State v. Wilson
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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. ) ) GERALD ALLEN WILSON, ) ) Appellant. ) ) DIVISION ONE FILED: 04/12/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0292 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-132574-002DT The Honorable Joseph C. Welty, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Division Chief Counsel Joseph T. Maziarz, Section Chief Counsel and Angela Kebric, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 Gerald Allen felony convictions. in denying his Wilson ( Appellant ) appeals his six Appellant argues that the trial court erred motion to suppress evidence discovered from searches of his car and residence. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On July 28, 2010, the State information with seven felony counts: charged Appellant by Count 1, possession of dangerous drugs for sale, a class two felony; Counts 2, 3, and 5, misconduct involving weapons, each a class four felony; Count 4, possession or use of dangerous drugs, a class four felony; and Counts 6 and 7, possession of drug paraphernalia, each a class six felony. The trial court granted the State s subsequent motion to dismiss Count 5 with prejudice. ¶3 Before trial, Appellant and his co-defendant, Christi Carter, filed motions to suppress. Appellant sought to suppress evidence related to the search of his automobile and residence. The trial motions to presented court held suppress. the a three-day At following the evidentiary suppression testimony: 1 On hearing hearing, June 22, the on the State 2010, an undercover Phoenix police detective was conducting surveillance 1 In reviewing the trial court s denial of a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing it in the light most favorable to sustaining the ruling. State v. Gay, 214 Ariz. 214, 217, ¶ 4, 150 P.3d 787, 790 (App. 2007). Although not bound by the trial court s legal determinations, we generally defer to the court s factual findings, including determinations of witnesses credibility. See State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996); State v. Ossana, 199 Ariz. 459, 461, ¶ 7, 18 P.3d 1258, 1260 (App. 2001). 2 of a residence suspected to be a drug house. 2 While watching the residence, the detective observed a green Honda arrive and park in the driveway. car and entered the The driver, Sherry Johnston, exited the residence. The detective observe people enter and exit the house. continued to Shortly thereafter, the garage door opened, a purple Honda backed out of the garage, and someone drove Johnston s green Honda into the garage. Three people - Appellant, another male, and Johnston - entered the purple Honda and drove away. Appellant was the driver, and Johnston was a passenger in the backseat. ¶4 The detective followed the purple Honda and observed Appellant commit a traffic violation (speeding, at an alleged rate of sixty to sixty-three miles per hour in a forty-five mile-per-hour zone). The detective radioed a marked police unit to conduct a traffic stop of the purple Honda. After uniformed officers made the traffic stop, the detective parked his vehicle some distance away, put on a police vest, and walked to the location of the traffic stop. ¶5 The detective spoke to Appellant, who informed the detective that he was a prohibited possessor, see Ariz. Rev. 2 The detective had received this information from another officer who had received an anonymous tip from a concerned citizen, and when the detective arrived at the location, he recognized the house as being the subject of a similar complaint several months earlier. He had not followed up on the initial tip due to a lack of time and resources. 3 Stat. ( A.R.S. ) § 13-3101(A)(7) (West 2012), 3 and that there was a knife located in the vehicle. remove the vehicle. knife, and The detective asked if he could Appellant consented, then exited the As the detective retrieved the knife, he noticed two other weapons in the vehicle - an expandable baton and a stun gun. 4 ¶6 and The detective asked the other two passengers, Henry R. Johnston, to step out of the car, and they complied. Johnston was holding her purse, and the detective asked if he could search it. Johnston consented to the search, and the detective discovered a bag containing methamphetamine inside the purse. ¶7 for The detective placed Johnston under arrest. The detective and another officer searched the vehicle additional other officer drugs, found drug what paraphernalia, initially and appeared weapons. to be a The D-cell battery among a bunch of clutter in the map pocket of the driver s door, but closer inspection revealed that the battery was a container holding methamphetamine. The officers arrested Appellant and released Henry R. 3 We cite the current version of all statutes as they appear in Westlaw unless changes material to our analysis have since occurred. 4 The detective stated that he did not arrest Appellant for misconduct involving weapons, see A.R.S. § 13-3102(A)(4), because he concluded that none of the weapons found in the vehicle was a deadly weapon or prohibited weapon within the meaning of the statute. See A.R.S. § 13-3101(A)(1), (8). 4 ¶8 While at the traffic stop, the officers determined that the suspected drug house was Appellant s residence, and Appellant s girlfriend, Carter, was still at the house. detective, accompanied Appellant s residence detective knocked on by to the other officers, continue door of the the The returned investigation. residence, and to The Carter answered, but she did not consent to a search of the residence. Based on the officers concern that she might attempt to retrieve a weapon or destroy evidence, Carter was handcuffed and detained while officers performed a protective sweep of the residence for safety purposes and in an effort to secure the house before a search warrant could be obtained. ¶9 After the officers completed the protective sweep, the detective returned to the police precinct to author an affidavit and prepare a search warrant. house to ensure it The other officers stayed at the remained secure. While the detective prepared the warrant, the officers at the residence informed Carter of her rights pursuant to Miranda, 5 and she agreed to speak with them. ¶10 During the discussion between Carter and the officers, Carter admitted using methamphetamine, and that methamphetamine and drug bedroom. 5 paraphernalia, including water bongs, were in the Carter also stated that at least two guns were in the See Miranda v. Arizona, 384 U.S. 436 (1966). 5 residence. The information provided by Carter was included in the application for the search warrant. Carter was arrested, and a search warrant of the home was obtained and executed. ¶11 In the methamphetamine; couple s several bedroom, weapons, officers including guns; paraphernalia, including pipes, scales, and baggies. found and drug They also found a drug ledger detailing weights of drugs, dollar amounts, and names. Officers also discovered several swords and knives on the wall and around the headboard of the couple s bed, a monitor in the bedroom, and surveillance cameras outside the home. In the bathroom and on Appellant s computer desk, officers found several fake batteries similar to the one found in Appellant s vehicle. ¶12 The trial court denied the motions Appellant and Carter were tried jointly. to suppress. At the conclusion of the trial, the jury found Appellant guilty of the remaining six counts as charged, with the exception of Count 1, pursuant to which the jury found Appellant guilty of the lesser-included offense of possession of dangerous drugs, a class four felony. ¶13 Before sentencing, the trial court found that Appellant had at least two historical prior felony convictions. At sentencing, imprisonment: the court imposed the following terms of minimum terms of eight years each for Counts 1 and 4; mitigated terms of six years each for Counts 2 and 3; and 6 minimum terms of three years each for Counts 6 and 7. The court ordered that Counts 1, 4, 6, and 7 run concurrently with one another, and that Counts 2 and 3 be served concurrently, but be consecutive to Counts 1, 4, 6, and 7. The court also credited Appellant for twenty-two days of presentence incarceration, to be applied to Counts 1, 4, 6, and 7. ¶14 Appellant filed a timely notice of appeal from his convictions and sentences. 6 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 13-4033(A). ANALYSIS ¶15 Appellant argues that the warrantless search of his vehicle (and residence, consequently, which resulted the from subsequent a warrant search based in of his part on information derived from the search of the vehicle) violated his constitutional seizures. rights prohibiting unreasonable searches and See U.S. Const. amend. IV, XIV, § 1; Ariz. Const. art. 2, § 8. In making his argument, Appellant maintains the trial court incorrectly articulated and applied the standard for warrantless searches as pronounced in Arizona v. Gant, 556 U.S. 332 (2009), and that the facts 6 do not support the court s Carter filed a separate appeal, and this court affirmed her convictions and sentences in a recent memorandum decision. See State v. Carter, 1 CA-CR 11-0273 (Ariz. App. Mar. 6, 2012). 7 conclusion that the search of his vehicle was consistent with Gant s reasonable to believe standard. 7 ¶16 In general, we review a trial court s motion to suppress for an abuse of discretion. 206 Ariz. 158, 161, ¶ 9, 76 P.3d 429, 432 (2003). denial of a State v. Dean, In making our determination, however, we review the court s legal conclusions de novo. State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996). ¶17 In denying Appellant s motion to suppress, the trial court concluded that the search [of Appellant s vehicle] was lawful as a search incident to the arrest of Ms. Johnston. The court based its conclusion on its finding that the State had satisfied the reasonable to believe standard articulated in Gant. In further explaining its reasoning, the court stated as follows: Gant articulated a reason to believe standard. The holding in Gant ultimately is that the police may search a vehicle incident to a recent occupant s arrest, only if the arrestee is within a reaching distance of the passenger compartment at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Factually, I do not find any of these three individuals was within reach of the passenger 7 In Gant, the United States Supreme Court concluded that circumstances unique to the vehicle context justify a search incident to arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. 556 U.S. at 343 (quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)). 8 compartment at the time of the arrest. the basis of my finding that it applies. That is not But what I do find, is that the reason to believe standard has been satisfied here. What the officers knew, based upon my factual findings in this case, was that Ms. Johnston had arrived at an area suspected of trafficking in drugs. That she had gone into the residence, that she had left the residence, that she was followed from the residence, that she was found in possession of methamphetamine in the back of a car that had just left the residence. That clearly while being stopped, could have disposed of some of the drugs present in her purse, within the passenger compartment of that vehicle, and that would not have been seen by the officers. In addition, I believe that the finding of some weapons, though not prohibited weapons, and not the subject of an arrest, were relevant for the officers to believe that there was something within that car that required a weapon for either the protection of the . . . occupants, or for protection of drugs. ¶18 Appellant applied Gant s argues that reasonable to the trial believe court standard incorrectly because the transcript of the proceedings in this case indicates the court referred to the standard as a reason to believe standard. find no error in the standard applied by the trial court. We The court s analysis makes clear that the court applied the correct standard, even if it apparently misspoke when enunciating the Gant phraseology. Further, in United States v. Pruitt, 458 F.3d 477 (6th Cir. 2006), the Sixth Circuit Court of Appeals held that the reasonable belief standard is a lesser standard than probable cause, and that [r]easonable belief is established by looking at common sense factors and evaluating 9 the totality omitted). of the circumstances. Id. at 482 (citations Later, in United States v. Reagan, 713 F. Supp. 2d 724 (E.D. Tenn. 2010), the federal district court, relying in part on Pruitt, meaningful stated difference that between it was the unable phrases to perceive reasonable any belief and reasonable to believe and concluded that the standards should be construed as functional equivalent[s]. Id. at 728. The court interpreted Gant to mean that incident to the lawful arrest of the occupant of a vehicle, law enforcement officers may search the passenger compartment of that vehicle and any containers therein without a warrant when . . . it is reasonable to believe, based upon common sense factors and the totality of the circumstances, that evidence of the offense of the arrest is inside. Id. See also State v. Cantrell, 233 P.3d 178, 183-85 (Idaho Ct. App. 2010) (discussing the reasonable to believe standard and standard). distinguishing The trial it court s from oral the probable analysis and cause case law subsequent to Gant support the conclusion that the court did not err in applying the Gant standard to Appellant s motion to suppress. ¶19 Further, facts presented at the suppression hearing support the trial court s conclusion that it was reasonable for the police officers to believe Appellant s vehicle contained evidence relevant to the offense of arrest (Johnston s arrest 10 for possession of methamphetamine). prior tips about suspected The police had received drug activity at Appellant s residence, Johnston had recently entered that residence before leaving with Appellant in his vehicle, the detective had already found several weapons in Appellant s vehicle, and the detective had found support methamphetamine the reasonably arrest court s believed might be paraphernalia, in finding additional found drugs in that Johnston s purse. that officers the evidence the related vehicle might have Johnston These to facts could have Johnston s including hidden drug at the onset of the traffic stop, or additional weapons that might have been used to ensure her possession of the drugs. The facts support the conclusion that the search of Appellant s vehicle was a valid search incident to arrest because it was consistent with Gant s reasonable to believe standard, and the trial court did not abuse its discretion in denying Appellant s motion to suppress evidence obtained from the search of his vehicle. ¶20 Because we find that the trial court did not abuse its discretion in denying Appellant s motion to suppress evidence obtained from the search of his vehicle, we also find no basis for applying the fruit of the poisonous tree doctrine to the subsequent search of Appellant s residence. United States, 371 U.S. 471, 487-88 (1963). See Wong Sun v. The search warrant obtained for the search of Appellant s residence was based on 11 probable cause supported by evidence that was legally obtained. Accordingly, the evidence seized pursuant to the search of the residence was admissible. CONCLUSION ¶21 The trial court did not err in applying the Gant standard or abuse its discretion in denying Appellant s motion to suppress evidence obtained from searches of his vehicle and residence. Appellant s convictions are affirmed. _______________/S/________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ______________/S/________________ DIANE M. JOHNSEN, Presiding Judge _____________/S/________________ PETER B. SWANN, Judge 12
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