State v. Cardenas

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. CARLOS CARDENAS, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/22/09 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 08-0762 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P-1300-CR-0020071114 The Honorable James B. Sult, Retired Judge The Honorable Thomas B. Lindberg, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Jon G. Anderson, Assistant Attorney General Attorneys for Appellee Emily L. Danies Attorney for Appellant Phoenix Tucson N O R R I S, Judge ¶1 Carlos Cardenas appeals his convictions and sentences for possession of methamphetamine, possession of methamphetamine related paraphernalia, possession of methamphetamine for sale, possession of paraphernalia plate. his two searched marijuana, and possession knowingly displaying of marijuana related a fictitious license Cardenas contends the superior court should have granted motions his car to suppress following evidence a stop for found a when police fictitious 1) license plate; and 2) subsequently searched his home with a defective search warrant. For the following reasons, we conclude the superior court properly denied Cardenas s motions to suppress and affirm his convictions and sentences. FACTS AND PROCEDURAL BACKGROUND1 ¶2 stopped Around 8:20 p.m. on July 22, 2007, Officers M. and S. Cardenas while he fictitious license plates. was driving a pickup truck with Officer S. placed Cardenas under arrest, searched his truck and discovered methamphetamine, drug paraphernalia, $880 cash and packaging material consistent with illicit drug sales. The officers impounded Cardenas s truck, then searched it and inventoried recovered property. 1 In reviewing a trial court s decision on a motion to suppress, we view the facts in the light most favorable to upholding the trial court s ruling and consider only the evidence presented at the suppression hearing. State v. Teagle, 217 Ariz. 17, 20, ¶ 2, 170 P.3d 266, 269 (App. 2007). We review the superior court s factual findings on a motion to suppress evidence for abuse of discretion, but review de novo its ultimate legal determination the search complied with the requirements of the Fourth Amendment. In re Tiffany O., 217 Ariz. 370, 373, ¶ 9, 174 P.3d 282, 285 (App. 2007). 2 ¶3 Detective P. interviewed Cardenas in the back seat of Officer S. s patrol car at the scene of the traffic stop around 9:10 p.m. Detective P. left the scene, prepared a search warrant for Cardenas s home and a magistrate signed the warrant around 10:39 p.m. Police then searched Cardenas s home and recovered additional evidence. ¶4 On December 31, 2007, Cardenas moved to suppress all evidence obtained from his truck and home ( first suppression motion ). Relying on Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009),2 Cardenas contended the police impermissibly fictitious searched plates. his truck Cardenas incident also to his contended arrest police for lacked probable cause to search the truck; the inventory search was an after-the-fact constitutional effort to violations justify negated an illegal the search; inevitable multiple discovery doctrine (relying on State v. Davolt, 207 Ariz. 191, 84 P.3d 456 (2004)); and the search warrant contained false information and was therefore invalid. ¶5 The superior court held an evidentiary hearing on February 12, 2008 ( first suppression hearing ), and continued 2 The Arizona Supreme Court decided State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007), after Cardenas s arrest but before Cardenas s first suppression motion. The United States Supreme Court subsequently affirmed the judgment in State v. Gant in Arizona v. Gant, __ U.S. at __, 129 S. Ct. at 1714, 1723-24. For simplicity, we will refer only to Arizona v. Gant regardless of which Gant the parties argued in the superior court. 3 it to March 25, 2008 ( second suppression hearing ). On March 4, 2008, Officer S. filed a Notice of Lodging with the superior court correcting testimony he had given at the first suppression hearing; he explained suppression hearing. suppression hearing, suppression motion, validly stopped those After the the superior finding, Cardenas corrections inter for a at conclusion court the of the denied alia: 1) fictitious second second the Officer license first S. had plate; 2) under Gant, the police had impermissibly searched, incident to arrest, Cardenas s truck; 3) impounding Cardenas s truck for a fictitious plate was permissible; and 4) the prosecution had established, seized from by a preponderance Cardenas s truck of the would evidence, have the items inevitably been discovered through an inventory search mandated by departmental policy. ¶6 On June 13, 2008, Cardenas moved again to suppress evidence obtained at his home ( second suppression motion ), contending police had searched his home before the magistrate had signed the search warrant. At an evidentiary hearing held on July 15, 2008 ( third suppression hearing ), the superior court resolved conflicting testimony and found the police had not searched Cardenas s home signed the search warrant. second suppression motion. until after the magistrate had Accordingly, it denied Cardenas s Cardenas timely appealed. 4 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21 (2003), 13-4031 and -4033 (2001). DISCUSSION I. Search of Cardenas s Truck ¶7 Relying on Gant, Cardenas first argues officers illegally searched his truck after stopping and arresting him for a fictitious license plate. The superior court found the search improper under Gant and on appeal the State concedes this point. The State argues, however, the superior court properly denied the first suppression motion under the inventory search exception to the warrant requirement of the Fourth Amendment. On appeal, Cardenas, through counsel, utterly ignores this exception and only argues the superior court erred in denying the first suppression motion under Gant -- a ruling the superior court never made. Because, on appeal, Cardenas has failed to develop argument any other the actual ruling made by the superior court on the first suppression motion was erroneous, he has forfeited his right to contest the validity of that ruling in this court. ¶8 preserved decision Nevertheless, Cardenas s to deny the even right first if to counsel challenge suppression 5 for the Cardenas superior motion based had court s on the inventory search exception to the warrant requirement, we agree with the State the superior court properly denied the motion. ¶9 The State may not conduct unreasonable searches and seizures. U.S. Const. amend. IV. Warrantless searches and seizures are per se unreasonable unless a recognized exception to the warrant requirement exists. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). such exceptions are applicable here. administrative search of an Two The first exception is an impounded vehicle which must be routine and not a pretext concealing an investigatory police motive. South Dakota v. Opperman, 428 U.S. 364, 369-71, 96 S. Ct. 3092, 3097-98, 49 L. Ed. 2d 1000 (1976). As part of their community caretaking function, police officers may impound vehicles that jeopardize public movement of vehicular traffic. safety and the efficient Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005) (quoting Opperman, 428 U.S. at 368-69). The community caretaking doctrine also includes impounding a vehicle if it is a target for vandalism or theft, if the driver is unable to operate it legally, or if it is necessary to remove it from an exposed or public location. Miranda, 429 F.3d at 864, 865.3 3 In its April 3, 2008 minute entry, the superior court concluded an impound of the vehicle was permissible once police decided to place Cardenas under lawful custodial arrest, 6 ¶10 Here, the officers initially arrested Cardenas for displaying a fictitious license plate, a class two misdemeanor. See A.R.S. § 28-2531(B)(1) (2004). After the arrest, a records check by Officer S. of Cardenas s truck s vehicle identification number revealed the vehicle registration had been suspended. Officers placed Cardenas in the back of Officer S. s patrol car and Officer S. began his search -- albeit impermissible under Gant -- of Cardenas s truck. While searching the truck, Officer S. also learned Cardenas s driver s license had been suspended. At the first suppression hearing, Officer S. explained why he impounded Cardenas s truck: Once the decision to arrest the defendant was made, the decision to impound the vehicle was also made due to the fact that it was going to be left behind with no valid plates, and to our knowledge no insurance and no driver. So we secure that vehicle so that it doesn t get broken into and it s not left -- it s not drivable by anyone, it doesn t have current registration. Police department impounded, it policy will be specified thoroughly whenever searched a vehicle (including is all containers therein) and an inventory of all personal property will be made on the appropriate department form. After impounding Cardenas s truck, police searched it in compliance with departmental policy. Thus, under the community caretaking but did not discuss the underlying community caretaker doctrine permitting seizure of the truck. 7 doctrine, the police permissibly impounded Cardenas s truck and searched and inventoried its contents. ¶11 The second exception applicable here is the inevitable discovery doctrine, which provides that illegally obtained evidence is admissible [i]f the prosecution can establish by a preponderance of the evidence that the illegally seized items or information would have inevitably been seized by lawful means. State v. Rojers, 216 Ariz. 555, 559, ¶ 18, 169 P.3d 651, 655 (App. 2007) (quoting State v. Jones, 185 Ariz. 471, 481, 917 P.2d 200, 210 (1996)). immediately after Had police not searched Cardenas s truck arresting him, they inevitably would have discovered the evidence during the inventory search discussed above. seized Thus, the superior court properly admitted the evidence from Cardenas s truck under the inevitable discovery doctrine. II. ¶12 Search of Cardenas s Home Cardenas next argues the search warrant was defective because Detective P. s attached affidavit incorrectly stated a confidential informant saw drugs in Cardenas s home. Although Detective P. s affidavit contained an incorrect statement, we conclude the warrant was not defective. ¶13 The Fourth Amendment requires suppression of evidence if a defendant proves a law enforcement officer knowingly and intentionally, or with reckless disregard for the truth made a 8 false statement to obtain a warrant and the false statement was necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978). P. At the first and third suppression hearings, Detective conceded Cardenas s his home, informants but had never testified he seen did any not drugs in knowingly, intentionally or with reckless disregard for the truth make any false statement in the affidavit. We see nothing in the record, nor does Cardenas argue anything to suggest otherwise. ¶14 Moreover, assuming arguendo Cardenas proved the reckless disregard prong, we agree with the State the warrant supplied ample probable cause to search Cardenas s home, even after excising the incorrect information. The warrant described with particularity Cardenas s modus operandi to acquire drugs, which included trips to Phoenix with a return stop in Granville, and that Cardenas had re upped with drugs on July 18, four days before the traffic stop. A confidential reliable informant provided this information and a concerned citizen independently corroborated it. The warrant noted the items seized during the traffic stop -- cash over $500 and packaging material -- suggested drug sales, as did Cardenas s statements to Detective P. at the site of the traffic stop which included, inter alia, that he had a methamphetamine grinder at his home. 9 We therefore conclude the police executed argues police a valid warrant supported by probable cause. ¶15 Finally, Cardenas searched before the magistrate signed the warrant. rejected this argument, substantial evidence. and its decision his house The superior court is supported by The superior court did not find credible Cardenas s testimony he had overhead officers discuss items they had found in his house before the magistrate issued the warrant. Further, the record supports the superior court s determination officers did not enter Cardenas s home until we affirm after the magistrate had signed the warrant. CONCLUSION ¶16 For the foregoing reasons, Cardenas s convictions and sentences. /s/ _______________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ ____________________________________ SHELDON H. WEISBERG, Judge /s/ ____________________________________ MARGARET H. DOWNIE, Judge 10

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