State v. Starkovich, 082118 AZAPP1, 1 CA-CR 17-0004

Docket Nº:1 CA-CR 17-0004, 1 CA-CR 17-0011
Opinion Judge:BROWN, JUDGE:
Party Name:STATE OF ARIZONA, Appellee, v. MICHAEL J. STARKOVICH, Appellant.
Attorney:Arizona Attorney General's Office, Phoenix By Michelle L. Hogan Counsel for Appellee Stanley M. Slonaker Attorney at Law, Phoenix By Stanley M. Slonaker Counsel for Appellant
Judge Panel:Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.
Case Date:August 21, 2018
Court:Court of Appeals of Arizona
 
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STATE OF ARIZONA, Appellee,

v.

MICHAEL J. STARKOVICH, Appellant.

Nos. 1 CA-CR 17-0004, 1 CA-CR 17-0011

Court of Appeals of Arizona, First Division

August 21, 2018

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Nos. CR2011-163536-001, CR2013-002144-004 The Honorable George H. Foster Jr., Judge The Honorable John R. Ditsworth, Judge (Retired)

Arizona Attorney General's Office, Phoenix By Michelle L. Hogan Counsel for Appellee

Stanley M. Slonaker Attorney at Law, Phoenix By Stanley M. Slonaker Counsel for Appellant

Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.

MEMORANDUM DECISION

BROWN, JUDGE:

¶1 Michael J. Starkovich appeals his convictions and sentences for one count of possession of marijuana of four pounds or more and one count of money laundering in the second degree. Starkovich argues the trial court erred in refusing to suppress (1) evidence obtained pursuant to what he deems an invalid search warrant; (2) evidence obtained in a search initiated prior to issuance of a search warrant; and (3) statements elicited in violation of his constitutional rights. For the following reasons, we affirm.

BACKGROUND

¶2 Police officers found large quantities of marijuana and cash in Starkovich's home consistent with drug trafficking. When questioned, he admitted to selling marijuana. The State charged him with one count of possession of marijuana for sale and one count of money laundering in the second degree. A jury found him guilty of the lesser-included offense of possession of marijuana of a weight of four pounds or more, but could not reach a unanimous decision regarding money laundering. Starkovich waived his right to a jury trial and stipulated to proceeding to a bench trial on the remaining money laundering charge. Following the bench trial, the court found him guilty of money laundering in the second degree. After sentencing, he filed a timely notice of appeal.

DISCUSSION

I. Validity of Search Warrant

¶3 Prior to the jury trial, Starkovich moved to suppress all evidence obtained pursuant to what he asserts was an invalid search warrant. At the two-day suppression hearing, police officers testified they received a tip that Starkovich trafficked marijuana out of his home. On April 18, 2013, officers conducted "physical surveillance" at his home and used a pole surveillance camera as an investigative aid. The camera captured images of the front of his home but did not reveal the innermost portion of the carport.

¶4 Officers saw multiple vehicles coming and going from Starkovich's home. As the officers started their physical surveillance, they observed a Honda that was "backed up into the carport." Shortly thereafter they watched Starkovich, who was in a wheelchair, get into a van and drive away at the same time E.K. was leaving in the Honda.

¶5 Starkovich and E.K. met up with a third person, B.F., driving an Impala. E.K. and B.F. switched vehicles and, with Starkovich following behind, E.K. drove the Impala back to Starkovich's home. E.K. backed into the carport for a short time and then returned the Impala to B.F. Officers believed this to be a "blind delivery," which allows the buyer to mask the final location of the drugs from the seller. An officer stopped B.F. in the Impala, but saw no indicia of drug activity in the vehicle.

¶6 After E.K. returned to Starkovich's home, officers observed D.W. and R.A. arrive in a Pontiac, carry a bag inside, and then leave with a bag. Officers stopped the Pontiac and found a bag containing four pounds of marijuana separated into two bags, additional bags of marijuana, hashish, drug packaging and sales materials, drug paraphernalia, large amounts of cash, and a handgun.

¶7 D.W. admitted to buying four pounds of marijuana to split between himself and R.A. but would not say who sold him the marijuana. Although he initially denied involvement, R.A. told officers that D.W. bought marijuana from a man in a wheelchair and gave Starkovich's street name as the location of purchase. R.A. claimed he only acted as protection for D.W. and was in another room when the exchange occurred. R.A. claimed D.W. simply gave him the bag to carry and he did not buy any of the marijuana.

¶8 Officers went to Starkovich's home and contacted Starkovich and E.K.1 Another individual, G.V., attempted to flee the scene, but was later detained. Officers then conducted a protective sweep of the home.

¶9 The lead detective, or affiant, prepared the search warrant affidavit. The affiant described the short-term traffic at Starkovich's home, the activity involving the Impala, the results of the search of the Pontiac, a summary of the statements provided by R.A. and D.W., G.V.'s attempt to flee the scene prior to the protective sweep, and the affiant's training and experience in drug enforcement.

¶10 The affidavit also stated Starkovich was "arrested in 2011 for possession of marijuana for sale. He pled guilty and is currently on probation for that offense." At the hearing, the affiant testified he later learned Starkovich pled guilty to a reduced offense of possession of marijuana. The affidavit also indicated officers discovered the same bag in the Pontiac that R.A. carried out of Starkovich's home. The affiant testified he believed this information to be accurate, and R.A. linked the marijuana in the bag to Starkovich. The affiant explained that he watched R.A. leave Starkovich's house on his smartphone via pole camera surveillance and testified the bag R.A. was carrying appeared to be black, but later acknowledged the bag also had "white flowers" on it.

¶11 The...

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