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Allen D. RINDERKNECHT Appellant
vs.
MARICOPA COUNTYEMPLOYEES MERIT SYSTEM; James W. Gould Chairman; John Mummert Sheriff of Maricopa County State of Arizona Appellees
 
Case:
No. 1 CA-CIV 2092
 
Location:
Court of Appeals of Arizona Division One
 
Date:
March 26 1974
 
Attorneys:
Debus Busby & Green Ltd. by Larry L. Debus Phoenix for appellant.
Moise Berger Maricopa County Atty. Kenney & Rosen by Donald J. Kenney Special Counsel Sheriff Phoenix for appellees.
 
Court:
Howard Court. Hathaway C. J. and Krucker J. concur.
 
Author:
The Hon. Justice Howard
 

NOTE: This cause was decided by the Court of Division Two as authorized by A.R.S. SEC. 12-120(E).

This case was first heard by the Maricopa County Merit System Commission on March 28 1971 to review appellant's termination of employment as a deputy sheriff. After a ruling adverse to him appellant pursuant to A.R.S. SEC. 11-356(D) which provides for judicial review in accordance with A.R.S. SEC. 12-901 et seq. filed a complaint in the Superior Court of Maricopa County on April 30 1971. In his complaint appellant demanded a trial de novo under A.R.S. SEC. 12-910.

The trial de novo was granted. Appellant then filed a motion in limine to suppress all testimony and evidence obtained as a result of an alleged illegal search of the apartment in which he was staying the day before his dismissal from the sheriff's department. This motion was denied by the trial court on the ground that the exclusionary rule did not apply to this type of trial. At the conclusion of the trial the administrative ruling as to appellant's dismissal was affirmed.

There are two issues presented on appeal: (1) Whether it was reversible error to declare that the exclusionary rule relating to illegally obtained evidence would not be applicable in this case. (2) Whether the lower court judgment is unsupported by the evidence and contrary to the law.

APPLICABILITY OF THE EXCLUSIONARY RULE

We do not address ourselves to the question of what rules of evidence apply in an administrative hearing of the Maricopa County Merit System Commission but only to the applicability of the exclusionary rule to a trial de novo in the superior court pursuant to A.R.S. SEC. 12-910(B). The Arizona Supreme Court in Duncan v. Mack 59 Ariz. 36 122 P.2d 215 (1942) an appeal from a decision of the superintendent of liquor licenses and control described the scope of a trial de novo:

"We hold therefore that on appeals from an inferior court or administrative board to the superior court unless the statute expressly provides otherwise the case will be heard by the superior court in the same manner as though it were an original proceeding in that court and while as a matter of practice due consideration should be given to the opinion of the lower tribunal as to the weight and credibility of the evidence yet the superior court has jurisdiction to disregard that opinion and form its own independent conclusions upon the evidence." 59 Ariz. at 42 122 P.2d at 218 (Emphasis added)

Accord State v. Jones 94 Ariz. 334 385 P.2d 213 (1963); Horne v. Superior Court 89 Ariz. 289 361 P.2d 547 (1961); Davis v. Brittain 89 Ariz. 89 358 P.2d 322 (1960); Montierth v. State Land Department 84 Ariz. 100 324 P.2d 228 (1958); Welker v. Stevens 82 Ariz. 233 311 P.2d 832 (1957); Vazzano v. Superior Court In and For Maricopa County 74 Ariz. 369 249 P.2d 837 (1952); Cox v. Superior Court In and For Pima County 73 Ariz. 93 237 P.2d 820 (1951); Lane v. Ferguson 62 Ariz. 184 156 P.2d 236 (1945).

The Fourth Amendment of the United States Constitution provides:

"The right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no Warrants shall issue but upon probable cause supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."

It is clearly established that in a criminal trial evidences seized in violation of a defendant's rights under the Fourth Amendment (or under the Fourteenth Amendment where the states are involved) will be excluded whether that trial be in a state or federal court and whether the evidence was seized by federal or state officials.

Ker v. California 374 U.S. 23 83 S.Ct. 1623 10 L.Ed.2d 726 (1963); Mapp v. Ohio 367 U.S. 643 81 S.Ct. 1684 6 L.Ed.2d 1081 (1961); Elkins v. United States 364 U.S. 206 80 S.Ct. 1437 4 L.Ed.2d 1669 (1960); Weeks v. United States 232 U.S. 383 34 S.Ct. 341 58 L.Ed. 652 (1914).

This exclusionary rule bars not only the evidence itself but all leads obtained therefrom Silverthorne Lumber Co. v. United States 251 U.S. 385 40 S.Ct. 182 64 L.Ed. 319 (1920). Evidence is also excluded if illegally obtained by state officials and made available to federal officials Elkins v. United States supra.

The exclusionary rule has been applied in civil proceedings having criminal overtones or involving forfeitures. In the case of One 1958 Plymouth Sedan v. Pennsylvania 380 U.S. 693 85 S.Ct. 1246 14 L.Ed.2d 170 (1965) the United States Supreme Court in applying the rule to a forfeiture which is a civil proceeding supported its ratio decidedness with this statement from Boyd v. United States 116 U.S. 616 6 S.Ct. 524 29 L.Ed. 746 (1886):

"'If the government prosecutor elects to waive an indictment and to file a civil information against the claimants -- that is civil in form -- can he by this device take from the proceeding its criminal aspect and deprive the claimants of their immunities as citizens and extort from them a production of their private papers or as an alternative a confession of guilt? This cannot be. The information though technically a civil proceeding is in substance and effect a criminal one. As therefore suits for penalties and forfeitures incurred by the commission of offenses against the law are of this quasi criminal nature we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the constitution 85 S.Ct. at 1249.

Thus we see that where evidence is obtained by the state as the result of an illegal search and seizure and the state has an option of a civil remedy or criminal prosecution Court will apply the exclusionary rule if the state chooses civil proceedings.

In Weeks v. United States supra Court commented on the scope of the protection of the Fourth Amendment:

"This protection reaches all alike whether accused of crime or not and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws." 34 S.Ct. at 344.

There have been numerous applications of the exclusionary rule to civil cases by our federal courts. Knoll Associates Inc. v. F.T.C. 397 F.2d 530 (7th Cir. 1968) (stolen documents could not be used by the government in an FTC proceeding); Berkowitz v. United States 340 F.2d 168 (1st Cir. 1965) (forfeiture); District of Columbia v. Little 85 U.S. App. D.C. 242 178 F.2d 13 (1949) affirmed on other grounds 339 U.S. 1 70 S.Ct. 468 94 L.Ed. 599 (1950) (housing code violation); United States v. Physic 175 F.2d 338 (2nd Cir. 1949) (forfeiture);

United States v. Butler 156 F.2d 897 (10th Cir. 1946) (forfeiture); Walker v. United States 125 F.2d 395 (5th Cir. 1942) (forfeiture); Rogers v. United States 97 F.2d 691 (1st Cir. 1938) (civil action to recover import duties); Laprease v. Raymours Furniture Co. 315 F .Supp. 716 (N.D.N.Y.1970) (action to enjoin a replevin); State of Iowa v. Union Asphalt & Roadoils Inc. 281 F.Supp. 391 (S.D.Iowa 1968) affirmed sub nom.

Standard Oil Company v. State of Iowa 408 F.2d 1171 (8th Cir. 1969) (treble damage antitrust action); United States v. Stonehill 274 F.Supp. 420 (S.D.Cal.1967) affd. 405 F.2d 738 (9th Cir. 1968) (enforcement of tax lien); Lord v. Kelley 223 F.Supp. 684 (D.Mass.1963) (action to enjoin evidentiary use of illegally seized records); United States v. One 1963 Cadillac Hardtop 220 F.Supp. 841 (E.D.Wis.1963) (forfeiture); Lassoff v. Gray 207 F.Supp. 843 (W.D.Ky.1962) (action to enjoin tax assessment); $4 171.00 in United States Currency 200 F.Supp. 28 (N.D.Ill.1961) (forfeiture); United States v. Costello 145 F.Supp. 892 (S.D.N.Y.1956) reversed on another issue 247 F.2d 384 (2nd Cir. 1957) which was in turn reversed on such other issue 356 U.S. 256 78 S.Ct. 714 2 L.Ed.2d 741 (1958) (denaturalization proceeding); Tovar v. Jarecki 83 F.Supp. 47 (N.D.Ill.1948) reversed on other grounds 173 F.2d 449 (7th Cir. 1949) (action to enjoin tax collection); Schenck v. Ward 24 F.Supp. 776 (D.Mass.1938) (immigration proceeding); Ex Parte Jackson 263 F. 110 (D.Mont.1920) (deportation proceeding).

Among the opinions in the federal courts the case of Powell v. Zuckert 125 U.S. App. D.C. 55 366 F.2d 634 (1966) has interesting similarities to the case at hand. This was a proceeding by a former Air Force civilian employee for judicial review of his discharge after exhaustion of his administrative remedies. Court of Appeals held that an employee's discharge could not be based on evidence seized in violation of the United States Constitution stating:

"It would seem wholly at odds with our traditions to allow the admission of evidence illegally seized by Government agents in discharge proceedings which the Court has analogized to proceedings that 'involve the imposition of criminal sanctions Peters v. Hobby 349 U.S. 331 344 75 S.Ct. 790 797 99 L.Ed. 1129 (1955);" at 640.

In the case at bench we have a county employee being discharged based only on evidence that was obtained from a search and seizure and evidence resulting from the arrest after contraband was found in the search and seizure. There was never a determination by Court that the search and seizure violated or did not violate the Constitution. The state chose not to file criminal charges for possession of marijuana but instead discharged the employee.

The discharge resulted in the commission hearing and a judicial review. We are of the opinion that these proceedings have a sufficient quasi-criminal nature to warrant application of the exclusionary rule in order to protect Fourth Amendment rights. The trial court should have inquired into the sufficiency of the warrant and the legality of the search and seizure.

SUFFICIENCY OF THE EVIDENCE

Our review of the trial transcript discloses that the bulk of the evidence consisted of contraband obtained from the search and seizure and post-arrest statements by appellant. The only exception is the testimony of appellant's ex-wife that the appellant stated before he moved into the apartment that his future roommates had used marijuana and he heard there were pot parties in the complex he was moving into.

If all the evidence admitted was properly admitted then there was sufficient evidence to sustain a discharge. However if the only evidence properly admitted is the testimony of the ex-wife then certainly there is not sufficient evidence to support the judgment.

Since appellant was entitled to challenge the legality of the search and seizure the lower court erred in summarily denying his motion to suppress. We therefore reverse and remand for further proceedings consistent herewith.