State v. Hardy

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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. SCOTT PRENTISS HARDY, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/24/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 11-0063 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-005359-001DT The Honorable Roger E. Brodman,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 Angela Corinne Kebric , Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender Phoenix By Terry Reid, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 Scott Hardy appeals his conviction and sentence for one count of burglary in the third degree. Hardy seeks reversal and remand for a new trial asserting that all DNA evidence should be suppressed and excluded from use at trial. For the reasons stated below, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On April 18, 2009, while performing services for her congregation, a full-time pastor was informed that her car had been burglarized in the church parking lot. called the police and they responded. She immediately During a cruise of the vicinity, Officer K. found Hardy in the area but several blocks away from the church. description burglary. of the Hardy s clothing matched an eyewitness clothing worn by the perpetrator of the Officer K. took Hardy into custody and brought him back to the scene for identification. Officer K. noticed that Hardy had cuts on his hands when he handcuffed him. ¶3 Another responding officer, Officer B., noticed a fresh blood smear and a broken window on the pastor s vehicle. Officer W., a certified DNA officer, was called to the scene to take DNA samples from the car and Hardy. Furthermore, Hardy was given his Miranda1 warnings shortly before being asked to offer a DNA sample. Officer W., Officer K. recorded the conversation with Hardy, and himself concerning Hardy s submit to a buccal swab test. 1 See Miranda v. Arizona, 384 U.S. 436 (1966). 2 voluntariness to ¶4 The transcript of the recorded conversation follows: [Officer K.] Q: Hey Scott, so you re consenting to a DNA testing? [Hardy] A: Yes. [Officer K.] Q: Yes? [Hardy] A: Yes. [Officer K.] Q: Ok. [Officer W.] Q: Do you understand what that entails? [Hardy] A: Yes. That entails that if I had anything up on me. Any blood or anything like that . . . [Officer W.] Q: Yeah. What we want to do is take a buccal swab inside your mouth . . . a little QTip . . . we re going to go on the inside and get some saliva and they re going to do a DNA test and compare it to some blood that we found on the scene. We found some evidence on scene. We just want to make sure it s not you. Well hold on. We just want to make sure that you re okay with that. [Hardy] [Officer W.] A: I didn t do anything. Q: So you re okay with us just taking a . . . no . . . I . . . I got to go get the swab . . . I just got to make sure that you okay with that. 3 is as [Hardy] [Officer K.] Q: [Officer W.] Q: Well this is how we are able to determine that it wasn t you. You see we got a lot of people saying that it was you, and you re saying that it s not. What we d like to do is take a DNA sample to ensure that it s not you. This is how we clear things up. [Hardy] A: Alright. with. [Officer W.] ¶5 A: No. I don t want it done, but I m obviously . . . it s like I ain t got a choice right here. Q: So . . . uh . . . okay . . . so you re okay with that? Alright. Alright. Are we good, or . . . uh? Well get it over Prior to trial, Hardy filed a motion to suppress the DNA evidence collected by a buccal swab the night Hardy was arrested. spoke The court heard testimony from the two officers that with hearing. Hardy The about court the also DNA heard test during counsels against suppressing the DNA sample. the suppression arguments for and Additionally, the court listened to an audio recording of the exchange between Hardy and the two officers regarding whether Hardy was voluntarily consenting to the buccal swab. ¶6 recording) After from reviewing the the testimony suppression 4 and exhibit hearing, the court (audio made the following determinations: 1) Hardy was properly detained by police; 2) A witness identified Hardy s clothing as the clothing worn by the perpetrator; 3) There was blood on the scene; 4) Officers asked permission Hardy s DNA by buccal swab; 5) to take Hardy consented twice by saying yes ; 6) Hardy s tone indicated consent; in the audio recording 7) The DNA certified officer explained the processes and procedures for the test after Hardy waivered in his consent; 8) The secondary officer reasons for the test; explained the 9) Hardy then responded alright, get it over with, further offering his consent to the test; 10) The entire recorded conversation took less than two minutes; and 11) Hardy was in custody but neither officer pressured or threatened him by force or otherwise. ¶7 Hardy was ultimately convicted by a jury for one count of burglary in the third degree. Hardy timely appeals and we have jurisdiction pursuant to Arizona Constitution Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12- 5 120.21 (2003), 13-4031 (2010), and 13-4033(A) (2010). 2 ANALYSIS ¶8 Hardy discretion by contends denying that the the motion trial to court suppress abused its Hardy s DNA evidence because Hardy did not unequivocally consent to provide the buccal swab sample. The State argues that Hardy voluntarily consented to give a DNA sample, or in the alternative, that Hardy s DNA would have come into evidence anyway based on the inevitable discovery exception. We conclude the trial court did not abuse its discretion in denying the motion to suppress based on its determination that Hardy voluntarily consented to the buccal swab alternative procedure. argument We need concerning not the address the inevitable State s discovery exception. ¶9 When the trial court denies a motion to suppress, our standard of review on appeal is for abuse of discretion. See State v. Prince, 160 Ariz. 268, 272, 772 P.2d 1121, 1125 (1989). We restrict our review to consideration of the facts the trial court heard at the suppression hearing. State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996); see also State v. Zamora, 220 Ariz. 63, 67, ¶ 7, 202 P.3d 528, 532 (App. 2009). However, we review de novo the trial court s ultimate legal 2 We cite to the current versions of applicable statutes when no revisions material to this decision have occurred since the events at issue. 6 determination. State v. Gonzalez-Guiterrez, 187 Ariz. 116, 118 927 P.2d 776, 778 (1996). ¶10 the Hardy argues that he did not unequivocally consent to DNA test because he discussion with police. waivered during Hardy stated: one point in the No, I don t want it done, but obviously um, it s like I ain t got a choice right here. Hardy contends that the officers should have told him that he did have a choice to refuse the DNA test. ¶11 Pursuant to the Fourth Amendment, a search lacking a warrant based on probable cause is per se unreasonable, except for a few delineated exceptions. U.S. 347, 357 (1967). Katz v. United States, 389 Using a buccal swab to procure a DNA sample . . . constitutes a search under the Fourth Amendment. Mario W. v. Kaipio, ___ Ariz. ___, ¶ 18, 265 P.3d 389, 2011 WL 5104618 (App. 2011) (citations omitted). ¶12 It is well established that consent is an exception to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 249 (1973); State v. Davolt, 207 Ariz. 191, 203, ¶ 29, 84 P.3d 456, 468 (2004). The State carries the burden to show that consent was given voluntarily. See State v. Monge, 173 Ariz. 279, 281, 842 P.2d 1292, 1294 (1994). question of fact circumstances. ¶13 to be determined from Voluntariness is a the totality of the Davolt, 207 Ariz. at 203, ¶ 29, 84 P.3d at 468. The courts assess voluntariness by using a number of 7 factors including: whether the suspect was in custody; whether the suspect was advised of his right to refuse a search and; whether the officer(s) oppressed the suspect -- including the presence of a large number of officers or officers having their guns drawn on the suspect. See State v. Laughter, 128 Ariz. 264, 265, 625 P.2d 327, 329 (App. 1980); but see United States v. Drayton, 536 U.S. 194, 206-07 (2002) (discussing that the Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission search ) (citations include: whether suspect was to conduct omitted). the suspect handcuffed or a warrantless Furthermore, denied already guilt other and arrested. consent factors whether See State the v. Wilkerson, 117 Ariz. 143, 144, 571 P.2d 289, 290 (App. 1977). The Ninth Circuit also relies on whether the suspect was advised of his constitutional rights and whether the suspect was told that a search warrant could be obtained. See, e.g., United States v. Washington, 490 F.3d 765, 775 (9th Cir. 2007); United States v. Soriano, 361 F.3d 494, 502 (9th Cir. 2004). ¶14 from Here, the trial court concluded based on the evidence the suppression hearing, including the audio recording, that in the totality, Hardy voluntarily consented to the buccal swab test. Hardy said yes to the test twice, and after further explanation, he said Alright. Well get it over with. 8 The record brought indicates back that to the Hardy scene was for in custody because identification he was purposes. An officer Mirandized Hardy shortly before requesting the buccal swab, thus, Hardy was apprised of his constitutional rights. Furthermore, only two officers spoke to Hardy concerning the DNA test and there is nothing in the record indicating that their guns were drawn. Based on the audio recording, the officers tone with Hardy was professional. initial consent, certified then officer several times. asked asked Hardy One officer asked for Hardy s again if he to make was sure. okay with The the DNA test Nothing in the recording demonstrates any form of coercion by the officers and Hardy offers no evidence stating otherwise. ¶15 that Hardy denied any criminal wrongdoing and was not told a search buccal swab. test. Yet warrant could be obtained if he declined the Nor was Hardy told that he could refuse the DNA according to the United States Supreme Court in Drayton, officers are not required to tell suspects that they have a right to refuse a search, and it is only one factor of many that courts should consider. Drayton, 536 U.S. at 206 ( The Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search. ). 9 ¶16 We conclude, circumstances, that supported the by the after reviewing trial evidence, court s the court the totality findings did of not of the fact are abuse its discretion, and no legal error was committed by the trial court in denying the motion to suppress. CONCLUSION ¶17 Based on the legal principles and analysis outlined above, we affirm Hardy s conviction and sentence. _____/s/_____________________________ JOHN C. GEMMILL, Judge CONCURRING: ______/s/__________________________ JON W. THOMPSON, Presiding Judge ______/s/__________________________ MAURICE PORTLEY, Judge 10

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