State v. Sandoval
| Decision Date | 10 March 2015 |
| Docket Number | No. 1 CA-CR 14-0242,1 CA-CR 14-0242 |
| Parties | STATE OF ARIZONA, Appellee, v. NORA YESENIA SANDOVAL, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Mohave County
The Honorable Steven F. Conn, Judge
AFFIRMED
Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Mohave County Legal Advocate's Office, Kingman
By Jill L. Evans
Presiding Judge Margaret H. Downie delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Randall M. Howe joined.
¶1 Nora Yesenia Sandoval appeals her convictions on two counts of possession of dangerous drugs for sale, two counts of possession of dangerous drugs, and three counts of possession of drug paraphernalia. For the following reasons, we affirm.
¶2 Based on information obtained from a confidential informant, police officers obtained a search warrant authorizing a search of Sandoval and her apartment for evidence relating to possession of methamphetamine and drug paraphernalia. The morning the search warrant was to be executed, officers saw Sandoval leave her apartment in a vehicle. They stopped the vehicle and took Sandoval to a booking facility where she was searched. Officers found a plastic bag containing a white crystal substance later determined to be 28.7 grams of methamphetamine hidden in Sandoval's underwear. Upon searching Sandoval's apartment, officers discovered a plastic bag containing 11.25 grams of methamphetamine in the pocket of a woman's jacket, two pills in a plastic baggie, hundreds of unused plastic baggies, a digital scale, and more than a thousand dollars in cash.
¶3 Three days later, having just been released from custody, Sandoval made arrangements by telephone to sell methamphetamine to a buyer. Unbeknownst to Sandoval, the buyer was cooperating with law enforcement. When Sandoval appeared at the agreed-upon meeting location, officers found her in possession of 20.6 grams of methamphetamine.
¶4 Sandoval was indicted on three counts of possession of dangerous drugs for sale (methamphetamine), a class 2 felony; one count of possession of dangerous drugs (clonazepam), a class 4 felony; and three counts of possession of drug paraphernalia, a class 6 felony. The Statealleged that Sandoval had four prior felony convictions for sentence enhancement purposes.
¶5 After a jury trial, Sandoval was convicted of two counts of possession of dangerous drugs for sale (methamphetamine), one count of the lesser offense of possession of dangerous drugs (methamphetamine), one count of possession of dangerous drugs (clonazepam), and three counts of possession of drug paraphernalia. The trial court found that Sandoval had two prior historical felony convictions and sentenced her as a repetitive offender to consecutive and concurrent presumptive prison terms totaling 31.5 years. Sandoval timely appealed.
¶6 Sandoval moved to suppress all evidence seized pursuant to the search warrant. She argued the warrant was not supported by probable cause and did not authorize a search of her outside her apartment. The trial court denied the motion, ruling that there was probable cause to issue the search warrant and that the warrant permitted officers to search Sandoval wherever she was located.
¶7 On appeal, Sandoval once again argues the affidavit submitted by the police failed to set forth probable cause for issuance of the warrant. Specifically, she argues there were insufficient facts presented to establish the informant's reliability.
¶8 In reviewing the denial of a suppression motion, we give deference to factual findings by the trial court but review de novo whether the Fourth Amendment was violated. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). The Fourth Amendment protects against unreasonable searches and seizures and states that no warrant shall issue except upon probable cause. U.S. Const. amend. IV.
¶9 In determining whether probable cause exists to issue a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' Illinois v. Gates, 462 U.S. 213, 238 (1983). "[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." Id. at 238-39.
¶10 In an affidavit submitted in support of the search warrant, an officer avowed that a "confidential and reliable informant was legally and lawfully present at 366 Riverfront Dr., Apartment B., and observed Nora Sandoval in possession of a usable quantity of methamphetamine" within the past 72 hours. The officer further avowed that he considered the information to be true not only because the informant had participated in controlled drug buys on at least four prior occasions, but "[w]ithin the last two months the confidential and reliable informant has also given information to [the] affiant and fellow officers about narcotics trafficking in the Mohave County area, which has been verified either through [the] affiant's personal knowledge or through short investigations." The officer stated the informant had identified Sandoval from a photograph, pointed out Sandoval's apartment, and knew methamphetamine "on sight, its prices, and the way it is used." Given this information, the magistrate had a substantial basis for concluding the confidential informant was reliable and that probable cause existed to issue a search warrant for both Sandoval and her apartment. See State v. Albert, 115 Ariz. 354, 355, 565 P.2d 534, 535 (App. 1977); see also 2 Wayne R. LaFave, Search and Seizure § 3.3(b), at 145 & n.81 (5th ed. 2012) () (collecting cases).
¶11 We also disagree with Sandoval's assertion that the search warrant did not authorize officers to detain and search her outside her apartment. The warrant stated there was probable cause to believe there was methamphetamine and other evidence pertaining to the possession of methamphetamine both on Sandoval's person and in her apartment, and it gave detailed descriptions of Sandoval and her apartment in separate paragraphs. The warrant commanded any peace officer in Mohave County "to make a search of the above named described person(s) [and] premises." No geographical limitation was imposed as to where the search of Sandoval could occur.
¶12 The superior court did not err by denying Sandoval's suppression motion.
¶13 Sandoval argues the trial court violated her right to counsel of choice by denying her motion to continue trial in order to retain private counsel. Denial of a motion to continue is reviewed for abuse of discretion. State v. Hein, 138 Ariz. 360, 368, 674 P.2d 1358, 1366 (1983). The trial court has substantial discretion because it "is the only party in a position to judgethe inconvenience of a continuance to the litigants, counsel, witnesses, and the court, and further is the only party in a position to determine whether there are "extraordinary circumstances" warranting a continuance and whether "delay is indispensable to the interests of justice" as required by Arizona Rules of Criminal Procedure 8.5(b). Id.
¶14 The day before trial began, Sandoval requested a continuance to allow her to retain private counsel. Sandoval stated that her appointed counsel was not representing her well and that he was not communicating with or helping her. When asked what more she wanted her attorney to do, Sandoval stated, The State opposed the motion, stating it had multiple witnesses subpoenaed and ready to appear, and the prosecutor had cleared her schedule for trial.
¶15 The trial court noted that Sandoval had presented nothing specific as to why appointed counsel could not continue representing her. In addressing what it believed to be the true reason for the continuance request, the court stated it appeared Sandoval "thought that the day of reckoning would be farther off in the future, and that she's just having a hard time accepting the fact that her trial is starting tomorrow, and if she's found guilty she may be facing some serious consequences."
¶16 A criminal defendant has the right to counsel of her choosing under the Sixth Amendment to the United States Constitution and Article 2, Section 24, of the Arizona Constitution. United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Robinson v. Hotham, 211 Ariz. 165, 169, ¶ 16, 118 P.3d 1129, 1133 (App. 2005). The right to counsel of choice, though, is "not absolute, but is subject to the requirements of sound judicial administration." Hein, 138 Ariz. at 369, 674 P.2d at 1367; see also Wheat v. United States, 486 U.S. 153, 159 (1988) (). A trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar." Gonzalez-Lopez, 548 U.S. at 152. Notwithstanding this broad discretion, an "unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance...
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