State v. Guillen, 2 CA-CR 2007-0365.
| Decision Date | 24 June 2009 |
| Docket Number | No. 2 CA-CR 2007-0365.,2 CA-CR 2007-0365. |
| Citation | 222 Ariz. 81,213 P.3d 230 |
| Parties | The STATE of Arizona, Appellee, v. Jose Salvador GUILLEN, Appellant. |
| Court | Arizona Court of Appeals |
Terry Goddard, Arizona Attorney General, By Kent E. Cattani and Kathryn A. Damstra, Tucson, Attorneys for Appellee.
Emily Danies, Tucson, Attorney for Appellant.
¶ 1 Following a jury trial, appellant Jose Guillen was convicted of possession of more than four pounds of marijuana for sale, a class two felony, and possession of drug paraphernalia, a class six felony. The trial court sentenced him to concurrent, mitigated and presumptive prison terms, the longer of which is four years. Before trial, Guillen filed a motion to suppress physical evidence and statements he made to police, which the court denied following an evidentiary hearing. Guillen now challenges that ruling on appeal.
¶ 2 When reviewing a trial court's denial of a motion to suppress, we review 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 trial court's factual findings. State v. Gerlaugh, 134 Ariz. 164, 167, 654 P.2d 800, 803 (1982). 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. Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App.2006).
¶ 3 In March 2006, officers received information that Guillen had been storing marijuana in large freezers in the garage at his residence. Approximately eight months later, Arizona Department of Public Safety Officer Ballesteros and Oro Valley Police Officer Soto conducted surveillance of Guillen's residence. Specifically, the officers followed Guillen's wife as she left the residence and asked Marana Police Officer Moreno, a canine handler and narcotics investigator, to conduct a canine investigation at the house in her absence. Moreno confirmed with Ballesteros that he would walk with the narcotics-detection dog to the garage on Guillen's property and then report his observations to Ballesteros.
¶ 4 The attached, enclosed garage and front door to the residence were both accessible by traversing Guillen's driveway. Guillen had erected no fences or barriers obstructing access to the property. And he had posted no signs expressly prohibiting public entry. Moreno and the dog walked onto Guillen's property and "check[ed]" the areas around Guillen's front and garage doors. At the garage, Moreno focused the dog on the areas underneath, and at the sides of, the door — presumably to expose the dog to any scents emanating from inside the garage. The dog began barking and scratching, indicating it had detected the odor of a "narcotic or dangerous drug."
¶ 5 Armed with this information, Soto approached Guillen's wife in the driveway when she returned home. Soto identified himself as a police officer and asked if he could speak with her. She agreed and permitted Soto and Ballesteros to come inside the house to talk. Once inside, the officers told Guillen's wife they had information that the residence was being used as a possible "stash house" and asked for permission to search the premises; she consented. After she led them through the house into the garage, both officers detected a "strong odor of marijuana." Guillen's wife agreed to open the garage door to the driveway, and Moreno then brought the dog inside. The dog immediately ran to one of three large freezers covered with brown tarpaulins and alerted on it by "jumping up on the freezer[,] barking and scratching."
¶ 6 Guillen's wife allowed the officers to open an unlocked freezer. The freezer was empty but smelled as if marijuana "had been there at one time." Ballesteros then secured a telephonic search warrant. In the ensuing search, the officers discovered bales of marijuana packed inside the two freezers that had been locked. They also found "packaging items" and a plastic table elsewhere in the garage.
¶ 7 Guillen first argues that the warrantless dog sniff, conducted on his property at the front of the garage, was an illegal search of his home in violation of the Fourth Amendment to the United States Constitution. Although acknowledging that officers may generally traverse areas around a home "that are impliedly open to the public," Guillen contends the sniff search here reached inside his home "to explore details ... which would not be revealed without physical intrusion."
¶ 8 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." Searches conducted inside a home without a search warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). "To claim protection under the Fourth Amendment, a defendant must have a legitimate expectation of privacy in the invaded place." State v. Millan, 185 Ariz. 398, 401, 916 P.2d 1114, 1117 (App.1995). "A `search' 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).
¶ 9 Neither the United States Supreme Court nor any Arizona state court has specifically addressed the circumstances under which an officer may direct a narcotics-detection dog to sniff along the seams of a residential structure. However, the Supreme Court has considered the constitutionality of canine sniffs in other contexts. In United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), it held that exposing a defendant's luggage, located in a public place, to a sniff by a narcotics dog "did not constitute a `search' within the meaning of the Fourth Amendment." There, the Court reasoned:
A "canine sniff" by a well-trained narcotics detection dog ... does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view .... Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item....
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.
Id. More recently, the Court has reaffirmed this analytical framework, observing that "governmental conduct that only reveals the possession of contraband `compromises no legitimate privacy interest'" and holding, for that reason, that a canine sniff performed on the exterior of a lawfully detained car "does not rise to the level of a constitutionally cognizable infringement." Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (emphasis in original), quoting Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652.
¶ 10 In short, the Court has consistently characterized the canine sniff as a unique, minimally invasive species of search that, at least when applied to sniffs of lawfully detained vehicles and luggage in public places, is not a constitutionally relevant intrusion. In this case, we must determine whether the same is true when that unique species of search occurs at the threshold of, and collects information from inside, a private residence.
¶ 11 The Court has identified the right to be free from unreasonable searches and seizures in the home as "`the chief evil against which the wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). And, it has observed:
The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home — a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their ... houses ... shall not be violated." ... [Therefore,] the Fourth Amendment has drawn a firm line at the entrance to the house.
Payton, 445 U.S. at 589-90, 100 S.Ct. 1371 (citation omitted).
¶ 12 In conformity with those principles, the Court has found the government's probe of a home with thermal-imaging equipment, deployed from a public thoroughfare, to be an unconstitutional search requiring a warrant. Kyllo v. United States, 533 U.S. 27, 28, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Guillen contends the canine sniff performed here is analogous to the thermal-imaging search conducted in Kyllo and argues the sniff must likewise be unlawful in the absence of a warrant.
¶ 13 We agree that the government's use of thermal-imaging equipment in Kyllo and the state's use of a canine sniff in this case share certain relevant characteristics. In both instances, the officers essentially deployed "sense-enhancing" tools to collect information from inside a home without having to physically enter the structure. Id. at 34, 121 S.Ct. 2038 (). Most saliently, both searches conveyed only limited information about the interior of the residences: the record here suggests the dog was trained to alert exclusively to the odor of narcotics, and the thermal-imaging equipment in Kyllo could only show "heat images" in black and white. See id. at 40, 121 S.Ct. 2038 (...
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