State v. DeWitt
| Decision Date | 25 January 1996 |
| Docket Number | No. CR-95-0014-PR,CR-95-0014-PR |
| Citation | 910 P.2d 9,184 Ariz. 464 |
| Parties | STATE of Arizona, Appellee/Cross Appellant, v. Victor Raymond DeWITT, Appellant/Cross Appellee. |
| Court | Arizona Supreme Court |
We granted review to determine whether the seizure by police of evidence from the home of Victor Raymond DeWitt (Defendant) violated the provisions of art. II, § 8 of the Arizona Constitution and the Fourth Amendment of the United States Constitution.
In response to a report of a possible burglary in progress, Phoenix Police Officer Gary McCaslin arrived at Defendant's house and began to investigate. McCaslin saw movement through an open window and believed someone was inside. Soon after noticing this movement, McCaslin observed a male suspect back out of the house. McCaslin immediately identified himself and handcuffed the man, who told McCaslin that his girlfriend was still inside. At McCaslin's direction, the male suspect called the girlfriend out. The suspects claimed to have permission from Defendant to be in the house, but they did not know how to contact Defendant and did not have a key.
Having good reason to believe he had interrupted a burglary in progress, McCaslin entered the house to look for additional suspects and any evidence of a burglary. During this sweep, McCaslin noticed chemicals, glass vials, and laboratory equipment in a storage space above an open closet. He suspected that these items may have been used to manufacture drugs. After finishing his sweep, McCaslin called for his supervisor, Sergeant Saylor, who seems to have been about ten minutes away from the premises. When Saylor entered the house, McCaslin took him to the closet to look at the items McCaslin had seen during his sweep. Saylor also was unable to tell whether the items were used in manufacturing drugs and called for assistance from the Drug Enforcement Bureau ("DEB"). Neither Saylor nor McCaslin at any time touched or moved the items in the closet.
The DEB agents arrived about forty-five minutes later. To get a better view of the items on the shelf, the DEB agents pulled over a stool that was in the room and one of them stood on it. Again, none of the items were touched. Based on their observations and experience, the DEB agents obtained a warrant to search Defendant's house. During execution of the warrant, the officers seized drugs, drug paraphernalia, and chemicals used in drug production.
Defendant was charged with two counts of possession of dangerous drugs for sale, a class 3 felony. At the evidentiary hearing on Defendant's motion to suppress the evidence seized, the trial court ruled that none of the warrantless entries were unreasonable. The court also found that the warrant was not supported by probable cause because the agents' affidavit stated only that the items observed were consistent with equipment used in manufacturing illegal drugs and were "not currently in a condition where they are manufacturing methamphetamine." Nonetheless, the trial court admitted all the evidence under the good faith exception to the exclusionary rule.
The state later charged Defendant with one count of possession for sale of Diazepam, also a class 3 felony. This charge was consolidated with one of the original counts of possession for sale and the remaining count was dismissed. Defendant waived his right to a jury trial and submitted his case to the court on stipulated evidence and the police reports. The trial court found Defendant guilty of both charges and sentenced him to concurrent, aggravated 7.5-year terms of imprisonment.
The court of appeals affirmed. In doing so, it held that McCaslin's initial warrantless entry was justified and that his inadvertent discovery of the items in the closet merited a new justification for the officers' continued presence in the residence. The court also held that the DEB agents' warrantless entry was justified to confirm McCaslin's suspicion of illegal activity:
The state and federal constitutions do not prohibit officers from backing each other up in such circumstances, or from drawing on each others' expertise and experience in evaluating a crime scene.
State v. DeWitt, 182 Ariz. 347, 355, 897 P.2d 649, 657 (App.1994). Judge Grant dissented, concluding that the DEB agents' entry and search were constitutionally unauthorized. Id. at 357, 359, 897 P.2d at 659, 661 (citing Ariz. Const. art. II, § 8; State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984); State v. Martin, 139 Ariz. 466, 474, 679 P.2d 489, 497 (1984)).
The parties stipulated at the suppression hearing that it took the entry of all the officers--McCaslin, Saylor, and the DEB agents--to provide the basis for the affidavit supporting issuance of the search warrant. Thus, but for the DEB agents' entry and search, the police would not have known the possible evidentiary value of the items in the closet and could not have met the probable cause requirement to obtain the search warrant. The only issue we decide today, therefore, is whether the third warrantless entry and confirmatory search of Defendant's home by the DEB agents were permissible when the evidentiary value of the items was not known to McCaslin or Saylor. We have jurisdiction under art. VI, § 5(3) of the Arizona Constitution and Ariz.R.Crim.P. 31.
The state first argues that the DEB agents' entry was a valid extension of the search initiated by McCaslin, justified by what McCaslin observed in plain view in the closet. Under this construction of the facts there was not a separate search by the DEB agents but, rather, one long, uninterrupted search. Alternatively, the state argues that because the DEB agents did not touch or move any of the items there was not a new invasion of Defendant's privacy and therefore not an additional search. We reject both arguments.
First, we do not believe the record supports the state's first submission. The trial court ruled that McCaslin's initial warrantless entry was reasonable, and Defendant reluctantly conceded as much at oral argument. We agree that McCaslin's initial warrantless entry was justified as a protective sweep in response to exigent circumstances--a probable burglary in progress. See State v. Fisher, 141 Ariz. 227, 237, 686 P.2d 750, 760, cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984). We also agree that McCaslin's observation and limited inspection of the items in the closet was a reasonable incidental encounter related to his protective and investigative sweep. See State v. Greene, 162 Ariz. 431, 433, 784 P.2d 257, 259 (1989). On this sparse record, we assume without deciding that the same may be said of the second warrantless entry and search with Sergeant Saylor.
It is conceded that McCaslin's and Saylor's observations did not provide probable cause to seek a warrant, and absent a continued exigency or other valid grounds, the justification for warrantless searching came to an end. Fisher, 141 Ariz. at 239, 686 P.2d at 762; State v. Cook, 115 Ariz. 188, 194, 564 P.2d 877, 883 (1977) (). The DEB agents' entry into Defendant's residence and inspection of the items in the closet some forty-five minutes or more after McCaslin's entry was an intrusion into an area in which Defendant had a reasonable expectation of privacy and was a second and separate search. See State v. Morrow, 128 Ariz. 309, 312, 625 P.2d 898, 901 (1981) () (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
Second, and contrary to the state's alternative argument, the DEB agents' inspection of the items stored in the closet was also a search. Using the stool to manipulate themselves, rather than the items, so they could get a better view only served to aggravate that intrusion. Cf. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (). Moreover, the agents' observations were made for the purpose of discovering evidence of guilt to be used in a criminal prosecution. See State v. Grijalva, 111 Ariz. 476, 478, 533 P.2d 533, 535 (), cert. denied, 423 U.S. 873, 96 S.Ct. 141, 46 L.Ed.2d 104 (1975). The fact that the DEB agents did not touch or move any of the items in the closet does not alter that purpose or reduce the impact their presence had on Defendant's privacy. See Morrow, 128 Ariz. at 312, 625 P.2d at 901. Thus, the DEB agents conducted a separate, warrantless search that must stand on some justification of its own, separate from McCaslin's initial entry and search.
1. Exigent circumstances
Defendant, in his petition to this court, 1 contends that the DEB agents' warrantless entry and search was not justified by exigent circumstances and thus violated the provisions of art. II, § 8 of the Arizona Constitution. 2 A search conducted without a warrant is unconstitutional absent one of the specific and...
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