Tacon v. Arizona

LOCATION: Paris Adult Theater

DOCKET NO.: 71-6060
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Arizona Supreme Court

CITATION: 410 US 351 (1973)
ARGUED: Jan 09, 1973
DECIDED: Feb 21, 1973

Robert J. Hirsh - for petitioner
William P. Dixon - for respondent

Facts of the case


Media for Tacon v. Arizona

Audio Transcription for Oral Argument - January 09, 1973 in Tacon v. Arizona

Warren E. Burger:

Arguments next in number 71-6060, Tacon against Arizona.

Mr. Hirsh, you may proceed whenever you’re ready.

Robert J. Hirsh:

Mr. Chief Justice, may it please the Court.

If I could give the Court a brief presentation of the facts in this particular matter, Mr. Tacon was a soldier down at Fort Huachuca in 1969 and in February of that year he was arrested for unlawful sale of marihuana, he was claimed to have transferred a little of an ounce of marihuana to an undercover agent and as the result of that arrest was a charge in the Cochise County Superior Court in South Eastern Arizona.

Mr. Tacon was given appointed counsel, he was released from his own recognizance, released back to his company commander and in the summer of the that year, he’d spent time consulting with his court-appointed attorney and if there was a continuance granted at the court-appointed attorney’s request.

There was no time set after the motion for continuance was made, the trial judge didn’t set a time certain and in December of 1969, Mr. Tacon was discharged from the service.

He called his court-appointed attorney said, “Mr. Whitney, I’ve got to go back to New York, I’m discharged from the service.”

Mr. Whitney thereupon told Tacon, “That’s fine, give me your address back there and I’ll notify you when the trial comes up.”

In March the 3rd --

Warren E. Burger:

Was his release conditioned in any way on remaining within the jurisdiction of the court?

Robert J. Hirsh:

No sir, it wasn’t.

That was one of the issues that was raised in Cochise County at a hearing and the only restriction that Tacon had on was that his orders had been plugged and Tacon testified at that hearing that he didn’t know the meaning of that and all he understood was that he was to remain at Fort Huachuca as long as he was in the Army but he didn’t understand or have anyone tell him that he couldn’t go back to New York.

The trial judge had a different belief as to that and the trial judge in fact had claimed that Tacon had violated his trust and violated the bail arrangement by leaving the state although, I think the record shows that Tacon did act on good faith when he went back to New York.

He called the court-appointed attorney in Cochise County and also he had a federal charge that at that time was against him and he called the -- then the U.S. Commissioner in (Inaudible) and the bail restrictions and the federal charge did specify that he was not allowed to leave the State of Arizona without prior permission.

Tacon called the U.S. Commissioner and got specific express permission to leave the State and then went to New York.

So the state of the record indicates that at least he didn’t have any good faith plea for cause to believe that he was not allowed to leave the State of Arizona.

Warren E. Burger:

Tell me again –-

Did it show how he got back to New York in his own funds?

Robert J. Hirsh:

No, it does not show that.

I assume that he had some severance pay from the service, for the service provided wanting to get back to New York.

Was he a New Yorker when he entered the Army?

Unless he’s changed, [Voice Overlap] came in he’s planning to go back to New York at the taxpayers expense?

Robert J. Hirsh:

I’m almost certain that he was a New York resident.

I just –- I don’t have a specific recollection of it.

I know his family during the time he was in the service moved to Florida and that his mother was a Florida resident at the time this particular case came up for trial.

Warren E. Burger:

But did he consult his -- does the record show whether he consulted with his lawyer before he left Arizona?

Robert J. Hirsh:

Yes, it does.

The appendix shows that in fact, our hearing after the trial indicates that and the attorney verifies this that Tacon called the attorney on the phone and advised him that he is now being discharged from the service.

He told him he was going to New York and the attorney said, “Fine, you just give me your address in New York in order to enable me to locate you when the case is called for trial.”

So I think it’s clear from the record that Tacon did act in good faith when he went back to New York and fairly welcome as he didn’t violate the law based on my interpretation of the facts.