State v. Booker, No. 1 CA-CR 04-0530.

CourtCourt of Appeals of Arizona
Writing for the CourtKessler
Citation135 P.3d 57,212 Ariz. 502
PartiesSTATE of Arizona, Appellee, v. Clifton Charles BOOKER, Appellant.
Docket NumberNo. 1 CA-CR 04-0530.
Decision Date18 May 2006

Page 57

135 P.3d 57
212 Ariz. 502
STATE of Arizona, Appellee,
v.
Clifton Charles BOOKER, Appellant.
No. 1 CA-CR 04-0530.
Court of Appeals of Arizona, Division 1, Department C.
May 18, 2006.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Department of Law and Lacey Alexandra Stover Gard, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Page 58

James J. Haas, Maricopa County Public Defender By Susan L. Corey, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

KESSLER, Presiding Judge.


¶ 1 Defendant Clifton Charles Booker ("Booker") appeals his conviction and sentence for aggravated assault. Booker argues the trial court erred by failing to suppress evidence of a bong gained from an illegal search of his home that occurred the day before the alleged assault. We hold the exclusionary rule does not apply to the facts of this case.1

FACTUAL AND PROCEDURAL HISTORY

¶ 2 This case arises out of an altercation between Booker and the victim. Booker met the victim in Illinois when Booker was working in the victim's wife's beauty salon. After the victim and his wife divorced, Booker moved to Arizona. The victim's ex-wife followed Booker to Arizona, bringing the victim's son with her. The victim later came to Arizona. He initiated contact with the Phoenix Police Department, and summoned the police to Booker's apartment to see if his son was in Booker's apartment. When the police arrived at Booker's apartment and knocked on the door, they noticed Booker moving around in the apartment with clothing on. When Booker answered the door after a delay wearing only a towel, the police conducted a search of the apartment and seized a bong.2 The victim's son was not in the apartment. According to the victim, Booker was irate as a result of the police search of his apartment.

¶ 3 The victim later returned to Booker's apartment complex. According to the victim, while in the parking lot Booker attempted to hit the victim, and then the victim hit Booker. The victim stated that Booker then went into his apartment and came back running at the victim with something behind Booker's back. The victim stated he tackled Booker because he was afraid Booker had a gun, at which time Booker stabbed him in the back. According to Booker, when he approached the victim, the victim hit him. The victim then reached behind his back. Booker stated that, fearing the victim had a weapon, he tackled the victim and took him to the ground, causing the victim to fall upon the knife the victim was apparently holding behind his back.

¶ 4 The State charged Booker with one count of aggravated assault, alleging that he, "using a knife, a deadly weapon or dangerous instrument, intentionally, knowingly or recklessly caused physical injury" to the victim. The State further alleged that this was a dangerous felony either because it involved the discharge, use, or threatening exhibition of a knife, or because it involved the infliction of serious physical injury on the victim.

¶ 5 Prior to trial, Booker moved to suppress evidence, including his bong, seized as a result of the warrantless search of his apartment conducted prior to the assault. After the hearing on the motion to suppress, the court found that the police conducted an impermissible warrantless search of Booker's home. However, the court found that suppression of the evidence resulting from the search would not serve the exclusionary rule's deterrent purpose because he was charged with a crime independent of the fruits of the search.

¶ 6 Booker later moved to preclude evidence indicating Booker's marijuana use and his efforts to conceal his bong when the police arrived at his apartment. After a hearing on the motion, the court precluded any evidence of Booker's drug use or his attempts to conceal the bong.

¶ 7 At trial, Booker testified on his own behalf. During direct examination, Booker testified that when the police came to his apartment for the first time, he removed his

Page 59

bong from his table and placed it in his bedroom closet so that he would not be arrested. The State in turn cross-examined Booker about his actions to conceal the bong.

¶ 8 A jury found Booker guilty as charged. The court sentenced Booker to a presumptive term of seven and a half years imprisonment. Booker timely appealed. This Court has jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 13-4033 (2001).

DISCUSSION

¶ 9 Booker argues the superior court erred in refusing to suppress evidence related to his bong. The State offered testimony about the seizure of the bong both as evidence intrinsic to the victim's version of the events and to establish Booker's retaliatory motive to harm the victim. The superior court determined evidence related to Booker's bong was the fruit of an unlawful search and seizure. However, the court declined to suppress that evidence because the aggravated assault was a separate and distinct offense from his possession of the bong, and therefore exclusion of the bong would not serve the exclusionary rule's primary purpose of deterrence.

¶ 10 We review the superior court's ruling on the motion to suppress for abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004). Neither Booker nor the State contests the court's finding that the police officers who seized Booker's bong had unlawfully invaded his privacy interests in violation of the Fourth Amendment. Accordingly, the sole issue with regards to the suppression ruling is whether Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and its progeny mandate exclusion of evidence related to the bong.

¶ 11 We hold the exclusionary rule should not be applied to the evidence related to the bong. Expansion of the exclusionary rule to this set of facts would not serve the deterrent purpose of the rule.3 In so holding, we adopt the rationale of various other courts that, when there is no cognitive nexus between the police misconduct and the crime for which the defendant is ultimately tried, the exclusionary rule's primary deterrent purpose is not served.

¶ 12 A Fourth Amendment violation does not mandate reflexive exclusion of evidence. Arizona v. Evans, 514 U.S. 1, 14, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). See also Stone v. Powell, 428 U.S. 465, 491, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (disapproving of "indiscriminate" application); Terry v. Ohio, 392 U.S. 1, 15, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (disapproving of "rigid and unthinking application of the exclusionary rule"). Suppression under the exclusionary rule "is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any reparation comes too late." Stone, 428 U.S. at 486, 96 S.Ct. 3037 (internal quotation omitted).

¶ 13 Rather, the exclusionary rule is a judicially created means of effectuating the Fourth Amendment. Stone, 428 U.S. at 482, 96 S.Ct. 3037. The primary purpose of the rule is to deter police conduct in violation of Fourth Amendment rights by removing the incentive for such conduct.4 United

Page 60

States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). This does not mean, however, that any proposed application of the exclusionary rule that might deter police misconduct must be adopted. Id. at 350, 94 S.Ct. 613; Leon, 468 U.S. at 910, 104 S.Ct. 3405; Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Nor does the exclusionary rule proscribe the use of illegally seized evidence in all proceedings or against all persons. Calandra, 414 U.S. at 348, 94 S.Ct. 613. Rather, the rule has been applied only to circumstances in which its deterrent purpose is "most efficaciously served." Id.; Evans, 514 U.S. at 11, 115 S.Ct. 1185.5

¶ 14 The proper application of the exclusionary rule is determined by weighing the potential costs and benefits of excluding the evidence in a particular case. Calandra, 414 U.S. at 349, 94 S.Ct. 613; Leon, 468 U.S. at 906, 104 S.Ct. 3405. This pragmatic analysis has been employed to limit the exclusionary rule's expansion to use in grand jury proceedings, for impeachment of defendants' testimony, against persons without standing to assert a Fourth Amendment violation, and in federal habeas corpus proceedings. Stone, 428 U.S. at 487-490, 96 S.Ct. 3037.

¶ 15 We begin by examining the benefits of applying the exclusionary rule to the prosecutor's use of the unlawfully obtained evidence in this case. There is no question evidence related to the unlawful seizure of Booker's bong may not be used in proceedings involving possession of that bong or any drugs that may have been used in the bong. See Mapp, 367 U.S. at 657, 81 S.Ct. 1684. Suppression of evidence in those proceedings serves the exclusionary rule's deterrent purpose; the law enforcement process directly related to seizing the bong is frustrated. See Janis, 428 U.S. at 448, 96 S.Ct. 3021. That primary deterrent effect is therefore accomplished.6

¶ 16 This case does not involve charges related to possession of drugs or drug paraphernalia. Booker urges the exclusionary rule nonetheless applies to the State's introduction of the seizure of the bong to support aggravated assault charges. Such ancillary application of the exclusionary rule is an extension of the rule's protections beyond its primary use as outlined above. Whether this extension is proper depends upon whether it creates a significant deterrent effect in addition to the primary deterrent effect of precluding its use in a trial directly related to Booker's possession or use of the bong. See Janis, 428 U.S. at 453-54, 96 S.Ct. 3021; Stone, 428 U.S. at 493, 96 S.Ct. 3037; Alderman, 394 U.S. at 174-75, 89 S.Ct. 961.

¶ 17 Various courts have examined the deterrent benefits of extending the...

To continue reading

Request your trial
40 practice notes
  • The State Of Ariz. v. Tamplin, 2 CA-CR 2009-0297 DEPARTMENT B
    • United States
    • Court of Appeals of Arizona
    • November 29, 2010
    ...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). A. In-court identification ¶6 Tamplin first argues the trial court erred in denying his motion to suppres......
  • State v. Tamplin, 2 CA-CR 2009-0297
    • United States
    • Court of Appeals of Arizona
    • November 29, 2010
    ...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).A. In-court identification ¶6 Tamplin first argues the trial court erred in denying his motion to suppress......
  • State v. Guillen, No. 2 CA-CR 2007-0365.
    • United States
    • Court of Appeals of Arizona
    • June 24, 2009
    ...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 ¶ 3 In March 2006, officers received information that Guillen had been storing marijuana in large freezers in the gara......
  • State v. Dean, No. 2 CA–CR 2015–0392
    • United States
    • Court of Appeals of Arizona
    • January 12, 2017
    ...issues and purely legal issues de novo.’ " State v. Gay , 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007), quoting State v. Booker , 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App. 2006).¶ 5 The trial court found the warrant deficient because the affidavit, which referred only to an allegation......
  • Request a trial to view additional results
40 cases
  • The State Of Ariz. v. Tamplin, 2 CA-CR 2009-0297 DEPARTMENT B
    • United States
    • Court of Appeals of Arizona
    • November 29, 2010
    ...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). A. In-court identification ¶6 Tamplin first argues the trial court erred in denying his motion to suppres......
  • State v. Tamplin, 2 CA-CR 2009-0297
    • United States
    • Court of Appeals of Arizona
    • November 29, 2010
    ...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).A. In-court identification ¶6 Tamplin first argues the trial court erred in denying his motion to suppress......
  • State v. Guillen, No. 2 CA-CR 2007-0365.
    • United States
    • Court of Appeals of Arizona
    • June 24, 2009
    ...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 ¶ 3 In March 2006, officers received information that Guillen had been storing marijuana in large freezers in the gara......
  • State v. Dean, No. 2 CA–CR 2015–0392
    • United States
    • Court of Appeals of Arizona
    • January 12, 2017
    ...issues and purely legal issues de novo.’ " State v. Gay , 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007), quoting State v. Booker , 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App. 2006).¶ 5 The trial court found the warrant deficient because the affidavit, which referred only to an allegation......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT