STATE v. KENDRICK

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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.Sup.Ct. 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. ) ) LACRISHA KENDRICK, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 9/5/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0017 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-110475-001 The Honorable Paul J. McMurdie, Judge AFFIRMED Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix K E S S L E R, Judge ¶1 for Lacrisha Kendrick ( Kendrick ) appeals her convictions possession of narcotics for sale, possession or use of dangerous drugs, possession of marijuana for sale, misconduct involving weapons, and possession of drug paraphernalia, arguing that the trial court abused its discretion in denying her motion to suppress evidence. For reasons set forth below, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Police and probation officers arrest S.J. for violating probation; known address the probation officers drove it had had for to a been S.J. 1 house the As to last the officers approached the house, a man standing in the front yard ignored their greeting, hurried inside, and locked the security door behind him. The officers knocked on the door and announced they were probation and patrol officers. During the ten minute wait before someone opened the door, the officers heard a lot of commotion inside; people moving about, glasses clinking, and a toilet flushing several times. ¶3 Kendrick opened the door and said that she was not on probation. stated When asked who else was in the residence, Kendrick that she did not know. The everybody inside exit the residence. officers requested that Four people walked out, including Kendrick and the man originally seen running inside the house. ¶4 The officers then conducted a protective sweep of the residence to search for S.J. and anyone else inside who might 1 S.J. had listed the address with her probation officer. S.J., however, had moved but had not notified her probation officer of the move or her new address. 2 pose a danger. During the sweep, the officers did not find S.J. or anyone else, but saw drugs and drug paraphernalia in plain view. The officers used this information to obtain a search warrant, and during the subsequent search found and seized drugs, drug paraphernalia, and weapons. ¶5 Kendrick was indicted on eight counts of drug-related charges and weapon misconduct. Kendrick moved to suppress the evidence seized from her home, arguing that the protective sweep leading to the search of her home was illegal. At the evidentiary hearing, officers testified that they performed the protective sweep hiding inside. because Their they suspected suspicion stemmed S.J. may have been from: (1) the man s mysterious flight inside, (2) the commotion they heard while delayed outside the door, (3) Kendrick s statement that she did not know who else was inside, and (4) their belief that S.J. was the home s lessee. The court denied the motion to suppress, finding that the officers testimony had provided a reasonable basis for the officers to believe that [S.J.] (and perhaps others) could have remained in the residence either to avoid contact with the police or to compromise officer safety. ¶6 Kendrick waived her right to a jury trial. After a bench trial, she was convicted of possession for sale of narcotic drugs, possession or use of dangerous drugs, possession of marijuana for sale, misconduct 3 involving weapons, and possession of drug paraphernalia. concurrent sentences of presentence notice of 3.5 years incarceration with 52 days incarceration appeal. Kendrick was sentenced to This credit. Kendrick Court jurisdiction has filed a timely pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 134031 (2010), and -4033(A)(3) (2010). 2 ISSUES AND STANDARD OF REVIEW ¶7 Kendrick argues that the trial court erred by denying her motion to suppress evidence. Specifically, she contends that the officers protective sweep violated her constitutional protections against the warrantless search of her residence and subsequent seizure of evidence therefrom. She also argues that the sweep was a pretext for the search. ¶8 In reviewing an order denying a motion to suppress, we consider only evidence from the suppression hearing, see State v. Aguilar, 228 Ariz. 401, 401, ¶ 2, 267 P.3d 1193, 1193 (App. 2011), and view this evidence in the light most favorable to upholding the ruling, see State v. Rodriguez, 205 Ariz. 392, 402, ¶ 34, 71 P.3d 919, 929 (App. 2003). Moreover, in reviewing the ruling, we evaluate discretionary issues for an abuse of discretion but review legal and constitutional issues de novo. 2 We cite the current version of the applicable statute when no revisions material to this decision have since occurred. 4 State v. Huerta, 223 Ariz. 424, 426, ¶ 4, 224 P.3d 240, 242 (App. 2010). DISCUSSION ¶9 The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. 3 Const. amend. IV. seize evidence demonstrates See U.S. Police generally may not search a home or without that a [the warrant unless circumstances] the fall government within certain established and well-defined exceptions to the warrant clause. United States v. Murphy, 516 F.3d 1117, 1120 (9th Cir. 2008) (internal quotation marks and citation omitted); see also State v. Fisher, 226 Ariz. 563, 565, ¶ 7, 250 P.3d 1192, 1194 (2011) ( [B]ecause the reasonableness, exceptions to touchstone the the Supreme warrant of the Court Fourth has requirement. Amendment recognized (internal is several punctuation marks and citation omitted)). ¶10 One exception to the warrant requirement is the protective sweep, first recognized by the United States Supreme Court in Maryland v. Buie, 494 3 U.S. 325, 327 (1990), and Although Kendrick argues that the search of her home and seizure of evidence therefrom violates both the Fourth Amendment and its counterpart provision in Article 2, Section 8, of the Arizona Constitution, she presented no separate arguments based on the state constitutional provision. We therefore address her claim only under the United States Constitution. State v. Dean, 206 Ariz. 158, 161 n.1, ¶ 8, 76 P.3d 429, 432 n.1 (2003) (citing State v. Nunez, 167 Ariz. 272, 274 n.2, 806 P.2d 861, 863 n.2 (1991)). 5 discussed by our supreme court in Fisher, 226 Ariz. at 565, ¶ 8, 250 P.3d at 1194. A protective sweep is a search of an area near where an arrest may be made as a precautionary matter and without probable cause or reasonable suspicion, so that the police can act without fear that they may be attacked. 404 U.S. at 334. however, only supported by Buie, A sweep of a nearby residence is permissible, if the officers specific and individual have a articulable posing a danger reasonable facts that home an others. Fisher, 226 Ariz. at 566, ¶ 12, 250 P.3d at 1195 are allowed because society interest in officer safety. has the a harbor[s] (quoting Buie, 494 U.S. at 327). to belief officers or Moreover, protective sweeps a legitimate and weighty Arizona v. Johnson, 555 U.S. 331, 324 (2009) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)). ¶11 In protective Fisher, sweep to the find Arizona a gun Supreme Court was unreasonable an held that a search because the officers failed to articulate specific facts to establish a apartment. 4 reasonable 226 belief Ariz. at that 567, someone ¶ 15, might 250 P.3d be at in the 1196. Specifically, the officers already had the person they sought 4 In Fisher, the Arizona Supreme Court assumed, but did not decide, that protective sweeps are also authorized when a suspect is detained and questioned but not yet arrested outside of a residence. Fisher, 226 Ariz. at 566, ¶ 10, 250 P.3d at 1195. 6 (who was also the residential lessee) detained outside; three people had exited the apartment; the police did not ask whether anyone else was inside; all residents were cooperative and there was no other evidence, such as noises from within, that anyone else might be inside. 94. Id. at 564-65, ¶¶ 2-4, 250 P.3d at 1193- As a result, the court stated that the police could not conduct protective sweeps based on mere speculation general risk inherent in all police work. or the Id. at 567, ¶ 15, 250 P.3d at 1196. ¶12 Here, in contrast, the officers articulated specific facts that led them to reasonably believe someone was still in the house when they conducted the protective sweep. Their suspicions were first alerted when the man in the front yard saw them, ignored their greetings, bolted into the home and locked the door behind him. period They knocked and then had to wait for a lengthy time given that house. While waiting, they heard what sounded like many people hurriedly moving about inside. someone had just entered the When Kendrick finally answered the door, and was asked who else was inside the residence, she responded that she did not know. Finally, the officers had not yet located S.J., the probationer, who they believed lived at the house. protective See sweep Murphy, valid when 516 F.3d officers at 1120-21 detained one (finding a inhabitant outside a rental unit and conducted a warrantless search within 7 to find the unit s renter, for whom there was an outstanding arrest warrant); see also United States v. Taylor, 248 F.3d 506, 514 (6th Cir. 2001) (approving a protective sweep when officers heard scuffling noises from inside before being admitted into the apartment and suspect s demeanor indicated he was hiding something). Consequently, the trial court did not err by denying the motion to dismiss based on the facts presented at the evidentiary hearing. ¶13 We also reject Kendrick s argument that the protective sweep was invalid because contraband without a it search was a pretext warrant. The to search Fourth for Amendment applies an objective standard of review to officer conduct, and the protective sweep was proper requisite legal justifications. U.S. 398, 404 (2006) ( An if the officers had the See Brigham City v. Stuart, 547 action is reasonable under the Fourth Amendment, regardless of the individual officer s state of mind, justify as [the] long as the action. circumstances, (emphasis added) United States, 436 U.S. 128, 138 (1978))). 8 viewed objectively, (quoting Scott For the reasons v. stated above, the officers had an articulated and objective justification for the sweep. CONCLUSION ¶14 For the foregoing reasons, we affirm. 5 _/S_______________________________ DONN KESSLER, Presiding Judge CONCURRING: _/S/_________________________________ MAURICE PORTLEY, Judge _/S/_________________________________ PETER B. SWANN, Judge 5 Given our reasoning above, we do not address the State s alternative argument that the search was permissible to prevent the destruction of contraband. 9

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