State v. Haws

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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. ALLEN SHANE HAWS Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 05-18-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0161 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-167555-001 SE The Honorable Teresa Sanders, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Julie A. Done, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Thomas Baird, Deputy Public Defender Attorneys for Appellant Phoenix K E S S L E R, Judge ¶1 Defendant Allen Shane Haws ( Defendant ) appeals his conviction and sentence for two counts of sale or transportation of narcotic drugs in violation of Arizona Revised Statutes ( A.R.S. ) sections 13-3408(A)(2) and (2010). 1 (7) For the reasons stated below, we affirm the Defendant s conviction and sentence. FACTUAL AND PROCEDURAL HISTORY ¶2 or The State indicted the Defendant on two counts of sale transportation of narcotic drugs sections 13-3408(A)(2) and (7). in violation of A.R.S. The Defendant pled not guilty and filed a motion to suppress drug evidence police seized from a padded envelope he mailed from Gilbert Mail Inc. ¶3 At the suppression hearing, the parties stipulated to the superior court deciding the issue as a matter of law based on certain stated facts. indicate that the The facts that counsel agreed upon Defendant mailing at Gilbert Mail Inc. deposited a padded envelope for The clerk felt the envelope while it was still sealed and then opened it with her supervisor. After the envelope was unsealed the clerk identified that it contained pills, but did not know what kind of pills they were or whether they were contraband. ¶4 Police were called to the scene. The clerk or her supervisor had repackaged the pills by the time police arrived, and the police reopened the package to view what the clerk had 1 We cite to the current version of the statute because no material changes have occurred. State v. Zamora, 220 Ariz. 63, 66 n.4, ¶ 5, 202 P.3d 528, 531 n.4 (App. 2009). 2 viewed. were The police saw the pills, but did not know what they and could supplements contended drugs not based that based on the on distinguish their officers the them from appearance, could totality infer of the candy although that the or herbal the State pills were circumstances . The officers removed the pills from the store and took them to a police station where they called a poison control hotline and learned that the markings on the pills indicated that they were hydromorphone and morphine. 2 ¶5 Some form of laboratory testing subsequently took place, however, the record on the motion to suppress does not clearly indicate what testing took place. The defendant s motion alleges only that objective testing took place. During oral argument, the State hinted that some form of laboratory testing may have taken place but did not specify the nature of the tests or the time it took place. DISCUSSION ¶6 We review the superior court s ruling on a motion to suppress for an abuse of discretion. State v. Cruz, 218 Ariz. 149, 161, ¶ 47, 181 P.3d 196, 208 (2008). conclusions are reviewed de novo. However, purely legal Zamora, 220 Ariz. at 67, 202 P.3d at 532. 2 Hydromorphone and morphine are both Schedule II substances. 21 C.F.R. § 1308.12(b)(1)(vii) & (ix). 3 controlled ¶7 Any search or seizure conducted warrant is presumed unreasonable. U.S. 347, 357 (1967). Amendment them. protection Walter ( [S]ealed v. packages warrant. ). without a valid Katz v. United States, 389 Parcels in the mail are subject to Fourth and the United in warrant requirement States, 447 U.S. 649, mail cannot be opened the applies 654 to (1980) without a The State has the burden of proving the validity of a warrantless search under a well established exception to the warrant requirement. State v. Hendrix, 165 Ariz. 580, 582, 799 P.2d 1354, 1356 (App. 1990) (holding that State has the burden of proving exigent circumstances). The State may rely on stipulated evidence to meet its burden of proof at a suppression hearing. Ariz. R. Crim. P. 16.3(d). However, the State must present evidence of any necessary fact for which it has not obtained a stipulation. ¶8 Ariz. R. Crim. P. 16.2(b). We hold that the superior court erred in admitting evidence of the chemical testing of the pills because the State failed to meet its burden of proving that the testing was within the scope of the private search. error was harmless beyond a However, we find that the reasonable Defendant s conviction and sentence. 4 doubt and affirm the I. The Initial Visual Inspection Legitimate Review of a Private Search ¶9 of the Pills Was a The officers initial visual inspection of the pills did not violate the Fourth Amendment because it was within the scope of a prior private search. One exception to the warrant requirement is the private search doctrine, which permits police to view the results of searches conducted by private parties. United States v. Jacobsen, 466 U.S. 109, 115 (1984). Once the private search is accomplished, police may view what the private searcher viewed without violating the Fourth Amendment. 117. Id. at For a police search to be justified by the private search doctrine, the police search must be no more expansive than the private search. ¶10 In visually examined initial this police case, the a private pills examination actor before consisted opened calling the merely of the mail and police. The reopening the package and viewing the pills as the private actors already had, so it was no more intrusive than the private search and did not violate the Fourth Amendment. See id. 5 II. When the Officers Saw the Pills, They Had Probable Cause to Seize Them ¶11 Once warrantless the officers seizure did not viewed the violate pills, the Fourth the initial Amendment. 3 Officers viewing the results of a private search may temporarily seize items in the mail which they have probable believe is contraband. Jacobsen, 466 U.S. at 120-22. found seizure cause a warrantless reasonable under to Jacobsen the Fourth Amendment when officers reviewing a prior private search found a white powdered substance packaged in four bags and a tube and the circumstances indicated certainly cocaine. pills sent overnight Id. and that the substance was almost In this case, officers viewed loose deposited appearing impaired by drugs. in the mail by a person The superior court did not abuse its discretion by finding that the officers had probable cause to suspect that the pills were illegal drugs. Thus, the initial warrantless seizure of the drugs was reasonable under the Fourth Amendment. III. The State Failed to Prove that its Objective Test was Within the Scope of the Private Search ¶12 The State failed to meet its burden of proving that the scope of the warrantless laboratory testing was de minimis. 3 The defendant did not argue that continuing to retain the pills without a warrant violated the Fourth Amendment, so we need not consider whether after some length of time the officers needed a warrant to continue the seizure. 6 The private search doctrine only shields within the scope of the private search. 115. searches that are Jacobsen, 466 U.S. at A de minimis test which reveals only the presence or absence of particular contraband is not a search and therefore does not expand the scope of the search. 123. Jacobsen, 466 U.S. at A test that reveals the exact nature of any compound tested is not de minimis and expands on the scope of a search that does not include chemical testing. 808 F.2d present 1346, 1348 evidence (9th Cir. regarding United States v. Mulder 1987). the The nature of State its failed testing to and therefore failed to prove that the test was de minimis and not an expansion of the private search. ¶13 In Jacobsen, the test approved of was administered on the spot by placing a substance suspected of being cocaine into three vials. 466 U.S. at 111 n.1. Reactions between the substance and chemicals already in the vials cause a change in color, and if a certain sequence of colors appears, the officers know that the substance contains cocaine. Id. A result reveals only that the substance is not cocaine. 123. private negative Id. at FBI agents administered the test on the spot after a search of a packaged white powder. package alerted Id. at 111. them to a suspiciously The United States Supreme Court found that this test was a de minimis intrusion on the 7 privacy of the package owner and therefore not an expansion on the private search. ¶14 Id. at 126. In Mulder, the private search consisted of a visual inspection of drugs. 808 F.2d at 1348. A later laboratory test confirmed that the drugs were controlled substances. Id. The test in that case took place several days after the private search, required removal to a government facility, and revealed the molecular structure and exact identity of the compound. Id. This search was not within the scope of the private search and was therefore invalid without a warrant or another recognized exception to the warrant requirement. Id. When the private party does not perform chemical testing, the legitimacy of the government s test is a fact-intensive inquiry centering on the extent of the intrusiveness of the chemical testing. Id.; see also Jacobsen, 466 U.S. at 115. ¶15 Each party agreed that some form of laboratory testing on the pills took place, however the State failed to obtain a stipulation on the nature of the tests. the suppression hearing the State Based on the record at failed to prove that the laboratory testing was de minimis and would have been limited to revealing the presence or absence of the particular drugs that were found. ¶16 poison The State control and argues learned that that 8 once the the officers markings on contacted the pills indicated controlled substances, Haws lost all privacy interest in the pills. We disagree. Labeling on a substance indicating that it is contraband does not obviate the need to obtain a warrant before officers can verify the label. at 651. Walter, 447 U.S. In Walter, the Supreme Court held that when FBI agents lawfully acquired possession of a film in the mail whose label indicated that it contained obscene material, they still had to obtain a warrant before they could screen the film to determine whether the contents were in fact obscene. The search violated the Fourth Amendment because it went beyond the scope of the private search, was not supported by a warrant, and was not justified by any exception to the warrant requirement. Id. at 657. ¶17 ability This to case identify is the analogous drugs by to Walter. calling The poison officers control and describing the markings on the pills does not obviate the need for a warrant or a valid exception to the warrant requirement to perform more intrusive tests any more than the explicit labels in Walter. 9 ¶18 The State also argues that [o]nce physical evidence has been validly seized, it may be tested. 4 State v. Cocio, 147 Ariz. 277, 285, 709 P.2d 1336, 1346 (1985). We disagree. The broad language in Cocio emanates from a discussion related to a less intrusive test like the one in Jacobsen. Cocio intended to contradict Jacobsen and We do not think Walter by giving officers carte blanche to perform chemical tests on any evidence they seize. ¶19 Cocio approved police use of a blood alcohol test on a sample the police had validly seized. at 1338, 1344. Id. at 277, 283, 709 P.2d The opinion makes no reference to the test revealing any information other than the amount of alcohol in the defendant s blood, and the sample was tested after the defendant had been involved in a vehicular collision that killed another person and officers had observed him and found that he appeared impaired. Id. at 285-86, 709 P.2d at 1346-47. 4 The State also cites Illinois v. Andreas, 463 U.S. 765 (1983) and State v. Apelt, 176 Ariz. 349, 861 P.2d 634 (1993) for the proposition that they may perform chemical testing on items seized under the plain view doctrine. Andreas merely permits the reopening of a container after the police first validly viewed it while it was open and then reseal it themselves. 463 U.S. at 771-72. Apelt permits seizure of evidence in plain view. 176 Ariz. at 362-64, 861 P.2d at 647-49. An officer s authority to seize evidence found in plain view is distinct from his authority to perform chemical testing on it once it is at rest in the State s hands. See Jacobsen, 466 U.S. at 114. Neither case sanctioned unlimited chemical testing on any item police permissibly seize. 10 ¶20 In support of its statement that the State can test evidence once it is validly seized, Cocio relied on Jacobsen. 147 Ariz. at 285, 709 P.2d at 1346. Jacobsen held a certain chemical presence test which reveals only the or absence of cocaine and is performed on subjects virtually certain to be cocaine does not violate the Fourth Amendment. 466 U.S. at 123. Jacobsen was applicable in Cocio because both cases involved chemical tests that merely confirmed information that was already obvious to the officer and revealed only the presence of a particular chemical. P.2d at 1346. Fourth 466 U.S. at 123; 147 Ariz. at 285, 709 Therefore, they were both reasonable under the Amendment because of the de minimis nature of the intrusion. ¶21 Cocio also relied on two cases dealing with the taking of biological samples from criminal suspects. 147 Ariz. at 285, 709 P.2d at 1346 (citing Cupp v. Murphy, 412 U.S. 291 (1973); Schmerber v. California, 384 U.S. 757 (1966)). Court held that the danger of a suspect In Cupp, the destroying evidence under his finger nails was an exigency that justified collecting scrapings from under the suspect s nails without a warrant. U.S. at 295-96. 412 Although the facts of the case indicate that the police subsequently tested the samples without a warrant, it does not discuss whether the testing, apart from the collection, violated the Fourth Amendment. Id. at 292. 11 The recitation of the procedural history of the case indicates that the issue was waived because the defendant failed to raise it. ¶22 Schmerber approved an officer s See id. extraction of blood (with the assistance of a doctor) from an intoxicated defendant because the metabolization of alcohol in the defendant s body was an exigent warrant circumstance requirement. 384 justifying U.S. at an exception 770-71. The to the decision indicates that the subsequent test revealed only the amount of alcohol in the defendant s blood. See id. at 759. It did not involve a broad test that would have revealed the exact nature of the blood and everything in it. Moreover, as the Court made clear, it was dealing with a specific factual situation. Id. at 772 ( [W]e reach this judgment only on the facts of the present record. ). Testing bodily fluids subject to metabolization is wholly different than a search of papers or property. Id. at 767-68. ¶23 Notwithstanding its occasional approval of minimally intrusive testing, the Supreme Court has articulated limitations on how deeply an officer may probe into validly seized evidence without a warrant. Jacobsen, 466 U.S. at 114-15 (limiting warrantless testing of evidence seized after a private search to that which is within the private search or only a de minimis expansion of (holding that the private warrantless search); screening 12 Walter, of film 447 U.S. violated at 659 Fourth Amendment even though warrantless seizure was permissible). light of the nature of the facts before it and the In prior holdings of the United States Supreme Court, we do not think the Arizona Supreme Court meant to sanction all testing of material validly in police hands regardless of the intrusiveness of the test. Cocio, like Jacobsen, allows de minimis intrusions into the contents of validly seized property. failed to present evidence that its Because the State has chemical testing was de minimis, we find that the superior court erred in admitting the results of the warrantless test. IV. The Erroneous Admission of Chemical Test Results Was Harmless Beyond a reasonable Doubt ¶24 The State contends that even if the admission of the laboratory test results was erroneous, it was harmless error because the evidence was cumulative to the testimony identifying the pills based on their markings. reverse a conviction because of We agree. an We will not erroneous suppression decision if the State proves beyond a reasonable doubt that the error was harmless. 84 P.3d 456, 470 State v. Davolt, 207 Ariz. 191, 205, ¶ 39, (2004). Admission of evidence cumulative to other admissible evidence is harmless. which is State v. Dickens, 187 Ariz. 1, 19, 926 P.2d 468, 486 (1996). ¶25 The State s criminalist testified that prior to performing a chemical test, she looked up what the substances 13 were and found hydromorphone. that the markings indicated morphine and Cross-examination did not attempt to challenge the validity of relying on a pill s markings or the reliability of the reference work the State used. was cumulative to uncontroverted The inadmissible evidence admissible evidence and therefore harmless beyond a reasonable doubt. CONCLUSION ¶26 For the foregoing reasons we affirm Haws conviction and sentence. /S/ DONN KESSLER, Judge CONCURRING: /S/ PATRICK IRVINE, Presiding Judge /S/ MICHAEL J. BROWN, Judge 14

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