State v. Lohse

• Decision Date: 25 October 2018
• Docket Number: No. 2 CA-CR 2017-0244,2 CA-CR 2017-0244
• Citation: 431 P.3d 606
• Parties: The STATE of Arizona, Appellee, v. Cody Mitchell LOHSE, Appellant.
• Court: Arizona Court of Appeals

431 P.3d 606

The STATE of Arizona, Appellee,

v.Cody Mitchell LOHSE, Appellant.

No. 2 CA-CR 2017-0244

Court of Appeals of Arizona, Division 2.

Filed October 25, 2018

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee

T.S. Hartzell, Tucson, Counsel for Appellant

Chief Judge Eckerstrom authored the opinion of the Court, in which Judge Eppich and Judge Vásquez concurred.

OPINION

ECKERSTROM, Chief Judge:

¶ 1 Cody Lohse appeals from his convictions and sentences for numerous drug-related offenses, arguing the trial court erred by denying his motions to suppress evidence. He contends law enforcement obtained a search warrant based on information gained by unlawfully trespassing into his curtilage and that the search warrant failed to describe his home with sufficient particularity. We vacate the decision of the trial court in part and remand for further proceedings.

Factual and Procedural History

¶ 2 "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court’s ruling." State v. Gonzalez , 235 Ariz. 212, ¶ 2, 330 P.3d 969 (App. 2014). While investigating an aggravated assault in March 2015, an operations commander with the Cochise County Sheriff’s Office received a tip that the assailant had been seen at Lohse’s home and that Lohse could identify him. When the commander arrived at Lohse’s home, he opened and walked through first the unlocked gate of a four-foot-high chainlink fence and then the gate of a six-foot-tall opaque, wooden, privacy fence. Although a witness testified that one of the fences also displayed a "private property sign,"¹ the commander testified only that there "could have been" such a sign, but he could not recall. In any event, the trial court did not make a factual determination concerning whether such a sign had been posted.

After passing through both gates, the commander went straight to the front door where he knocked and identified himself.

¶ 3 When Lohse opened the door, the commander immediately smelled the odor of raw marijuana coming from inside the home. Lohse admitted there was a small amount of marijuana in the house, and another officer confirmed that no one present possessed a "medical marijuana card." See A.R.S. § 36-2801(13), (14). The commander then called narcotics detectives, who obtained a search warrant and discovered morphine, methamphetamine, marijuana, a handgun, a shotgun, and several items of drug paraphernalia.

¶ 4 Before trial, Lohse filed motions to suppress all evidence uncovered by the search of his home, arguing "sheriff’s personnel trespassed into the curtilage of [his] home" and that the search warrant was invalid because it listed an address different than his own. Following a hearing, the trial court denied both motions, finding the officers had legitimately entered the curtilage pursuant to their community-caretaking function and, although the search warrant listed a neighbor’s address, "the affidavit ... accurately describe[d] the residence actually served."

¶ 5 Following trial, the jury found Lohse guilty of possession of a narcotic drug, possession of marijuana, two counts of misconduct involving weapons, and five counts of possession of drug paraphernalia.² The trial court suspended imposition of sentence and placed Lohse on concurrent terms of probation, the longest of which were four years. Lohse appealed; we have jurisdiction. See A.R.S. §§ 13-4031, 13-4033(A)(1).

Community Caretaking

¶ 6 As a threshold matter, the trial court erred by determining the community-caretaking function justified the officers’ intrusion into Lohse’s curtilage. See State v. Mendoza-Ruiz , 225 Ariz. 473, ¶ 8, 240 P.3d 1235 (App. 2010). This function "arises from a police officer’s status as a ‘jack-of-all-emergencies,’ who is ‘expected to aid those in distress, combat actual hazards, prevent potential hazards from materializing, and provide an infinite variety of services to preserve and protect community safety.’ " Id. ¶ 9 (quoting United States v. Rodriguez-Morales , 929 F.2d 780, 784-85 (1st Cir. 1991) ). Accordingly, officers engaged in such tasks do not violate the Fourth Amendment. Id. The standard under this doctrine is whether a "prudent and reasonable officer [would] have perceived a need to act." Id. ¶ 8 (quoting State v. Organ , 225 Ariz. 43, ¶ 15, 234 P.3d 611 (2010) ) (alteration in Mendoza-Ruiz ). In Mendoza-Ruiz , officers entered the cab of a pickup truck to remove a gun that was "clearly visible" because, after its owner was arrested, the truck would be left in a busy, high crime area known for shootings and aggravated assaults. Id. ¶¶ 3, 12. Similarly, in In Re Tiffany O. , the community-caretaking function permitted an officer to seize a juvenile’s purse after receiving a report that she had been suicidal; but it did not authorize them to search the purse because taking it from her neutralized any safety concern its contents may have presented. 217 Ariz. 370, ¶¶ 2, 26-31, 174 P.3d 282 (App. 2007).

¶ 7 Here, nothing in the record indicates officers entered the curtilage of Lohse’s home to address any public-safety concern or prevent any harm from occurring. Rather, they were investigating an aggravated assault that "had been around for a while." As the commander recognized, making contact with Lohse was not "an urgent necessity"; he simply did not want "to delay [the investigation] any further." Because officers did not enter pursuant to the community-caretaking function, we now address whether they were otherwise privileged to enter the curtilage.

General License to Enter Curtilage

¶ 8 Lohse contends that by passing through two gates—one of which he asserts was marked with a "No Trespassing" sign³ —law enforcement officers had trespassed into the curtilage of his home and, therefore, were not in a lawful position to smell the odor of marijuana coming from his front door. "[W]e review de novo the [trial] court’s legal conclusions drawn from the facts, as well as any constitutional issues." State v. Inzunza , 234 Ariz. 78, ¶ 7, 316 P.3d 1266 (App. 2014).

¶ 9 In relevant part, the Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches." A search within the meaning of the Fourth Amendment "undoubtedly occur[s]" when "the Government obtains information by physically intruding" into a person’s home. Florida v. Jardines , 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (quoting United States v. Jones , 565 U.S. 400, 406 n.3, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) ). The curtilage of a home "enjoys protection as part of the home itself." Id. at 6, 133 S.Ct. 1409 ("We ... regard the area ‘immediately surrounding and associated with the home’ ... as ‘part of the home itself for Fourth Amendment purposes.’ " (quoting Oliver v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ) ).

¶ 10 Nevertheless, the public has a general license—unless revoked—"to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave." Id. at 8, 133 S.Ct. 1409. Like any private citizen, law enforcement officers, even those "not armed with a warrant," benefit from this license to approach the front door. Id. at 9, 133 S.Ct. 1409 (quoting Kentucky v. King , 563 U.S. 452, 469, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ).

¶ 11 Here, the state does not contest that officers had entered the curtilage of Lohse’s home when they knocked on his front door. Accordingly, we must determine whether the officers’ entry was permitted by the general license or whether Lohse had effectively revoked it under the totality of the circumstances. See Grady v. North Carolina , ––– U.S. ––––, 135 S.Ct. 1368, 1371, 191 L.Ed.2d 459 (2015) (reasonableness of search depends on totality of circumstances).

¶ 12 Neither has the United States Supreme Court, nor any reviewing court in Arizona, squarely addressed the circumstances by which a resident revokes the general license to enter the curtilage and knock on the front door.⁴ Numerous federal and state courts, however, have considered whether posting no-trespassing signs or erecting gates and fences revokes the general license or otherwise renders an officer’s entry onto private property unlawful, warranting suppression.⁵ Although a strong majority have determined no-trespassing signs alone⁶ or gates and fences alone⁷ are insufficient to do so, the opposite is true when these measures are combined. See, e.g. , State v. Christensen , 131 Idaho 143, 953 P.2d 583, 587-88 (1998) (officer had no more right than door-to-door solicitor to disregard closed gate and no-trespassing sign); Bainter v. State , 135 So.3d 517, 520 (Fla. Dist. Ct. App. 2014) ; State v. Bullock , 272 Mont. 361, 901 P.2d 61, 75-76 (1995) ; State v. Roper , 254 Or.App. 197, 294 P.3d 517, 520 (2012) ; State v. Johnson , 75 Wash.App. 692, 879 P.2d 984, 992 (1994).

¶ 13 To resolve whether coupling no-trespassing signs with gates and fences revokes the general license, courts consider the totality of the circumstances to determine whether a resident has asserted an objectively reasonable expectation of privacy warning uninvited visitors they are not welcome. See Brown v. State , 152 So.3d 619, 623-24 (Fla. Dist. Ct. App. 2014) (also noting mailbox located outside gate); Bullock , 901 P.2d at 75-76 (cabin barely visible from road, forested area); Johnson , 879 P.2d at 992 (officers arrived after midnight). Concerning this combination of measures, the Idaho Supreme Court observed: "We believe that the reasonably respectful citizen when confronted with a closed gate and a no trespassing sign does not proceed further, but respects the request for privacy that such efforts convey." Christense...