STATE v. LUNSFORD

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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. GREGORY JOE LUNSFORD JR., Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/20/2012 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 11-0837 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-048543-001 The Honorable Roger E. Brodman, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Nicholas Klingerman, Assistant Attorney General Tucson Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 Defendant Gregory Lunsford appeals his convictions and sentences for drug and paraphernalia possession and misconduct involving weapons. He contends that the trial court erred by failing to suppress the search warrant. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Phoenix police apartment complex. responded to a shooting call at They found a victim lying in a stairwell with a trail of blood leading to Lunsford s apartment. Lunsford an responded to their knock and opened the When door, the officers noticed blood inside the apartment and asked if they could conduct a protective sweep. one else was found inside. Lunsford consented, and no The apartment was then secured while other officers got a search warrant for evidence relating to the homicide. ¶3 While executing the warrant, police officers illegal drugs and obtained a supplemental warrant. seized zip-lock bags containing marijuana and saw They then crack cocaine, glass pipes, small scales, a measuring cup and razor blade with white residue, a loaded .22 caliber handgun, and an unloaded .38 caliber handgun. and convicted possession of of Lunsford was indicted, and subsequently tried possession marijuana for of a sale, 2 narcotic two drug counts of for sale, misconduct weapons, 1 involving paraphernalia. and two counts of possession of drug We have jurisdiction over his appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033 (West 2012). DISCUSSION ¶4 Lunsford contends that the trial court erred by finding the affidavit supporting the original warrant did not contain intentional, knowing, or reckless misstatements and omissions of fact under Franks v. Delaware, 438 U.S. 154 (1978). We review whether the court abused its discretion in resolving whether the affiant deliberately included misstatements of law or excluded erroneous. material facts and will affirm unless clearly State v. Buccini, 167 Ariz. 550, 554, 810 P.2d 178, 182 (1991). ¶5 In Franks, the U.S. Supreme Court held that evidence seized through a warrant will be inadmissible if a defendant can establish affiant by made a preponderance a false of statement the evidence which that was (1) the knowingly or intentionally false or which was made in reckless disregard for the truth, and (2) the affidavit s insufficient to support probable cause. remaining content is 438 U.S. at 171-72. In order to show that the affiant acted with reckless disregard 1 At the time of the incident, Lunsford was a possessor pursuant to Arizona Revised Statutes section 13-3101(A)(7) (West 2012). 3 prohibited ( A.R.S. ) for the truth, we have required proof that the affiant entertained serious doubts about the truth of the affidavit. State v. Carter, 145 Ariz. 101, 109, 700 P.2d 488, 496 (1985). Merely innocent or negligent mistakes in an affidavit will not satisfy the first prong of Franks, 438 U.S. at 171). probable cause, a warrant the Franks test. Id. (citing And, if a magistrate has found should hypertechnical interpretation. not be invalidated by a In re One 1970 Ford Van, I.D. No. 14GHJ55174, License No. CB 4030, 111 Ariz. 522, 523, 533 P.2d 1157, 1158 (1975) (holding an affidavit must be tested in a common-sense and realistic fashion ). ¶6 Lunsford contends that the affidavit falsely stated that (1) he was hesitant to open his door for the officers, and (2) there were multiple drops of blood, blood smears and bloody handprints prepared inside by a the apartment. detective from the The affidavit, telephonic which was information the officers provided, states in relevant part that: The officer located a blood trail from the victim to the Apartment #208. Officers contacted the residence [sic] of apartment #208, identified as [Lunsford]. [Lunsford] was hesitant to open his door for officers. Officers were able to see blood drops inside apartment #208. Officers conducted a protective sweep of Apartment #208 and observed what appeared to be blood smears and bloody hand prints inside the apartment. 4 ¶7 At the suppression hearing, the police officer testified that when the officers knocked on the door, Lunsford was kind of hesitant to give [them] any information, did not open his door all the way, and attempted to hide the blood near the threshold. The officer also testified that the officers observed a drop of blood on the inside the door threshold, and a blood smudge on the wall which looked like somebody had put their hand [there]. At the conclusion of the hearing, the court found that although the affidavit contained misstatements, there was no indication that the information was intentionally, knowingly, or even recklessly . . . false but instead had been miscommunicated between the time it was observed and the time the affidavit was drafted. 2 Additionally, the court noted that the affidavit s account of Lunsford s uncooperativeness with the officers was consistent with the police reports. ¶8 We find no error with the court s ruling. Lunsford contends that the information in the Although warrant was misleading, he provided no evidence which suggested that the account of his hesitat[ion] to open his door for officers in the affidavit was inconsistent with the officer s testimony. See In re One 1970 Ford Van, I.D. No. 14GHJ55174, License No. CB 4030, 111 Ariz. at 523, 533 P.2d at 1158 (holding an affidavit 2 The affidavit was prepared by a detective offsite based on information relayed from an officer at the crime scene. 5 must be tested in a common-sense and realistic fashion ). And, despite were the fact that the affidavit stated blood drops and bloody smears in the a singular evidence bloody that the drop, smear, officers and that plural rather than handprint, entertained serious there evidence to support the finding was doubts what they saw in Lunsford s apartment was blood. 145 Ariz. at 109, 700 P.2d at 496. there no that See Carter, Because there was sufficient that the misstatements were innocent or negligent mistakes, the court did not abuse its discretion by finding that the warrant affidavit did not contain intentional, knowing, or reckless misstatements under Franks. Id. ¶9 Lunsford also argues that the affidavit omitted the material fact that the police knew his apartment was not the location of the shooting. 3 Contrary to his claim, the officers observed be what appeared to the victim s blood inside his apartment and were not required to accept his explanation for its presence before conducting an investigation. Consequently, the court did not err by denying Lunsford s Franks challenge to the affidavit. See id. 3 Lunsford told the officers that there was blood inside his apartment because the victim entered the apartment after the shooting. 6 CONCLUSION ¶10 Based on the foregoing reasons, we affirm Lunsford s convictions and sentences. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ________________________________ PATRICIA A. OROZCO, Judge /s/ ________________________________ RANDALL M. HOWE, Judge 7

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