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Docket Number

No. 2923.

Attorney(S)

N. Warner Lee, Atty. Gen., by R. Wayne Ford, Asst. Atty. Gen., Phoenix, for appellee. Robert J. Hooker, Tucson, for appellant.

Judges

HOLOHAN, Justice.

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Smart Summary

Summary of Opinion: STATE of Arizona v. Peter Escalante GASTELO, No. 2923 (Mar. 6, 1975)

Factual and Procedural Background

Peter Escalante Gastelo was convicted of robbery in the Superior Court of Pima County, sentenced to five years' probation with one year to be served in the county jail, and appealed the conviction. The underlying crime occurred when a man grabbed Julia E. Agner's purse outside a Tucson restaurant at about 1:30 a.m., knocked her down, and fled on foot. Mrs. Mary E. O'Flaherty pursued the assailant a short distance, obtained a police officer, and joined in the search. Police broadcast the location and a description of the suspect (described as a Mexican or Indian male wearing red pants). Approximately five minutes after the broadcast, an officer located the appellant—of Mexican descent and wearing red pants—about 150 yards from the robbery site, standing in the front yard of a house. When approached in a marked car the appellant initially moved toward the house and ducked behind a hedge; he came out when the officer called to him. The officer asked whether he lived there and, receiving a negative reply, requested that the appellant come to the police car and produce identification. Mrs. O'Flaherty arrived shortly thereafter and made a positive identification of Gastelo as the robber. On appeal Gastelo challenged (1) the lawfulness of his initial detention (characterizing it as an illegal arrest) and (2) the admissibility of the one-man showup identification as prejudicial and as the product of an illegal arrest.

Legal Issues Presented

Whether the initial detention of appellant by the police officer constituted an illegal arrest requiring suppression of identification evidence.
Whether the one-man showup (the prompt identification by Mrs. O'Flaherty) was unduly prejudicial and should have been suppressed as the product of an illegal arrest.

Arguments of the Parties

Appellant's Arguments

Appellant contended that his initial detention by the police officer was an illegal arrest lacking probable cause.
Appellant argued that the one-man showup identification procedure was prejudicial and should be suppressed because it was the product of an illegal arrest.
Appellant also raised a contention regarding improper custody due to delay in filing the record on appeal (later addressed as moot by the court).

Appellee's / State's Arguments

The State relied on the circumstances surrounding the stop (proximity to the crime scene, short interval after the crime, matching description, and appellant's furtive behavior) to justify the investigative detention and to argue that the subsequent identification furnished probable cause for arrest.
In closing, the prosecutor argued that there were "two" eyewitness identifications of Gastelo (referring to Mrs. O'Flaherty's identification and the victim's identification of the individual brought back to the scene), a point the defense objected to and the court addressed in its jury instruction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Gunter, 100 Ariz. 356, 414 P.2d 734 (1966)	Distinction between arrest (requiring probable cause) and investigatory stop (may be justified by circumstances short of probable cause).	Used to frame the legal standard distinguishing arrests from investigatory stops and to support that an investigatory stop can be lawful without probable cause.
Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966); United States v. Madril, 445 F.2d 827 (9th Cir. 1971), judgment vacated on other grounds, 404 U.S. 1010, 92 S.Ct. 692, 30 L.Ed.2d 657	The lawfulness of a detention short of arrest is tested by whether, under the circumstances, it was reasonable.	Relied upon to evaluate the reasonableness of the detention short of arrest in the present case.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)	Police may, "in appropriate circumstances and in an appropriate manner," approach a person to investigate suspected criminal behavior even absent probable cause to arrest.	Provided foundational authority permitting an investigatory stop under the facts presented.
Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)	"A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable..."	Quoted to justify a brief stop to determine identity or preserve the status quo while obtaining more information.
State v. Nunez, 108 Ariz. 71, 492 P.2d 1178 (1972); State v. Daniels, 106 Ariz. 224, 474 P.2d 815 (1970)	Permitted the "one-man showup" identification procedure when made near the time of the criminal act or at the scene of the crime.	Applied to validate the prompt one-man showup identification by Mrs. O'Flaherty.
Bates v. United States, 405 F.2d 1104, 1106 (D.C. Cir. 1968)	Speedy identification may lead to immediate release of an innocent suspect and enable police to resume the search for the fleeing culprit while the trail is fresh.	Cited (and noted as cited with approval) to support the rationale for permitting prompt identification procedures.
State v. Morales, 110 Ariz. 512, 520 P.2d 1136 (1974); State v. Jaramillo, 110 Ariz. 481, 520 P.2d 1105 (1974)	Permits counsel wide latitude in drawing reasonable inferences from the evidence during argument.	Applied to conclude that the prosecutor's closing argument (claiming two eyewitness identifications) was permissible within the scope of reasonable inference drawing.
Del Rio Land, Inc. v. Haumont, 110 Ariz. 7, 514 P.2d 1003 (1973); Mesa Mail Publishing Co. v. Board of Supervisors, 26 Ariz. 521, 227 P. 572 (1924)	Court is not obliged to consider moot questions or abstract propositions.	Applied to deem appellant's contention regarding custody delay moot because appellant had completed his jail term and was serving probation.

Court's Reasoning and Analysis

The court began by recognizing the difficult but important distinction between an arrest (which requires probable cause) and an investigatory stop (which may be lawful under circumstances short of probable cause), citing State v. Gunter. It reiterated that the lawfulness of a detention short of arrest is tested by reasonableness under the circumstances, citing Gilbert and United States v. Madril.

The court relied on Terry v. Ohio and Adams v. Williams to confirm that a police officer may briefly stop and approach a suspicious person "in an appropriate manner" to investigate suspected criminal behavior or to determine identity and preserve the status quo while obtaining more information.

Applying those principles to the facts, the court found the following facts and circumstances sufficient to justify an investigatory stop: the close proximity to the robbery site, the short interval between the robbery and the encounter, the appellant's description matching the police bulletin, and the appellant's furtive movements and attempt to avoid the officer. The court noted these circumstances might, by themselves, constitute probable cause for arrest but expressly declined to decide that issue because it was unnecessary to the holding.

The court determined the detention was brief and reasonable. It held that the prompt arrival of a witness, Mrs. O'Flaherty, and her positive identification of the appellant furnished a complete basis for establishing probable cause for the appellant's arrest.

Regarding identification procedure, the court observed that a "one-man showup" has been permitted by this Court when made near the time of the criminal act or at the scene, citing State v. Nunez and State v. Daniels. The court emphasized that speedy identification helps insure accuracy and can assist innocent suspects being released and police resuming the search for culprits, citing Bates v. United States. The record contained no indication of any unnecessarily suggestive influence upon the identification.

On the prosecutor's closing argument asserting "two" eyewitness identifications, the court explained that the state effectively relied on Mrs. O'Flaherty's courtroom identification and the victim's testimony about the individual returned to the scene. The court held the prosecutor's argument fell within the permissible latitude afforded counsel to draw reasonable inferences from the evidence, citing State v. Morales and State v. Jaramillo.

Finally, the court treated appellant's contention about being improperly held in custody because of a delay in filing the record on appeal as moot: Gastelo had completed his county jail time and was serving probation. The court invoked Del Rio Land, Inc. v. Haumont and Mesa Mail Publishing Co. v. Board of Supervisors to support declining consideration of moot questions.

Holding and Implications

Holding: Judgment affirmed.

Direct consequences for the parties: the appellate court affirmed Gastelo's robbery conviction and sentence (five years' probation with one year in county jail). The court found the initial detention to have been a reasonable investigatory stop under the circumstances, that Mrs. O'Flaherty's prompt one-man showup identification was admissible and not shown to be unnecessarily suggestive, and that her identification supplied probable cause for arrest. The court also declined to consider the appellant's separate custody-related contention as moot because the appellant had completed his jail term and was serving probation.

No broader or additional implications were expressly announced beyond the court's application of established authority to the facts of this case.

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STATE of Arizona, Appellee, v. Peter Escalante GASTELO, Appellant.

HOLOHAN, Justice.

Peter Escalante Gastelo appeals his conviction and sentence for robbery. He was placed on probation for five years, with one year to be served in the county jail.

As Julia E. Agner and Mary E. O'Flaherty were leaving a Tucson restaurant at about 1:30 a.m., a man grabbed Miss Agner's purse, knocked her to the ground and fled on foot. Mrs. O'Flaherty followed the assailant a short distance, flagged down a policeman, and joined him in the hunt for the assailant.

The location of the robbery and a description of the robbery suspect was broadcast over the police radio. The suspect was described as a Mexican or Indian male wearing red pants. Within approximately five minutes after the broadcast an officer dispatched into the vicinity spotted the appellant, who was of Mexican descent and wearing red pants, standing in the front yard of a house. The residence was about 150 yards from the robbery site, across a vacant field. As the officer approached in his marked car, the appellant walked toward the house and ducked behind a hedge. When the policeman called to him, he came out.

The officer reported by radio that he had found a possible suspect. The officer asked appellant if he lived at that location, and after receiving a negative reply, the officer asked the appellant to come over to the police car and produce identification. The witness, Mary O'Flaherty, and the other officer arrived within moments after the first officer had come in contact with appellant. Mrs. O'Flaherty made a positive identification of Gastelo as the robber.

By this appeal the appellant challenges his initial detention by the police officer as an illegal arrest, and he maintains that the one-man showup procedure should have been suppressed as prejudicial and the product of an illegal arrest.

The distinction between an arrest and an investigatory stop is often difficult to make. Arrest requires the showing of probable cause, but circumstances short of probable cause may still justify an investigatory stop. State v. Gunter, 100 Ariz. 356, 414 P.2d 734 (1966). The lawfulness of a detention, short of arrest, is tested by whether under the circumstances it was reasonable. Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966); United States v. Madril, 445 F.2d 827 (9th Cir. 1971), judgment vacated on other grounds, 404 U.S. 1010, 92 S.Ct. 692, 30 L.Ed.2d 657.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) it was recognized that a police officer may "in appropriate circumstances and in an appropriate manner" approach a person for purposes of investigating suspected criminal behavior even though there is no probable cause to make an arrest. Subsequent to Terry, the United States Supreme Court stated in Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972):

"A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time."

The proximity of the robbery site, the short interval between the crime and meeting the suspect, the suspect's description matching that of the police bulletin, and the furtive movements and attempt to avoid the officer were facts and circumstances sufficient in themselves to lead a reasonable person to conclude that criminal activity may be afoot. The foregoing circumstances may be sufficient in and of themselves to constitute probable cause for arrest, but we do not find it necessary, in view of our holding, to make that determination.

The detention was brief, based on sound judgment, and appropriate under the circumstances. The prompt arrival of one of the witnesses to the robbery, and her identification of the suspect as the assailant furnished a complete basis for establishing probable cause for the arrest of appellant.

The procedure for Mrs. O'Flaherty's identification of the defendant, in effect a "one-man showup," has been permitted by this Court as to identification near the time of the criminal act or at the scene of a crime. State v. Nunez, 108 Ariz. 71, 492 P.2d 1178 (1972); State v. Daniels, 106 Ariz. 224, 474 P.2d 815 (1970).

Such speedy identification helps insure accuracy while the picture of the culprit is fresh in a witness' mind. Furthermore, such procedure

". . . may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh." Bates v. United States, 405 F.2d 1104, 1106 (D.C. Cir. 1968); cited with approval in State v. Daniels, supra.

Nothing in the circumstances presented in the record show any unnecessarily suggestive influence on the identification.

The trial judge did preclude the victim, Miss Agner, from making an in-court identification of Gastelo, but she was allowed to testify concerning the circumstances of the crime itself. In closing argument, the prosecutor claimed to have "two" eyewitness identifications of Gastelo. Defense counsel's objection was overruled and the trial judge cautioned the jury:

". . . The lawyers are at this time arguing to you inferences which they believe you can reasonably draw from the testimony that was placed on the stand. Your [ sic] entitled to draw whatever inferences you think is proper if you don't agree with the inferences. The lawyers present to you what they believe the evidence to be, but you're not required to draw on that, or on those alone."

Miss Agner had testified that the individual brought back to the scene of the crime was the robber. Due to other circumstances she was not permitted to make an in-court identification of appellant Gastelo. The state in effect argued that two eyewitnesses identified the robber, but Mrs. O'Flaherty was the one who made the court identification of the appellant as the robber. The argument was permissible under our rule permitting counsel wide latitude in drawing reasonable inferences from the evidence. State v. Morales, 110 Ariz. 512, 520 P.2d 1136 (1974); State v. Jaramillo, 110 Ariz. 481, 520 P.2d 1105 (1974).

There is no need to discuss Appellant's final contention relative to his allegedly being improperly held in custody because of a delay in filing the record on appeal. Appellant Gastelo completed his county jail time and was released. He is presently serving out his five-year probation period. His arguments are moot. We are not obliged to consider moot questions or abstract propositions. Del Rio Land, Inc. v. Haumont, 110 Ariz. 7, 514 P.2d 1003 (1973); Mesa Mail Publishing Co. v. Board of Supervisors, 26 Ariz. 521, 227 P. 572 (1924).

Judgment affirmed.

CAMERON, C.J., STRUCKMEYER, V.C.J., and LOCKWOOD and HAYS, JJ., concur.

STATE v. GASTELO