State v. Adams
| Decision Date | 09 May 2000 |
| Docket Number | No. 1 CA-CR 98-0528.,1 CA-CR 98-0528. |
| Citation | 5 P.3d 903,197 Ariz. 569 |
| Parties | STATE of Arizona, Appellant, v. Corey Matthew ADAMS, Appellee. |
| Court | Arizona Court of Appeals |
Richard M. Romley, Maricopa County Attorney by Gerald R. Grant, Deputy County Attorney, Criminal Division, Phoenix, Attorneys for Appellant.
Debus, Kazan & Westerhausen, Ltd. by Lawrence I. Kazan, Esq., Tracey Westerhausen, Esq., Phoenix, Attorneys for Appellee.
¶ 1 Does a criminal defendant whose business premises are subjected to a lawful search pursuant to a warrant, have a reasonable expectation of privacy in a personal residence unlawfully maintained on the same property? Because we conclude that this defendant did enjoy an expectation of personal privacy beyond the commercial enterprise, we affirm the trial court's order suppressing the evidence seized from the residence.
¶ 2 On June 26, 1997, undercover officers with the Mesa Police Department attended a performance by the band Eroticide at the Nile Theater in downtown Mesa owned by defendant Corey Adams. The police had previously received information that the band used graphic sexual props and engaged in actual or simulated sexual acts during performances. While attending the performance, the police suspected that some members of the audience were juveniles between the ages of fifteen and eighteen.
¶ 3 The police concluded that they had probable cause to charge the band members and the management of the theater with furnishing obscene or harmful items to minors, presentation of obscene items, and admitting minors to a public display of sexual conduct in violation of Arizona Revised Statutes Annotated ("A.R.S.") sections 13-3506(A) (1989), 13-3502(A)(4), and 13-3556(A).
¶ 4 In anticipation of a second Eroticide concert at the theater on August 1, 1997, the police obtained a warrant permitting them to search "the premises known as The Nile Theater[,]105 W. Main Street" for evidence supporting the contemplated charges. The search warrant described the theater as "a two story structure with an additional level under grade," and noted the absence of "numbers affixed to the structure to identify its street address."
¶ 5 Approximately 30 Mesa police officers attended Eroticide's second performance at the theater, after which they executed the search warrant. In the course of doing so, officers discovered a theater employee unlocking an exterior door not described in the affidavit nor accessible from the theater. The officers obtained the key from the employee by consent and unlocked the door, which led to a stairwell rising to the second floor. The officers, ascending this stairwell, found two more doors at the top of the stairs. Entering one of those doors, they discovered Adams' private apartment, which they then searched.
¶ 6 The warrant specified that the police could search only the premises known as "The Nile Theater." Neither the warrant nor the supporting affidavit contained any reference to Adams' private residence. Nevertheless, upon discovering his apartment, the officers proceeded to search it in detail. In the living room, they found a computer, fax machine, scanner and copier on a desk and, nearby, business records relating to the theater.
¶ 7 One of the officers participating in the search of Adams' apartment, a burglary detective, noticed a distinctive, wooden wall unit, as well as several pieces of electronic equipment that had been reported stolen from a local builder. Relying on this detective's discovery of this stolen property, the police obtained a second warrant for the theater which expressly permitted them to search the second-floor residence for stolen furniture and electronic equipment.
¶ 8 In the course of executing this second warrant, the police discovered additional stolen items in Adams' apartment including a refrigerator, an oven, a microwave, a Jacuzzi tub, a toilet and a chandelier. Based on these discoveries, the police then obtained a third search warrant permitting them to return and seize these additional items.
¶ 9 After a grand jury indicted Adams on five counts of theft for the stolen property recovered during the second and third searches, he filed a motion to suppress all the seized evidence.1 He maintained that the first search warrant did not authorize the search of his private residence and that there was no probable cause to do so. In his view, the police obtained probable cause to support the subsequent search warrants solely through their discoveries during the initial illegal search. He accordingly argued that evidence seized pursuant to the second and third warrants should be suppressed as fruits of the poisonous tree.
¶ 10 The trial court conducted an extensive evidentiary hearing on Adams' motion, which revealed that, prior to obtaining the first warrant, the police knew or had reason to know that Adams was residing at the theater building. Police records indicated that his address was "105 W. Main," the same address as the theater. His driver's license similarly identified his address as "105 W. Main." In addition, an earlier Mesa police report on an unrelated matter two months before the issuance of the search warrant, stated "Corey lives at 105 West Main." City of Mesa utility bills for the theater identified it as at "105 W. Main," and also showed his own address as "105 W. Main, Suite 201."
¶ 11 Although this evidence indicated that Adams maintained his private residence on the second-floor of the theater, inspectors in the city's building department testified that the theater was not zoned for residential use. In 1996 Adams had petitioned the city to convert the zoning for the second floor from business occupancy to a combination of business and residential occupancy. He then submitted architectural plans to support the petition but later withdrew his request after the city informed him that building codes for residential use would require him to install, among other things, a sprinkler system and fire separation walls. His subsequent residential occupancy of the second-floor of the commercially-zoned theater thus violated the city's zoning ordinance.
¶ 12 In granting Adams' motion to suppress, the trial court stated that the "focus" of its analysis was whether, prior to obtaining the initial warrant, the police "knew or should have known that the Defendant's apartment was on the second floor of the building located at 105 West Main in Mesa." Citing the United States Supreme Court's decision in Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), the court noted that, "if the officers had known, or even if they should have known," that Adams' private residence was located on the second floor of the theater, "they would have been obligated to exclude [the] apartment from the scope of the requested warrant."
¶ 13 Given the considerable information available to the police that Adams resided on the second floor of the theater, the trial court concluded that the officers either knew or had reason to know the existence of the apartment. The court noted that Adams
and State v. Burns, 163 Ariz. 44, 45, 785 P.2d 1232, 1233 (1989), the trial court also observed that a warrant for a multiple occupancy structure is generally invalid if it fails to describe the specific subunit to be searched. Concluding that the initial warrant was invalid for failure to particularly describe the place to be searched, the court held that the police violated Adams' Fourth Amendment rights in their first unauthorized search of his apartment. The court did not discuss the fact that his private apartment violated Mesa's zoning ordinance.
¶ 15 The state timely appealed the trial court's ruling. We have jurisdiction under the Arizona Constitution, article 6, section 9, and A.R.S. sections 12-120.21(A)(1) (1992), 13-4031 (1989) and 13-4032(6) (Supp.1998).
¶ 16 In reviewing the trial court's ruling, we give deference to the trial judge's factual findings. See State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996)
. We review de novo, however, the legal question whether the search of his second-floor apartment violated Adams' constitutional rights. See id.; State v. Fodor, 179 Ariz. 442, 448, 880 P.2d 662, 668 (1994).
¶ 17 The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable search and seizures." A protected Fourth Amendment interest requires an individual's "legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 141, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). A court must answer two questions to determine the existence of a legitimate expectation of privacy. "The first is whether the individual, by his conduct, has `exhibited an actual (subjective) expectation of privacy'" in the place that was the subject of the search. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). "The second question is whether the individual's subjective expectation of privacy is `one that society is prepared to recognize as `reasonable'.'" Id.
¶ 18 Answers to these questions are clouded by the double nature of Adams' relationship to the property because he maintains both his residence and his theater...
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