Opinion
No. 2 CA-CR 2017-0162
05-07-2018
THE STATE OF ARIZONA, Appellee, v. OSCAR ADRIAN CISNEROS, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette Ambri, Assistant Attorney General, Tucson Counsel for Appellee Law Office of Elizabeth M. Hale, Lakeside By Elizabeth M. Hale Counsel for Appellant
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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Graham County
No. CR201600075
The Honorable Bryan B. Chambers, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette Ambri, Assistant Attorney General, Tucson
Counsel for Appellee
Law Office of Elizabeth M. Hale, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
ECKERSTROM, Chief Judge:
¶1 Oscar Cisneros appeals from his convictions and sentences for four counts of drug-related offenses, two counts of misconduct involving weapons, and one count of failure to provide a driver's license or evidence of identity to law enforcement. He argues the trial court should have granted his motion to suppress evidence because the search of his car violated his Fourth Amendment rights. For the reasons that follow, we affirm the decision of the trial court.
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 (App. 2014). In February 2016, an officer with the criminal interdiction unit of the Safford Police Department saw a car parked left of center, within twenty feet of an intersection, and in front of a house known for drug activity. See A.R.S. § 28-873(A)(7). After the officer pulled behind the parked car, Cisneros, who had been sitting in the driver's seat, exited, stood up, and closed the door. The officer approached Cisneros and told him to park the car with the right wheels to the curb; Cisneros responded that he was waiting for someone. The officer asked for identification and Cisneros said his driver's license was inside the house, but identified himself and gave his birthdate. Noticing that Cisneros had become nervous and that he had a bulge in his pocket, the officer asked whether he had a weapon, and Cisneros said he had "nothing." Suspicious that he was armed, the officer attempted to frisk Cisneros. Cisneros broke free and fled.
¶3 The officer called for assistance and remained with the car. He then glanced through the window and saw a wallet with identification and cash, "some bags on the center console," and the keys in the ignition. Feeling "it was important that none of that be disturbed," the officer instructed another officer to guard the car while he searched for Cisneros. Upon returning from an unsuccessful search, the officer became concerned that the car might contain weapons, drugs, or even a person in the trunk.
Feeling "responsib[le] for this car" and that he "had an absolute duty to take care of [it]," the officer decided to tow it pursuant to department policy because he feared "the department could be liable for the property in the vehicle, the vehicle itself, or the vehicle could be a danger to the community." Before doing so, however, the officer requested that a canine unit respond to smell the exterior of the car. The unit arrived, but the dog did not alert. In preparation for towing, the officer opened the car door to inventory its contents and immediately smelled the odor of raw marijuana.
¶4 The officer then searched the car and found methamphetamine, heroin, marijuana, hydrocodone, drug paraphernalia, and a "spiked mace club." Having discovered the drugs and club, the officer determined it would not be appropriate to tow the vehicle to a private lot and decided instead to have another officer drive the car to the police impound lot.
¶5 Below, Cisneros argued the officer's decision to tow the car and inventory its contents was "an unlawful subterfuge for a warrantless search" aimed at "rummag[ing] through [his] vehicle for evidence of . . . criminal activity." The court denied Cisneros's motion to suppress the evidence finding that he had abandoned the car when he fled and that it would have been "extremely [ir]responsible" for the officer to have left the car parked in front of a house where he believed drug activity to be taking place. Accordingly, the court determined the officer reasonably decided to tow the car pursuant to department policy and the community caretaking function. And, once the officer opened the car door and smelled marijuana, he had probable cause to search the vehicle under the plain-smell doctrine. See State v. Sisco, 239 Ariz. 532, ¶ 1 (2016).
¶6 After trial, the jury found Cisneros guilty of possession of a dangerous drug for sale, possession of a narcotic drug, possession of marijuana, possession of drug paraphernalia, failure to provide a driver's license or evidence of identity to law enforcement, and two counts of misconduct involving weapons. The court sentenced Cisneros to a combination of concurrent and consecutive prison terms totaling twenty-two years. Cisneros appealed; we have jurisdiction. See A.R.S. §§ 13-4031, 13-4033(A)(1).
Motion to Suppress
¶7 Cisneros argues that the trial court erred by denying his motion to suppress because the officer searched his car without a warrant and no recognized exception to the warrant requirement applied. See
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). "When reviewing a trial court's ruling on a motion to suppress, 'we evaluate discretionary issues for an abuse of discretion but review legal and constitutional issues de novo.'" State v. Ahumada, 225 Ariz. 544, ¶ 5 (App. 2010), quoting State v. Huerta, 223 Ariz. 424, ¶ 4 (App. 2010).
¶8 "It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is 'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.'" Schneckloth, 412 U.S. at 219. And, apart from exceptions to the exclusionary rule not applicable here, courts must exclude evidence obtained in violation of the Fourth Amendment. State v. Peoples, 240 Ariz. 244, ¶ 9 (2016). To claim a violation of the Fourth Amendment, a person must have "a legitimate expectation of privacy in the invaded place." State v. Juarez, 203 Ariz. 441, ¶ 12 (App. 2002), quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978). Here, it is undisputed that the officer entered Cisneros's car without a warrant. Thus, the relevant questions are whether Cisneros lacked a legitimate expectation of privacy in his car under the circumstances, or whether the officer possessed probable cause to enter the car. See United States v. Ross, 456 U.S. 798, 820-21 (1982) (probable cause that vehicle contains evidence of crime authorizes search thereof).
¶9 The state first contends Cisneros cannot invoke the Fourth Amendment because a defendant has no reasonable expectation of privacy in a car when he "abandons [it] and flees on foot." See State v. Childs, 110 Ariz. 389, 392 (1974). Alternatively, the state insists the officer conducted a valid inventory search pursuant to his community-caretaking authority, having decided to tow the car, see State v. Organ, 225 Ariz. 43, ¶¶ 20-21 (App. 2010), or that he had probable cause in the first instance.
¶10 Cisneros replies that he had not abandoned the car, distinguishing his already-parked car from those in the cases the state urges us to follow, in which defendants had fled from vehicles they had used to evade police, and in some instances, had also crashed. See Childs, 110 Ariz. at 390-92; United States v. Smith, 648 F.3d 654, 660 (8th Cir. 2011); see also State v. Bradford, 25 Ariz. App. 518, 519 (1976). Indeed, that Cisneros had already parked the car before the encounter began and that he closed the car door when the officer pulled up suggest he intended to exclude the officer from it rather than abandon it. See Huerta, 223 Ariz. 424, ¶ 5 (whether defendant intended to abandon property is objective question drawn from his words and actions).
¶11 Cisneros further argues the officer's decision to conduct an inventory search, as a prerequisite to towing the car, was a subterfuge for a warrantless search. Specifically, he observes that the officer did not follow department procedures, but instead had apparently been intent on discovering contraband. See Organ, 225 Ariz. 43, ¶ 21. Department policy permits an officer to tow a car "when it is illegally parked and is creating a hazard (for example, blocking a fire lane)." (Emphasis added.) The hazards the officer identified, however, were not incidental to how the car had been parked, but described potential grounds for investigative police action that required probable cause before the car could be searched or seized. See id. (inventory search invalid when conducted "solely for the purpose of discovering evidence of a crime").
¶12 The circumstances of this case thus make the above questions of whether Cisneros abandoned his car and whether the officer acted within his community-caretaking authority close and difficult. However, we need not resolve them because an independent basis justifying the officer's entry into the car appears in the record, and we must affirm the trial court's decision if it was legally correct for any reason. See State v. Perez, 141 Ariz. 459, 464 (1984). Following Cisneros's statement that he could not provide identification because his wallet was in the house, the officer had probable cause to believe Cisneros had "knowingly misrepresent[ed] a fact for the purpose of . . . misleading a peace officer" when the officer looked through the car window and saw a wallet containing identification. See A.R.S. § 13-2907.01(A). Specifically, he had probable cause to believe Cisneros had lied either about whether he had identification with him, about his actual identity, or both. Having probable cause, the officer was entitled to open the car door to confirm whether the wallet contained Cisneros's identification and, if so, to seize the identification as evidence of that crime. See Ross, 456 U.S. at 820-21.
¶13 Because the officer was justified in opening the car door to seize the identification, he was in a lawful position to smell the odor of marijuana coming from the car. See Sisco, 239 Ariz. 532, ¶ 11. And because no circumstances indicated such marijuana would have been possessed in compliance with the Arizona Medical Marijuana Act, that odor furnished the officer with probable cause to search the car therefor. See id. ¶¶ 11, 18. Accordingly, we cannot say the trial court erred by denying Cisneros's motion to suppress.
Disposition
¶14 For the foregoing reasons, we affirm Cisneros's convictions and sentences.