State v. Allen

• Decision Date: 23 August 2007
• Docket Number: No. 1 CA-CR 06-0689.,1 CA-CR 06-0689.
• Citation: 216 Ariz. 320,166 P.3d 111
• Parties: STATE of Arizona, Appellant, v. Bryan ALLEN, Appellee.
• Court: Arizona Court of Appeals

166 P.3d 111

216 Ariz. 320

STATE of Arizona, Appellant, v. Bryan ALLEN, Appellee.

No. 1 CA-CR 06-0689.

Court of Appeals of Arizona, Division 1, Department D.

August 23, 2007.

Andrew P. Thomas, Maricopa County Attorney By Diane Gunnels Rowley, Deputy County Attorney, Phoenix, Attorneys for Appellant.

Law Office of David Michael Cantor, PC, By Todd E. Nolan, James C. Harberson III, Tempe, Attorneys for Appellee.

OPINION

HALL, Judge.

¶ 1 As part of the investigation of a fatal hit and run car-pedestrian accident, a police officer checked surrounding neighborhoods looking for the vehicle that fled the scene. Driving through an apartment complex, the officer noticed a vehicle partially draped with a cloth car cover that may have met the description of the car for which he was looking. He then lifted the cover and discovered damage to the front and passenger side of the vehicle. Bryan Allen, the owner of the vehicle, was subsequently charged with leaving the scene of an accident. Allen moved to suppress the evidence of damage to his vehicle and incriminating statements he made to the police as fruit of an illegal search. The trial court granted the motion. For reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

¶ 2 In reviewing a trial court's decision on a motion to suppress, we view the facts in the light most favorable to upholding the trial court's ruling and consider only the evidence presented at the suppression hearing. State v. Wyman, 197 Ariz. 10, 12, ¶ 2, 3 P.3d 392, 394 (App.2000).

¶ 3 Shortly after midnight on October 22, 2005, Daniel S. was stopped at a red light at the intersection of Apache Boulevard and McClintock Drive in Tempe. While waiting for the light to change, he observed a red sports car approaching northbound on McClintock at a speed he estimated at eighty miles per hour. When the car reached the crest of the intersection, it became airborne for a short distance, struck the pavement, bounced into the air again, and continued northbound on McClintock. As the car left his view, Daniel S. heard a thud from the direction in which the car was heading and saw something fly through the air.

¶ 4 After the traffic light changed, Daniel S. drove to the area where the thud occurred. Approximately 200 feet north of the intersection, he discovered a body on the sidewalk and called 911. When Tempe Police Sergeant John Butler arrived on the scene, Daniel S. informed the officer what he saw and identified the vehicle as a red Mitsubishi 3000 GT two-door sport coupe.¹ The officer also observed substantial debris in the roadway, including "small red parts of an automobile."

¶ 5 Sergeant Butler remained at the scene until he was relieved by the vehicular crime sergeant at around 3:30 a.m. He thereafter "took it upon [him]self" to check the surrounding neighborhoods for the car involved in the collision. During his search, Sergeant Butler drove through various apartment complexes in the area looking for red sports cars. He knew from the debris and blood at the scene that the damage to the vehicle involved in the collision would be significant. There were numerous red vehicles in the area, and the officer sometimes stopped to look at particular ones.

¶ 6 Sergeant Butler eventually came to an apartment complex on East Hayden Lane that has an open lighted parking lot that wraps around the outside of the apartment building. As he entered the lot, Sergeant Butler observed two red cars parked side by side in an area of the lot with covered parking. The second of the two cars was partially covered with an elastic-banded gray opaque tarp. The car cover left the bottom twelve to fifteen inches of the vehicle exposed, and Sergeant Butler observed that the vehicle was a red two-door sport coupe.

¶ 7 Although Sergeant Butler could not observe damage to the car with the cover in place, there were things that made him suspicious of the vehicle. In addition to being the only car in the lot with a car cover, he noted that the seat belt was hanging out on the passenger side with the door closed on it. Sergeant Butler peeled back a portion of the cover at the front of the vehicle and saw extensive damage to the right headlamp assembly. Raising the cover further on the passenger side, he observed additional damage to the front passenger side window and roof. He then lifted the cover at the back of the car to obtain the license plate number. Based on the plate number, Sergeant Butler was able to identify Allen as the owner of the vehicle and contact him regarding the collision.

¶ 8 Allen was subsequently indicted for leaving the scene of an accident involving death. Before trial, Allen moved to suppress the evidence of the damage to his car and statements he made to the police, claiming they were obtained as a result of an unlawful search in violation of his rights under the Fourth Amendment to the United States Constitution and Article 2, Sections 4 and 8, of the Arizona Constitution. Following an evidentiary hearing, the trial court granted the motion. At the request of the State, the trial court dismissed the charge against Allen without prejudice. The State then commenced this appeal. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031 (2001) and 13-4032(6) (2001).

DISCUSSION

¶ 9 The Fourth Amendment of the United States Constitution and Article 2, Section 8, of the Arizona Constitution protect against unreasonable searches and seizures. When a violation of the Fourth Amendment or its state counterpart is determined to have occurred, the exclusionary rule generally requires the suppression at trial of any evidence directly or indirectly gained as a result of the violation. State v. Schinzel, 202 Ariz. 375, 382, ¶ 28, 45 P.3d 1224, 1231 (App.2002).

¶ 10 In challenging the evidence obtained as a result of Sergeant Butler's lifting the car cover to inspect his vehicle, Allen argued, and the trial court agreed, that the evidence of the damage to the vehicle and his subsequent statements to the police must be suppressed because the officer conducted an unlawful search. Specifically, the trial court found that Allen met his burden of proving both a subjectively and an objectively reasonable expectation of privacy when he covered his car and that the officer's actions in lifting the car cover without probable cause² constituted an illegal search in violation of both the United States and Arizona Constitutions.

¶ 11 The State contends that the trial court erred in granting the motion to suppress because the lifting of the car cover did not constitute a "search" because Allen had no reasonable expectation of privacy in the exterior of his vehicle. In the alternative, the State invites us to hold that even if the lifting of the car cover was a "search," any intrusion was de minimis and outweighed by the importance of the governmental interest justifying the intrusion, rendering it constitutionally permissible. We review a ruling on the motion to suppress for an abuse of discretion if it involves a discretionary issue, but review constitutional and purely legal issues de novo. State v. Booker, 212 Ariz. 502, 504, ¶ 10, 135 P.3d 57, 59 (App.2006).

¶ 12 The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things seized." Its corollary in the Arizona Constitution, Article 2, Section 8, states that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."

¶ 13 A "search" under the Fourth Amendment occurs "when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). The protection provided by the Fourth Amendment encompasses private information rather than formal definitions of property. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To have a legitimate expectation of privacy protected by the Fourth Amendment, a person must show both an "actual (subjective) expectation of privacy" and that the expectation is one that society is prepared to recognize as "justifiable" under the circumstances. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (quoting Katz, 389 U.S. at 353, 88 S.Ct. 507); see also California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (holding Fourth Amendment protects only a "subjective expectation of privacy . . . that society accepts as objectively reasonable"). Thus, if the actions by Sergeant Butler did not intrude upon Allen's legitimate expectation of privacy, there was no "search" subject to the Warrant Clause. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983).

¶ 14 Although there was no testimony presented at the evidentiary hearing regarding how Allen's car came to be covered, we assume that Allen placed the car cover over the vehicle for the purpose of hiding the damage that resulted from the collision. Accordingly, there was no abuse of discretion by the trial court in finding that Allen had a subjective expectation of privacy in the portion of the vehicle that he covered.

¶ 15 However, the fact that Allen sought to hide the damage to his vehicle by using a car cover does not determine whether he had an objectively legitimate expectation of privacy in the exterior appearance of his car. "The test of legitimacy is not whether the individual chooses to conceal assertedly `private' activity," but instead "whether the government[al] intrusion infringes upon the personal and societal values protected by the ...