State v. Hernandez

• Decision Date: 18 May 2018
• Docket Number: No. CR-17-0325-PR,CR-17-0325-PR
• Citation: 417 P.3d 207
• Parties: STATE of Arizona, Appellee, v. Anthony Lito HERNANDEZ, Appellant
• Court: Arizona Supreme Court

417 P.3d 207

STATE of Arizona, Appellee,

v.Anthony Lito HERNANDEZ, Appellant,

No. CR-17-0325-PR

Supreme Court of Arizona.

Filed May 18, 2018

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Joseph T. Maziarz, Chief Counsel, Amy M. Thorson (argued), Assistant Attorney General, Criminal Appeals Section, Tucson, Attorneys for State of Arizona

John William Lovell, John William Lovell Esq., Tucson; and David J. Euchner (argued), Pima County Public Defender’s Office, Tucson, Attorneys for Anthony Lito Hernandez

Timothy Sandefur, James Manley, Goldwater Institute, Phoenix, Attorneys for Amici Curiae Goldwater Institute and Professor Erik Luna

Maricopa County Public Defender, Amy Kalman (argued), Deputy Public Defender, Phoenix; and Timothy J. Eckstein, Osborn Maledon PA, Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL, TIMMER, BOLICK, and GOULD joined. JUSTICE BOLICK concurred.

JUSTICE LOPEZ, opinion of the Court:

¶1 We consider whether law enforcement officers violated a defendant’s rights under the Fourth Amendment to the United States Constitution and article 2, section 8 of the Arizona Constitution when they followed the defendant’s vehicle onto a private driveway to complete a traffic stop which began on a public road. We hold that the defendant’s rights were not violated.

BACKGROUND

¶2 On the night of September 11, 2014, two Cochise County Sheriff’s Deputies on patrol in Willcox began following a vehicle after observing it turn at several intersections in an apparent effort to elude the officers. While following the vehicle, the officers ran a license plate check, which indicated that the vehicle’s insurance had been cancelled the previous month.

¶3 The officers turned on their emergency lights to initiate a traffic stop for the insurance cancellation and, seconds later, the vehicle drove onto the shoulder of the road, ran over a curb as it maneuvered onto a private driveway, and led officers along the length of the driveway and into the backyard area of a residence. The officers did not know if the vehicle’s driver had a connection to the property, but one officer stated that he followed the vehicle "because that’s where the vehicle took us when we attempted to stop it." One of the officers testified that he did not perceive any immediate danger to himself or the public, but the other officer testified that he thought it necessary to contact the driver because his actions posed a potential danger to the public.

¶4 The driver, Anthony Lito Hernandez, stopped the vehicle, opened the door, and began to step out. An officer told Hernandez to remain inside the vehicle. On approaching the vehicle, the officer smelled marijuana and ordered Hernandez to get out and place his hands behind his back. During a pat-down search, the officer found $2,446 in cash and an empty plastic baggie. Inside the vehicle, the officers found a burned marijuana cigarette, a metal spoon with char marks on the bottom and "a burnt substance in it," and a clear plastic baggie containing suspected methamphetamine. Hernandez told the officer he did not know the property owner, but the home was later determined to be occupied by his girlfriend.

¶5 Hernandez was indicted for possession of marijuana, possession of drug paraphernalia, and transporting methamphetamine for sale. After the trial court denied his motion to suppress the evidence seized from him and his vehicle, a jury found Hernandez guilty of those offenses.

¶6 In a divided opinion, the court of appeals affirmed, stating that "[a] police officer in continuous vehicular pursuit of a person under investigation for a violation of the law cannot be arbitrarily stopped by the person’s entry onto private property," and that "[a]ny contrary rule would encourage flight to avoid apprehension." State v. Hernandez , 242 Ariz. 568, 576 ¶ 27, 399 P.3d 115, 123 (App. 2017). The dissent concluded that the officers' encroachment "upon constitutionally protected curtilage," without a warrant, was per se unreasonable, as the State had failed to show exigent circumstances. Id. at 581 ¶ 49, 399 P.3d at 128.

¶7 We granted review because the case presents a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

DISCUSSION

¶8 This Court "review[s] for abuse of discretion the trial court’s factual findings on the motion to suppress, but review[s] de novo the trial court’s ultimate legal determination that the search complied with the Fourth Amendment." State v. Gilstrap , 235 Ariz. 296, 297 ¶ 6, 332 P.3d 43, 44 (2014). "We view the facts in the light most favorable to support the trial court’s ruling on [a] motion to suppress." State v. Cook , 115 Ariz. 188, 192, 564 P.2d 877, 881 (1977).

¶9 Hernandez argues that the officers' warrantless entry into the area of his girlfriend’s property where the driveway met the backyard violated his rights under the Fourth Amendment to the United States Constitution.¹ Under the Fourth Amendment, law enforcement officers generally must obtain a warrant to enter a protected area to make an arrest. See Payton v. New York , 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, "because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions." Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). For example, no warrant is required when a person consents to an officer’s entry or exigent circumstances justify the intrusion. Payton , 445 U.S. at 583, 100 S.Ct. 1371.

¶10 As a preliminary matter, Hernandez contends that we should not address the consent and exigent circumstances issues because the State did not raise them in the trial court. We disagree. Although "[w]e do not ordinarily consider issues not raised in the trial court or court of appeals," if "good reason exists, this court may and will entertain such questions" as the "rule is jurisprudential rather than substantive." Jimenez v. Sears, Roebuck & Co. , 183 Ariz. 399, 406 n.9, 904 P.2d 861, 868 n.9 (1995). Good reason exists to address the identified issues because they were decided by the trial court and the court of appeals, the parties submitted post-argument briefs addressing the consent issue at our request, and we will "affirm the trial court’s ruling if the result was legally correct for any reason." State v. Carlson , 237 Ariz. 381, 387 ¶ 7, 351 P.3d 1079, 1085 (2015) (quoting State v. Perez , 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) ).

I. Reasonable Expectation of Privacy

¶11 Fourth Amendment protections apply to government intrusions that involve a common law trespass, United States v. Jones , 565 U.S. 400, 407–10, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), or areas in which an individual has a reasonable expectation of privacy, Katz v. United States , 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Because Hernandez does not contend the officers committed a trespass as to him, the issue is whether he had a reasonable expectation of privacy in the driveway and its confluence with the backyard of his girlfriend’s home. An expectation of privacy generally extends to the curtilage of a home, or "the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life,’‹" because it is considered part of the home. Oliver v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (quoting Boyd v. United States , 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886) ).

¶12 Hernandez claimed that he did not reside at the residence, but that he spent the night there frequently. The State does not contest his claim on appeal. "[A]n overnight guest has a legitimate expectation of privacy in his host’s home." Minnesota v. Olson , 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) ; see also Georgia v. Randolph , 547 U.S. 103, 113, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) ; State v. Peoples , 240 Ariz. 244, 249 ¶ 18, 378 P.3d 421, 426 (2016). Thus, if the driveway and its confluence with the backyard constitute curtilage, then Hernandez, as an overnight guest, had a reasonable expectation of privacy in it.

¶13 The court of appeals accepted the trial court’s analysis that Hernandez’s vehicle came to rest on the curtilage of his girlfriend’s home but, citing State v. Cobb , 115 Ariz. 484, 489, 566 P.2d 285, 290 (1977), questioned whether the driveway, as "only a semiprivate area," qualified for the full protection afforded curtilage. Hernandez , 242 Ariz. at 572 ¶ 12, 399 P.3d at 119. In Cobb , an officer visited the defendant’s home to investigate a recent neighborhood robbery and, after speaking with him, discovered a stolen brooch on the driveway. 115 Ariz. at 486–87, 566 P.2d at 287–88. The defendant moved to suppress evidence of the brooch because the officer’s seizure of it on the driveway, within the curtilage of his home, violated the Fourth Amendment. Id. at 488, 566 P.2d at 289. This Court held that the officer properly seized the brooch, noting that the defendant consented to his presence on the property and that "[a] driveway is only a semiprivate area" in which the expectation of privacy is contingent "upon the nature of the activities and the degree of visibility from the street." Id. at 489, 566 P.2d at 290 (quoting United States v. Magana , 512 F.2d 1169, 1171 (9th Cir. 1975) ).

¶14 The court of appeals misread Cobb to the extent it inferred that an entire driveway is always semi-private and, as such, never warrants an expectation of privacy equivalent to the home. See Hernandez , 242 Ariz. at 572 ¶ 12, 399 P.3d at 119. Cobb does not announce a categorical rule, but rather clarifies that "[t]he test ... should be that of reasonableness, both of the possessor’s...