State v. Williams

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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, ) ) ) ) ) ) ) ) ) ) Appellant, v. LISSA LINNETTE WILLIAMS, Appellee. DIVISION ONE FILED: 07-29-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0489 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P-1300-CR-0020081290 The Honorable Danna D. Hendrix, Judge AFFIRMED IN PART; REVERSED IN PART AND REMANDED C. Kenneth Ray, II, P.C. By C. Kenneth Ray, II Attorney for Appellee Prescott Sheila Sullivan Polk, Yavapai County Attorney By Steven J. Sisneros, Deputy County Attorney Attorneys for Appellant Prescott T H O M P S O N, Judge ¶1 grant The state of Arizona (state) appeals the trial court s of statements Lissa and Linnette evidence Williams seized from motion to Williams suppress purse and her her person. For the reasons that follow, we reverse and remand this case to the trial court for further proceedings consistent with this decision. FACTUAL AND PROCEDURAL HISTORY ¶2 suppress, In reviewing a trial court s ruling on a motion to we view the facts upholding the court s ruling. in the light favorable to State v. Teagle, 217 Ariz. 17, 20, ¶ 2, 170 P.3d 266, 269 (App. 2007). We consider only the evidence presented at the suppression hearing. ¶3 most Id. Tucker, a police informant 1 for Detective Direen, set up a transaction to purchase one ounce of methamphetamine in Phoenix with Williams (defendant). Tucker explained to Detective Direen that he would drive to Phoenix and defendant would carry the drugs. Detective Direen told Tucker to stay in phone contact and drive the entire way. ¶4 On defendant s October five 11, year-old 2008, minor Tucker, child planned in defendant s Jeep Wrangler. headed defendant, to Phoenix and as Police surveillance was dropped while they were en route to Phoenix. Detective Direen left several unanswered calls and text messages for Tucker, and 1 Tucker pled guilty to a marijuana charge and transportation of dangerous drugs for sale and agreed to become an informant to positively influence the outcome of his sentencing. As part of his agreement with the state, Tucker was to make five sales. At the time of the incident in this case, Tucker had four sales to go, and it was commonly known he could not reach the five sales before sentencing. 2 was out of contact with Tucker for approximately four hours. Tucker eventually called Detective Direen to tell him they were at a Wal-Mart in Anthem, Arizona. and her child leaving Wal-Mart A deputy observed defendant in a Highlander and Tucker leaving in his Jeep, and notified Detective Direen accordingly. ¶5 Detective Direen contacted Deputy Shrum, a K-9 officer, and told Deputy Shrum to develop reasonable suspicion to stop Shrum to the Highlander. wait until Detective another stopping the vehicle. Direen officer could instructed be present Deputy before Deputy Shrum followed the Highlander for approximately 25 miles and eventually stopped the Highlander for speeding and going over the fog line three times. ¶6 Deputy Shrum approached the driver. Meanwhile, Detective Direen arrived and approached defendant, who was in the back seat with her child. down. Defendant consented to a pat- The pat-down did not disclose any contraband or weapons. Detective Direen directed defendant to sit in Detective Long s vehicle. Deputy Shrum deployed his drug-detection canine on the vehicle which resulted in an alert at the front driver s door. The canine was removed with no further exterior sniffing of the vehicle. ¶7 The detectives conducted a search of the vehicle and did not locate any drugs. One of the detectives conducted a preliminary search of defendant s purse at the scene, but did 3 not find any drugs in the purse. Detective Direen placed the purse in his vehicle. ¶8 Detective Long observed defendant pushing buttons on her cell phone. Defendant s cell phone piqued his interest because a cell phone is a very important tool of communication in the drug world. defendant give After approximately ten seconds, he demanded him acknowledge him. the cell phone. Defendant did not Detective Long testified at the suppression hearing as follows: I then reached in to get the cell telephone out of her hands, and basically what she did was she switched hands; she switched it, I believe, from her right hand to her left hand and held it across the back seat so I could not reach it. I had to lean into the vehicle and take the cell phone out of her hand, which I can t remember if I was able to gain control of it at that point or not. So in order to stop her from destroying evidence, she was extracted from the vehicle by her collar, placed on the ground, and I had help from Deputy Shrum in securing Ms. Williams in handcuffs at that point. Detective Long further testified he took forceful action because he was concerned defendant was destroying drug-related evidence from her cell phone. ¶9 Detective Long testified he did not tell defendant she was under arrest. He further testified as follows: [Defense counsel]: Once you phone from her, did you, in her? 4 secured the fact, arrest [Detective Long]: She handcuffs at that point. was [Defense counsel]: All right. investigative detention, as that term? placed in Still in this you perceive [Detective Long]: Yes. [Defense counsel]: Not in custody? [Detective Long]: Not at that point, no. Detective Long further testified that he told defendant he knew she was destroying evidence and that defendant stated, Yes, I was destroying evidence. I was deleting text messages on the phone. ¶10 Detective Direen removed the handcuffs from defendant because the handcuffs were causing defendant s child to become upset. Detective Direen told defendant she was not under arrest, but detained for investigative purposes, and transported defendant and her child to the police station. The Highlander was also transported to the police station. ¶11 While at the station, Officer Dartt emptied the contents of defendant s purse onto the table and saw a white substance, which field tested positive for methamphetamine. Based upon the drugs found in her purse, defendant was placed under arrest. Detective Direen then asked defendant who she wanted him to call to pick up her child. wanted Lockwood to do so. Defendant told him she Lockwood is a defense attorney and 5 has in loco parentis guardianship of the child. Detective Direen called Lockwood to pick up defendant s child. ¶12 When Lockwood arrived at the police station, defendant was crying and told him she needed to talk to him. Before Lockwood could speak with defendant, Detective Direen ushered Lockwood to a private room and asked him if he was there to pick up the child or to represent defendant. Lockwood stated he was there to take the child. Detective Direen told Lockwood to take the Detective child and leave. Direen testified that the officers were not done with their investigation, so he was not going to allow defendant to speak with Lockwood. the station with defendant s child. Lockwood left Approximately ten minutes later, Lockwood returned to the station because he needed to talk to defendant about the child s medication and retrieve the keys to defendant s apartment. The detectives allowed Lockwood to speak to defendant. ¶13 After Lockwood left, defendant requested to speak to Detective Morgan. 2 She stated she had not wanted to talk to the officers child with her present. Detective Morgan read her Miranda warnings. Defendant did not invoke her Miranda rights. Defendant told Detective Morgan she had drugs concealed in her body. A female officer was called to accompany defendant to a 2 The record is unclear as to Lockwood s first or second visit. 6 whether this occurred after private area. Defendant produced 11.8 grams of methamphetamine she had concealed in her body. ¶14 On information October with 21, five 2008, defendant three felonies, was which of offenses relating to the methamphetamine. alleged child abuse, a class 3 charged were by drug The other two counts felony; and tampering with evidence, a class 6 felony. ¶15 The trial court granted defendant s motion to suppress, thereby suppressing defendant s statements made at the scene and the methamphetamine seized from defendant s purse and person. The state filed a motion for reconsideration, which the court denied. Rule 16.6(a) appeal. The state filed a motion to dismiss under Arizona of Criminal Procedure order to pursue this The court dismissed the charges without prejudice and the state timely appealed. Arizona in Constitution, We have jurisdiction pursuant to the Article VI § 9, and Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1)(2003), 13-4031 (2001), and -4032(6) (2009). DISCUSSION ¶16 We review a ruling on a motion to suppress evidence for an abuse of discretion. State v. Nelson, 208 Ariz. 5, 6, ¶ 4, 90 P.3d 206, 207 (App. 2004). We apply a de novo standard to any legal conclusions and will not reverse a ruling absent clear and manifest error. Id.; State v. Hyde, 186 Ariz. 252, 265, 921 7 P.2d 655, 668 (1996). The clear and manifest error standard applies to questions of fact. Matter of Appeal in Maricopa County, Juv. Action No. JT30243, 186 Ariz. 213, 216, 920 P.2d 779, 782 (App. 1996). A court abuses its discretion if the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision. Files v. Bernal, 200 Ariz. 64, 65, 22 P.3d 57, 58 (App. 2001) (citation omitted); see also Merlina v. Jejna, 208 Ariz. 1, 3, ¶ 6, 90 P.3d 202, 204 (App. 2004) (abuse may occur if record fails to support decision). 1. Defendant s statements at the scene ¶17 Although the state requests that we reverse the trial court s order suppressing defendant s incriminating statements made at argument argues the scene, the state or explain how the court erred. Long had probable that Detective does not fully articulate The state cause to its simply arrest defendant due to the events that occurred roadside with her cell phone. ¶18 On this issue, the trial court reasoned as follows: [Detective Long] took the phone from defendant, handcuffed her and told her she was under arrest...the statement must be suppressed. Defendant s statements were not spontaneous. Defendant made her statement after her arrest, prior to Miranda, and in response to Detective Long. 8 ¶19 The state conceded that Detective Long arrested defendant, but then, inconsistent with such concession, seeks to use defendant s statement given without the benefit of Miranda warnings. 3 ¶20 We agree with the state that Detective sufficient probable cause to arrest defendant. Long had Detective Long knew, from his training and experience, that cell phones are 3 Our review of the record suggests defendant may have been in investigative detention. When an officer is engaged in an investigation, he may detain a person under circumstances which would not justify an arrest. State v. Aguirre, 130 Ariz. 54, 56, 633 P.2d 1047, 1049 (App. 1981). Detention is justified while the officer is seeking more information about the crime. Id. In Aguirre, for example, the defendant was handcuffed and placed in a patrol car. Id. On appeal, the defendant contended that he was then under arrest without a warrant or probable cause. Id. We reasoned that the amount of force used by the officers must be evaluated in light of the circumstances and determined the defendant was detained but not arrested. Id.; see also State v. Blackmore, 186 Ariz. 630, 925 P.2d 1347 (1966) (discussing Aguirre at length and citing approvingly). Here, Detective Long testified he restrained defendant in handcuffs to prevent her from deleting any drug-related messages or evidence. Defendant ignored Detective Long when he demanded she surrender the phone and tried to prevent him from confiscating the phone by switching it in her hands and holding it away from him. Detective Long had reason to believe that if he did not put handcuffs on her, she would continue her behavior. Arguably, the force used by Detective Long was reasonable to detain her for investigative purposes. If defendant was not in custody, the officers had no obligation to read defendant Miranda warnings. See State v. Smith, 193 Ariz. 452, 457, ¶ 18, 974 P.2d 431, 436 (1999) ( Miranda s procedural safeguards apply only to custodial interrogation. ). In light of Aguirre and Blackmore, this may have presented a close case on the issue of whether defendant was arrested or in investigative detention. However, the state has always characterized the events as an arrest, so we will accept the state s characterization. 9 commonly used defendant to give facilitate him the drug phone and transactions. she ignored He him demanded and began holding it away from him as he tried to take the phone from her hands. which Additionally, the canine had alerted to the vehicle in defendant had been a passenger. Detective Direen testified that in addition to the information given to him by the informant, he had seen defendant s own vehicle at a known drug house in Phoenix. Thus, the officers had probable cause to arrest defendant at the scene. 4 ¶21 However, because she made defendant s the statements statements must pre-Miranda Detective Long s custodial questioning. be in suppressed response to We affirm the trial court s ruling suppressing defendant s statements made at the scene. 2. ¶22 Search of defendant s purse The state claims the court erred in suppressing the methamphetamine found in defendant s 4 purse, arguing the The trial court found that Detective Long told defendant she was under arrest. There is no evidence in the record supporting this finding. Detective Long s own testimony contradicts the court s conclusion. He testified he did not tell defendant she was under arrest and that he placed handcuffs on defendant to prevent her from destroying evidence. The record fails to support the court s conclusion that Detective Long told defendant she was under arrest. Nonetheless, we hold the arrest was lawful and supported by probable cause. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (affirming a trial court s ruling because it was legally correct result, even if based on an erroneous conclusion). 10 detectives had sufficient probable cause to search the entire car and defendant s purse. ¶23 We agree. Under the automobile exception to the Fourth Amendment warrant requirement, law enforcement officers can lawfully search a vehicle believe it contains contraband. if probable cause exists to State v. Reyna, 205 Ariz. 374, 374, ¶ 1, 71 P.3d 366, 366 (App. 2003) (citing United States v. Johns, 469 U.S. 478, 484 (1985)). A drug sniffing dog s alert on an automobile provides probable cause to search the vehicle. State v. Box, 205 Ariz. 492, 496, ¶ 14, 73 P.3d 623, 627 (App. 2003). ¶24 The detectives had probable cause to search all containers in the vehicle, including defendant s purse, without regard to ownership. See Wyoming v. Houghton, 526 U.S. 295, 301 (1999) ( If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search, regardless of ownership (quoting United States v. Ross, 456 U.S. 798, 825 (1982)) (emphasis omitted)). detectives were not required to search contemporaneously with the vehicle at the scene. Ariz. at 378, 71 P.3d at 370; see Moreover, the also the purse See Reyna, 205 United States v. Burnette, 698 F.2d 1038 (9th Cir. 1983) (where officers lawfully 11 searched purse at site of initial investigation, it was lawful to search purse again at police station). ¶25 The another search exception to of the the purse warrant incident to defendant s arrest. is also legitimate requirement, as a under search See United States v. Moreno, 569 F.2d 1049, 1052 (9th Cir. 1978) (search of a purse); United States v. Cornejo, 598 F.2d 554, 557 (9th Cir. 1979) (search of a purse). We therefore hold the court erred in suppressing the evidence obtained from defendant s purse. 3. Right to counsel ¶26 After requesting to speak with Detective Morgan and being advised of her Miranda rights, defendant told Detective Morgan she had drugs concealed inside her body and produced 11.8 grams of methamphetamine. ¶27 The court suppressed this evidence, concluding it was obtained as a result of a violation of defendant s right to counsel. Specifically, the court reasoned: Both Mr. Lockwood and Detective Direen testified that they believed Mr. Lockwood could not speak with defendant unless he was there to represent her. Mr. Lockwood believed he was given the option of either picking up the child or representing defendant, but not both. Detective Direen stated he would not allow Mr. Lockwood to talk to defendant unless he was going to represent her. Either way, the practical result was that, without justification, the State prevented defendant from getting access to an attorney. 12 Defendant had been formally charged with possession of methamphetamine...Defendant had a Sixth Amendment right to consult in private with an attorney...The Court finds that the State inappropriately interfered with defendant s Sixth Amendment right to counsel. ¶28 The court s ruling is flawed. formally charged until October 21, 2008. Defendant was not Defendant could not exercise a right to counsel under the Sixth Amendment because that right had not yet attached. See State v. Hitch, 160 Ariz. 297, 299, 772 P.2d 1150, 1152 (App. 1989) ( Under the Sixth Amendment, the proceedings have right to counsel commenced. ) The attaches Sixth once Amendment adversary right to counsel arises only when a defendant is formally charged with a crime. Moran v. Burbine, 475 U.S. 412, 428-32 (1986); State v. Hall, 129 Ariz. 589, 592, 633 P.2d 398, 401 (1981). Thus, the court committed error in holding defendant had a Sixth Amendment right to counsel and that the detectives interfered with her right to counsel. ¶29 Furthermore, we conclude the methamphetamine was not obtained in violation of Miranda. The Fifth Amendment right identified in Miranda [v. Arizona, 384 U.S. 436 (1966),] is the right to have counsel present at any custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 485-86 (1981). The sequence of events, according to the record, is that the detectives found 13 the methamphetamine in defendant under arrest. they should call to her purse and subsequently placed Then the officers asked defendant who pick up defendant s child. Defendant responded that she wanted Lockwood to pick up her child. Upon Lockwood s arrival, defendant told Lockwood she wanted to talk to him. 5 detectives Although defendant was in custody at that point, the had not engaged in custodial interrogation. Moreover, defendant never indicated a desire to have an attorney present during questioning. 6 See State v. Thornton, 172 Ariz. 449, 453, 837 P.2d 1184, 1188 (App. 1992) (citing McNeil v. Wisconsin, 501 U.S. 171 (1991)). 5 This statement appears on its face to relate to the child because Lockwood was summoned to the police station as the in loco parentis guardian of defendant s child. If the trial court believed this constituted a request to have counsel present during questioning, defendant s statement is ambiguous at best in these circumstances. Even if we assume defendant s statement was ambiguous, we note that defendant requested to speak to Detective Morgan after Lockwood left. See State v. Staatz, 159 Ariz. 411, 414-15, 768 P.2d 143, 146-47 (1988) (after an invocation of the Fifth Amendment right to counsel where a defendant initiates the dialogue, police may pursue questioning in the absence of counsel). Under the circumstances, defendant s wishes were certainly clarified by law enforcement when after requesting to speak to Detective Morgan, defendant was advised of her right to counsel in the Miranda warnings. 6 We also note that Lockwood returned to the police station approximately ten minutes later, after he left with the child, to ask defendant questions about the child s medication. Defendant did not take this opportunity to consult with Lockwood in a legal capacity, which is further support that she did not articulate a request to have counsel present. 14 ¶30 told After the her officers child she left wanted the to police speak because she expressed trust in him. Miranda rights counsel. and defendant Accordingly, the did station, with defendant Detective Morgan Detective Morgan read her not trial invoke court her erred right in to finding defendant s right to counsel was violated and suppressing the methamphetamine on that basis. ¶31 In statements affirming and the reversing court s the suppression court s of defendant s suppression of the methamphetamine seized from defendant s purse and person, we are mindful of the exclusionary rule. The exclusionary rule requires suppression of evidence that was obtained directly or indirectly in violation of the Fourth, Fifth, or Sixth Amendments and their state constitution counterparts. Murray v. United test States, 487 U.S. 533, 536-37 (1988). The for exclusion is whether the evidence was obtained by exploitation of that illegality or instead by means distinguishable to be purged of the primary taint. sufficiently Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quotation omitted). The rule is inapplicable if the police obtained the evidence from an independent source. State v. Hackman, 189 Ariz. 505, 508 n. 3, 943 P.2d 865, 868 (App. 1997). ¶32 The discovery of the methamphetamine was sufficiently distinguishable from the Miranda violation and was purged of the 15 primary taint. Defendant s purse had been placed in Detective Direen s vehicle before the incident with the cell phone leading to defendant s arrest. On this record, we are convinced the detectives would have properly searched defendant s purse at the police station, defendant. irrespective of any statements made by As to the evidence obtained from defendant s person, we conclude those events were also sufficiently distinguishable from the Miranda violation. to Detective Morgan. Defendant stated she wanted to talk She received Miranda warnings, did not invoke her rights, and voluntarily told Detective Morgan she had drugs concealed inside her body. The methamphetamine was obtained pursuant to defendant s voluntary confession, not as an exploitation of the original Miranda violation at the scene. Thus, we hold the exclusionary rule is inapplicable under these circumstances. 4. Other incriminating statements ¶33 Finally, our review Direen may have Detective involvement during the of the record questioned transport to the indicates defendant police that about her station and before or after the search of the purse at the police station. 7 7 We are referring to the following dialogue from the suppression hearing: [Defense Counsel]: On direct examination, you made reference to some discussions that 16 Detective Direen testified during these conversations. defendant made denial statements Nonetheless, to clarify this issue, we hold that if defendant made any statements in response to Detective Direen s questions while she was in custody and preMiranda, those statements must be suppressed. CONCLUSION ¶34 For the foregoing reasons, we affirm the trial court s ruling suppressing defendant s statements at the scene, reverse the trial court s grant of defendant s motion to suppress with respect to the methamphetamine in her purse and on her person, and remand this case for further proceedings consistent with this decision. you had, or that someone had there, concerning Ms. Williams to help herself. [Detective D.]: Correct. [Defense Counsel]: Was that discussions that you had with her post-Miranda? [Detective D.]: I believe before and after, that was probably discussed. [Defense Counsel]: So pre-Miranda, then, there was some questioning and discussions with her? [Detective D]: Yes. I asked her involvement in this before Miranda, yes. [Defense Counsel]: Pre- or post-discovery of the contents of the purse? [Detective D.]: Both. 17 /s/ _____________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ MICHAEL J. BROWN, Presiding Judge /s/ ___________________________________ SHELDON H. WEISBERG, Judge 18

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