State v. Smith
| Decision Date | 07 May 2014 |
| Docket Number | No. 2 CA-CR 2013-0166,2 CA-CR 2013-0166 |
| Parties | THE STATE OF ARIZONA, Appellee, v. RANDALL FELIX SMITH, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the superior Court in Pima County
The Honorable Richard S. Fields, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
Harriette P. Levitt, Tucson
Counsel for Appellant
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.
¶1 After a jury trial, Randall Smith was convicted of attempted production of marijuana in an amount less than two pounds. The trial court suspended the imposition of sentence and placed Smith on probation for eighteen months. On appeal, Smith argues the court committed reversible error by denying his motion to suppress evidence obtained during an illegal search of his residence. For the following reasons, we affirm.
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining Smith's conviction. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In April 2012, officers assigned to the Counter Narcotics Alliance conducted simultaneous "knock and talks" at Smith's residence (Kahlua residence) and his son's residence (Rincon Mesa residence), which were suspected of "marijuana grow operations." The two residences were located in the same neighborhood.
¶3 At the Rincon Mesa residence, Smith's son opened the door and spoke to the officers. He showed the officers twelve marijuana plants he had growing in his backyard and explained that he had a medical marijuana card.1 The officers smelled the odor ofmarijuana coming from inside the residence, and Smith's son said "he had approximately two grams of marijuana inside." Smith's son also stated that Smith had a medical marijuana card and that Smith "was growing marijuana plants on his property as well."
¶4 At the Kahlua residence, no one answered the door, but a "canine trained and certified in the detection and recognition of the odor of illegal drugs alerted to the residence." As the officers were standing at the door, they heard "a lot of commotion coming from around the side." One of the officers moved to the west side of the residence to see if anyone was there, and, when he did so, he "noticed . . . a darker colored screened-off area and . . . noticed [two or three] marijuana plants growing" inside. Officers on the east side of the residence also "smelled a strong odor of raw marijuana" coming from an air-conditioning unit in a window. The officers contacted Smith on his cellular telephone, and Smith admitted "he was growing marijuana at the residence." When Smith returned home, he showed the officers his medical marijuana card and, despite initially denying that he had any drugs in his residence, acknowledged that "he had something inside."
¶5 The officers applied for search warrants for both residences. The magistrate found probable cause to issue a search warrant for the Rincon Mesa residence but not the Kahlua residence. While executing the warrant at the Rincon Mesa residence, the officers found 190 marijuana plants. During that search, the officers also noticed that the window coverings consisting of "foam insulation and plastic" were similar to the window coverings they had observed at the Kahlua residence.
¶6 During this time, an officer also learned that both men received water to their properties from a well cooperative (co-op). That officer spoke to a neighbor involved in the co-op, who reported that the Rincon Mesa and Kahlua residences used "similar" amounts of water, "far exceed[ing] the amount . . . utilized by the other [residences] on the co-op." Another neighbor confirmed the "excessive water usage" and additionally noted "an excessive amount of water drainage" from the Kahlua residence. The officer who interviewed these neighbors also observed "some drainage from the [Kahlua residence]."
¶7 With this new information, the officers again requested a search warrant for the Kahlua residence. The magistrate determined that there was probable cause and issued the warrant. Officers subsequently found 130 marijuana plants and growing equipment during their search of the Kahlua residence. Smith was charged with attempted production of marijuana in excess of four pounds and possession of drug paraphernalia.
¶8 Before trial, Smith filed a motion to suppress any evidence obtained as a result of the search warrant, arguing that "[t]he analysis of water usage presented by [the officers] . . . for the issuance of the search warrant [wa]s false." He maintained that, after "[s]etting aside the false information concerning water usage[,] the remaining information [wa]s insufficient to establish probable cause for the search warrant." L.O., the "secretary/treasurer of the well co-op," testified at the suppression hearing that co-op members are required to pay a monthly fee of $35 for which "[t]hey get whatever [water] they use." She "d[i]dn't think . . . it [was] possible" to determine how much water each property was using and said she had "never seen an excessive water runoff from [Smith's] property." The trial court denied the motion, finding that, even if it "deduct[ed]" the information about the water usage, "there was still ample [probable cause] for the warrant."
¶9 The jury found Smith guilty of attempted production of marijuana in an amount less than two pounds and acquitted him of possession of drug paraphernalia. The trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶10 The sole issue on appeal is whether the trial court erred by denying Smith's motion to suppress evidence obtained by police officers during the search of his residence. Smith contends the search and, thus, his conviction violates the Fourth Amendment ofthe United States Constitution and article II, § 8 of the Arizona Constitution.2
¶11 We review the denial of a motion to suppress for an abuse of discretion, State v. Fikes, 228 Ariz. 389, ¶ 3, 267 P.3d 1181, 1182 (App. 2011), "considering only the evidence presented at the suppression hearing," State v. Schinzel, 202 Ariz. 375, ¶ 12, 45 P.3d 1224, 1227 (App. 2002). We view this evidence in the light most favorable to upholding the trial court's ruling, "[b]ut we review the court's legal conclusions de novo." State v. Gay, 214 Ariz. 214, ¶ 30, 150 P.3d 787, 796 (App. 2007). We will affirm the trial court's ruling if it was legally correct for any reason. State v. Childress, 222 Ariz. 334, ¶ 9, 214 P.3d 422, 426 (App. 2009).
¶12 The Fourth Amendment protects against unreasonable searches and seizures and requires that a search warrant be supported by probable cause, that is, based on the totality of the circumstances, "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). Arizona law provides similar protections. See Ariz. Const. art. II, § 8 (); A.R.S. § 13-3913 (). As a result, we have "consistently applied the Fourth Amendment's 'legitimate expectation of privacy' requirement when determining unlawful search or seizure claims made pursuant to Article 2, Section 8."3 State v. Juarez, 203 Ariz. 441,¶ 16, 55 P.3d 784, 788 (App. 2002). When a violation of the Fourth Amendment occurs, "the exclusionary rule generally requires the suppression at trial of any evidence directly or indirectly gained as a result of the violation." State v. Allen, 216 Ariz. 320, ¶ 9, 166 P.3d 111, 114 (App. 2007).
¶13 Smith first argues the trial court erred in denying his motion to suppress because the evidence of excessive water usage and drainage was "unverified and nonsensical." He argues "[t]here was no way of measuring [his] use of the water" and "there was a wash running around [his] property which would easily account for any water drainage." Without this evidence, he maintains, "there was no legitimate basis upon which police could have obtained a search warrant for [his] property."
¶14 In determining whether there is probable cause to support a search warrant, a magistrate must consider the totality of the circumstances. State v. Buccini, 167 Ariz. 550, 556, 810 P.2d 178, 184 (1991), citing Gates, 462 U.S. at 238. Probable cause exists "if a reasonably prudent person, based upon the facts known by the officer, would be justified in concluding that the items sought are connected with criminal activity and that they would be found at the place to be searched." State v. Carter, 145 Ariz. 101, 110, 700 P.2d 488, 497 (1985). On appeal, we give deference to the magistrate's decision and "presume a search warrant is valid; it is the defendant's burden to prove otherwise." State v. Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d 618, 621 (App. 2002).
¶15 Generally, when police informants provide information contained in a search warrant affidavit, the magistrate must "make a practical, common-sense decision whether, given all thecircumstances set forth in the affidavit . . . , 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." Gates, 462 U.S. at 238. An anonymous caller reporting a crime, however, is entitled to a greater measure of credibility. State v....
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