STATE v. SMITH

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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, ) ) ) ) ) ) Appellant. ) ) v. LOCY MENDOZA SMITH, DIVISION ONE FILED: 6/6/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0053 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-130766-001 The Honorable Joseph C. Welty, Judge AFFIRMED Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section and Robert A. Walsh, Assistant Attorney General Attorneys for Appellee Janelle A. McEachern Attorney for Appellant Phoenix Chandler W I N T H R O P, Chief Judge ¶1 Locy convictions for Mendoza second Smith ( Appellant ) degree murder concealment of a dead body. and appeals his abandonment or He challenges the court s denial of his motion to suppress evidence police obtained during a search of his residence. For the reasons that follow, we affirm. BACKGROUND 1 ¶2 On June 9, 2010, Glendale police officers discovered the victim s body in the trunk of his car, which was parked in front of a vacant home. head and neck. The victim had been fatally shot in the Upon investigation, including an interview with Appellant, detectives learned that Appellant and the victim were friends who operated a marijuana trafficking business. They also learned that Appellant and the victim had met to conduct a marijuana transaction at Appellant s home on June 6, 2010. The victim s girlfriend informed detectives that Appellant was the last person known to have been with the victim. A detective ( Detective D ) obtained a warrant to search Appellant s home for evidence related to illegal marijuana trafficking activity. ¶3 As police officers executed the warrant, they observed what appeared to be a bullet strike in a floor tile in the interior entryway, and they found two loaded gun magazines on a closet shelf in the master bedroom. They also observed a freshly painted and patched wall by the interior entryway and what appeared to be blood drops on the baseboards and blood spatter on an adjacent wall. To determine whether the drops 1 We view the facts in the light most favorable to supporting Appellant s convictions. See State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). 2 were actually blood, a phenolphthalein test was conducted at the search site. The test results were positive for blood, and Detective D terminated the search while he sought an amended warrant to expand the search s scope to include evidence of the victim s homicide. In the probable cause statement of his affidavit requesting the amended warrant, Detective D included the phenolphthalein test results in addition to the observations regarding the loaded gun magazines, the bullet strike in the floor tile, and the freshly painted and repaired wall. ¶4 After the detective obtained the amended warrant, police officers continued their search of Appellant s residence. Appellant admitted was arrested, shooting regarding and finances and during killing and a the a police victim potential interview, during an marijuana he argument transaction. Appellant also admitted cleaning the house with bleach, picking up projectile fragments, and patching the wall after the murder. Additionally, he admitted disposing of the victim s wallet, the victim s cell phone, and two guns, and placing the victim s body in the car trunk. The State charged Appellant with first degree murder and abandonment or concealment of a dead body. ¶5 Appellant evidence subsequently argued the blood moved to seized evidence suppress during was the the obtained blood second in evidence and search. He violation of his Fourth Amendment rights because that evidence was not within the 3 scope of the first search warrant. 2 In response, the State argued the blood evidence was in plain view during the first warranted search; unconstitutionally therefore, obtained. the After evidence holding an hearing, the court denied the motion to suppress. was not evidentiary It concluded a second warrant was not required before the police observed the blood drops because the drops were in plain view and their evidentiary value was immediately apparent while police were lawfully in Appellant s home pursuant to the first warrant. The court further determined, however, that the phenolphthalein test was an unconstitutional search. Nonetheless, the court ultimately denied the suppression motion after concluding that, if the test results were excised from the affidavit in support of the amended search warrant, the remaining facts contained sufficient probable cause to support the second warrant. 3 court also found the phenolphthalein test results The were admissible because they were ultimately inevitably discovered. 4 2 Although Appellant did not specifically identify the subsequently seized evidence, he argued it was inadmissible as fruit of the poisonous tree. 3 See State v. Gulbrandson, 184 Ariz. 46, 58, 906 P.2d 579, 591 (1995) ( The proper method for determining the validity of the search . . . is to excise the illegally obtained information from the affidavit and then determine whether the remaining information is sufficient to establish probable cause. ). 4 See State v. Paxton, 186 Ariz. 580, 584, 925 P.2d 721, 725 (App. 1996) ( Evidence obtained in violation of the Fourth 4 ¶6 The testified. matter proceeded to trial, and Appellant The jury failed to unanimously agree on a verdict for the first degree murder charge but returned a guilty verdict on the lesser-included offense of second degree murder. The jury also found Appellant guilty of abandonment or concealment of a body. The court sentenced Appellant to consecutive terms of imprisonment totaling twenty-four years. ¶7 Appellant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes sections 12-120.21(A)(1) (West 2013), 5 13-4031, and 13-4033(A). ANALYSIS ¶8 Appellant argues the court erred in denying the motion to suppress because the blood evidence was not in plain view when police were executing the first warrant. Specifically, Appellant contends the blood drops did not immediately appear to be incriminating when officers first observed them. ¶9 In reviewing the trial court s denial of a motion to suppress, we review only evidence submitted at the suppression hearing, and we view that evidence in the light most favorable Amendment need not be suppressed when that evidence would inevitably have been discovered by lawful means. (citation omitted)). 5 Absent material revisions to a statute after the date of an alleged offense, we cite the statute s current version. 5 to upholding the court s ruling. State v. Box, 205 Ariz. 492, 493, ¶ 2, 73 P.3d 623, 624 (App. 2003). We will not reverse a trial court s ruling on a motion to suppress absent a clear abuse of discretion. State v. Apelt, 176 Ariz. 349, 363, 861 P.2d 634, 648 (1993). Although we defer to the trial court s factual determinations, we review de novo its ultimate legal conclusion. ¶10 Box, 205 Ariz. at 495, ¶ 7, 73 P.3d at 626. As requirement, an the exception plain to view the Fourth doctrine Amendment s allows law warrant enforcement officers who are authorized to be where they are . . . [to] seize any item in plain view if its evidentiary value is at once apparent. State v. DeCamp, 197 Ariz. 36, 39, ¶ 14, 3 P.3d 956, 959 (App. 1999); accord State v. Warness, 26 Ariz. App. 359, 360, 548 P.2d 853, 854 (1976). Appellant does not argue that police officers were unauthorized to be in his home when they first observed the blood evidence. the evidentiary apparent. value of the Instead, he only argues that evidence was not immediately ¶11 We disagree. To satisfy the immediately apparent prong, an officer is not required to know with certainty that the item in question is contraband or evidence of a crime; rather, there must be probable cause to associate the property with criminal activity. Payton v. New York, 445 U.S. 573, 587 (1980), quoted in Texas v. Brown, 460 U.S. 730, 741-42 (1983). 6 An officer s determination of probable cause does not demand any showing that such a belief be correct or more likely true than false. practical, nontechnical probability that evidence is involved is all that is required. A incriminating Brown, 460 U.S. at 742 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). ¶12 Detective D testified at the evidentiary hearing that items believed to be blood were found inside the living room entryway area. Evidence at the hearing also showed that Detective D was aware Appellant was the last confirmed person to see the victim alive. The evidence further established that the victim s girlfriend last spoke to the victim by phone after he drove his car the car in which his body was discovered to meet Appellant, Appellant s home. and the two men were together possibly at This evidence, in conjunction with Detective D s testimony that the drops appeared to be blood, satisfies the plain view doctrine s requirement that evidentiary value be immediately apparent. a seized item s The court did not abuse its discretion in denying Appellant s motion to suppress on this basis. 6 6 To the extent Appellant argues the court abused its discretion in determining evidence of the phenolphthalein test results admissible based on their inevitable discovery, we would not reverse on this basis because that evidence did not prejudice Appellant. Indeed, evidence of blood found splattered 7 CONCLUSION ¶13 The trial court did not abuse denying Appellant s motion to suppress. its discretion in Appellant s convictions and sentences are affirmed. _______________/S/___________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: _________________/S/_______________ PATRICIA A. OROZCO, Presiding Judge ________________/S/________________ PETER B. SWANN, Judge around Appellant s home is consistent with his theory of selfdefense presented at trial. 8

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