State v. Bentley

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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. ) ) STEVE RAY BENTLEY, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 07-01-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0260 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-031177-001 SE The Honorable Michael D. Jones, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Suzanne M. Nicholls, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Christopher M. Johns, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 Steve Ray Bentley appeals his convictions on 71 counts of misconduct involving weapons. The sole issue on appeal is whether the superior court erred in denying Bentley s motion to suppress evidence found in a search of a storage unit after he had been taken into custody. For reasons that follow, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 In reviewing a superior court s ruling on a motion to suppress, we consider suppression hearing. only the facts presented at the State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996). We review those facts in the light most favorable to sustaining the ruling. State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (1996). ¶3 In December 2006, Bentley pled guilty to endangerment, a class 6 undesignated offense, and was placed on two years of supervised probation. As a condition of his probation, Bentley consented to search and seizure of his property or person by the probation department without a search warrant. terms of his probation prohibited him from In addition, the possessing or controlling any firearms. ¶4 On December 28, 2007, after receiving information that Bentley had made death threats against his probation officer and possessed multiple firearms, officers went to Bentley s home to arrest him for violating probation search for probation officers the found his probation firearms. several In empty and to searching handgun conduct the a home, magazines. Bentley s roommate told one of the probation officers that there 2 had been weapons in the home, but she had helped moved them to a storage facility after Bentley was placed on probation. provided information regarding the location of the She storage facility. ¶5 Based on information from the roommate, a probation officer called Bentley s father at his home in Texas. Bentley s father said he was keeping the weapons belonging to his son in a storage locker he had rented for that purpose. After speaking with Bentley s father, the probation officer spoke to Bentley, who admitted having a key to the storage locker on his key ring. The probation officer located the key ring, on which he found the key to the storage locker and a key to Bentley s vehicle. During a later conversation with Bentley at the jail, Bentley informed the probation officer that the weapons were stored in Unit 2251 of the storage facility. Bentley further stated that he did not have the access code to the storage facility, but that the code might be in his wallet. The probation officer returned to Bentley s home to locate his wallet. No one was at the home, but Bentley s vehicle was in the driveway, and the probation officer used the key on the key ring to unlock the vehicle, then searched it. In the glove box was a rental agreement for a unit at a storage facility dated that same day. The agreement was signed by Thomas R. Bentley and included additional paperwork evidencing that Bentley was vacating Unit 3 2251 and transferring the account to Unit 2160. The paperwork identified Bentley and his father as the authorized users. ¶6 At the storage facility, the probation officer was able to unlock Unit 2251 using the key on Bentley s key ring. Inside were numerous rifles and other firearms and boxes of handguns, along with boxes of drug paraphernalia, including marijuana seeds, PH test kits and instructions on how to grow marijuana. Because the drug paraphernalia items were unrelated to the purpose of the probation search, the probation officer summoned other law enforcement and a search warrant was obtained for the storage locker. ¶7 The State charged Bentley with 71 counts of misconduct involving weapons, threatening misdemeanor. request on or Class 4 intimidating felonies; involving and one weapons, count a Class of 1 The latter count was dismissed at the State s the first day of trial. The State additionally alleged for sentence enhancement purposes that Bentley had an historical prior felony conviction and that he committed the charged offenses while on probation. ¶8 Prior to trial, Bentley moved to suppress the evidence seized in his vehicle and the storage locker and statements he made to the probation officer, claiming violation of his rights under the United States and Arizona Constitutions. In particular, Bentley argued that his statements were obtained in 4 violation of Miranda1 and that the searches were illegal for lack of a search warrant. The superior court suppressed the statements Bentley made while in custody, but denied his motion to suppress the physical evidence seized from his vehicle and the storage locker, ruling they were valid probation searches. ¶9 A jury found Bentley guilty on each of the counts of misconduct involving weapons. The court sentenced Bentley as a repetitive offender to a 4.5-year prison term on Count 1 and to concurrent 4.5-year prison terms on the other We have 70 counts, consecutive to the sentence on Count 1. ¶10 Bentley timely appealed. jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes sections 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033 (2010). DISCUSSION ¶11 We will not disturb a superior court s ruling on a motion to suppress absent clear and manifest error. Ariz. at 265, 921 P.2d at 668. Hyde, 186 In reviewing a ruling on a motion to suppress, we give deference to the superior court s factual findings. State v. Adams, 197 Ariz. 569, 572, ¶ 16, 5 P.3d 903, 906 (App. 2000). 1 However, we review de novo the legal Miranda v. Arizona, 384 U.S. 436 (1966). 5 question of whether the constitutional rights. Id. ¶12 search violated the defendant s The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures and provides that warrants may be issued only upon probable cause. Const. amend. IV. U.S. Although the Fourth Amendment demonstrates a "strong preference for searches conducted pursuant to a warrant" backed by probable cause, Illinois v. Gates, 462 U.S. 213, 236 (1983), we apply a reasonableness standard in reviewing warrantless searches and seizures in a variety of circumstances, including probation searches. State v. Allen, 216 Ariz. 320, 326 n.5, ¶ 24, 166 P.3d 111, 117 n.5 (App. 2007). ¶13 Bentley concedes that the initial warrantless search of his home was permitted by the terms of his probation but argues that the warrantless search of the storage locker the following day was invalid because he did not have access to the storage facility while he was in custody. Bentley cites Arizona v. Gant, 129 S. Ct. 1710 (2009), in support of his argument. ¶14 In Gant, the United States Supreme Court addressed warrantless searches of automobiles incident to an arrest and clarified the circumstances permitted. Id. at 1716-24. which excepted are from under which such searches are Unlike searches incident to arrest, the Fourth Amendment s warrant and probable cause requirements based on interests in officer safety 6 and preserving evidence, a warrantless probation search may be constitutionally valid based expectations of privacy. 112, 119-20 (2001). on a probationer s diminished United States v. Knights, 534 U.S. Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled. Id. (internal quotes omitted) (quoting Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)); see also State v. Montgomery, 115 Ariz. 583, 584, 566 P.2d 1329, 1330 (1977) ( While defendant is on probation his expectations of privacy are categorized. ). probation less those of other citizens not so Because the rationale for upholding warrantless searches probationer than during is the not dependant search, Gant on the has presence no of the application to probation searches. ¶15 We also reject Bentley s contention that the warrantless search of the storage locker should be invalidated because it was conducted probationary purposes. for investigatory rather than In Griffin, the Supreme Court upheld a warrantless search of a probationer s home on the basis that the State s operation of a probation system presented a special need for the exercise of supervision to assure [probation] restrictions are in fact being observed. at 875. that 483 U.S. Bentley maintains that the presence of law enforcement officers during the search of the storage locker indicates that 7 the search was not a true probation search but essentially a stalking horse for law enforcement. rather was In Knights, however, the Supreme Court stated that its holding in Griffin does not limit probation searches to those conducted based on probationary purposes. to investigate 534 U.S. at 121-22. probation violations or Whether conducted general criminal activity, a search is reasonable under the Fourth Amendment when it is supported by reasonable suspicion [that the probationer is involved in criminal conduct] and authorized by a condition of probation. Id. at 122. Thus, the motives of the officers in conducting the search are immaterial to the validity of the search. Id. ¶16 Here, Bentley s probation was conditioned expressly on his submitting to search and seizure of his property by the probation department without a search warrant. He does not dispute that the probation officers had reasonable suspicion to believe he had violated his probation by possessing firearms. Indeed, Bentley acknowledges the validity of the search of his home on that basis. The fact that Bentley was taken into custody and transported to jail did not eliminate the existence of reasonable probation additional by suspicion possessing information that he was firearms. the officers in of his the contrary, the developed following his To violation arrest only served to increase their reasonable suspicion that 8 he possessed firearms and that they were located in the storage locker. Accordingly, the superior court did not err in ruling that the search of the storage locker was a valid probation search under the Fourth Amendment. See State v. Walker, 215 Ariz. 91, 95, ¶ 20, 158 P.3d 220, 224 (App. 2007) (noting scope of probation searches extends to property that officers have reasonable suspicion . . . is owned, controlled, or possessed by probationer ) (quoting United States v. Davis, 932 F.2d 752, 758 (9th Cir. 1991)). The superior court therefore correctly denied the motion to suppress with respect to the firearms found in the storage locker. CONCLUSION ¶17 Finding no error, we affirm Bentley s convictions and sentences. /s/______________________________ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/___________________________ PHILIP HALL, Judge /s/___________________________ PATRICIA K. NORRIS, Judge 9

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