State v. Botbyl
| Decision Date | 30 November 2011 |
| Docket Number | 2 CA-CR 2011-0021 |
| Parties | THE STATE OF ARIZONA, Appellee, v. DAVID GEORGE BOTBYL, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISIONNot for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani and Amy M. Thorson Tucson
Attorneys for Appellee
Joel Larson, Cochise County Legal Defender
By Bruce Houston Bisbee
Attorneys for Appellant
E S P I N O S A, Judge.
¶1 After a jury trial, David Botbyl was convicted of possession of methamphetamine and two counts of possession of drug paraphernalia. The trial courtsentenced him to enhanced, aggravated, concurrent prison terms totaling six years. Botbyl raises a number of issues on appeal. For the following reasons, we affirm.
¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008). In January 2010, after engaging in surveillance of Botbyl's residence, Benson police officers obtained a warrant to search both the residence and Botbyl's person. Botbyl was present at the time of the search, and officers found $190 and three small baggies containing methamphetamine in his pants pocket. Throughout the residence, the officers located methamphetamine and related paraphernalia, including pipes, plastic baggies, hypodermic needles, a scale containing methamphetamine residue, and at least one cellular telephone.
¶3 Botbyl was arrested and charged with possession of methamphetamine, possession of methamphetamine for sale, and three counts of possession of drug paraphernalia.1 He was convicted and sentenced as outlined above. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶4 Botbyl first argues the trial court erred in denying his motion to suppress the evidence found pursuant to the warrant. When reviewing a trial court's denial of amotion to suppress, we consider only the evidence presented at the suppression hearing and view that evidence in the light most favorable to upholding the trial court's factual findings. See State v. Fornof, 218 Ariz. 74, ¶ 8, 179 P.3d 954, 956 (App. 2008). We review the court's decision "'for abuse of discretion if it involves a discretionary issue, but review constitutional 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). We presume a search warrant is valid, and it is the defendant's burden to prove otherwise. State v. Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d 618, 621 (App. 2002).
¶5 Prior to trial, Botbyl moved to suppress the evidence discovered in his residence and on his person, arguing the police lacked probable cause for the warrant. At the suppression hearing, police detective Arnold testified that on January 12, 2010, after an anonymous informant had reported observing methamphetamine in Botbyl's house, police began surveillance of the house. They observed an individual come out and then hurry back inside, apparently having noticed the officers' patrol car. A few minutes later, two men drove away in a white pickup truck that had been parked in the alley behind the house. After police followed the truck and stopped it for a traffic violation, they discovered approximately ninety pounds of marijuana in two spare tires in the truck's bed. Meanwhile, Botbyl drove a Jeep from the house to a closed gas station and put air in a spare tire in the back of the Jeep. He returned to the residence, backing the Jeep into the backyard and stopping near the back door.
¶6 There is probable cause to issue a warrant when, "given all the circumstances set forth in the affidavit . . . , there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 230 (1983); Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d at 621. We reject Botbyl's contention, based on superseded Arizona precedent, that an informant's statements must be excised from the affidavit when considering probable cause, see State v. Lopez, 115 Ariz. 40, 42, 563 P.2d 295, 297 (App. 1976), and instead, consider the anonymous tip together with all other information presented for the probable cause determination, see Gates, 462 U.S. at 227-31 (); see also Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d at 621 (). The anonymous tip, the truck that left Botbyl's home with marijuana in spare tires, Botbyl's late-night visit to the gas station to put air in a spare tire, and his return to the residence through the backyard and parking at the back door, all amounted to a fair probability that contraband or evidence of a crime would be found in Botbyl's residence or on his person.
¶7 Botbyl also cites State v. Hansen, 117 Ariz. 496, 573 P.2d 896 (App. 1977), for the proposition that a person cannot be arrested or searched merely on the basis of proximity to a crime. He argues proximity plus "something substantial" such as flight is required to support a probable cause determination, citing State v. Moroyoqui, 125 Ariz. 562, 564, 611 P.2d 566, 568 (App. 1980). But, even accepting that argument, the totalityof the circumstances here provides the "something substantial" to support probable cause. Although Botbyl asserts there are innocent explanations for filling up a spare tire, when all the circumstances are viewed together, as they must be, Gates, 462 U.S. at 230; Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d at 621, they are sufficient to establish probable cause to believe a crime was in progress, see State v. O'Meara, 198 Ariz. 294, ¶¶ 7-10, 9 P.3d 325, 326-27 (2000) (). Accordingly, the trial court did not err in concluding the warrant was supported by probable cause.2
¶8 Botbyl next asserts the trial court erred in admitting the search warrant as an exhibit, first because its admission violated his Confrontation Clause rights, and second because the document constitutes vouching by way of judicial approval of the search. The court admitted the warrant over Botbyl's objection, denied his motion for mistrial, and later gave a limiting instruction to the jury. Evidentiary rulings that implicate the Confrontation Clause are reviewed de novo. State v. Ellison, 213 Ariz. 116, ¶ 42, 140 P.3d 899, 912 (2006), citing Lilly v. Virginia, 527 U.S. 116, 137 (1999).
¶9 The protection of the Confrontation Clause is directed primarily to testimonial hearsay statements. State v. C. King, 212 Ariz. 372, ¶ 19, 132 P.3d 311, 315 (App. 2006), citing Crawford v. Washington, 541 U.S. 36, 53 (2004). A declaration is testimonial if it is "the reasonable expectation of the declarant" that the statement may later be used at trial. Id. (restating Crawford formulations).3 Although a warrant can be considered a declaration by the signing judge, its objective is only to authorize a police search; the issuing judge has no expectation of appearing at trial as a witness against any potential defendant. See United States v. Leon, 468 U.S. 897, 917 (1984) (). However, the admission of a warrant and supporting affidavit may violate a defendant's confrontation rights when a defendant is unable to challenge the veracity, recollection, or bias of an anonymous informant. See State v. Albert, 115 Ariz. 354, 357, 565 P.2d 534, 537 (App. 1977) ().
¶10 Here, the trial court admitted the search warrant into evidence but not the accompanying probable cause affidavit. The warrant contained the justice of the peace's signature and finding of probable cause, as well as physical descriptions of Botbyl andthe premises to be searched, but included no witness accusations or statements about Botbyl. Moreover, the warrant was not offered at trial to prove the truth of the matters asserted therein, but rather to demonstrate that the officers conducted an authorized search. See Ariz. R. Evid. 801(c). We therefore cannot find that the language within the warrant was testimonial hearsay implicating the Confrontation Clause.
¶11 Botbyl also asserts admission of the warrant constituted prosecutorial misconduct because the state sought to vouch for the case officer's testimony through the issuing judge's finding of probable cause.4 Prosecutorial vouching may involve either personal assurances of a witness's veracity, or prosecutorial remarks that bolster a witness's credibility by reference to matters outside the record. State v. E. King, 180 Ariz. 268, 277, 883 P.2d 1024, 1033 (1994); State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993); State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989) (...
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