Opinion
No. 1 CA-CR 15-0189
04-19-2016
STATE OF ARIZONA, Appellee, v. ELLEN RUTH DICKEY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jillian Francis Counsel for Appellee Law Office of Daniel DeRienzo, Prescott Valley By Daniel J. DeRienzo Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
S8015CR201400664
The Honorable Steven F. Conn, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jillian Francis
Counsel for Appellee Law Office of Daniel DeRienzo, Prescott Valley
By Daniel J. DeRienzo
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Maurice Portley and Judge Patricia K. Norris joined. THOMPSON, Judge:
¶1 Ellen Ruth Dickey (defendant) appeals from her convictions and sentences for possession of dangerous drugs for sale, possession of drug paraphernalia, and two counts of misconduct involving weapons. She argues the court erred in denying her motion to suppress. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Detectives with the Mohave Area General Narcotic Enforcement Team (MAGNET) arrested defendant after executing a search warrant on two properties (991 property and 1001 property) that were suspected of being used for illegal drug activity. Prior investigation, informants, and surveillance revealed that co-defendant Roddy Joe Gomez sold and distributed for sale large quantities of methamphetamine and heroin from his residence on the 991 property and from surrounding properties. Gomez's mother owned the 991 property, the adjacent 1001 property, and five other nearby properties. She resided in single-wide trailer near the front of the 1001 property. In addition to the main residences, the 991 and 1001 properties contained approximately forty to fifty vehicles, mobile homes, travel trailers, and storage containers, with many of the vehicles frequently being moved among the properties.
¶3 On May 9, 2014, police found co-defendant Kenneth Craig Jones passed out in his vehicle with a pound of both methamphetamine and heroin, a glass pipe, and a gun. During a police interview, Jones stated that Gomez supplied him with a pound of methamphetamine and heroin every other week, he was at the 1001 property in the past few days, and Gomez hid drugs, money, and weapons in various locations on the 1001 and 991 properties. Based on this information, detectives obtained a warrant to search both properties. The search warrant granted authority to search :
"[i]n or on the premises, building(s), structures, and adjoining curtilage described as: . . . 1001 S. Red Rock Rd. Lake Havasu City, Mohave County, AZ. a 1.02 acre lot located immediately south of 991 S. Red Rock Rd. . . . . To include any and all structures, both movable and stationary located within the curtilage of the property . . . .
¶4 That same day, police officers executed the warrant. Teams from SWAT (Special Weapons and Tactics) first swept the properties to secure the premises, and then the detectives began their search. At the front of the 1001 property, officers secured Gomez's mother's trailer and a motor home. In the backyard, officers discovered a locked fifth-wheel travel trailer behind numerous vehicles, trailers, sheds and storage containers. The SWAT team announced their presence at the travel trailer, and when no one answered, attempted to pry open the front door. The door was eventually opened from the inside, where officers found and detained defendant and co-defendant Kenneth Dugan.
Dugan testified at trial that he owned the travel trailer and allowed defendant to reside in the travel trailer occasionally. --------
¶5 Once inside the travel trailer, detectives observed men and women's clothing, a bed, food, and an active surveillance system that fed to a monitor in the bedroom. During the search, detectives seized glass pipes, a glass vial, zip top bags, a baggie of marijuana, 6.8 grams of methamphetamine, a rifle, a handgun, and a shotgun. The State subsequently indicted defendant on: possession of dangerous drugs for sale, a class 2 felony (count 1); possession of drug paraphernalia, a class 6 felony (count 2), and two counts of misconduct involving weapons, both class 4 felonies (counts 3 and 4).
¶6 Prior to trial, defendant filed a motion to suppress the drug and weapon evidence found in the travel trailer on Fourth Amendment grounds. The court held a hearing on the motion to suppress on December 9, 2014. At the suppression hearing, detective T.J. Frances testified, and both sides made arguments. Following the hearing, the trial court concluded that probable cause existed to issue the search warrant. The court further found that even if the warrant did not establish probable cause, the motion to suppress should be denied because the officers who executed the warrant acted in objectively reasonable good faith. See United States v. Leon, 468 U.S. 897, 923 (1984) (suppression generally not required where search with a warrant conducted in objectively reasonable good faith). Consequently, the trial court denied the motion to suppress.
¶7 At the conclusion of the trial, the jury found defendant guilty of all of the offenses as charged. The court sentenced defendant to a mitigated nine year prison term on count 1; a mitigated, concurrent two and a half year prison term on count 2; a mitigated, concurrent three and a half year prison term on count 3; and a mitigated, consecutive three and a half years prison term on count 4. Defendant received 301 days presentence incarceration credit on each count, with the exception of count 4.
¶8 Defendant timely appeals. This court has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2016), 13-4031 and - 4033(A) (2010).
DISCUSSION
¶9 Defendant argues that the trial court abused its discretion in denying her motion to suppress. She argues that 1) the scope of the warrant was unreasonably broad; 2) the detectives exceeded the scope of probable cause for the warrant by searching the travel trailer after discovering it was a separate occupied residence; and 3) the detectives search of the travel trailer cannot be justified under the good faith exception to the exclusionary rule.
¶10 We review the trial court's denial of a motion to suppress evidence for an abuse of discretion. State v. Dean, 206 Ariz. 158, 161, 76 P.3d 429, 432 (2003). We defer to the trial court's factual findings, but review the court's ultimate legal determination, de novo. Id.; State v. Olm, 223 Ariz. 429, 432, ¶¶ 7, 8, 224 P.3d 245, 248 (App. 2010). We look "only to the evidence presented at the suppression hearing and view it in the light most favorable to sustaining the court's ruling." State v. Brown, 233 Ariz. 153, 156, ¶ 4, 310 P.3d 29, 32 (App. 2013). Search warrants are presumed valid and the defendant carries the burden of proving the invalidity of the warrant. Ariz. R. Crim. P. 16.2(b) (explaining that the state has the burden of proving the lawfulness of all evidence to be used at trial, but if such evidence is obtained by a valid search warrant, it is the defendant's burden to establish a "prima facie case that the evidence taken should be suppressed"); see also State v. Crowley, 202 Ariz. 80, 83, ¶ 7, 41 P.3d 618, 621 (App. 2002).
¶11 Search warrants are governed by the Fourth Amendment, which protects "[t]he right of the people to be secure . . . against unreasonable searches and seizures." U.S. Const. amend. IV. A magistrate shall only issue a search warrant upon a showing of "probable cause, supported by affidavit, naming or describing the person and particularly describing the property to be seized and the place to be searched." A.R.S. § 13-3913 (2010). To determine if a proposed search is based on probable cause, "the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983); State v. Crowley, 202 Ariz. at 85, ¶ 12, 41 P.3d at 623. Further, probable cause is determined from the totality of the circumstances, and the information upon which it is based may be "viewed in light of the police officers' knowledge and past experience." State v. Million, 120 Ariz. 10, 15, 583 P.2d 897, 902 (1987).
¶12 Defendant argues that the scope of the warrant was overbroad, and the search of the travel trailer exceeded the scope of probable cause presented in the warrant affidavit. We disagree. The warrant's failure to specifically mention the defendant's travel trailer did not make it overbroad. See United States v. Alexander, 761 F.2d 1294, 1300 (9th Cir. 1985) (finding warrant authorizing search of entire 40-acre ranch and any structures thereon was reasonable and not overbroad); see also State v. White, 145 Ariz. 422, 427, 701 P.2d 1230, 1235 (1985) ("[A] warrant should not be invalidated by a hyper-technical interpretation.") (quoting In re One 1970 Ford Van, 111 Ariz. 522, 523, 533 P.2d 1157, 1158 (1975)).
¶13 The search warrant executed in this case limited the detectives search to the 991 property and "1001 S. Red Rock Rd. Lake Havasu City, Mohave County, AZ . . . . and all structures, both movable and stationary located within the curtilage of the property." The warrant was supported by a twenty-two page affidavit that provided probable cause to believe that drugs, weapons, and evidence of drug trafficking would be found on the 1001 property. The information in the affidavit relevant to the determination of probable cause included that: Gomez was the head of a large scale drug trafficking organization; Gomez transported and sold multiple pounds of methamphetamine and heroin from his properties; Gomez controlled all of the 1001 property; Gomez hid drugs, money, and weapons in various, unknown locations throughout the 1001 property; and surveillance revealed numerous instances of short term vehicular and foot traffic between the properties, including trailers, and motor homes. At the hearing, Detective Frances also testified that an individual at the 1001 property was assisting in Gomez's drug sales, and Gomez frequently changed the location where the illegal contraband was hidden on the 1001 property.
¶14 Based on the totality of the circumstances, law enforcement officials reasonably concluded that the drugs, drug paraphernalia, weapons, and evidence of drug trafficking would be found in mobile structures on the property, including the travel trailer. See State v. Caldwell, 20 Ariz. App. 331, 334, 512 P.2d 863, 866 (1973) (stating that where police could reasonably believe large quantities of marijuana for sale were being stored on the premises, automobiles and surrounding sheds are also possible storage places subject to the warrant); United States v. Chavez- Miranda, 306 F.3d 973, 978 (9th Cir. 2002) (holding probable cause for a search warrant existed when "affidavit clearly set forth the existence of criminal activity" and "a reasonable inference from the affidavit's facts suggested that incriminating evidence or contraband related to the crimes under investigation would likely be located there"). The 1001 property, according to the affidavit, was well-known by law enforcement officers as being used in the sale, distribution, and storage of narcotics. It was reasonable for the officers to look for contraband in the mobile and immobile structures on the 1.02 acre property. Additionally, the travel trailer fit the description of the type of mobile structure that would contain incriminating evidence. Therefore, the magistrate had probable cause to issue the search warrant, and he could rationally determine from the affidavit that the place to be searched included the travel trailer in which the described contraband would be found. The 1001 property was described with sufficient particularity so as to limit the scope of the search. We find no error.
¶15 Defendant also contends that detectives exceeded the scope of probable cause for the warrant once they discovered the travel trailer was being used as a residence. In support, defendant relies solely on Maryland v. Garrison, 480 U.S. 79 (1987). In Garrison, the trial court authorized a search warrant for a third-floor apartment, not knowing there were two apartments on the third floor. Id. at 80. The police searched the apartment unit that was not occupied by the suspect and found contraband before they realized they were searching the wrong apartment. Id. The Supreme Court upheld the warrant's validity and execution as reasonable because the objective facts available to the officers at the time of the search suggested no distinction between the apartments. Id. at 88. Accordingly, the Court found that "the officers' conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment." Id.
¶16 However, in Garrison, the Court mentioned that if the officers had known or should have known that there were two separate apartments, they would have been required to limit their search to the suspect's apartment. Id. at 86-87. Based on this language, defendant contends that once the SWAT team discovered that the travel trailer was being used as a residence, detectives were required to cease the search and obtain a separate warrant. We disagree.
¶17 Unlike Garrison, the scope of the search warrant was not limited to the suspect's primary residence. Rather, the warrant explicitly authorized the search of the entire 1001 property, "[a] 1.02 acre lot," including the premises, buildings, moveable and immoveable structures, and vehicles within the curtilage of the property. Defendant does not dispute that the travel trailer was a moveable structure on the 1001 property. Further, in accordance with Garrison, detectives were unaware that defendant was using the travel trailer as a residence prior to the search. See id. (upholding the validity and execution of the warrant based on objective facts known to the officers at the time). Detective Francis testified at the suppression hearing that officers were unaware of the existence of defendant's travel trailer until the search commenced. He stated that the property contained numerous vehicles, trailers, mobile homes, and structures that were frequently moved among other properties. Detective Francis further testified that he checked the water and ownership records for the 1001 property and found no information that defendant maintained a residence there.
¶18 Moreover, the detectives reasonably believed that the entire property was being used for illegal activity. See State v. Burns, 163 Ariz. 44, 46, 785 P.2d 1232, 1234 (App. 1989) ("Where the entire premises, rather than a particular subunit, are under suspicion of illegal activity, a warrant for the entire residence may be valid"). The search warrant affidavit described the history of illegal drug activity occurring at the 1001 property, which involved several different people, structures, and vehicles. The warrant affidavit attested that Gomez controlled and used the 1001 property to hide drugs, money, and weapons used in his sale and distribution of multiple pounds of methamphetamine and heroin. The objective facts available to the detectives at the time of the search suggested no distinction between defendant's travel trailer, and the multiple other vehicles, trailers, and containers on the 1001 property. Consequently, the trial court did not abuse its discretion in finding the search of the travel trailer within the scope of probable cause for the warrant.
¶19 We conclude that defendant has failed to satisfy her burden of proving that the warrant was invalid, and the trial court did not err in denying the motion to suppress. Therefore, we need not address the state's argument that even if the warrant is determined to be invalid, the evidence was properly admitted at trial in accordance with the good faith exception to the exclusionary rule. See A.R.S. § 13-3925(B) (2010); Leon, 468 U.S. at 905.
CONCLUSION
¶20 For the above reasons, defendant's convictions and sentences are affirmed.