STATE v. CARTER
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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 DIVISION ONE FILED: 08/07/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) ) Appellee, v. CHRISTI CAY CARTER, Appellant. No. 1 CA-CR 11-0273 DEPARTMENT A Maricopa County Superior Court No. CR-2010-132574-003 DT DECISION ORDER The court, Judge Ann A. Scott Timmer and Presiding Judge Maurice Portley and Judge Andrew W. Gould participating, has received Christi Cay Carter s motion for reconsideration of the memorandum decision filed March 6, 2012 affirming her convictions and resulting sentences for one count of possession of dangerous drugs, one count of misconduct involving weapons, and two counts of possession of drug paraphernalia. Carter asks us to reconsider the decision because she never received notice of her opportunity to file a supplemental brief after her counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). For the reasons that follow, we deny the motion because the issues raised by Carter lack merit. I. Denial of motion to suppress Carter primarily argues the motion to suppress evidence. court erred by denying her On review, we consider only the evidence presented at the suppression hearing and view those facts in ruling. (App. the light most favorable to upholding the court s State v. Box, 205 Ariz. 492, 493, ¶ 2, 73 P.3d 623, 624 2003). review de We novo defer its to legal the court s factual conclusions. findings State v. but Gonzalez- Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). A. Traffic stop and automobile search Carter first argues the traffic stop and subsequent search of co-defendant Gerald Wilson s car violated the Fourth Amendment s prohibition of unreasonable searches and seizures. To raise a however, Fourth the Amendment defendant challenge must to herself police have a conduct, legitimate expectation of privacy in the area searched or the item seized. Rakas v. Illinois, 439 U.S. 128, 143 (1978); Rawlings v. Kentucky, 448 U.S. 98, 104-06 (1980); State v. Tarkington, 218 Ariz. 369, 370-71, ¶ 7, 187 P.3d 94, 95-96 (App. 2008). claims no such expectation of privacy in the car Carter owned and driven by Wilson, and therefore she cannot challenge the stop or search. We note, however, that this court upheld that search as a valid search incident to arrest in Wilson s appeal. 2 State v. Wilson, 1 CA-CR 11-0292, 2012 WL 1255151, at *4, ¶ 19 (Ariz. App. Apr. 12, 2012) (mem. decision). B. Securing the residence Carter argues the police violated the Fourth Amendment by unlawfully securing her residence and detaining obtaining a search warrant for the house. her before Specifically, Carter claims the police lacked exigent circumstances (or created any exigency that did exist) to justify securing the residence in anticipation of a warrant, lacked probable cause to support a search warrant at the time they secured the residence, and lacked grounds to detain her at the residence. The Fourth Amendment generally prohibits warrantless entry by police into a home absent exigent circumstances. Bolt, 142 probable Ariz. 260, destruction circumstance. 549 (1986). 265, of 689 P.2d evidence is 519, 524 one recognized State v. (1984). The exigent State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, This exigency exists if, at the time of warrantless entry, the circumstances indicated evidence was in danger of imminent destruction and warrant could be issued. would likely be destroyed before a State v. Hendrix, 165 Ariz. 580, 582, 799 P.2d 1354, 1356 (App. 1990). Here, the totality of the circumstances supports the trial court s conclusion justified a that warrantless the risk entry to 3 of destruction secure of Carter s evidence residence pending a warrant. Glendale Police had received an anonymous tip that drugs were being sold out of the house, and Detective Galen Davis recognized the house as the subject of a previous drug complaint. Of the three individuals who left the house in Wilson s car, two of them including Wilson, who lived at the house possessed methamphetamine. These circumstances gave police reason to believe there would be evidence of illegal drug activity at the house. Additionally, the fact that Henry Ricketts walked away from the scene of the automobile stop indicated a risk the evidence at the house might be destroyed. Ricketts had just witnessed Wilson arrested and Sherry Johnston being for possession of methamphetamine and informed the detective that Carter remained at the residence. arrests and He could readily have informed Carter of the warned her to destroy any additional drugs, paraphernalia, or weapons at the residence. Although Carter argues the police created this exigency by allowing Ricketts to walk away from the scene, the officers decision to release Ricketts in the absence of grounds to arrest him was reasonable. (2011) ( [T]he See Kentucky v. King, 131 S. Ct. 1849, 1858 exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is Amendment]. reasonable Where, as [within here, the the 4 meaning police did of the Fourth not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction Carter of evidence similarly is argues reasonable that and Detective thus Davis allowed. ). created the exigency by asking her for consent to search the house before obtaining a warrant. But police may seek consent to search without first seeking a warrant. Schneckloth v Bustamonte, 412 U.S. 218, 219 (1973). Next, Carter argues the police lacked probable cause to justify securing the residence to await issuance of a search warrant. See Segura v. United States, 468 U.S. 796, 798 (1984). Both anonymous an tip and Detective Davis s investigative experience in the area suggested the residence might be a drug house. Less than an hour into his surveillance of the residence, Detective Davis witnessed Johnston drive up, enter the house, then leave the residence in Wilson s car with Wilson and Ricketts. violation, After police pulling discovered the car over methamphetamines purse and next to Wilson s driver seat. for in a traffic Johnston s Although, as Carter points out, Johnston was a visitor to the house, she had entered the residence before being found with methamphetamine in her purse. Wilson, who possessed an additional 900 milligrams of methamphetamine concealed in a false battery, was a resident of the house. Detective Davis also discovered several weapons -- a 5 knife, baton, and stun gun -- in Wilson s car; although not themselves illegal testified weapons for are Wilson commonly to possess, associated the with detective drug sales. Although Carter suggests the police were acting on nothing more than Wilson and Johnston s drug possession coupled with police experience that users often have additional drugs at home, see People v. Pressey, 126 Cal. Rptr. 2d 162, 165 (App. 2002), the circumstances here were much more robust. Considering the totality of these circumstances, the trial court did not err by concluding police had probable cause to search the house. Finally, Carter argues detain her at the house. the officers lacked grounds to She contends that, because Detective Davis had not yet begun to prepare the warrant at the time she was detained, the police lacked authority to temporarily detain her pending issuance of a search warrant. Police may, with probable cause, secure [a] premises from within to preserve the status quo, while others, in good faith, are in the process of obtaining a Amendment s warrant, [without] proscription against violat[ing] unreasonable the Fourth seizures. Segura, 468 U.S. at 798; see also Bolt, 142 Ariz. at 263, 689 P.2d at 522. cause to As described above, the police here had probable support a search warrant and exigent circumstances justifying a warrantless entry, and thus did not violate the Fourth Amendment by detaining Carter to preserve the status quo 6 in anticipation detention was of proper the on warrant. this Because ground, we we conclude need not the address Carter s alternate argument that the detention was impermissible under Terry v. Ohio, 392 U.S. 1 (1968). C. Interrogation and incriminating statements Carter next argues the court erred by failing to suppress the statements she made to officers while detained at the house. First, she denies ever disclosing incriminating information to officers, arguing instead that Detective Davis searched the house before obtaining a warrant and confronted her with the presence of drugs in the bedroom. similar testimony at the Although Carter presented suppression hearing, the officers testified Carter had admitted to using methamphetamine and to having weapons, paraphernalia, and illegal drugs in the house. We defer to the court s factual findings, Gonzalez-Gutierrez, 187 Ariz. at 118, 927 P.2d at 778, and the officers testimony is a sufficient basis for the court s finding that Carter made these incriminating statements. Carter tainted by also her argues the statements impermissible detention. were involuntary Because we as have concluded the police did not violate the Fourth Amendment by securing the house and detaining Carter, Carter s statements are not tainted by a prior constitutional violation. v. United States, 371 U.S. 471, 484-85 (1963). 7 See Wong Sun Even absent an unreasonable search or seizure, confessions are admissible at trial if made voluntarily. State v. Ellison, 213 Ariz. 116, 127, ¶ 30, 140 P.3d 899, 910 (2006). Confessions are presumed to be involuntary, and the State has the burden of establishing by a preponderance of the evidence freely and voluntarily given. that the confession was State v. Thomas, 148 Ariz. 225, 227, 714 P.2d 395, 397 (1986). To assess voluntariness of a confession, we consider the totality of the circumstances to determine whether the defendant s will was overborne. State v. Newell, 212 Ariz. 389, 399, ¶ 39, 132 P.3d 833, 843 (2006). Here, Carter was detained in her own home. Although initially handcuffed, the police soon removed the restraints. Although at least two officers remained in the residence, they neither intimidated nor threatened Carter. Although armed, they kept their weapons holstered and conversed calmly rather than pressing her for information about drug possession. circumstances, we cannot say the court erred by Under the concluding Carter made these statements voluntarily after receiving Miranda warnings. II. Prosecutorial misconduct Carter argues the prosecutor misled the jury about how she and Wilson stored their weapons in the house by publishing a photograph that purports to show their knives and swords kept off the wall and at the ready. 8 Carter contends the photograph and the prosecutor s argument erroneously suggested the weapons were readily available for use defending the drugs whereas they were in fact kept secured to the wall as decorations. We will reverse for prosecutorial misconduct only if (1) misconduct is indeed present[,] and (2) a reasonable likelihood exists that the misconduct could have affected the jury s verdict, thereby denying defendant a fair trial. State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004). only if misconduct is so pronounced Reversal is required and persistent that it permeates the entire atmosphere of the trial, affect[ing] the jury s ability to fairly assess the evidence. State v. Rosas Hernandez, 202 Ariz. 212, 218 19, ¶ 23, 42 P.3d 1177, 1183 84 (App. 2002) (citations omitted). We do not discern misconduct. that the knives were pretty Carter testified at trial much photograph [was] not how we kept them. secured and that the In contrast, Detective Davis testified the knives and swords were readily accessible, not locked to the wall, and in position to be easily taken from the wall to be used. Thus, the jury was informed the weapons were on the wall, and it was for the jury to decide whether the weapons were readily accessible for use or merely displayed for decoration. 9 For the foregoing reasons, IT IS ORDERED denying the motion for reconsideration. /s/ Ann A. Scott Timmer, Judge CONCURRING: /s/ Maurice Portley, Presiding Judge /s/ Andrew W. Gould, Judge 10
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