from November 1998 through December 1999.
of the entire record, we conclude, as a matter of law, that       The majority of these news accounts were generated at
the introduction of the illegally seized motel room               the time of the crime and were factual in nature.
evidence was harmless beyond a reasonable doubt.
                                                                        P48 The only potentially troublesome coverage
[**26]
                                                                  included one newspaper article that mentioned Davolt
                                                                  had previously run away from home, and two radio
B. Change of Venue
                                                                  reports and a newspaper article that mentioned a possible
    P44 Davolt argues the trial court erred by denying            connection between Davolt and another double homicide
his motion for change of venue. [HN16] We review the              in California. However, these accounts expressly stated
denial of all such [*471] motions for abuse of discretion         any connection to the California murders was unproven
and resulting prejudice to the defendant. State v.                and tenuous. Moreover, they were published in
Salazar, 173 Ariz. 399, 406, 844 P.2d 566, 573 (1992).            December 1998, more than fifteen months before the
                                                                  trial. Accordingly, we cannot presume prejudice from
     P45 [HN17] A criminal defendant is entitled to a
                                                                  this record because news coverage of the crimes did not
change of venue if there is a probability the
                                                                  reach a point at which it might have significantly
dissemination of prejudicial information will deprive the
                                                                  affected the fairness of the proceedings or the
defendant of a fair and impartial trial. Ariz. R. Crim. P.
                                                                  atmosphere surrounding the trial.
10.3(b). We determine whether "under the totality of the
circumstances the publicity attendant to defendant's trial             2. Actual Prejudice
was so pervasive that it caused the proceeding to be
                                                                        P49 [HN19] In the absence of presumed prejudice,
fundamentally unfair." State v. Atwood, 171 Ariz. 576,
                                                                  the defendant must demonstrate that the pretrial publicity
630, 832 P.2d 593, 647 (1992) (citing Murphy v.
                                                                  was actually prejudicial and likely deprived him of a fair
Florida, 421 U.S. 794, 799, 44 L. Ed. 2d 589, 95 S. Ct.
                                                                  trial. State v. Chaney, 141 Ariz. 295, 302, 686 P.2d
2031 (1975)), overruled on other grounds by State v.
                                                                  1265, 1272 (1984). [**29] To establish actual prejudice,
Nordstrom, 200 Ariz. 229, 241 P25, 25 P.3d 717, 729
                                                                  the defendant must show that "the jurors have formed
(2000). Prejudice may be presumed or actual. State v.
                                                                  preconceived notions concerning the defendant's guilt
Blakley, 204 Ariz. 429, 65 P.3d 77, PP14-16, 65 P.3d
                                                                  and that they cannot leave those notions aside." Id.
77, 82 (2003).
                                                                       P50 Davolt first claims actual prejudice is
    1. Presumed Prejudice
                                                                  established because nine of the fourteen empaneled
     P46 [HN18] Prejudice may be presumed if the                  jurors, including two alternates, had some prior
publicity "was so extensive [**27] or outrageous that it          knowledge of the case. We disagree. [HN20] Prior
permeated the proceeding or created a 'carnival-like              knowledge of the case alone is insufficient to disqualify a
atmosphere.'" Atwood, 171 Ariz. at 631, 832 P.2d at               juror. See State v. Smith, 123 Ariz. 231, 236, 599 P.2d
648. The adverse publicity must be so extensively                 187, 192 (1979) (citing Murphy, 421 U.S. 794, 44 L. Ed.
pervasive and prejudicial that "the court cannot give             2d 589, 95 S. Ct. 2031). The critical inquiry is the "effect
credibility to the jurors' attestations, during voir dire, that   of publicity on a juror's objectivity." State v. LaGrand,
they could decide fairly." Nordstrom, 200 Ariz. at 239,           153 Ariz. 21, 34, 734 P.2d 563, 576 (1987). The record
P15, 25 P.3d at 727. This is a high standard and it is            indicates that the trial court struck all prospective jurors
rarely met. We have refused to presume prejudice when             who stated they had formed preconceived notions about
the publicity was "primarily factual and non-                     the case or did not believe they could be fair and
inflammatory or if the publicity did not occur close in           impartial. Furthermore, all members of the final jury
time to the trial." Id. (citing State v. Jones, 197 Ariz.         pool affirmed they could be fair and impartial.
290, 307 P44, 4 P.3d 345, 362 (2001); State v. Bible,
                                                                      P51 [*472] We also reject Davolt's claim that the
175 Ariz. 549, 563-64, 858 P.2d 1152, 1166-67 (1993);
                                                                  voir dire examination was inadequate to discern actual
State v. Bedford, 157 Ariz. 37, 39, 754 P.2d 1141, 1143
                                                                  prejudice of the prospective jurors. The trial court
(1988)); see also Blakley, 204 Ariz. at , P15, 65 P.3d
                                                                  questioned each [**30] prospective juror about his or
at 82.
                                                                  her exposure to pretrial publicity, including the extent of
                                                                  knowledge, the point at which this knowledge was
                                                                                                                Page 82
                                         84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                   419 Ariz. Adv. Rep. 3
obtained, the source, and finally, whether the prospective        P54 Further, Davolt argues that the trial court erred
juror could be fair and impartial. All prospective jurors    by not investigating these incidents and this failure
who indicated they could not be fair and impartial were      violated various rights, including the right to an impartial
struck for cause by the trial court. The trial court then    jury, to confrontation of witnesses, to due process, and to
conducted private, individual questioning of each            freedom from cruel and unusual punishment, any of
prospective juror who had been exposed to pretrial           which could require a new trial. We disagree for the
publicity and ascertained the extent of each prospective     following reasons.
juror's knowledge of the case. The prospective jurors'
                                                                  P55 Davolt first claims the trial court failed in its
answers revealed that most had little more, if any, than a
                                                             affirmative duty to investigate the alleged incidents of
vague recollection of the primary facts of the crime.
                                                             juror misconduct, citing Silverthorne v. United States,
Counsel for both sides were present and were given the
                                                             400 F.2d 627, 643 (9th Cir. 1968). Davolt's reliance on
opportunity to ask questions. Finally, the court again
                                                             Silverthorne is misplaced. In Silverthorne, the trial court
queried whether the prospective jurors would find it
                                                             was aware that several prejudicial articles about the
difficult to be fair and impartial. All prospective jurors
                                                             defendant's case had appeared in local newspapers during
who stated they could not be fair or impartial were
                                                             the trial. [**33] Id. at 644. The Ninth Circuit held this
excused. Only those who stated affirmatively they could
                                                             fact, in combination with allegations that jurors had been
be fair and impartial remained. This procedure was
                                                             reading newspapers during the trial, was sufficient to
adequate to discern bias or prejudice on the part of
                                                             trigger the trial court's duty to investigate the matter
prospective jurors. On the record before us, we conclude
                                                             further. Id. The court noted: "Jurors are not presumed to
the trial court [**31] did not abuse its discretion in
                                                             separate the truth from the falsity in newspaper articles
denying the motion for a change of venue.
                                                             concerning the trial in which they sit as judges of fact."
    II. TRIAL ISSUES                                         Id. at 643 (emphasis added).
                                                                  P56 [HN22] We review a trial court's decision to
A. Refusal to Submit Jury Questionnaire
                                                             investigate allegations of juror misconduct for abuse of
      P52 Davolt claims the trial court erred in denying     discretion. State v. [*473] Miller, 178 Ariz. 555, 556,
his request to submit a questionnaire to the jury. We        875 P.2d 788, 789 (1994). [HN23] A trial court's duty to
disagree. [HN21] A trial court's decision concerning voir    investigate alleged incidents of juror misconduct arises
dire will not be overturned absent a clear abuse of the      only if there is an allegation that the newspaper articles
judge's discretion. Chaney, 141 Ariz. at 304, 686 P.2d at    related to a material fact or law at issue in the case.
1274. Rule 18.5 of the Arizona Rules of Criminal             United States v. Caro-Quintero, 769 F. Supp. 1564, 1575
Procedure requires a thorough examination of potential       (C.D. Cal. 1991) ("The mere fact that local newspapers
jurors and allows parties reasonable time to conduct         were in the jury room does not amount to extraneous
further oral examination upon request. While the rule        influences on the jury . . .; [the newspapers] cannot even
allows the use of written jury questionnaires, it does not   be characterized as extrinsic evidence."); see also United
require it. See State v. Canez, 202 Ariz. 133, 148, P37,     States v. Thompson, 908 F.2d 648, 652 (10th Cir. 1990)
42 P.3d 564, 579 (2002). Furthermore, we note that the       [**34] (the trial court had a duty to investigate alleged
trial judge did not restrict counsel from asking questions   incidents of juror misconduct where there was evidence
and afforded counsel ample opportunity individually to       that prejudicial articles had appeared in the local
question any prospective juror. We find no abuse of          newspaper and the jury was not sequestered, even though
discretion. The voir dire examination was adequate to        no specific allegations were made that jurors had been
assure Davolt's right to a fair and impartial jury.          reading the paper).
                                                                  P57 The record before us is devoid of any allegation
B. Juror Misconduct
                                                             or evidence that any of the newspapers allegedly read or
     P53 Davolt alleges three incidents of juror             carried by jurors contained articles concerning the trial,
misconduct. First, [**32] he alleges that defense            or that articles about the trial had been published in any
counsel notified the trial court that he had overheard a     of the local newspapers. For this reason, Davolt's bare
male juror state he spent the lunch break reading the        allegations of juror misconduct are insufficient to trigger
newspaper. Second, he claims defense counsel informed        the trial court's duty to investigate the matter further. We
the court the next day that he had seen juror number 14      find no violation of the duty to investigate.
"carrying around a newspaper that morning." Third, he
                                                                  P58 Similarly, these allegations are insufficient to
alleges the court clerk informed the court that she had
                                                             trigger the need for a new trial.         [HN24] Juror
seen a male juror carrying a Las Vegas newspaper during
                                                             misconduct warrants a new trial only if "the defense
the trial.
                                                             shows actual prejudice or if prejudice may be fairly
                                                                                                                 Page 83
                                          84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                    419 Ariz. Adv. Rep. 3
presumed from the facts." Miller, 178 Ariz. at 558, 875       scalp pulled back to reveal the skull. The State claims
P.2d at 794 (citing State v. Vasquez, 130 Ariz. 103, 105,     these photos were offered to show the differing [*474]
634 P.2d 391, 393 (1981)). In a criminal case, prejudice      degree of decomposition between the two bodies and to
may be presumed from "any private communication,              show that N.Z. survived following the blunt force
contact [**35] or tampering directly or indirectly, with a    wounds to his head. We agree that although these photos
juror during a trial about the matter pending before the      display extreme violence, they were relevant to the time
jury." Remmer v. United States, 347 U.S. 227, 229, 98 L.      and manner of the victims' deaths and therefore probative
Ed. 654, 74 S. Ct. 450 (1954). "Once the defendant            of disputed facts of consequence in the case. We cannot
shows that the jury has received and considered extrinsic     say that the trial court abused its discretion in permitting
evidence, prejudice must be presumed and a new trial          their introduction.
granted unless the prosecutor proves beyond a reasonable
                                                                   P63 However, we find that the trial court abused its
doubt that the extrinsic evidence did not taint the
                                                              discretion in admitting crime scene photographs and
verdict." State v. Hall, 204 Ariz. 442, 65 P.3d 90,      ,
                                                              videotape. [HN30] The probative value of relevant
P16, 65 P.3d 90, 95 (2003) (citing Miller, 178 Ariz. at
                                                              evidence is minimal when the defendant does not contest
558-60, 875 P.2d at 791-93).
                                                              a fact that is of consequence. Bocharski, 200 Ariz. at 56,
     P59 As discussed, there was no allegation that           P23, 22 P.3d at 49. In such a circumstance, "gruesome
newspapers contained even a remote statement                  photographs may have 'little use or purpose except to
concerning issues pending before the jury. Prejudice          inflame,' and their prejudicial effect can be significant."
cannot be presumed without the requisite showing that         Id. (quoting State v. Chapple, 135 Ariz. 281, 288, 660
the jury received and considered extrinsic evidence on        P.2d 1208, 1215 (1983)). Davolt did not contest the
the issues. Moreover, Davolt has shown no actual              [**38] identity of the victims or the fact that the murders
prejudice. He is not entitled to a new trial because there    occurred. Accordingly, photographs and videotape of the
is no evidence indicating juror misconduct.                   crime scene were of minimal probative value, and they
                                                              were highly inflammatory. They depicted the scene of
C. Admission of Photographs and Videotape                     the victims' charred bodies in the kitchen. Several of the
                                                              photos were wholly cumulative and were not offered to
     P60 Davolt contends the trial court erred in
                                                              complement additional testimony. We believe the
admitting photographs of the crime scene and autopsies
                                                              minimal probative value of these visuals was
as well as a video of the [**36] crime scene. [HN25]
                                                              substantially outweighed by the risk of undue prejudice
The admission of evidence is within the trial court's
                                                              and that the trial court abused its discretion in admitting
discretion and will not be disturbed absent an abuse of
                                                              them.
discretion. State v. Gulbrandson, 184 Ariz. 46, 60, 906
P.2d 579, 593 (1995).           [HN26] We assess the               P64 [HN31] We assess the erroneous admission of
admissibility of photographs under a three-part test,         evidence for harmless error. State v. Fulminante, 161
examining 1) relevance, 2) tendency to incite or inflame,     Ariz. 237, 245, 778 P.2d 602, 610 (1988). [HN32] Error
and 3) the probative value versus the potential to cause      is harmless if we can conclude, beyond a reasonable
unfair prejudice. State v. Spreitz, 190 Ariz. 129, 141, 945   doubt, that the error did not contribute to or affect the
P.2d 1260, 1272 (1997).                                       jury's verdict. Bible, 175 Ariz. at 588, 858 P.2d at 1191.
                                                              As discussed, evidence, properly admitted, connecting
     P61 Davolt contends that the crime scene photos and
                                                              Davolt to these crimes was overwhelming. We therefore
videotape and the autopsy photos were not relevant
                                                              conclude beyond a reasonable doubt that the erroneously
because the identity and extent of the victims' injuries
                                                              admitted crime scene photographs and videotape did not
was uncontested. We do not agree. [HN27] The State
                                                              contribute to the verdict. Nevertheless, we caution
has the burden of proving every element of first degree
                                                              prosecutors once again to refrain from [**39]
murder. State v. Bocharski, 200 Ariz. 50, 55-56, P22, 22
                                                              jeopardizing criminal convictions by introducing
P.3d 43, 48-49 (2001). [HN28] Evidence that has "any
                                                              inflammatory material. See Bocharski, 200 Ariz. at 56,
tendency to make the existence of any fact that is of
                                                              P25, 22 P.3d at 49. Davolt's trial is preserved from
consequence to the determination of the action more
                                                              reversible error solely by the strength of the remaining
probable or less probable than it would be without the
                                                              evidence against him. In this particular case, the error
evidence" is relevant. Ariz. R. Evid. 401. [HN29] The
                                                              was harmless.
fact and cause of death are always relevant in a murder
case. State v. Harding, 141 Ariz. 492, 499, 687 P.2d
                                                              D. Preclusion of Evidence
1247, 1254 (1984). [**37]
                                                                  P65 Davolt contends that the trial court erred by
     P62 The autopsy photos depicted close-up images of
                                                              precluding testimony about Detective Harry's
the victims' decomposed bodies and N.Z.'s head with the
                                                              incompetence in recording coerced inculpatory
                                                                                                                   Page 84
                                            84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                      419 Ariz. Adv. Rep. 3
statements Davolt made while in custody in California.          specialized knowledge will assist the trier of fact to
He asserts that the preclusion of this testimony "gutted        understand the evidence or to determine a fact in issue, a
his defense" because it was probative of police                 witness qualified as an expert by knowledge, skill,
sloppiness -- his primary defense.                              experience, training, or education, may testify thereto in
                                                                the form of an opinion or otherwise." [HN39] The test of
    P66 As noted, [HN33] we review the trial court's
                                                                whether a person is an expert is whether a jury can
exclusion of evidence for an abuse of discretion. State v.
                                                                receive help on a particular subject from the witness.
Macumber, 119 Ariz. 516, 521, 582 P.2d 162, 167
                                                                Bliss v. Treece, 134 Ariz. 516, 518-19, 658 P.2d 169,
(1978). The trial court reasoned that testimony
                                                                172-73 (1983). [**42] The degree of qualification goes
concerning Detective Harry's improper recording and
                                                                to the weight given the testimony, not its admissibility.
subsequent erasure of a portion of a tape recording of
                                                                State v. Mosley, 119 Ariz. 393, 400, 581 P.2d 238, 245
Davolt's coerced inculpatory statements that were
                                                                (1978).
suppressed was not relevant to issues in dispute. We
agree and thus find no abuse of discretion.                          1. Colleen Proffitt
                                                                    P71 Davolt first argues that the State's expert,
E. DNA Evidence
                                                                Colleen Proffitt, was not qualified to testify as an expert
      P67 Davolt claims the trial [**40] court erroneously      in DNA analysis and therefore the trial court erred in
denied his motion in limine and admitted DNA evidence           admitting her testimony that the chance the saliva found
at trial. The motion in limine, filed just days before trial,   on cigarette remains in the house did not belong to
was based on the assertion that the DNA evidence could          Davolt was one in 280 quadrillion for the Caucasian
not be admitted because random match statistics are not         population. The argument is flawed.
generally accepted under Frye v. United States, 54 U.S.
                                                                     P72 Proffitt has been involved with DNA testing
App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923). We disagree
                                                                since 1986 and has extensive training and experience in
and find no error in the denial of the motion.
                                                                the field. She testified that DNA testing requires the use
     P68 [HN34] When scientific evidence has been               of population databases to calculate random match
found to meet the Frye standard, a Frye inquiry is              statistics and that she regularly accessed population
necessary "only when the opposing party makes a timely          databases as a DNA analyst. Her testimony was based on
request for such an inquiry supported by authorities            random match statistical evidence, which this court has
indicating there may not be general scientific acceptance       found to be admissible. Johnson, 186 Ariz. at 335, 922
of the technique." State v. Harris, 152 Ariz. 150, 152,         P.2d at 300. Proffitt was clearly more qualified and had
730 P.2d 859, 861 (App. 1986). We have held that                more knowledge in the specific area of DNA than an
[HN35] DNA evidence based on the product rule method            ordinary juror, and her testimony assisted the jury in its
of calculating the probability of a match is acceptable         consideration of the evidence. [**43] The trial court did
when the database satisfies Frye [*475] requirements.           not abuse its discretion in admitting her testimony.
State v. Hummert, 188 Ariz. 119, 123, 933 P.2d 1187,
                                                                     2. Detective Harry
1191 (1997); see also State v. Marshall, 193 Ariz. 547,
551, 975 P.2d 137, 141 (App. 1998). Davolt's motion                  P73 Davolt contends Detective Harry was not
was not supported by credible authority [**41] that             qualified to testify as an expert in blood splatter analysis
product rule evidence is generally unacceptable. The            and therefore the trial court erred in allowing his
motion was thus properly denied on the merits. We also          testimony about blood splatter found on the floor of the
note the motion was submitted too late to meet                  garage.
reasonable timeliness standards. See Ariz. R. Crim. P.
                                                                     P74 Detective Harry testified that "there appeared to
16.1(b) ( [HN36] all motions to be submitted at least
twenty days before trial).                                      be spots of blood around the perimeter -- inside the
                                                                perimeter of the garage, and it was in such a fashion as to
                                                                suggest that somebody had walked around something
F. Expert Testimony
                                                                there. Presumably, walked around a car in the garage."
      P69 Davolt contends that the trial court erroneously
admitted testimony of several witnesses not properly                P75 Detective Harry's training in blood splatter
                                                                analysis consisted of attending classes on crime scene
qualified to testify as experts. [HN37] We review the
trial court's admission of expert testimony for an abuse of     management, a class on homicide investigation, and
discretion. State v. Hyde, 186 Ariz. 252, 276, 921 P.2d         watching two training videos on blood splatter analysis
                                                                as part of his advanced officer training at the Lake
655, 679 (1996). We find no error.
                                                                Havasu Police Department. While this training is not
    P70 Rule 702 of the Arizona Rules of Evidence               extensive, it is significantly more extensive than the
provides: [HN38] "If scientific, technical, or other
                                                                                                                Page 85
                                          84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                    419 Ariz. Adv. Rep. 3
average person has received and is sufficient to allow the    G. Third-Party Defense
testimony to be heard by the jury.
                                                                  P81 Davolt contends the trial court erred by
     P76 Davolt claims further that the trial court           precluding the admission of evidence the [**46] crimes
erroneously admitted testimony by Detective Harry that        were committed by a third party. Once again, we
N.Z. was killed before E.Z. However, [**44] Davolt's          disagree.
citations to the record do not demonstrate that Detective
                                                                   P82 [HN40] Third-party evidence depends on
Harry testified to that effect. Therefore, we reject this
                                                              relevance and the effect the evidence has on the
claim.
                                                              defendant's culpability. State v. Gibson, 202 Ariz. 321,
    3. John Hoang                                             324, P16, 44 P.3d 1001, 1004 (2002). Third-party
                                                              evidence is relevant if it "tend[s] to create a reasonable
     P77 Davolt argues that John Hoang was not
                                                              doubt as to the defendant's guilt." Id.
qualified to testify as an expert on [*476] ignitable
liquids and that the trial court erred by admitting his            P83 Davolt's proffered evidence of third-party
testimony that clothing samples obtained from the             culpability was that N.Z. was unpopular. The trial court
victims at the crime scene showed a residue consistent        found this assertion "not relevant under any
with the light petroleum distillate class of ignitable        circumstance." This finding complies with the standard
liquids, which includes lighter fluid and camp fuel. We       we announced in Gibson. Furthermore, we note the trial
disagree.                                                     court did not preclude Davolt from arguing generally that
                                                              some unknown person committed the murders. The trial
     P78 Hoang's qualifications include a Bachelor of
                                                              court did not abuse its discretion in precluding this
Science degree in forensic science with a minor in
                                                              evidence.
chemistry from California State University at
Sacramento, two years of work as a criminalist with the
                                                              H. Trial Security Measures
Arizona Department of Public Safety analyzing ignitable
liquids, training from experienced criminalists in the             P84 Davolt asserts that the presence of uniformed
field of ignitable liquids, work on more than fifty cases,    jail personnel and the requirement that he wear a leg
analysis of more than 100 ignitable liquid samples, and a     brace during the trial deprived him of a fair trial.
forty-hour class taught by the FBI on the laboratory          [HN41] Matters of courtroom security are left to the
analysis of fire debris. We find this to be sufficient        discretion of the trial court. See State v. Boag, 104 Ariz.
training. A person can be qualified as an expert based on     362, 366, 453 P.2d 508, 512 (1969) ("Absent
his or her training or experience. See Ariz. R. Evid. 702.    incontrovertible evidence [**47] of hurt, the trial court
The trial court [**45] did not abuse its discretion in        should be permitted to use such means to secure the
admitting Hoang's testimony.                                  named ends.") (citations omitted). We will uphold a trial
                                                              court's decision concerning trial security measures when
    4. Allison Sedowski
                                                              the decision is supported by the record. State v.
    P79 Finally, Davolt argues that Allison Sedowski          McKinney, 185 Ariz. 567, 576, 917 P.2d 1214, 1223
was not qualified to testify concerning blood sample          (1996).
analysis because she had been to only one prior crime
                                                                  P85 The trial court specifically noted that Davolt
scene. We find this assertion unsupported by the record.
                                                              had attempted to escape from the Mohave County jail
Sedowski is a blood analyst, not a collector of blood
                                                              while awaiting trial. In view of the trial court's well
evidence. There is no indication that Sedowski was
                                                              founded security concern and the absence of evidence of
involved in the collection of blood at the scene.
                                                              specific prejudice to Davolt, we cannot say the trial court
Furthermore, our review of the record indicates that
                                                              abused its discretion.
Sedowski was fully qualified to testify concerning the
results of her blood sample analysis.
                                                               [*477] I. Motion for Judgment of Acquittal
     P80 At the time of the trial, Sedowski had been
                                                                   P86 Davolt argues the that trial court erred in
employed as a serologist in the DNA unit of the Arizona
                                                              denying his Rule 20 motion for a judgment of acquittal
Department of Public Safety Crime Lab for one and one-
                                                              because no adequate evidence supported felony murder
half years. She received a Bachelor's degree in chemistry
                                                              or premeditation. Davolt is clearly wrong.
from Northern Arizona University and had taken post-
graduate classes in genetics and population statistics. She       P87 [HN42] A judgment of acquittal shall be
had performed blood analysis tests thousands of times         entered if no substantial evidence supports the
and had worked on more than 100 cases. The trial court        conviction. See Ariz. R. Crim. P. 20. [HN43] Substantial
did not err in admitting her testimony.                       evidence is that which reasonable persons could accept
                                                              as sufficient to support a guilty verdict beyond a
                                                                                                                 Page 86
                                           84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                     419 Ariz. Adv. Rep. 3
reasonable doubt. Id. "If reasonable [persons] may fairly
differ as to whether certain [**48] evidence establishes a     J. Failure to Instruct on Second Degree Murder
fact in issue, then such evidence must be considered as
                                                                    P91 Davolt argues the trial court abused its
substantial." State v. Rodriguez, 186 Ariz. 240, 245, 921
                                                               discretion by refusing to instruct the jury on second
P.2d 643, 648 (1996). In determining the sufficiency of
                                                               degree murder. In Beck v. Alabama, the Supreme Court
the evidence, we view the evidence in the light most
                                                               held
favorable to sustaining the verdict, and we resolve all
inferences against the defendant. State v. Spears, 184
                                                                        [HN44]       where       the      evidence
Ariz. 277, 290, 908 P.2d 1062, 1075 (1996).
                                                                       unquestionably establishes that the
     P88 Substantial evidence was presented to support                 defendant is guilty of a serious, violent
the theory of felony murder based on the predicate                     offense -- but leaves some doubt with
offense of burglary. Here the evidence clearly                         respect to an element that would justify
established either the offense of unlawful entry or                    conviction on a capital offense -- the
remaining unlawfully with the intent to commit theft.                  failure to give the jury the "third option"
Evidence was also clear that in the course of committing               of convicting on a lesser included offense
the prohibited entry and in furtherance of committing the              would seem inevitably to enhance the risk
burglary he murdered the two victims.                                  of an unwarranted conviction.
     P89 On Thursday morning, N.Z. and E.Z. were
                                                                447 U.S. 625, 637, 65 L. Ed. 2d 392, 100 S. Ct. 2382
discovered dead in their kitchen, the victims of a violent
                                                               (1980). However, Beck does not require a trial court to
double homicide. Their house had sustained a fire and
                                                               instruct on a lesser included offense that is unsupported
their car was missing. Wednesday just before noon, the
                                                               by the evidence. See Schad v. Arizona, 501 U.S. 624,
mail carrier noted water running from under the garage
                                                               648, 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991); [**51]
door and down the driveway, indicating the fire had
                                                               State v. Landrigan, 176 Ariz. 1, 6, 859 P.2d 111, 116
already occurred. Tuesday morning, Bank [**49] One
                                                               (1993).
video cameras captured Davolt, wearing Green Bay
Packers attire, attempting to withdraw money from the               P92 [*478] First, [HN45] there is no lesser
victims' bank account at several different ATM machines        included offense to felony murder. State v. Arias, 131
and, inside the bank, cashing a $ 1,500 check, written by      Ariz. 441, 443-44, 641 P.2d 1285, 1287-88 (1982).
E.Z. Monday morning, a workman saw Davolt speaking             Second, there is little or no evidence in this record to
with N.Z. on Pueblo Drive several times over a two hour        support a second degree murder charge. The defense
period. The man overheard N.Z. ask Davolt where he             theory of the case was that Davolt did not commit the
lived, suggesting they had not known each other                murders. The circumstances of these murders provide a
previously. DNA and fingerprint evidence placed Davolt         clear signal that premeditation played a key role. The
inside the victims' home. Davolt had been reported             trial court did not err in refusing to instruct on second
missing since the Monday before the victims' bodies            degree murder.
were discovered dead, after he failed to show up for
school. The following Sunday, Davolt was found in              K. Coercion of the First Degree Murder Verdict
California, in possession of the victims' car and various
                                                                    P93 Davolt argues that the trial court coerced the
items that were in the car. The trial court did not err in
                                                               jury's first degree murder verdicts because the court sent
denying Davolt's Rule 20 motion on the felony murder
                                                               the jury back on three separate occasions to make
charge based on burglary.
                                                               changes to the verdict forms after the jury first returned
     P90 In addition, substantial evidence supported the       with its verdict. Again, we disagree.
State's premeditation theory. The State proved that N.Z.
                                                                    P94 [HN46] Jury coercion exists when "the trial
had been attacked with a hatchet, probably in the garage.
                                                               court's actions or remarks, viewed in the totality of the
Medical experts agreed that N.Z. survived the initial
                                                               circumstances, displaced the independent judgment of
attack but was subsequently shot three times resulting in
                                                               the jurors," State v. McCrimmon, 187 Ariz. 169, 172,
his death, probably inside the home. [**50] Medical
                                                               927 P.2d 1298, 1301 (1996) (quoting             State v.
experts further agreed that E.Z. was strangled with bare
                                                               McCutcheon, 150 Ariz. 317, 319-20, 723 P.2d 666, 668-
hands and that it would have taken several minutes for
                                                               69 (1986)), [**52] or when the trial judge encourages a
her to die, and that N.Z. predeceased E.Z. by a
                                                               deadlocked jury to reach a verdict, McCutcheon, 150
significant period. Clearly, there is sufficient evidence to
                                                               Ariz. at 320, 723 P.2d at 669.
support a premeditation verdict in either killing. The trial
court did not err in denying the motion for a judgment of          P95 Our review of the record indicates no
acquittal.                                                     suggestion of jury coercion. When questioned by the
                                                                                                                  Page 87
                                           84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                     419 Ariz. Adv. Rep. 3
judge, the jury foreperson indicated on two occasions          life imprisonment. See A.R.S. § 13-1105(C). Arizona's
that the verdict forms completed by the jury did not           capital sentencing statute requires that the death sentence
reflect the jury's verdict because the jurors had not          shall be imposed if one or more aggravating
understood how to fill out the forms. However, when the        circumstances are found and there are no mitigating
jury returned its final verdict, the court polled each juror   circumstances sufficiently substantial to call for leniency.
individually, and each affirmed this was his or her            See A.R.S. § 13-703 (Supp. 2002). n6 Thus, as a
verdict. There is no evidence that the court's independent     consequence [*479] of Arizona's Automatic Filing
judgment displaced the judgment of the jurors. Nor is          Statute, a sixteen- or seventeen-year-old juvenile charged
there any evidence the jury was ever deadlocked.               with first degree murder is automatically tried as an adult
Davolt's claim of jury coercion is without merit.              for the offense of first degree murder which could be
                                                               punishable by death if the state determines, in its
    III. ISSUES WAIVED
                                                               discretion, to seek the death penalty. n7
     P96 Davolt has raised several issues that were not
raised in the trial court. n5 None presents an issue of
fundamental error. [HN47] Fundamental error is "error                       n6 At the time of Davolt's trial, Arizona's
of such dimension that it cannot be said it is possible for            capital sentencing statute required that a judge
a defendant to have a fair trial." State v. Gendron, 168               determine the existence of aggravating and
Ariz. 153, 155, 812 P.2d 626, 628 (1991). We have                      mitigating factors and decide whether the
carefully reviewed these issues and conclude the                       mitigating factors were sufficiently substantial to
arguments are [**53] either 1) without factual support,                call for leniency. See former A.R.S. § 13-703
2) present no error, or 3) constitute matters in which the             (2000). The Supreme Court subsequently held
error, even if it occurred, was harmless. As none presents             that statute unconstitutional in Ring v. Arizona,
an issue of fundamental error, we do not discuss any of                536 U.S. 584, 609, 153 L. Ed. 2d 556, 122 S. Ct.
them further. See State v. Bolton, 182 Ariz. 290, 297-98,              2428 (2002) (Ring II). The decision resulted in
896 P.2d 830, 837-38 (1995).                                           Arizona's new sentencing statute, A.R.S. § 13-
                                                                       703 (Supp. 2002). Irrespective of the Ring issue,
                                                                       we note that neither the former nor the current
            n5 The issues include adequacy of voir dire,               statute would alter the impact on Davolt, i.e., a
       propriety of reasonable doubt instruction, alleged              juvenile defendant charged with first degree
       instances of prosecutorial misconduct, and                      murder under either version would nevertheless
       admissibility of testimony regarding fire,                      be automatically subject to trial as an adult for
       fingerprint, and other evidence.                                capital murder. [**55]

    IV. SENTENCING ISSUES
                                                                            n7 Although fifteen-year-old juveniles who
A. Automatic Filing Statute
                                                                       commit first degree murder must be charged as
    P97 Finally, we address Davolt's claim that the                    adults under Arizona's automatic filing statute,
tandem death penalties imposed in this case under the                  A.R.S. § 13-501(A)(1), they are ineligible to
procedure mandated by Arizona's Automatic Filing                       receive the death penalty because of the Supreme
Statute, A.R.S. § 13-501 (2001), violate the Eighth                    Court's holding in Thompson v. Oklahoma, 487
Amendment's prohibition against cruel and unusual                      U.S. 815, 101 L. Ed. 2d 702, 108 S. Ct. 2687
punishment. The statute provides:                                      (1988), that it would offend the Eighth
                                                                       Amendment to impose such a sentence on a
        [HN48] The county attorney shall bring a                       fifteen-year-old.
       criminal prosecution against a juvenile in
       the same manner as an adult [**54] if the
                                                                    P99 Davolt argues the death penalties imposed in
       juvenile is fifteen, sixteen or seventeen
                                                               this case pursuant to the procedure set forth in § 13-501
       years of age and is accused of any of the
                                                               violate the Eighth Amendment's prohibition against cruel
       following offenses: 1) First degree murder
                                                               and unusual punishment because the statute fails to
       in violation of § 13-1105 . . . .
                                                               provide for individualized consideration of a juvenile
                                                               defendant's maturity and moral responsibility before
A.R.S. § 13-501(A)(1) (emphasis added).
                                                               subjecting the juvenile to trial as an adult for capital
   P98 [HN49] Under Arizona law, first degree                  murder. n8 [HN50] We review the validity of a statute
murder is a class 1 felony that is punishable by death or      de novo and construe it, whenever possible, to uphold its
                                                                                                                Page 88
                                           84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                     419 Ariz. Adv. Rep. 3
constitutionality. In re Leon G., 204 Ariz. 15, 19, P9, 59     imposes special limitations when a state imposes the
P.3d 779, 783 (2002).                                          death penalty for a crime. Id.
                                                                    P102 [HN52] The Eighth Amendment prohibits
                                                               punishments that are cruel and unusual. U.S. Const.
              n8 Davolt is the first juvenile defendant to
                                                               amend. VIII. In death penalty jurisprudence, the
         make an Eighth Amendment challenge to A.R.S.
                                                               amendment prohibits punishment that is excessive -- that
         § 13-501 in this court. Although we have
                                                               is, disproportionate to the crime. Atkins v. Virginia, 536
         previously upheld the imposition of the death
                                                               U.S. 304, 311, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002).
         penalty against defendants who were sixteen and
                                                               There is a threshold [*480] below which the death
         seventeen years old at the time their crimes were
                                                               penalty cannot be imposed. Payne, 501 U.S. at 824. A
         committed, no such case involved the filing of a
                                                               societal consensus that the death penalty is
         capital murder charge against a juvenile
                                                               disproportionate to a particular offense prevents a state
         defendant in adult court under the automatic
                                                               from imposing the death penalty for that offense. Id.; see
         filing statute. See State v. Jackson, 186 Ariz. 20,
                                                               also Atkins, 536 U.S. at 316 (holding the Eighth
         24, 918 P.2d 1038, 1042 (1996); State v. Laird,
                                                               Amendment poses a constitutional bar to the execution
         186 Ariz. 203, 207, 920 P.2d 769, 773 (1996);
                                                               of mentally retarded persons). In the absence of such
         State v. Soto-Fong, 187 Ariz. 186, 191, 928 P.2d
                                                               consensus, the "proportionality analysis requires that we
         610, 615 (1996). The trials in each of these cases
                                                               compare the 'gravity [**58] of the offense,' understood
         occurred before Proposition 102 was adopted and
                                                               to include not only the injury caused, but also the
         Article 4, section 22 of the Arizona Constitution
                                                               defendant's culpability, with the harshness of the
         was enacted. See infra P100. The defendants in
                                                               penalty." Stanford v. Kentucky, 492 U.S. 361, 393, 106
         each of the cited cases received a transfer hearing
                                                               L. Ed. 2d 306, 109 S. Ct. 2969 (1989) (plurality) (citing
         in which the juvenile court made an
                                                               Solem v. Helm, 463 U.S. 277, 292, 77 L. Ed. 2d 637, 103
         individualized assessment of whether the
                                                               S. Ct. 3001 (1983)).
         defendants should stand trial as adults.
                                                                    P103 The assessment of a defendant's culpability is
[**56]                                                         especially important in the context of the imposition of
                                                               the death penalty on juveniles. The Supreme Court has
     P 100 In 1996, the voters of Arizona passed
                                                               recognized that juvenile offenders have lower levels of
Proposition 102, the Juvenile Justice Initiative, which
                                                               maturity and culpability than adults.          Eddings v.
amended our state constitution to provide the legislature,
                                                               Oklahoma, 455 U.S. 104, 116, 71 L. Ed. 2d 1, 102 S. Ct.
or the people by referendum, with the authority to enact
                                                               869 (1982) (even a normal 16-year-old lacks the maturity
substantive and procedural laws regarding all
                                                               of an adult); Thompson v. Oklahoma, 487 U.S. 815, 834,
proceedings and matters affecting juveniles. See Ariz.
                                                               101 L. Ed. 2d 702, 108 S. Ct. 2687 (1988) ("adolescents
Const. art. 4, § 22. The amendment mandates that
                                                               as a class are less mature and responsible than adults").
certain juveniles aged 15 or older be automatically
prosecuted as adults and be subject to the same laws as             P104 Nevertheless, in Stanford v. Kentucky, [HN53]
adults, except as provided by statutory exception. Id. The     the Supreme Court held that the Eighth Amendment's
stated intent of Proposition 102 was to make possible          prohibition against cruel and unusual punishment did not
more effective and more severe responses to juvenile           erect a per se bar to the execution of juveniles at age
crime. See In re Cameron T., 190 Ariz. 456, 459, 949           sixteen or seventeen years at the time of their crimes
P.2d 545, 548 (App. 1997). The effect of the amendment         primarily because no national consensus then existed
was to divest the juvenile courts of jurisdiction over         against [**59] the execution of such defendants. 492
certain juvenile offenders, including those charged with       U.S. at 380. In upholding death sentences imposed under
murder. Id. at 461, 949 P.2d at 550. In 1997, the              the Missouri and Kentucky juvenile death penalty
Arizona legislature enacted A.R.S. §           13-501 to       statutes, the Court emphasized that these states provided
implement the provisions of Article 4, section 22 of the       the individualized consideration that is constitutionally
Arizona Constitution.                                          required in the "realm of capital punishment." Id. at 375
                                                               (citing Lockett v. Ohio, 438 U.S. 586, 605, 57 L. Ed. 2d
    P101 [HN51] The State is clearly vested with the
                                                               973, 98 S. Ct. 2954 (1978) (individualized consideration
authority to define crimes, fix punishments, [**57] and
                                                               is a constitutional requirement in imposing the death
establish procedure for criminal trials.       Payne v.
                                                               sentence)).
Tennessee, 501 U.S. 808, 824, 115 L. Ed. 2d 720, 111 S.
Ct. 2597 (1991). However, state laws, including state              P105 The Court reasoned that the constitutionality
constitutional provisions, are subject to the overriding       of the imposition of the death penalty on a juvenile
authority of the United States Constitution, which             depends not on general state laws defining ages of legal
                                                                                                                Page 89
                                         84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                   419 Ariz. Adv. Rep. 3
disability, but on individualized consideration applied to   lack of such assessment, however, does not necessarily
the circumstances of each juvenile defendant. See            require the death sentence to be vacated. The trial court,
Stanford, 492 U.S. at 375. The Court noted that the          on remand, should [**62]           make every effort to
statutory schemes at issue in Stanford satisfied the         determine, if possible, the extent of Davolt's maturity and
constitutional mandate for individualized consideration      moral responsibility at the time he committed the
because 1) both schemes specifically designated age as a     murders. Although conducting such analysis at the
statutory mitigating factor and 2) both required a           present time may be difficult in light of the several years
juvenile transfer hearing that provided for a                that have passed since the crimes were committed, see
consideration of that individual's maturity and moral        Drope v. Missouri, 420 U.S. 162, 183, 43 L. Ed. 2d 103,
responsibility [**60] as a pre-condition to transfer for     95 S. Ct. 896 (1975), the passage of time is not
trial as an adult. Id. at 375-76. n9                         necessarily fatal to the effectiveness of such a hearing,
                                                             see, e.g., United States v. Makris, 483 F.2d 1082, 1092
                                                             (5th Cir. 1973); Boltz v. Oklahoma, 806 P.2d 1117,
            n9 The Kentucky statute required the court to    1121-22 (Okla. Crim. App. 1991).
       determine that transfer to adult court would be in
                                                                  P109 If the trial court finds it cannot engage in an
       the best interest of the child and the community
                                                             appropriate determination of the issue, or if the court
       and consider the following factors: seriousness of
                                                             concludes that when Davolt committed the offenses, he
       the offense, maturity of the child, any prior
                                                             did not possess the necessary moral responsibility and
       record, prospects for adequate protection of the
                                                             culpability to be constitutionally eligible for the death
       public, and the likelihood of reasonable
                                                             penalty, then Davolt's death sentences must be vacated,
       rehabilitation. Stanford, 492 U.S. at 377 n.6. The
                                                             and the trial court must impose sentences of life or
       Missouri statute required the court to consider the
                                                             natural life. If, however, the court concludes that, at the
       seriousness of the offense, whether it was part of
                                                             time of the offenses, Davolt indeed was a person
       a repetitive pattern of offenses, the record and
                                                             sufficiently mature to possess requisite moral
       history of the child, including experience with the
                                                             responsibility and culpability, [**63] then Davolt's death
       juvenile justice system or other courts, the
                                                             sentences cannot be said to violate the Eighth
       sophistication and maturity of the child
                                                             Amendment. If the trial court finds Davolt's death
       determined from his home and environmental
                                                             sentences constitutional, then it shall transfer the case to
       situation, emotional condition and pattern of
                                                             this court for further action pertaining to sentencing
       living, and potential to benefit from
                                                             issues under Ring v. Arizona, 536 U.S. 584, 153 L. Ed.
       rehabilitation. Id.
                                                             2d 556, 122 S. Ct. 2428 (2002) (Ring II).
                                                                   P110 In sum, [HN54] because we find that the
    P106 The State cites Thomas v. Virginia, 244 Va. 1,
                                                             consideration of age alone as a statutory mitigating factor
419 S.E.2d 606 (Va. 1992), [**61] to support its
                                                             is insufficient in the context of our capital sentencing
argument that Stanford's individualized consideration
                                                             scheme to provide juvenile defendants with the
requirement is satisfied by Arizona's recognition of age
                                                             individualized consideration mandated by the Eighth
as a statutory mitigating factor that is entitled to great
                                                             Amendment, we hold that the State may not seek the
weight. See A.R.S. § 13-703(G)(5).
                                                             death penalty against a juvenile pursuant to Arizona's
     P107 But even if Thomas supports the State's            Automatic Filing Statute, A.R.S. § 13-501, without an
argument, we simply disagree. The focus of a mitigation      individual assessment of the juvenile's maturity and
hearing is on leniency, a concept fundamentally different    moral responsibility at the time of the offense. We
from the assessment of whether a juvenile defendant has      emphasize that we do not preclude the State from
the requisite moral responsibility and culpability to be     seeking the death penalty against juvenile defendants,
held accountable to the same degree as an adult. We          but require that it do so in conformity with the U.S.
therefore conclude that, in the context of our capital       Constitution. Accordingly, we remand this case to the
sentencing scheme, the consideration of a juvenile           trial court for proceedings consistent with this opinion.
defendant's age as a statutory mitigating factor, standing
alone, is insufficient to provide the               [*481]   B. Ring II Error
individualized consideration required by the Stanford
                                                                 P111 Because we [**64] cannot say at this time
decision.
                                                             whether Davolt's death sentences violate the Eighth
    P108 Because no assessment of Davolt's maturity          Amendment, our consideration of sentencing issues
was made before trial, we cannot determine whether he        under Ring II must await the decision of the trial court on
possessed the requisite responsibility and culpability to    remand. Only in the event the court finds Davolt eligible
be constitutionally eligible for the death penalty. The
                                                                                                                Page 90
                                           84 P.3d 456, *; 2004 Ariz. LEXIS 25, **;
                                                     419 Ariz. Adv. Rep. 3
for the death penalty will we consider the effect of Ring           P114 We affirm Davolt's convictions in each
II on the capital sentences heretofore imposed.                instance, but remand to the trial court to determine
                                                               whether, at the time of the offense, Davolt possessed
C. Sentencing on Non-Capital Counts                            moral responsibility and culpability sufficient to render
                                                               him eligible for the death penalty.
     P112 Davolt alleges the trial court erred by failing to
consider age as a proven mitigator when determining                 P115 In addition, we vacate the sentences imposed
sentencing on the non-capital counts. In addition, Davolt      on Davolt's non-capital convictions by reason of the trial
argues the trial court erroneously failed to allow credit      court's failure to consider age as a statutory mitigating
for time served on the non-capital sentences. [HN55]           factor. The non-capital counts are remanded for
Sentencing determinations are reviewed for abuse of            resentencing consistent with today's opinion and in
discretion. State v. Patton, 120 Ariz. 386, 388, 586 P.2d      accordance with Arizona's statutory sentencing scheme.
635, 637 (1978).
                                                                    Charles E. Jones, Chief Justice
     P113 [HN56] Arizona law requires that the trial
court "consider the age of the defendant" as a statutory       CONCURRING:
mitigating circumstance when determining sentences
imposed for non-capital offenses. A.R.S. § 13-702(D).          Ruth V. McGregor, Vice Chief Justice
Our review of the record indicates that the only statutory
mitigating circumstance found by the trial court with          Rebecca [**66] White Berch, Justice
respect to the non-capital counts was [**65] Davolt's
lack of a significant criminal record. The trial court erred   Michael D. Ryan, Justice
by refusing to consider Davolt's age as a statutory
mitigating circumstance when determining sentences on          M. Jan Florez, Judge
the non-capital counts. We therefore vacate the sentences
imposed on all non-capital counts and remand those                     NOTE: Justice Andrew D. Hurwitz
counts to the trial court for resentencing. In addition,               recused himself in this matter and M. Jan
[*482] we note that Arizona law requires that Davolt be                Florez, a Judge of the Arizona Court of
given credit for time served against any term of                       Appeals, Division Two, sat in his stead,
imprisonment imposed. See A.R.S. § 13-709(B).                          pursuant to Article 6, § 3 of the Arizona
                                                                       Constitution.
    CONCLUSION

				
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