State v. Bernal-Espinoza

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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. ) ) ) COSME RODRIGO BERNAL-ESPINOZA, ) ) Appellant. ) ) 1 CA-CR 08-0912 DIVISION ONE FILED: 04-20-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-161517-003 DT The Honorable Pendleton Gaines, Judge AFFIRMED Terry Goddard, Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Suzanne M. Nicholls, Assistant Attorney General Attorneys for Appellee Kessler Law Offices by Eric W. Kessler Attorneys for Appellant D O W N I E, Judge Mesa ¶1 Cosme Rodrigo Bernal-Espinoza ( defendant ) challenges the denial of his suppression motion and his ensuing convictions and sentences. For the following reasons, we affirm. FACTS and PROCEDURAL BACKGROUND 1 ¶2 In June 2007, Arizona Department of Public Safety Lt. F.S. was the lead supervisor of the Illegal Immigration Prevention Apprehension Co/Op Team ( IIMPACT Squad ), a joint venture between three law enforcement human smuggling related crimes. agencies tasked with Lt. F.S. received information that a home in the 4500 block of West Earll was being used as a drop house for human smuggling. someone who had escaped from An informant said he knew a house where a number of undocumented aliens were held, and when the aliens came across the border they were charged $800.00 a head by one Coyote 2. . . . then sold to another Coyote for $2000.00 a head. The informant said there were a lot of weapons involved with this organization, AK-47 s, that guards were posted at the house, 1 We view the facts in the light most favorable to upholding the trial court s ruling. State v. Box, 205 Ariz. 492, 495, ¶ 7, 73 P.2d 623, 626 (App. 2003) (citation omitted). At the suppression hearing, the court took judicial notice of an affidavit used to obtain a search warrant--something defendant does not challenge on appeal. The court thus had before it testimony from one of the officers and the facts set forth in the affidavit. 2 The term describes someone who smuggles immigrants into the United States. Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/coyote (last visited April 6, 2010). 2 and that the Coyotes are on drugs and have threatened violence. ¶3 the Using a physical description of the house provided by informant, Lt. F.S. identified the house. drove through the neighborhood and Over the next three months, the IIMPACT Squad periodically watched the house. Officers observed more than twenty vehicles come into contact with the home, including some transport vehicles . . . capable of bringing large quantities of undocumented aliens up from the border, vehicles known Bajadores[,] 3 as and a vehicle registered to an individual with a prior arrest for Alien Smuggling, Robbery, Sell[ing] of Narcotics, Illegal entry into the United States, False info to police, Obstructing police. Dangerous drugs, Shoplifting, and Officers, however, felt they did not have enough evidence to procure a search warrant. Instead, Lt. F.S. decided they should knock on the door and talk to the folks inside. ¶4 and On September 19, 2007, officers dressed in raid gear physically identified as police went to the house and positioned themselves in front of the house and in the alley behind a gated backyard. About the same time as officers knocked on the front door and identified themselves as police, 3 Bajadores translates in English as Rip Off Crews ; these individuals are extremely violent and use police like uniforms and tactics to rip off the Coyotes [sic] cargo. 3 officers in the alley reported over a radio that subjects were running from the back of the house. several Officers in the alley detained two persons inside the backyard, one of whom was later identified as defendant. Defendant told officers there were 15 or 16 Pollo s 4 [sic] inside the residence. ¶5 When Lt. F.S. entered the backyard, he formulated a quick tactical plan to ensure the safety of his officers and persons inside the house. Officers took points on the rear door and began to call anybody in the house out in both English and Spanish. residence. When They no saw one no answered, one in a officers large open entered area, so the the officers walked down a hallway. Suddenly, subjects start[ed] coming out from a back bedroom. Officers took the individuals outside, completed another sweep of the house to determine whether anyone remained inside, and then secured the residence. ¶6 During the sweep, officers observed weapons in plain view and search later warrant used for that the observation, house. 5 in Defendant part, was to obtain arrested a and charged with kidnapping, a class 2 felony; theft by extortion, a 4 The defendant noted in his motion to suppress that [s]muggled illegally [sic] aliens are commonly referred to as pollos. 5 When the warrant was executed, officers removed a highpower assault rifle, 12-gauge shotgun, ammunition, pellet gun, pay stubs, a ledger documenting the names of persons and money collected, various identification cards, cell phones, calling cards, birth certificates, shoes, and wire transfer receipts. 4 class 2 felony; and misconduct involving weapons, a class 4 felony. ¶7 Defendant moved to suppress the evidence obtained during the warrantless entry into the house and all evidence seized pursuant to the later-issued warrant. After briefing and oral argument, the trial court denied his motion, stating: I think the State has proved all of this conclusively either beyond a reasonable doubt or by fair and convincing evidence, there was a reasonable suspicion in a right to detain the defendant when he attempted to flee the residence, regardless of whether the evidence was that he was the one running or the other guy was running, or whatever, given all of the circumstances attendant to the decision by the law enforcement at the time to stop him. While there is no evidence in this case that there was an issue regarding destruction of evidence, in the totality of the circumstances, it s my view as a Judge that the State has proved that law enforcement on the scene at the time had a reasonable belief that a crime was in progress or had just been committed and that there would be a delay attendant to obtaining a warrant and would potentially endanger the safety or life of a person herein. ¶8 After a jury trial, defendant was found guilty of misconduct involving weapons and the lesser included offense of unlawful imprisonment, jury but found he the was acquitted existence four the other charges. The factors. Defendant was sentenced to two years of supervised 5 of of aggravating probation and eight months in jail. 6 have jurisdiction Arizona sections pursuant Constitution, and 12-120.21(A)(1) to Article Arizona (2003), He timely appealed. 6, 13-4031 Section 9, Statutes Revised ( A.R.S. ) (2001), and of We the -4033(A) (Supp. 2008). DISCUSSION ¶9 Defendant asserts the trial court erred by denying his suppression motion because officers had no basis for detaining or arresting him. As such, defendant maintains, his statement about pollos inside the home was illegally obtained and could not be used to justify a warrantless entry into the house. ¶10 In reviewing a motion to suppress, we defer to the trial court's factual determinations, but we review de novo its 6 The sentencing minute entry erroneously states that defendant was placed on probation for count 2, but defendant was acquitted on Count 2, Theft by Extortion. A judgment of conviction and sentence is complete and valid at the time of their oral pronouncement in open court. Ariz. R. Crim. P. 26.16. The oral pronouncement controls when there is an inconsistency between the oral and written statements. State v. Johnson, 108 Ariz. 116, 118, 493 P.2d 498, 500 (1972). Here, the trial court clearly indicated it was sentencing defendant to supervised probation only for unlawful imprisonment ( count I ) and misconduct involving weapons ( count III ). The court made no reference to any sentence related to the theft by extortion charge and the Uniform Conditions of Supervised Probation forms correspond to counts I and III. Because the true sentence is clear from the transcript of the sentencing hearing, we correct the record to reflect probation only for counts I and III. See State v. Bowles, 173 Ariz. 214, 216, 841 P.2d 209, 211 (App. 1992) (finding remand is unnecessary to correct discrepancy between oral pronouncement of sentence and the minute entry when true sentence can be ascertained by reviewing the record). 6 ultimate legal conclusion. Box, 205 Ariz. at 495, ¶ 7, 73 P.3d at 626 (citation omitted). We will not disturb a trial court's ruling on a motion to suppress absent clear and manifest error. State v. Gulbrandson, 184 Ariz. 46, 57, 906 P.2d 579, 590 (1995) (citation omitted). Clear and manifest shorthand for abuse of discretion. error is really State v. Jones, 203 Ariz. 1, 5, ¶ 8, 49 P.3d 273, 277 (2002). 1. ¶11 Detention The Fourth Amendment to the United States Constitution provides that [t]he right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated. 7 Defendant contends the trial court erred by failing to distinguish the detention from an arrest. The record, however, demonstrates otherwise. The court clearly stated, I think the State has proved . . . there 7 Article 2, Section 8, of the Arizona Constitution also provides protection from unreasonable searches and seizures, and has been interpreted as providing more protection in preserving the sanctity of homes and in creating a right of privacy. See State v. Ault, 150 Ariz. 459, 466, 724 P.2d 545, 552 (1986) (citing State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 52324 (1984)). Defendant does not cite the Arizona Constitution on appeal and relies only on the Fourth Amendment. Although we do not require litigants to jump through hyper-technical hoops, we do require them to clearly articulate the basis for their legal arguments. Because defendant does not mention the Arizona Constitution on appeal, we do not address it. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) (finding that issues not clearly raised and argued in a party s appellate brief are waived). 7 was a reasonable suspicion in a right to detain the defendant. (Emphasis added.) ¶12 We agree with this conclusion. An investigatory stop is proper if an officer has an articulable, reasonable suspicion, based on the totality of the circumstances, activity. that an individual is involved in criminal State v. Teagle, 217 Ariz. 17, 22-23, ¶ 20, 170 P.3d 266, 271-72 (App. 2007). Totality of the circumstances includes such objective factors as the suspect's conduct and appearance, location, and surrounding circumstances, such as the time of day, and taking into account the officer's relevant experience, training, and knowledge. State v. Fornof, 218 Ariz. 74, 76, ¶ 6, 179 P.3d 954, 956 (App. 2008) (citations omitted). must view the facts enforcement officer. 418-19 (1981). through the eyes of 528 U.S. trained law United States v. Cortez, 449 U.S. 411, Flight following the approach officer is suggestive of criminal activity. Wardlow, a The court 119, 124 (2000) (finding of a police See Illinois v. that [h]eadlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such and can be considered a pertinent factor in determining reasonable suspicion ) (citations omitted); State v. Bible, 175 Ariz. 549, 592, 858 P.2d 1152, 1195 (1993) (holding evidence of flight usually constitutes conduct. ) (citation omitted). 8 an admission by ¶13 The totality of circumstances here supports the determination that officers properly detained defendant. The officers were members of a law enforcement squad investigating human smuggling. information caused They procured them smuggling. to had from suspect a three the relatively detailed months surveillance house was of being used tip for and that human When officers knocked at the front door, persons fled from the back of the house. Lt. F.S. testified at the suppression hearing that radio communications indicated several subjects were running from the house and were headed towards the fence, which would lead me to believe they were trying to escape from the house; that they were trying to flee being contacted by the police. He testified these individuals were detained . . . until we could find out what was going on. ¶14 testimony The by defense showing attempted that to defendant discredit was walking Lt. F.S. s rather than running and that officers did not distinguish how quickly or slowly the other person was moving. No matter the speed at which defendant moved, it was undisputed he was heading towards the parked blue pickup. Likewise, defendant did not contest the fact that the other individual was running from the home, even if his exact speed was not detailed in officer reports. Moreover, the fact that these events occurred at the same time officers knocked and announced their presence at the front door 9 supports a belief that the two individuals were fleeing from law enforcement. The trial court determined defendant s actions gave rise to a reasonable belief that a crime was in progress or had just been committed, whether the evidence was that he was the one running or the other guy was running, or whatever, given all of the circumstances attendant to the decision by the law enforcement at the time to stop him. at 417-19 (holding that inferences drawn officers); Teagle, (according deference ability to from founded Ariz. to a distinguish Contrary to at 24, trained ¶ law between actions. ) (citation omitted). ¶15 suspicion innocent-appearing 217 See Cortez, 499 U.S. can facts 26, be by 170 on experienced P.3d enforcement innocent based at 273 officer s and suspicious the fact We agree. defendant s assertion, that officers drew their weapons and handcuffed him does not per se transform an investigatory detention into an arrest. v. Blackmore, 186 Ariz. 630, 633-34, 925 P.2d See State 1347, 1350-51 (1996) (holding that an investigatory stop did not become a de facto arrest because officers ordered defendant to lie down at gunpoint and handcuffed and searched him); State v. Romero, 178 Ariz. 45, 49, 870 P.2d 1141, 1145 (App. 1993) ( The use of force does not transform a stop into an arrest if the situation explains an officer's fears for his personal safety. ) (citation omitted); State v. Saez, 173 Ariz. 624, 627, 845 P.2d 1119, 1122 10 (App. 1992) ( Police are permitted to draw their weapons when they have reasonable basis to fear for their safety; by doing so, they do not convert an investigative stop into an arrest. ) (citation omitted). smuggling cases The officers here were experienced in human and knew from violence exists in drop houses. experience that a level of They suspected that a rip off crew was operating out of this house and knew that such groups are especially violent. The informant told officers that people had been held against their will and threatened with violence in this home, and that there were a lot of weapons involved with this organization, trial court AK-47 s. could Under reasonably these conclude circumstances, that officers the were justified in using force to detain defendant. 2. ¶16 Search We first consider at what point a warrantless search occurred. 8 Knocking constitute a search. at the front door of a house does not See United States v. Hammett, 236 F.3d 8 A person must also have a legitimate expectation of privacy in the invaded place . . . that society is prepared to consider reasonable. State v. Juarez, 203 Ariz. 441, 444, ¶ 12, 55 P.3d 784, 787 (App. 2002) (citations omitted). Defendant testified that he had permission to stay at the house and slept there for around 20 days. The trial court determined he had standing to raise a constitutional challenge. The State assigns error to this ruling, but it did not file a cross-appeal. Consequently, we do not address the standing issue because a cross-assignment of error in the absence of a cross-appeal can be considered only in support of the judgment. State v. Dawson, 164 Ariz. 278, 282, 792 P.2d 741, 745 (1990). 11 1054, 1059 (9th Cir. 2001) ( [A]nyone may openly and peaceably knock [on an individual s door] with the honest intent of asking questions of the occupant thereof-whether the questioner be a pollster, a salesman, or an officer of the law. )(citation omitted). a. ¶17 the Entry Into Backyard [T]he home and its traditional curtilage [are] given highest seizures. 1988). protection against warrantless searches and United States v. Warner, 843 F.2d 401, 405 (9th Cir. The curtilage is the land immediately surrounding and associated with the home. State v. Olm, 223 Ariz. 429, 431, ¶ 5, 224 P.3d 245, 247 (App. 2010) (citation omitted). Courts employ four factors to determine whether an area is part of the curtilage: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. Id. at 432, ¶ 10, 224 P.3d at 248 (citing United States v. Dunn, 480 U.S. 294, 301 (1987)). In the case at bar, the backyard was not open to the public; it was completely surrounded by a fence with a gate that could be opened only from the inside, not from the alley. As a result, Fourth Amendment protections extended to the backyard. 12 ¶18 Officers warrant. [S]ubject only to a few specifically established and well-delineated admittedly entered exceptions, a the search backyard is without presumed to a be unreasonable under the Fourth Amendment if it is not supported by probable warrant. cause and conducted to a valid search State v. Gant, 216 Ariz. 1, 3, ¶ 8, 162 P.3d 640, 642 (2007) (citation omitted). proving pursuant that a warrantless The State carries the burden of entry falls within an exception. State v. Wright, 125 Ariz. 36, 37, 607 P.2d 19, 20 (App. 1979). ¶19 a The emergency aid exception allows officers to enter dwelling without the benefit of a warrant where they reasonably believe there is someone within in need of immediate aid or assistance. State v. Fisher, 141 Ariz. 227, 237, 686 P.2d 750, 760 (1984). that officers secure a need warrant The intent of the doctrine is to ensure not when speculate [e]ach or passing difference between life and death. 607 P.2d at 21. (1) officers emergency or second attempt may mean to the Wright, 125 Ariz. at 38, Prior to entry, two factors must be evident: must exists meditate have that reasonable requires grounds an to immediate believe need an for assistance to protect life or property; and (2) there must be some reasonable basis, approximating 13 probable cause, to associate the emergency with the area to be searched. 9 141 Ariz. at 237-38, 686 P.2d at 760-61. Fisher, We consider whether the facts available to the officers at the moment they entered the [area] would have warranted a man of reasonable caution in the belief that entry was appropriate. Wright, 125 Ariz. at 37, 607 P.2d at 20. ¶20 The trial court found that officers on the scene at the time had a reasonable belief that a crime was in progress or had just been committed and that there would be a delay attendant to obtaining a warrant and would potentially endanger the safety or life of a person herein. record supports this determination. combined with what officers (Emphasis added.) The The events of September 19, knew from their three-month surveillance, could lead a reasonable officer to believe that individuals on the premises needed life-saving assistance. Cf. United States v. Brooks, 367 F.3d 1128, 1135-37 (9th Cir. 2004) (finding officer s legitimate concern for safety of a woman in domestic violence situation, combined with corroborating facts at the scene, supported warrantless entry into hotel room); State v. Lawson, 144 Ariz. 547, 553, 698 P.2d 1266, 1272 (1985) (finding that probable cause can 9 exist from the collective A third factor--that the search not be primarily motivated by an intent to arrest and seize evidence--was vitiated after the United States Supreme Court held, in Brigham City, Utah v. Stuart, that an officer s subjective motivation is irrelevant. 547 U.S. 398, 404-05 (2006) (citations omitted). 14 knowledge of all the law enforcement agents involved in an operation) (citation omitted). ¶21 Officers specializing in human smuggling related crime were on the scene and knew from experience that such operations were often violent. people in the threatened weapons, house with were being violence including The informant had related that and held that AK-47 s. against those their will and them had corroborated the holding Surveillance informant s tip that the residence was being used as a drop house. The likelihood afoot increased on officers knocks at of dangerous September the 19 front criminal when, door, activity instead occupants of of including defendant, fled through a back entrance. being answering the home, See Bible, 175 Ariz. at 592, 858 P.2d at 1195; State v. Edwards, 136 Ariz. 177, 184, 665 P.2d 59, 66 (1983) ( In Arizona, flight or concealment of an accused is a fact which may be considered by the jury as raising an inference that the accused is guilty. ); State v. Hunter, 136 Ariz. 45, 48, 664 P.2d 195, 198 (1983) ( Analytically, flight or concealment is viewed as an admission by conduct. ). Given the totality of circumstances, an objective officer could reasonably believe that occupants of the house were in need of immediate aid or assistance. Ariz. at 240, 686 P.2d at 763. 15 Fisher, 141 ¶22 At the suppression hearing, defendant testified that, when officers detained him, they told him not to speak and asked only whether testimony supports concerned for the others were Lt. F.S. s safety of in the house. statement persons held that Defendant s officers against their were will inside the house who may have been injured or maybe need[ed] some help. 10 ¶23 The gravity of the offense is also an important factor to consider in determining whether an emergency exists. See State v. Green, 162 Ariz. 431, 433, 794 P.2d 257, 259 (1989) (holding that a domestic violence call itself is a sufficient indication of exigency allowing officers to enter a dwelling without a warrant if no circumstance indicates that entry is unnecessary ). The situation at issue here was reported to be violent and volatile, such that it could escalate rapidly and require immediate officer involvement to protect individuals on the premises. b. ¶24 Entry Into House The emergency nature of the situation was heightened once defendant told officers that sixteen pollos were inside the house. Entry into the home was an appropriate continuation of law enforcement s response to the emergency situation. 10 The The officer further testified his intention was strictly for the safety of not only my officers, but if there were any other additional folks in the house. 16 ensuing search lasted approximately fifteen minutes. It focused on places persons could hide and was limited in duration to the time necessary for officers to conclude they didn t have any more folks in the house. Although officers saw evidence in plain view, they did not confiscate it. Instead, they sealed the and house, obtained search warrants, then collected evidence. CONCLUSION ¶25 We conclude that the warrantless entries into the backyard and the home were appropriate and could be relied upon as bases for the subsequently issued search warrant. We thus affirm the judgment of the superior court. _/s/__________________________ MARGARET H. DOWNIE, Judge CONCURRING: _/s/______________________________ MAURICE PORTLEY, Presiding Judge _/s/_____________________________ LAWRENCE F. WINTHROP, Judge 17

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