State v. Blakley
| Decision Date | 16 November 2010 |
| Docket Number | No. 2 CA-CR 2009-0176.,2 CA-CR 2009-0176. |
| Citation | 226 Ariz. 25,243 P.3d 628 |
| Parties | The STATE of Arizona, Appellee, v. Brian Mannie BLAKLEY, Appellant. |
| Court | Arizona Court of Appeals |
Terry Goddard, Arizona Attorney General By Kent E. Cattani and Laura P. Chiasson, Tucson, Attorneys for Appellee.
Gail Gianasi Natale, Phoenix, Attorney for Appellant.
¶ 1 After a jury trial, appellant Brian Blakley was convicted of one count of possession of marijuana for sale, and the trial court sentenced him to a presumptive, enhanced prison term of 15.75 years, ordering him to pay the maximum fine of $150,000. On appeal, he contends the court abused its discretion in 1) denying his motion to suppress evidence obtained by police after a warrantless entry onto his property; 2) admitting documents in violation of his Confrontation Clause rights; 3) refusing to instruct the jury on the lesser-included offense of simple possession; and 4) failing to consider mitigating factors at sentencing and imposing a fine he contends is excessive. For the reasons stated below, we vacate and remand for proceedings consistent with this opinion.
¶ 2 On appeal, we view the facts in the light most favorable to sustaining the verdict. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App.2008). On November 4, 2008, Bisbee police officer William Silva received a telephone call from the United States Border Patrol about a suspicious vehicle that was being driven in an area that was a known pick-up point for traffickers of undocumented immigrants and marijuana. Silva went to the location and saw a black Dodge Neon leaving the area. Silva followed the vehicle until it eventually turned into the driveway of Blakley's residence. 1 He called for back-up, waited five to ten minutes, and then approached the vehicle with two other officers.
¶ 3 When Silva reached the rear of the vehicle, Blakley approached him from behind the residence. Silva asked him "if he was storing undocumented aliens or marijuana," and Blakley responded that he was storing marijuana. When Silva asked how much, Blakley told him there were more than 100 pounds. Silva then asked if he could search the garage, and Blakley consented. At the suppression hearing, Silva testified that during their conversation, while standing behind the vehicle, he could smell the odor of marijuana. In the garage, Silva found eight bales of marijuana weighing a total of 170 pounds. Blakley was arrested and subsequently charged with and convicted of one count of possession of marijuana for sale. This timely appeal followed.
I. Suppression of Evidence
¶ 4 Blakley first contends "[t]he trial court erred as a matter of law by refusing to suppress the evidence obtained as a result of the illegal warrantless search" of the garage. He maintains that, although he consented to the search, his consent was tainted by Silva's illegal entry into Blakley's yard without a warrant in violation of the United States and Arizona Constitutions.2 He therefore contends "any evidence obtained as a result of Silva's conversation with [him] following the policeman's illegal, warrantless entry was fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
¶ 5 When reviewing a trial court's denial of a motion to suppress, we consider only the evidence presented at the suppression hearing, State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996), and view it in the light most favorable to upholding the court's ruling, State v. Gerlaugh, 134 Ariz. 164, 167, 654 P.2d 800, 803 (1982). "We review the ... court's ruling ... for abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo." State v. Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App.2006).
¶ 6 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." U.S. Const. amend. IV. "Unlawful entry of homes was the chief evil which the Fourth Amendment was designed to prevent." State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986). "That protection extends in general to '["]the curtilage," the land immediately surrounding and associated with the home.' " State v. Olm, 223 Ariz. 429, ¶ 5, 224 P.3d 245, 247 (App.2010), quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Thus, as a general rule, a warrant is required when the suspect has a reasonable expectation of privacy in the place or the item searched. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In determining whether a suspect's objective expectation of privacy is reasonable, a court considers the totality of the circumstances. State v. Adams, 197 Ariz. 569, ¶ 20, 5 P.3d 903, 907 (App.2000). And, " '[s]ubject only to a few specifically established and well-delineated exceptions,' a search is presumed to be unreasonable under the Fourth Amendment if it is not ... conducted pursuant to a valid search warrant." State v. Gant, 216 Ariz. 1, ¶ 8, 162 P.3d 640, 642 (2007), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
¶ 7 The state does not dispute that the vehicle was parked in the curtilage of Blakley's house. And, as noted above, curtilage generally falls "under the home's [']umbrella' of Fourth Amendment protection." Olm, 223 Ariz. 429, ¶ 12, 224 P.3d at 249, quoting United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). However, this does not end our inquiry. The vehicle was parked in the driveway, an area generally considered "semiprivate." See State v. Cobb, 115 Ariz. 484, 489, 566 P.2d 285, 290 (1977). Thus, we must determine initially whether Blakley had a reasonable expectation of privacy in the area of the driveway where the vehicle was located. If he did, the same Fourth Amendment protection applicable to curtilage applies to that area, and we then must determine whether the state met its burden of establishing that the search following Silva's entry into that area was constitutionally sound. Olm, 223 Ariz. 429, ¶ 5, 224 P.3d at 247.
¶ 8 Relying on Olm, Blakley claims that Silva made a "fatal mistake" when he approached the vehicle instead of the front door of the residence. He contends that by continuing down the driveway, Silva had crossed into "warrant-with-search-territory." Although Blakley asserts that Olm is dispositivein this case, we find it factually distinguishable and, thus, not controlling.
¶ 9 In Olm, a Tucson police officer, acting on a request from a detective, entered Olm's property without a warrant and looked through the windshield of his vehicle to obtain the vehicle identification number (VIN). 223 Ariz. 429, ¶¶ 2-3, 224 P.3d at 247. The vehicle "was parked in the residence's yard, to the left of a concrete walkway leading to the front door of the house from a public sidewalk adjacent to a public street," and it was facing the residence with its front end about five to six feet from the house. Id. ¶ 2, 224 P.3d 245. In order to inspect the vehicle, the officer first had to step off the walkway leading to the front door. Id. The officer looked through the windshield and noticed that the vehicle's VIN plate was slightly bent. Id. ¶ 3, 224 P.3d 245. He then went to the front door of the house, where he unsuccessfully tried to contact the residents. Id.
¶ 10 On appeal, following Olm's conviction for theft by control of a vehicle and conducting a "chop shop," id. ¶ 4, 224 P.3d 245, this court concluded that the vehicle had been parked on the residence's curtilage and that the officer was not lawfully present when he looked through the windshield and saw the VIN plate. Id. ¶ 17, 224 P.3d 245. In determining that Olm had a protected privacy interest in the yard where the vehicle had been parked, we focused on the fact that the officer had to leave the walkway and physically enter the yard in order to look inside the vehicle to see the VIN plate. We concluded that "no reasonable member of the public would believe he or she had permission to enter the yard to peer into the vehicle," and, therefore, the officer had violated Olm's reasonable expectation of privacy in his front yard. Olm, 223 Ariz. 429, ¶ 15, 224 P.3d at 250. Here, as in Olm, before investigating the vehicle, Silva made no attempt to contact the occupants of the residence using the pathway that led directly from the driveway along the front of the residence to the front door. But he also never left Blakley's driveway, which, unlike the yard in Olm, is a "semiprivate area." See id. ¶ 15, 224 P.3d 245.
¶ 11 Relying on the semiprivate nature of the driveway, the state argued below that Silva was entitled to "waltz right down it" because he could "see the whole length of the driveway and see what [he was] after." However, in Olm, we recognized that "driveways are considered semiprivate areas not because members of the public reasonably could enter them without explicit permission, but because the activities and items in a driveway generally are more readily observable." Id.
¶ 12 Neither of the cases the state relies upon supports its position that an officer has unfettered access to the entire driveway merely because its entire length is readily observable.3 In United States. v. Cisneros-Gutierrez, 598 F.3d 997, 1005 (8th Cir.2010), officers went to the residence to make an arrest, and, as they were standing at the front door, they saw the suspects attempting to dispose of evidence. Therefore, the court concluded that, even assuming the officers had entered the curtilage impermissibly, "suppression is not required, because theofficers at the front of the house independently observed the apparent destruction of evidence and entered the home under exigent circumstances." Id. And...
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