State v. Guillen

• Decision Date: 15 January 2010
• Docket Number: No. CR-09-0188-PR.,CR-09-0188-PR.
• Citation: 223 P.3d 658
• Parties: STATE of Arizona, Appellee, v. Jose Salvador GUILLEN, Appellant.
• Court: Arizona Supreme Court

223 P.3d 658

STATE of Arizona, Appellee, v. Jose Salvador GUILLEN, Appellant.

No. CR-09-0188-PR.

Supreme Court of Arizona, En Banc.

January 15, 2010.

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Joseph L. Parkhurst, Assistant Attorney General, Tucson, Phoenix, Attorneys for State of Arizona.

Emily Danies, Tucson, Attorney for Jose Salvador Guillen.

OPINION

RYAN, Justice.

¶ 1 The question presented is whether a resident's consent to search her home is invalid because it was preceded by an allegedly illegal search of which the resident was unaware. We hold that the consent to search is valid under the circumstances.

I

¶ 2 In March 2006, police received information that Jose Guillen was storing marijuana in his garage; no investigation took place at that time. Eight months later, after confirming that the house was unoccupied, police called a narcotics officer with a drug-sniffing dog to the scene. The home was not enclosed by a fence and no signs prohibited public access to the front of the house. The garage was attached to the house and accessible by a driveway. The narcotics officer and the dog walked up the driveway to the garage door. After sniffing the door's bottom seam, the dog began barking and scratching, indicating that he had detected the odor of marijuana.

¶ 3 One to two hours later, Guillen's wife returned home. Officers approached her in the driveway and asked if they could continue talking inside. She agreed. Without mentioning the dog sniff, the officers told her that they had information that marijuana was being stored at the house and asked for permission to search it. Mrs. Guillen granted permission and led the officers to the garage, where they detected a "strong odor of marijuana." The narcotics officer then brought the dog into the garage and the dog signaled at an unlocked freezer that he detected the odor of marijuana. Mrs. Guillen permitted the officers to open that freezer, which was empty but smelled of marijuana. After obtaining a telephonic search warrant, the officers searched two locked freezers and found bales of marijuana.

¶ 4 Before trial, Guillen moved to suppress evidence discovered in his garage and his subsequent statements to the police, arguing that the dog sniff violated his rights under the Fourth Amendment of the United States Constitution and Article 2, Section 8 of the Arizona Constitution. The superior court denied Guillen's motion, concluding that whether the dog sniff was an illegal search was irrelevant because Mrs. Guillen voluntarily consented to the search.

¶ 5 A jury subsequently convicted Guillen of possession of marijuana for sale and drug paraphernalia, and the trial court sentenced him to prison.

II

¶ 6 A divided panel of the court of appeals reversed and remanded. State v. Guillen, 222 Ariz. 81, 91 ¶ 33, 213 P.3d 230, 240 (2009). The majority began by analyzing the dog sniff under the Fourth Amendment and Article 2, Section 8 of the Arizona Constitution. The majority concluded that "a dog sniff reaching into a home does not rise to the level of a `cognizable infringement' under the Fourth Amendment to the United States Constitution." Id. at 85 ¶ 17, 213 P.3d at 234 (quoting Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)). However, citing State v. Ault, 150 Ariz. 459, 466, 724 P.2d 545, 552 (1986), and State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984), which held that Article 2, Section 8 is more specific than its federal counterpart in protecting the home, the court of appeals concluded that "a canine sniff that occurs at the threshold of a home, and collects information from inside, intrudes upon an expectation of privacy that our society has long recognized as reasonable." Id. at 88 ¶ 24, 213 P.3d at 237. But because Article 2, Section 8 "contains no language comparable to that of its federal counterpart requiring a warrant for all searches in the home," id. at 90 ¶ 30, 213 P.3d at 239, the majority concluded that "officers need only a reasonable suspicion that contraband may be found in a home ... to conduct a canine sniff search of the exterior of the home." Id. The court remanded the matter for a determination of whether the officers had reasonable suspicion before conducting the dog sniff. Id. at 90-91 ¶ 30, 213 P.3d at 239-40.

¶ 7 Turning to the issue of Mrs. Guillen's consent, the court of appeals stated that if the trial court on remand found that the officers did not have reasonable suspicion, it then would have to "determine whether the officers used the information acquired to trigger the next step in their investigation — asking for consent to search the house — or whether ... they would have taken that step regardless of the outcome of the dog sniff." Id. at 91 ¶ 32, 213 P.3d at 240.

¶ 8 Dissenting, Judge Espinosa was "unconvinced [that] the trial court erred in concluding Mrs. Guillen's consent obviated the need to discuss the constitutionality of the dog sniff[,]" id. at 92 n. 13 ¶ 34, 213 P.3d at 241 n. 13, but primarily challenged the majority's conclusion that a dog sniff, conducted from the officer's lawful position outside the home, violates the state constitution. Id. at 94-99 ¶¶ 37-55, 213 P.3d at 243-48.

¶ 9 The State petitioned for review, arguing that the court of appeals erred in interpreting the state constitution and, in any event, Mrs. Guillen's voluntary consent obviated the need to reach the state constitutional question. Because this case involves a matter of first impression, we granted review. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes § 13-4032 (2001).

III

A

¶ 10 The Fourth Amendment provides in part 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." Unlawful entry into a home is the "chief evil" against which the provision protects. See, e.g., 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)). It "applies to action by state officers under the Due Process Clause of the Fourteenth Amendment." State v. Davolt, 207 Ariz. 191, 202 ¶ 23, 84 P.3d 456, 467 (2004) (citing Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). Arizona's constitutional counterpart to the Fourth Amendment, Article 2, Section 8, provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." See Bolt, 142 Ariz. at 264-65, 689 P.2d at 523-24 (observing that Arizona's constitutional provision is "specific in preserving the sanctity of homes and in creating a right of privacy"). Thus, as a general rule police must obtain a warrant before searching premises in which an individual has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200, 209 (1996); Bolt, 142 Ariz. at 265, 689 P.2d at 524.

¶ 11 One long recognized exception to the warrant requirement is consent. Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d at 468 (citing Katz, 389 U.S. at 357, 88 S.Ct. 507). To be valid, consent must be voluntarily given, and whether the consent was voluntary "is a question of fact to be determined from the totality of the circumstances." Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Consent must "not be coerced, by explicit or implicit means, by implied threat or covert force." Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041. The state bears the burden of showing that consent to search was voluntary. See United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th Cir.1988); State v. Monge, 173 Ariz. 279, 281, 842 P.2d 1292, 1294 (1992).

¶ 12 Here, defense counsel made clear at the suppression hearing below that Guillen was not challenging the voluntariness of Mrs. Guillen's consent or her authority to consent to the search. See, e.g., United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (holding that voluntary consent to search premises by occupant who possesses common authority to the premises is valid against absent co-occupant); State v. Lucero, 143 Ariz. 108, 109, 692 P.2d 287, 288 (1984) (recognizing exception to warrant requirement where "person having authority to consent to a warrantless search[] does so"). Rather, he argued that the first dog sniff at the garage perimeter was illegal, and it necessarily tainted Mrs. Guillen's subsequent consent to search, requiring exclusion of the evidence discovered in the garage.

B

¶ 13 Evidence seized following consent to a search must be suppressed if the consent is tainted by a prior constitutional violation. Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); United States v. Taheri, 648 F.2d 598, 601 (9th Cir.1981); Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d at 468. Exclusion deters police misconduct "by removing the incentive for such conduct." State v. Booker, 212 Ariz. 502, 504 ¶ 13, 135 P.3d 57, 59 (App.2006) (citing United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)); State v. Kempton, 166 Ariz. 392, 398, 803 P.2d 113, 119 (App.1990).¹ Suppression, however, is not required if the unconstitutional conduct is sufficiently attenuated from the subsequent seizure. See Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d at 468; Monge, 173 Ariz. at 281, 842 P.2d at 1294. "[T]he unconstitutional acts of an officer taint a consensual search unless there are sufficient intervening circumstances between the unlawful conduct and the consent to truly show that it was voluntary." Kempton, 166 Ariz. at 398, 803 P.2d at 119.

¶ 14 In Brown, the Supreme Court set forth a test to...