State v. Ontiveros-Loya

• Citation: 352 P.3d 941,716 Ariz. Adv. Rep. 4,237 Ariz. 472
• Decision Date: 30 June 2015
• Docket Number: No. 2 CA–CR 2014–0159.,2 CA–CR 2014–0159.
• Parties: The STATE of Arizona, Appellee, v. Feliciano ONTIVEROS–LOYA, Appellant.
• Court: Court of Appeals of Arizona

237 Ariz. 472

352 P.3d 941

716 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee

v.Feliciano ONTIVEROS–LOYA, Appellant.

No. 2 CA–CR 2014–0159.

Court of Appeals of Arizona, Division 2.

June 30, 2015.

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By David A. Sullivan, Assistant Attorney General, Tucson, Counsel for Appellee.

Lori J. Lefferts, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant.

Presiding Judge MILLER authored the opinion of the Court, in which Chief Judge ECKERSTROM and Judge ESPINOSA concurred.

OPINION

MILLER, Presiding Judge:

¶ 1 Following a jury trial, Feliciano Ontiveros–Loya was convicted of possession of a deadly weapon by a prohibited possessor. The trial court sentenced him to an eight-year prison term. On appeal, Ontiveros–Loya argues the court abused its discretion by failing to suppress evidence obtained during a search of his motel room because his consent to search the room was neither knowing nor voluntary. He also contends the search of his cell phone incident to his arrest was unlawful and the violation was not cured by the search warrant police later obtained. Ontiveros–Loya additionally asserts that the court improperly admitted the photographs found on his cell phone and abused its discretion by failing to give a related limiting instruction and by giving a constructive possession instruction. Finally, he maintains his conviction must be overturned because the jury verdict might not have been unanimous and he was convicted of an offense not presented to the grand jury. For the following reasons, we vacate the court's suppression ruling and remand for a determination on the issue of whether Ontiveros–Loya consented to a search of his cell phone.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to sustaining Ontiveros–Loya's conviction and sentence. See State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App.2008). On an evening in May 2013, Ontiveros–Loya approached S.R. outside a motel in Tucson and told her if she did not go back to his motel room with him, he would shoot her. S.R. saw a gun tucked into Ontiveros–Loya's pants. He grabbed her arm, but she pushed away and fled.

¶ 3 A detective with the Pima County Sheriff's Department responded to a market near the motel after S.R. called 9–1–1. Detectives later found Ontiveros–Loya in his motel room. He initially identified himself as Oscar Lopez, but at some unspecified later time he provided his true name. The detectives asked for consent to search the room, which they testified Ontiveros–Loya gave. The detectives found a firearm magazine and a cell phone in the room. The cell phone included photographs of a silver handgun.

¶ 4 Ontiveros–Loya was charged with one count of possession of a weapon by a prohibited possessor, one count of attempted kidnapping, and one count of aggravated assault.¹ He filed several suppression motions, including a motion to suppress the evidence found on the cell phone, which the trial court denied. The jury found him guilty of the prohibited possessor charge, and the court sentenced him as described above. Ontiveros–Loya timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and 13–4033(A)(1).

Discussion

¶ 5 Ontiveros–Loya argues the trial court abused its discretion by denying his motion to suppress the photographs found on his cell phone. We review the denial of a motion to suppress for an abuse of discretion. State v. Jacot, 235 Ariz. 224, ¶ 9, 330 P.3d 981, 984 (App.2014). We consider only the evidence presented at the suppression hearing, and we view that evidence in the light most favorable to sustaining the court's rulings. State v. Kinney, 225 Ariz. 550, ¶ 2, 241 P.3d 914, 917 (App.2010).

¶ 6 In his motion, Ontiveros–Loya argued that, because he had no access to the cell phone at the time of his arrest, the “search incident to arrest” exception to the warrant requirement did not apply. He further contended that the search “exceeded the scope of any reasonable search incident to arrest.” The state argued that officers were permitted to search Ontiveros–Loya's cell phone incident to his arrest because “[i]t is more than reasonable that deputies believed that [the] cell phone could contain evidence of the incident involving [S.R.].”² The state also contended that Ontiveros–Loya knowingly and voluntarily consented to a search of his motel room, where the phone was found, so its search “was permissibly within the scope of the search of [the] motel room.”

¶ 7 The trial court denied the motion to suppress, stating “the search incident to arrest in large part could be justified in the fact that [Ontiveros–Loya] gave conflicting information regarding his ID” and “one of the reasons given eventually for the search of the cellphone data in the warrant was for identification purposes.” The court concluded, “[T]hat was a legitimate use of the phone as a search incident to arrest where having access to the phone would have assisted [detectives] in getting correct information to verify who [Ontiveros–Loya] was.” The court also found “it was inevitable that [detectives] would discover the photographs” of the gun.

¶ 8 After the trial court denied his motion to suppress, Ontiveros–Loya interviewed Detectives Garrick Carey and Rogelio Moreno. In his interview, Moreno stated the detectives only had consent to search for a gun, and Carey confirmed they were “[l]ooking for a firearm.” Moreno also stated Ontiveros–Loya was not under arrest when they searched the cell phone, but he was seated in the back of a patrol car, and Carey stated the decision to arrest him was made at the end of the investigation. Moreno stated the detectives were looking for “anything that ... was pertinent to the investigation,” such as “[p]ictures of a female, pictures of the gun that was in question, pictures of ... [Ontiveros–Loya] holding the gun,” and Carey stated the detectives were looking for evidence that would otherwise possibly be lost or destroyed if they did not keep the phone.

¶ 9 Based on the interviews, Ontiveros–Loya filed a motion for reconsideration of the trial court's denial of his motion to suppress. He argued “the search of the cell phone was not incident to or contemporaneous with an actual arrest.” Ontiveros–Loya also asserted the detectives were not looking for information about his identity and instead were “trying to figure out whether they could find additional evidence of the crimes alleged.” The court denied the motion.

¶ 10 The Fourth Amendment of the United States Constitution and Article II, § 8, of the Arizona Constitution protect against unreasonable searches and seizures. Warrantless searches of homes are presumptively invalid, Jacot, 235 Ariz. 224, ¶ 10, 330 P.3d at 984, and motel rooms have been afforded the same protections as homes, see, e.g., State v. Davolt, 207 Ariz. 191, ¶ 23, 84 P.3d 456, 467 (2004) (“Hotel guests are entitled to full constitutional protection against unreasonable searches and seizures.”). The state carries the burden of proving that a warrantless search is constitutionally valid under an exception to the warrant requirement. See State v. Olm, 223 Ariz. 429, ¶ 5, 224 P.3d 245, 247 (App.2010). In its ruling on the motion to suppress, the trial court concluded that the warrantless search of Ontiveros–Loya's cell phone was justified as a search incident to arrest.

¶ 11 In Chimel v. California, the United States Supreme Court considered “the permissible scope under the Fourth Amendment of a search incident to a lawful arrest.”395 U.S. 752, 753, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). There, officers executing an arrest warrant searched the defendant's entire house incident to his arrest. Id. at 753–54, 89 S.Ct. 2034. The Court offered two justifications for permitting searches of an arrestee's person incident to arrest—officer safety and the prevention of concealment or destruction of evidence. Id. at 763, 89 S.Ct. 2034. The Court reasoned that “[w]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.” Id. at 762–63, 89 S.Ct. 2034. In addition, “the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule” because a weapon within the reach of an arrestee “can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.” Id. at 763, 89 S.Ct. 2034. Thus, the Court concluded, officers may search “the arrestee's person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id.

¶ 12 The Court declined, however, to extend the exception to searches of an entire house. Id. The Court explained, “There is no comparable justification ... for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.” Id. Such searches must be made pursuant to a warrant, unless another exception applies. Id.

¶ 13 In Riley v. California,³ the Court considered “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” ––– U.S. ––––, ––––, 134 S.Ct. 2473, 2480, 189 L.Ed.2d 430 (2014). There, officers searched each arrestee's person incident to arrest and found cell phones, which the officers also searched. Id. at –––– – ––––, 134 S.Ct. at 2480–81. The Court observed that the two risks identified in Chimel —harm to officers and destruction of evidence—do not exist when the search is of digital data. Id. at –––– – ––––, 134 S.Ct. at 2484–85. The Court also reasoned that “[a] search of the...