State v. Moreno
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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. RAYMOND MORENO, Appellant. ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0284 DIVISION ONE FILED: 06-17-2010 PHILIP G. URRY,CLERK BY: PJL DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-166851-001 DT The Honorable John R. Ditsworth, Judge AFFIRMED Terry Goddard, Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Stephen R. Collins, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 Raymond Moreno appeals his conviction and sentence for burglary on the ground the trial court abused its discretion in denying his motion to suppress evidence of the stolen property initially discovered during a protective sweep of the apartment in which he was staying. ¶2 In reviewing a trial court s ruling on a motion to suppress, we ordinarily restrict our review to consideration of the facts the trial court heard at the suppression hearing. State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996). In this case, the trial court heard evidence pursuant to State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), in the same proceeding immediately before hearing evidence on the suppression issue. The neighbor who called 9-1-1 to report the burglary and a relative of Moreno who had asked him to stay at the apartment to safeguard it while she was away both testified during the Dessureault portion of the hearing, but in ruling on the motion to suppress, the trial court did not expressly rely on their testimony. ¶3 Although it is not necessary to resolve the issues before us, for clarity s sake and because the parties at least implicitly arguing relied the in part suppression on this motion, we background view it as testimony having in been introduced during a single, consolidated hearing on the pretrial motions, including the motion to suppress. facts in the light most favorable 2 to We review the sustaining the trial court's ruling. State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (1996). ¶4 The evidence at the hearing, viewed in the light most favorable to sustaining the ruling, was as follows. A resident of a Phoenix apartment complex called 9-1-1 at about 6:30 a.m. on October 15, 2007 to report seeing a man she identified as Moreno walk down the stairs outside her window and enter his apartment, wearing containing what she black suspected apartment next to hers. the window of several days. the gloves and was carrying property a pillowcase stolen from the She testified that she had noticed that next-door apartment had been broken for Moreno s cousin s wife testified that she had asked Moreno to stay at her apartment while she was away. ¶5 An officer responded to the 9-1-1 call within three minutes. He testified that he knocked on the door of the apartment the neighbor had reported the suspected burglar had entered, and announced, Phoenix police, open the door. He testified that it took at least a minute or two if not longer for Moreno to open the door. Moreno told the officer that he had just woken up, but he appeared alert to the officer, who suspected that he was not telling the truth. The officer also believed that Moreno was lying when he told him he had not been out of the apartment all morning, based on the neighbor s positive identification of him as the person she had witnessed 3 walking down the stairs with the pillowcase. When the officer asked Moreno if anyone else was in the apartment, Moreno said his cousin was in the apartment. for Moreno s cousin to exit It took another minute or two the apartment, and he appeared groggy. ¶6 The officer testified that he was concerned about his safety at that point. He testified his main concern was: Using the totality of the circumstances, my experience, training and experience being involved with burglars and criminal activity, there could be weapons involved, could be other individuals involved. I am in an unknown location. The possible suspect or suspects enter an apartment. I don t know if there s any more individuals hiding inside so I conducted a protective sweep. He testified that he saw the pillowcase inside a bedroom closet, which he had opened to see if any individuals were hiding in the closet. Once he determined that there were no other people inside the apartment, he left. ¶7 The officer testified that Moreno said in casual conversation later . . . that he may have been either in between homes or just staying there for the night or something like that. I don t recall permanently or not. him saying whether he lived there The officer testified that when he asked Moreno if he could search the apartment, Moreno told him, No, it was his cousin s apartment. 4 Asked if Moreno ever assert[ed] any personal interest in the apartment, the officer responded, Not to my recollection. ¶8 for Moreno argued that the officer had no reason to fear his safety outside the apartment in the absence of any indication that the burglar had been carrying a weapon or that other persons remained inside the apartment, protective sweep was not legally justifiable. and thus, the The State argued that Moreno had no standing to challenge the protective sweep because he had told the officer that it was not his apartment, and even if he had standing, the officer believed that Moreno was being deceptive, and accordingly, had reason to believe that a protective sweep of the apartment was necessary for officer safety. The State also argued that even if the protective sweep was not justified, police would have inevitably discovered the pillowcase with the stolen items based on other evidence. ¶9 The trial court ruled that Moreno lacked standing to challenge the protective sweep because he had informed the officer that this was not his apartment, specifically telling the officer that his cousin had the apartment. court further found that the sweep was The trial constitutionally permissible because the officers reasonably believed that they needed to make a protective sweep of the apartment for their own safety. areas Finally, the trial court found that the sweep of likely to contain a person 5 led to the in plain view discovery of the pillowcase in a back bedroom closet. That discovery led to the request for a search warrant which when granted led to the seizure of the stolen items. The trial court accordingly denied the motion to suppress. ¶10 Defendant timely appealed, and we have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010). DISCUSSION ¶11 In reviewing a ruling on a motion to suppress, we give deference to the trial court s factual findings but review the trial court s legal Gonzalez-Gutierrez, (1996). conclusions 187 Ariz. de 116, novo. 118, 927 See State v. P.2d 776, 778 We find that the trial court erred in its initial finding that Moreno had no standing to challenge the search. A defendant has standing to challenge the legality of a search under the Fourth Amendment when he has a reasonable expectation of privacy in the area searched. See State v. Martinez, 221 Ariz. 383, 389 n.7, ¶ 21, 212 P.3d 75, 81 n.7 (App. 2009) (citing Rakas v. Illinois, 439 U.S. 128 (1978)). An overnight guest of an apartment has a reasonable expectation of privacy in the residence, and accordingly, has standing to challenge the legality of a search of the 6 apartment. See State v. Gissendaner, 177 Ariz. 81, 84, 865 P.2d 125, 128 (App. 1993) (citing Minnesota v. Olson, 495 U.S. 91 (1990)). ¶12 The State concedes that the evidence before the trial court demonstrated that Moreno lived at the apartment, or was at least an overnight guest at the apartment. The State also concedes that, as a result, Moreno had a legitimate expectation of privacy in the apartment sufficient to grant him standing to challenge the protective sweep. ¶13 The State argues, however, that Moreno abandoned any expectation of privacy when he told police they could not search the apartment because it was his cousin s. this argument. has voluntarily We find no merit in Property is considered abandoned when a person discarded it, left relinquished his interest in it. it behind, or otherwise State v. Walker, 119 Ariz. 121, 126, 579 P.2d 1091, 1096 (1978). We determine whether a person intended to abandon property by considering whether the person s words or actions would cause a reasonable person in the searching officer's position to believe that the property was abandoned. State v. Huerta, 223 Ariz. 424, 426, ¶ 5, 224 P.3d 240, 242 (App. 2010). This is not a case such as State v. Huffman, 169 Ariz. 465, 820 P.2d 329 (App. 1991), on which the trial court relied, in which the defendant effectively abandoned any expectation of privacy in a motel room by denying that the room key found during a traffic stop was his. 7 See id. at 467, 820 P.2d at 331. In this case, rather, we find that all a reasonable officer could infer from Moreno s response to his request to search the apartment was that Moreno did not feel free to authorize a search of the apartment because it was not his apartment, but his cousin s. We cannot agree that this statement under these circumstances constituted an abandonment of Moreno s privacy interests in the apartment. accordingly find that the trial court erred in See id. its We initial finding that Moreno had no standing to challenge the search. ¶14 We find no abuse of discretion, however, in the trial court s finding that the officer had sufficient legal justification for conducting a warrantless protective sweep of the apartment. A warrantless search is unlawful under the Fourth Amendment and article II, § 8 of the Arizona constitution unless one of the specific and well-established exceptions to the warrant requirement has been met. Ariz. 195, circumstances 197, 940 P.2d exception 923, 925 the to includes protective sweeps. Mazen v. Seidel, 189 requirement Id. (1997). The exigent a warrant for Police officers may conduct a warrantless protective sweep of a residence incident to an inhome arrest if they possess reasonable suspicion based on specific and articulable facts to believe that the residence harbors an individual posing a danger to those on the arrest scene. Maryland v. Buie, 494 U.S. 325, 333-34 (1990). 8 [S]uch a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a inspection of those spaces where a person may be found. 335. cursory Id. at The officers need not be inside the residence affecting an arrest at the time, if they are outside the residence and have reason to suspect they are in immediate danger from someone still inside the residence. State v. Kosman, 181 Ariz. 487, 491-92, 892 P.2d 207, 211-12 (App. 1995) (agreeing with federal case law expanding scope of Buie to extend to arrest outside residence, but ultimately affirming trial court s ruling that police had not offered legal justification for a protective sweep of an apartment sixty-four feet from the arrest scene). ¶15 In this case, the officer testified that he believed that Moreno was lying when he said he had just woken up, based on his own assessment of Moreno s appearance and alertness, and lying again when he said he had not left the apartment, based on the witness s identification of Moreno as the individual she saw walking down the stairs with the [pillow]case. The officer thus was not certain that Moreno had not been lying when he said no people remained behind in the apartment, exposing him to possible danger as he stood outside the apartment conducting his investigation. He also testified that based on his experience as a police officer, and the fact that this was a burglary, he 9 was concerned about the possibility that someone with weapons remained behind court s ruling conduct a in the that apartment. the protective We officer sweep of had find that reasonable the apartment the trial grounds under to these circumstances was supported by the evidence and not an abuse of discretion. Because constitutionally we find permissible, that we the need protective not consider sweep the was other issues the parties raise. CONCLUSION ¶16 For the foregoing reasons, we affirm conviction and sentence. /s/ PHILIP HALL, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ PATRICIA K. NORRIS, Judge 10 Moreno s
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