STATE OF ARIZONA v. JOSE GUILLEN

 Annotate this Case
Download PDF
SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JOSE SALVADOR GUILLEN, ) ) Appellant. ) ) ) ) ) __________________________________) Arizona Supreme Court No. CR-09-0188-PR Court of Appeals Division Two No. 2 CA-CR 07-0365 Pima County Superior Court No. CR20064552 O P I N I O N Appeal from the Superior Court in Pima County The Honorable Michael J. Cruikshank, Judge AFFIRMED ________________________________________________________________ Opinion of the Court of Appeals Division Two 222 Ariz. 81, 213 P.3d 230 (2009) VACATED ________________________________________________________________ TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph L. Parkhurst, Assistant Attorney General Tucson Attorneys for State of Arizona EMILY DANIES Tucson Attorney for Jose Salvador Guillen ________________________________________________________________ R Y A N, Justice ¶1 The question presented is whether a resident s consent to search her home is invalid because it was preceded by an allegedly illegal search of which the resident was unaware. hold that the consent to search is valid under We the circumstances. I ¶2 In March 2006, police received information that Jose Guillen was storing marijuana in his garage; no investigation took place at that time. Eight months later, after confirming that the house was unoccupied, police called a narcotics officer with a drug-sniffing dog to the scene. The home was not enclosed by a fence and no signs prohibited public access to the front of the house. The garage was attached to the house and accessible by a driveway. The narcotics officer and the dog walked up the driveway to the garage door. door s bottom seam, the dog began After sniffing the barking and scratching, indicating that he had detected the odor of marijuana. ¶3 One to two hours later, Guillen s wife returned home. Officers approached her in the driveway and asked if they could continue talking inside. She agreed. Without mentioning the dog sniff, the officers told her that they had information that marijuana was being stored at the house and asked for permission to search it. Mrs. Guillen granted permission and led the officers to the garage, where they detected a strong odor of marijuana. garage and The narcotics officer then brought the dog into the the dog signaled at 2 an unlocked freezer that he detected the odor of marijuana. Mrs. Guillen permitted the officers to open that freezer, which was empty but smelled of marijuana. officers After obtaining a telephonic search warrant, the searched two locked freezers and found bales of marijuana. ¶4 Before trial, Guillen moved to suppress evidence discovered in his garage and his subsequent statements to the police, arguing that the dog sniff violated his rights under the Fourth Amendment of the United States Constitution and Article 2, Section 8 of the Arizona Constitution. The superior court denied Guillen s motion, concluding that whether the dog sniff was an illegal search was irrelevant because Mrs. Guillen voluntarily consented to the search. ¶5 A jury subsequently convicted Guillen of possession of marijuana for sale and drug paraphernalia, and the trial court sentenced him to prison. II ¶6 A divided panel of the court of appeals reversed and remanded. State v. Guillen, 222 Ariz. 81, __ ¶ 33, 213 P.3d 230, 240 (2009). The majority began by analyzing the dog sniff under Amendment the Fourth Arizona Constitution. and Article 2, Section 8 of the The majority concluded that a dog sniff reaching into a home does not rise to the level of a cognizable infringement under the Fourth Amendment to the United States 3 Constitution. Illinois v. Id. at Caballes, __ 543 ¶ 17, U.S. 213 405, P.3d 409 at 234 (quoting (2005)). However, citing State v. Ault, 150 Ariz. 459, 466, 724 P.2d 545, 552 (1986), and State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984), which held that Article 2, Section 8 is more specific than its federal counterpart in protecting the home, the court of appeals concluded that a canine sniff that occurs at the threshold of a home, and collects information from inside, intrudes upon an expectation of privacy that our society has long recognized as reasonable. 237. Id. at __ ¶ 24, 213 P.3d at But because Article 2, Section 8 contains no language comparable to that of its federal counterpart requiring a warrant for all searches in the home, id. at __ ¶ 30, 213 P.3d at 239, the majority concluded that officers need only a reasonable suspicion that contraband may be found in a home . . . to conduct a canine sniff search of the exterior of the home. of Id. whether The court remanded the matter for a determination the officers conducting the dog sniff. ¶7 had reasonable suspicion before Id. at __ ¶ 30, 213 P.3d at 239-40. Turning to the issue of Mrs. Guillen s consent, the court of appeals stated that if the trial court on remand found that the officers did not have reasonable suspicion, it then would have information to determine acquired to whether trigger 4 the the officers next step used in the their investigation asking for consent to search the house or whether . . . they would have taken that step regardless of the outcome of the dog sniff. ¶8 Id. at __ ¶ 32, 213 P.3d at 240. Dissenting, Judge Espinosa was unconvinced [that] the trial court erred in concluding Mrs. Guillen s consent obviated the need to discuss the constitutionality of the dog sniff[,] id. at __ n.13 ¶ 34, 213 P.3d at 241 n.13, but primarily challenged the majority s conclusion that a dog sniff, conducted from the officer s lawful position outside the home, violates the state constitution. ¶9 The State Id. at __ ¶¶ 37-55, 213 P.3d at 243-48. petitioned for review, arguing that the court of appeals erred in interpreting the state constitution and, in any event, Mrs. Guillen s voluntary consent obviated the need to reach the state constitutional question. Because this case involves a matter of first impression, we granted review. We have Arizona jurisdiction Constitution under and Article Arizona 6, Section Revised 5(3) Statutes of the § 13-4032 that [t]he (2001). III A ¶10 right The of Fourth Amendment the people to be provides secure in in their part persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Unlawful entry into a home is the 5 chief evil against which the provision protects. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (quoting United States v. (1972)). United States District Court, 407 U.S. 297, 313 It applies to action by state officers under the Due Process Clause of the Fourteenth Amendment. State v. Davolt, 207 Ariz. 191, 202 ¶ 23, 84 P.3d 456, 467 (2004) (citing Mapp v. Ohio, 367 U.S. counterpart to 643, the 655 (1961)). Fourth Arizona s Amendment, Article constitutional 2, Section 8, provides that [n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law. See Bolt, 142 Ariz. at 264-65, 689 P.2d at 523-24 (observing that Arizona s constitutional provision is specific in preserving the sanctity of homes and in creating a right of privacy ). Thus, as a general rule police must obtain a warrant before searching premises in expectation of privacy. which an individual has a reasonable Katz v. United States, 389 U.S. 347, 356-57 (1967); State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200, 209 (1996); Bolt, 142 Ariz. at 265, 689 P.2d at 524. ¶11 One long recognized requirement is consent. exception to the warrant Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d at 468 (citing Katz, 389 U.S. at 357). To be valid, consent must be voluntarily given, and whether the consent was voluntary is a question of fact to be determined from the totality of the circumstances. Id. (citing Schneckloth v. Bustamonte, 412 U.S. 6 218, 248-49 (1973)). Consent must not be coerced, by explicit or by implicit means, implied Schneckloth, 412 U.S. at 228. threat or covert force. The state bears the burden of showing that consent to search was voluntary. See United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th Cir. 1988); State v. Monge, 173 Ariz. 279, 281, 842 P.2d 1292, 1294 (1992). ¶12 Here, defense counsel made clear at the suppression hearing below that Guillen was not challenging the voluntariness of Mrs. Guillen s consent or her authority to consent to the search. See, e.g., United States v. Matlock, 415 U.S. 164, 171 (1974) (holding that voluntary consent to search premises by occupant who possesses common authority to the premises is valid against absent co-occupant); State v. Lucero, 143 Ariz. 108, 109, 629 P.2d 287, 288 (1984) (recognizing exception to warrant requirement where person having warrantless search[] does so ). authority to consent to a Rather, he argued that the first dog sniff at the garage perimeter was illegal, and it necessarily tainted Mrs. Guillen s subsequent consent to search, requiring exclusion of the evidence discovered in the garage. B ¶13 Evidence seized following consent to a search must be suppressed if the consent is tainted by a prior constitutional violation. Brown v. Illinois, 422 U.S. 590, 602 (1975); United States v. Taheri, 648 F.2d 598, 601 (9th Cir. 1981); Davolt, 207 7 Ariz. at 203 ¶ 29, 84 P.3d at 468. Exclusion deters police misconduct by removing the incentive for such conduct. State v. Booker, 212 Ariz. 502, 504 ¶ 13, 135 P.3d 57, 59 (App. 2006) (citing United States v. Calandra, 414 U.S. 338, 347 (1974)); State v. Kempton, 166 Ariz. 392, 398, 803 P.2d 113, 119 (App. 1990).1 Suppression, unconstitutional conduct subsequent seizure. however, is is not sufficiently required attenuated if the from the See Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d at 468; Monge, 173 Ariz. at 281, 842 P.2d at 1294. [T]he unconstitutional acts of an officer taint a consensual search unless there are sufficient intervening circumstances between the unlawful conduct and the consent to truly show that it was voluntary. ¶14 determine Kempton, 166 Ariz. at 398, 803 P.2d at 119. In Brown, the whether the Supreme taint Court of the set forth illegal a test conduct to is sufficiently attenuated from evidence subsequently obtained by voluntary consent. 422 U.S. at 603-04. Under that test, courts consider (1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) particularly, the purpose and flagrancy of the official misconduct. Id.; see also Davolt, 207 Ariz. at                                                              1 This Court has held that for purposes of the Arizona Constitution, the exclusionary rule to be applied as a matter of state law is no broader than the federal rule. Bolt, 142 Ariz. at 269, 689 P.2d at 528. 8 203 ¶ 30, 84 P.3d at 468.2 C ¶15 Assuming, without deciding, that the dog sniff violated Article 2, Section 8, we conclude that Mrs. Guillen s consent was intervening first dog valid because circumstances sniff under Brown s obviated conducted from three-factor any alleged outside the test, taint and the garage was not flagrant police misconduct. ¶16 after Mrs. Guillen s consent was obtained within a few hours the Guillen, dog see sniff took place. Although Delgadillo-Velasquez, 856 this F.2d at fact 1300 favors (citing cases in which courts have held invalid consent given between a few minutes and a few hours after the illegal conduct), it does not weigh heavily in our analysis because of the presence of intervening circumstances. 459, 702 P.2d 681, 688 See State v. Reffitt, 145 Ariz. 452, (1985) (noting that the factor of temporal proximity is scarcely outcome determinative and is often the least helpful of [Brown s] three criteria ). ¶17 Mrs. Guillen s lack of knowledge of the dog sniff                                                              2 In analyzing whether a confession was obtained by exploitation of an illegal arrest, the Court in Brown also considered whether the police gave Miranda warnings to be an important factor. 422 U.S. at 603. Although Brown dealt with the exclusion of a defendant s statements, [the reasoning in Brown] applies equally to contraband revealed by [a] consent search. Kempton, 166 Ariz. at 398, 803 P.2d at 119 (citing Taheri, 648 F.2d at 601). 9 constitutes United a States major v. break Furrow, in the causal 229 F.3d 805, chain. 814 See, (9th e.g., Cir. 2000) ( Lack of knowledge of a prior search is an intervening factor which dissipates the coercion inherent in a request for consent made after an unconstitutional search. ), rev'd on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001); United States v. Carson, 793 F.2d 1141, 1155 (10th Cir. 1986) (holding that a defendant waived his Fourth Amendment rights when he consented to search without knowledge of prior illegal police search); cf. Moran v. Burbine, 475 U.S. 412, 422 (1986) ( Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. ). ¶18 dog It is uncontested that Mrs. Guillen was unaware of the sniff Guillen when knew she nothing consented of the to dog the search.3 sniff, no link alleged illegality and the consent was established. F.3d at 814. Because between Mrs. the Furrow, 229 Thus, she was in the same posture . . . as a person not previously subject to an illegal entry. Id.                                                              3 At the suppression hearing, the State offered to admit a recording of the conversation between the officers and Mrs. Guillen. Defense counsel said that the court need not listen to the recording because he was not challenging the voluntariness of her consent. 10 ¶19 Regarding Brown s final factor, flagrancy of the alleged violation, nothing suggests that the officers knowingly violated Guillen s rights by conducting the first dog sniff from outside his garage. First, none of the traditional markers of privacy no appeared: wall or fence obstructed entry onto Guillen s property, and no signs alerted the officers that such entry was prohibited. publicly accessible. The front entrance and garage were See United States v. Velazco-Durazo, 372 F. Supp. 2d 520, 524-25 (D. Ariz. 2005) (holding that generally there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of privacy, . . . to walk up the steps and knock on the front door of [a residence to ask] questions of the occupant thereof ) (quoting Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964)); Baker v. Clover, 177 Ariz. 37, 39, 864 P.2d 1069, 1071 (App. 1993) (concluding that walkways and driveways leading to the home are only semi-private and recognizing a reasonable expectation that various course of persons members of society attending to personal the home, residing in may or use the walkway business including in pursuits police the with officers on police business ) (quoting State v. Cloutier, 544 A.2d 1277, 1279-80 (Me. 1988)); State v. Lopez, 115 Ariz. 40, 42, 563 P.2d 295, 297 (App. 1977) (holding that an carport located in unfenced rear yard); 11 officer see may approach also Florida v. Royer, 460 U.S. 491, 497 (1983) ( [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. ). ¶20 Second, the case law on dog sniffs of the exterior of a residence accessible to the public is far from clear. Dog sniffs of cars and luggage or other containers in public places plainly do not constitute searches under the Fourth Amendment. See Caballes, 543 U.S. at 408-09 (holding that a canine sniff performed on the exterior of a lawfully detained compromises no legitimate privacy interest ) (quoting car United States v. Jacobsen, 466 U.S. 109, 123 (1984)); State v. Morrow, 128 Ariz. 309, 312-13, 625 P.2d 898, 901-02 (1981) (holding that a dog sniff of luggage in a public place is not a search); State v. Martinez, 26 Ariz. App. 210, 212, 547 P.2d 62, 64 (1976), aff d and adopted, 113 Ariz. 345, 554 P.2d 1272 (1976) (holding that use of narcotics dog by police officers, who lawfully stopped defendants vehicle to investigate possible presence of marijuana, did not constitute a search). ¶21 the Notwithstanding these cases, neither this Court nor United States Supreme 12 Court has analyzed the constitutionality of dog sniffs conducted at the exterior of a residence under Constitution. split on violate the Moreover, whether the Fourth dog Fourth constitutions. Amendment cases sniffs of Amendment from or other the Arizona jurisdictions the exterior or their of a are residence respective state Compare Hoop v. State, 909 N.E.2d 463, 470 (Ind. Ct. App. 2009) (holding that a dog sniff of a private residence requires reasonable suspicion to prevent arbitrary searches), and State v. Dearman, 962 P.2d 850, 853 (Wash. Ct. App. 1998) (concluding that a dog sniff expose[d] information that could not have been obtained use of therefore constituted a a search without trained under the [use narcotics the state of dog the at dog] and a residence constitution) (citation omitted), with Stabler v. State, 990 So. 2d 1258, 1263 (Fla. Dist. Ct. apartment App. 2008) violated no (holding legitimate dog sniff at expectation front of door privacy, of and therefore, was not a search), and People v. Jones, 755 N.W.2d 224, 229 (Mich. Ct. App. 2008) (holding that defendant had no reasonable expectation of privacy at entrance of property that is open to the public, and [a]ny contraband sniffed by the canine while on defendant s front porch . . . fell within the canine sniff rule ). Given these circumstances, we conclude that any supposed flagrancy of the official misconduct [was] de minimis. State v. Blackmore, 186 Ariz. 630, 635, 925 P.2d 13 1347, 1352 (1996); see also Reffitt, 145 Ariz. at 460, 702 P.2d at 689 (even if police actions in illegally arresting defendant were erroneous and regrettable, they did not involve flagrant or purposeful misconduct so as to taint subsequent confession). D ¶22 Mrs. Guillen s consent was from any alleged prior illegality. appeals erred determine in whether ordering the a for request based in part on the positive dog sniff. __ ¶ 32, 213 P.3d at 240. Such attenuated Accordingly, the court of remand officers sufficiently a the for trial her court consent to was Guillen, 222 Ariz. at determination would be irrelevant to the question of whether Mrs. Guillen voluntarily consented. See, e.g., Furrow, 229 F.3d at 814; see also United States v. Liss, 103 F.3d 617, 621 (7th Cir. 1997) (stating that an officer's motivation . . . is irrelevant. . . . The fact that an officer had actual suspicion, however obtained, cannot render invalid a consent for which the officer did not need any suspicion at all to request ) (citation omitted). Therefore, the trial court did not err in ruling that the evidence seized from the garage should not be suppressed. IV ¶23 For the foregoing reasons, we vacate the opinion of the court of appeals and affirm Guillen s conviction. 14 _____________________________________ Michael D. Ryan, Justice CONCURRING: _____________________________________ Rebecca White Berch, Chief Justice _____________________________________ Andrew D. Hurwitz, Vice Chief Justice _____________________________________ W. Scott Bales, Justice _____________________________________ A. John Pelander, Justice 15

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.