State v. Gonzalez-Garcia

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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. ALEXANDER GONZALEZ-GARCIA, Appellant. DIVISION ONE FILED: 06/17/10 PHILIP G. URRY,CLERK BY: JT 1 CA-CR 09-0372 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-182113-002 DT The Honorable F. Pendleton Gaines III, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Droban & Company, PC By Kerrie M. Droban Attorney for Appellant Phoenix Anthem H A L L, Judge ¶1 Alexander Gonzalez-Garcia (defendant) appeals from his convictions and sentences for one count of possession of marijuana for sale, one count of possession of dangerous drugs, and one count of possession of drug paraphernalia. He contends that the trial court improperly denied his motion to suppress evidence. For the reasons that follow, we reject this argument and therefore affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 The evidence presented at the suppression hearing is as follows.1 On December 26, 2007, Officer J.R. of the Phoenix Police Department responded to a report of a home invasion. The home-owner reported that two men armed with rifles had forced their way into neighbor s home. and Officer her home, and she had fled and run to her Several police units responded to the scene, J.R., with the assistance conducted a sweep of the residence. of other officers, Officer J.R. immediately noticed that the front door had been kicked in, but the rest of the home appeared very neat and organized. The officers quickly searched the entire home and did not find any victims, perpetrators, or other evidence of illegal activity. Based on his experience with home invasions, in which armed invaders normally target drug stash houses and human stash houses, 1 In reviewing a motion to suppress, we review only the facts presented to the superior court at the suppression hearing. State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996). We view those facts in the light most favorable to sustaining the superior court s decision. State v. Dean, 206 Ariz. 158, 161, ¶ 9, 76 P.3d 429, 432 (2003). 2 Officer J.R. believed the attack on this apparent family residence . . . . didn t add up. ¶3 At that point, a patrol officer noticed a marijuana odor on the east side of the home, in the side yard adjacent to the house next door. The officers then conducted a second sweep of the residence to make sure that [they] didn t miss anything important. the During the second sweep, the officers determined marijuana neighboring indicated property. odor grew residence that a stronger and large that as the quantity they approached strength of marijuana of was the the odor in that Based on his experience, Officer J.R. also concluded that the home invaders had probably targeted the wrong house and that they had most likely intended to take-down [the] drug stash house. ¶4 Based on these conclusions, the officers shifted their attention perimeter. to the neighboring residence and secured its Officer J.R., accompanied by several other officers, approached the front door and knocked and announced that they were Phoenix police officers. While waiting for a response, the officers heard movement inside the residence and then heard a car alarm trigger in the garage. Believing that the car alarm could victim indicate either another trying to get [] attention or an invader who was attempting to escape, Officer J.R. viewed the situation as extremely volatile and urgent. 3 ¶5 At that point, Ernesto defendant, opened the front door. Gonzalez, defendant s co- As Ernesto opened the door, an incredibly strong odor of marijuana wafted out. Ernesto was taken into custody and the officers entered the residence to check the welfare of the people inside. During the officers protective sweep, they found defendant hiding inside a closet and took him into custody. The officers also observed numerous bales of marijuana. ¶6 Shortly thereafter, Detective B.B. Police Department arrived at the scene. of the Phoenix Detective B.B. could smell marijuana as he approached the house from the street, approximately eighteen to twenty feet away. He used this observation, in corroboration with Officer J.R. s statements, as the basis for acquiring a search warrant of the residence. Detective black B.B. trash removed executed bag from with the the the search original marijuana bales, warrant, he wrappings small When discovered that sample had bags a been of marijuana, and eighty bales of marijuana, totaling 1672 pounds, in various stages of wrapping. ¶7 On January 4, 2008, defendant was charged by indictment with one count of possession of marijuana for sale, a class two felony, one count of possession of dangerous drugs for sale, a class two felony, one count of possession of drug paraphernalia, a class six felony, and one count of resisting 4 arrest, a class six felony. On April 22, 2008, defendant filed a motion to suppress all of the evidence seized from his home as well as hearing any on derivative the matter evidence. and The trial subsequently court denied held a defendant s motion. ¶8 The matter proceeded to trial and the jury found defendant guilty of one count of possession of marijuana for sale, one count of the lesser-included offense of possession of dangerous drugs, paraphernalia. and The one count trial court of possession sentenced of defendant drug to concurrent presumptive terms that effectively result in a fiveyear sentence of imprisonment. Defendant timely appealed, and we have jurisdiction pursuant to Article 6, Section 9 of the Arizona sections Constitution, and 12-120.21(A)(1) Arizona (2003), Revised 13-4031, Statutes and (A.R.S.) -4033(A)(1) (2010). DISCUSSION ¶9 Defendant argues that the trial court erred by denying his motion to suppress evidence. Specifically, he contends that there were no exigent circumstances to warrant the officers warrantless entry into his home. ¶10 In reviewing a motion to suppress, we defer to the superior court s determinations of the credibility of the officers and the reasonableness of the inferences they drew. 5 State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). We review, however, the superior court s legal decisions de novo. decision error. on a Id. motion We will not reverse a superior court s to suppress absent clear and manifest State v. Dean, 206 Ariz. 158, 161, ¶ 9, 76 P.3d 429, 432 (2003) (internal quotation omitted). ¶11 The United States and Arizona Constitutions protect persons from unreasonable searches and seizures. See Const. amends. IV, XIV; Ariz. Const. art. II, § 8. U.S. Police generally may not search a home or seize evidence without a warrant supported by probable cause. Illinois v. McArthur, 531 U.S. 326, 330 (2001); State v. Smith, 208 Ariz. 20, 22, ¶ 6, 90 P.3d 221, 223 (App. 2004); Mehrens v. State, 138 Ariz. 458, 460, 675 P.2d 718, 720 (App. 1983). Therefore, warrantless entries of absent the home circumstances. 519, 524-25 are unlawful consent or exigent State v. Bolt, 142 Ariz. 260, 265-66, 689 P.2d (1984). Exigent circumstances justifying a warrantless entry of a home include: response to an emergency, hot pursuit, potential violence, and flight. destruction of evidence, potential State v. White, 160 Ariz. 24, 32-33, 770 P.2d 328, 336-37 (1989). While [the] mere incantation of the phrase exigent circumstance, will not automatically validate a warrantless search, if there are articulable and particularized facts evidencing an exigency, 6 a warrantless search is justified. State v. Stein, 153 Ariz. 235, 238, 735 P.2d 845, 848 (App. 1987) (quotation omitted). ¶12 At the suppression hearing, Officer J.R. testified that he believed that the armed men mistakenly invaded a family residence and that defendant s home was the intended target. testified that during his years of experience working He as a police officer with the Drug Enforcement Bureau, he responded to approximately ten to twenty reports of a home invasion in which he later discovered the residence next door was a stash house. The officer further testified that he believed the armed men, upon discovering their targeted home was the wrong residence, may have subsequently targeted the neighboring house and that other victims could be inside. In addition, Officer J.R. stated that when he heard the car alarm engage, he believed it could either have been a victim attempting to garner attention or one of the armed intruders attempting to escape. ¶13 In denying defendant s motion to dismiss, the trial court specifically found Officer J.R. and Detective B.B. fully credible in all of their testimony. The trial court also found that the likely presence in the immediate area of armed home invaders; the fleeing suspects as indicated by the car alarm; and the exigent possible imminent circumstances [defendant s home] at to destruction justify that time, 7 [the of evidence officers ] despite [their] presented entry lack into of a search warrant. We defer to the trial court s assessment of credibility and conclude that the court did not err by denying defendant s motion to suppress. CONCLUSION ¶14 Defendant s convictions and sentences are affirmed. /s/ PHILIP HALL, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ PATRICIA K. NORRIS, Judge 8

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