State v. Taylor

HATHAWAY, Judge,

dissenting.

Appellant was arrested under the section of the Tucson Code which makes an unper-mitted possession of beer in a public park a misdemeanor. Tucson Code §§ 21-7, -8 (1987). Also, A.R.S. § 4-244(20) prohibits beer consumption from a broken package in a public place.

A.R.S. § 13-3883(4) permits a police officer, without a warrant, to arrest someone whom the officer has probable cause to believe has committed a misdemeanor or petty offense. The statute also permits immediate release under § 13-3903, which provides that when a person is arrested for a misdemeanor or petty offense, “the arresting officer may release the arrested person from custody in lieu of taking such person to the police station by use of the procedure prescribed in this section, ...” i.e., the signing of the notice to appear and complaint. A.R.S. § 13-3903(A). A.R.S. § 13-3903(F) states that “[njothing in this section shall be construed to affect a police officer’s authority to conduct an otherwise lawful search incident to his arrest even though such arrested person is released before being taken to the police station or before a magistrate pursuant to this section.”

A.R.S. § 13-3881(A) provides that an arrest is “actual restraint of the person to be arrested,” or “submission to the custody” of the officer. It is clear that under the facts of this case appellant was arrested and in custody when he was searched. No person in appellant’s circumstance would have believed that he was free to leave at that time. State v. Ault, 150 Ariz. 459, 464, 724 P.2d 545, 550 (1986). Accordingly, a full search incident to a custodial arrest was reasonable under the Fourth Amendment. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Also see, State v. Magness, 115 Ariz. 317, 321, 565 P.2d 194, 198 (App.1977).

The situation is similar to State v. Susko, 114 Ariz. 547, 562 P.2d 720 (1977), where the defendant was stopped for not having a properly licensed motorcycle. The incidental search turned up a stolen wallet with credit card. The search was upheld as permissible incident to arrest. In my opinion, the conviction should be affirmed.