STATE v. MANNING

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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 DIVISION ONE FILED: 10/29/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) KENT LEE MANNING, ) ) Appellant. ) ) ) __________________________________) 1 CA-CR 12-0645 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-132864-001 The Honorable Glenn M. Davis, Judge (Retired) AFFIRMED Thomas C. Horne, Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals/Capital Litigation Section and Adele Ponce, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Thomas Baird, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 for Kent Lee Manning appeals his conviction and sentence misconduct involving weapons. He argues that the trial court erred by denying his motion to suppress evidence. For reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 While mother s house, Manning two was on probation probation officers and living accompanied in by his police officers went to her house to arrest her on a felony warrant for a probation violation. Once inside the home, the police officers conducted a protective sweep and found Manning s mother hiding in one of the back bedrooms. During the protective sweep, a police officer observed .40 caliber ammunition on a table just outside of Manning s bedroom. of the probation officers. He then notified one Knowing that Manning was on probation, the probation officer searched Manning s bedroom and found a .40 caliber handgun in a holster under a table next to the bed. Manning was subsequently charged with misconduct involving weapons (prohibited possessor), a class 4 felony. ¶3 Before trial, Manning moved to suppress evidence seized from his bedroom, including the handgun, arguing that the search hearing was and unlawful. later constitutional. search was reasonable The denied The suspicion held an motion, ruling the search determined that the warrantless the court authorized trial because that court the Manning probation was engaged evidentiary officer in activity and/or had violated the terms of his probation. 2 was had criminal ¶4 guilty The as case went charged. to He trial was and the jury subsequently found Manning sentenced as a repetitive offender to a presumptive ten-year prison term. DISCUSSION ¶5 We review a trial court s ruling on a motion to suppress for abuse of discretion if it involves a discretionary issue, but we review constitutional and purely legal issues de novo. State v. Gay, 214 Ariz. 214, 217, ¶ 4, 150 P.3d 787, 790 (App. 2007) (citation and internal quotation marks omitted). We restrict our review to the evidence presented at the suppression hearing and consider it in the light most favorable to upholding the ruling. State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1349 (1996); State v. Walker, 215 Ariz. 91, 94, ¶ 16, 158 P.3d 220, 223 (App. 2007). ¶6 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) (citation reasonableness and standard internal is quotation applied in marks reviewing omitted), a warrantless searches and seizures in a variety of circumstances. State v. Allen, 216 Ariz. 320, 326, ¶ 24, 166 P.3d 111, 117 (App. 2007); 3 see also Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (noting that the ultimate touchstone of the Fourth Amendment is reasonableness ). ¶7 The United States Supreme Court has held that a warrantless search of a probationer is valid if it is supported by reasonable probation. suspicion and authorized by a condition of United States v. Knights, 534 U.S. 112, 122 (2001); see also State v. Montgomery, 115 Ariz. 583, 584, 566 P.2d 1329, 1330 (1977) (recognizing that [w]hile defendant is on probation his expectations of privacy are less than those of other citizens not so categorized ). ¶8 Here, the terms of Manning s probation specifically authorized a warrantless search, and the presence of ammunition on a table just outside his bedroom was sufficient to provide reasonable suspicion that Manning had violated the terms of his probation and was engaged in criminal activity by possessing a firearm. The search was not invalid, as Manning claims, because the probation officer testified that he would have gone into Manning s ammunition Manning bedroom or argues regardless [of whether] because was on not that the he testimony they had probation. shows the search found Although was not motivated by the ammunition found outside his bedroom, his argument ignores that the probation officer further testified that he searched Manning s bedroom because of the ammunition. 4 Moreover, a Fourth Amendment analysis of the reasonableness of a search or seizure officer s turns actions in on an light of objective the assessment facts and of the circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken. Maryland v. Macon, 472 U.S. 463, 470 (1985) (citation and internal quotation marks omitted); see also State v. Jeney, 163 Ariz. 293, 296, objective 787 rather P.2d than 1089, subjective reasonableness of search). to what he would have 1092 (App. test 1989) for (adopting determining Thus, the officer s speculation as done under different circumstances is irrelevant to the determination of whether reasonable suspicion existed for the search. ¶9 Manning also argues that the presence of the ammunition did not provide reasonable suspicion for the search of his bedroom because it was insufficient to establish individualized suspicion of criminal conduct on his part. He asserts that there was nothing indicating that he, as opposed to other occupants disagree. of the home, possessed the ammunition. We The ammunition was located on a table just outside of Manning s bedroom. The spatial proximity of the ammunition to Manning s bedroom was more than sufficient to provide reasonable suspicion that he might have a firearm in his bedroom. See United States v. Sokolow, 490 U.S. 1, 7 (1989) (noting that 5 although reasonable suspicion must be more than an inchoate hunch, the Fourth Amendment only requires that the officer articulate some minimal, objective justification for the search or seizure). CONCLUSION ¶10 The trial court did not err in ruling that there was reasonable suspicion to search Manning s bedroom and thereby denying the motion to suppress evidence found during the search. We therefore affirm Manning s conviction and sentence. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ _____________________________ JOHN C. GEMMILL, Judge /s/ _____________________________ KENT E. CATTANI, Judge 6

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