Opinion
No. 1 CA-CR 13-0149
06-05-2014
STATE OF ARIZONA, Appellee, v. WALTER JOHN BELCHER, Appellant.
Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee Mohave County Legal Advocate's Office, Kingman By Jill L. Evans Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Mohave County
No. S8015CR201101352
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee
Mohave County Legal Advocate's Office, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Kent E. Cattani joined. THUMMA, Judge:
¶1 Walter John Belcher appeals from his convictions and sentences for various drug related offenses. Belcher argues the superior court erred in denying his motion to suppress evidence seized pursuant to a search warrant. Because the superior court properly found that police relied on the search warrant in good faith, and did not err by denying Belcher's motion to suppress, his convictions and sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal, this court "views the evidence in the light most favorable to sustaining the verdicts and resolves all inferences against" Belcher. See State v. Fontes, 195 Ariz. 229, 230 ¶ 2, 986 P.2d 897, 898 (App. 1998).
¶2 On December 5, 2011, Bullhead City Police Detective Viles submitted a request for a search warrant authorizing police to search Belcher's residence for dangerous drugs and drug paraphernalia. The first page of the affidavit in support of the search warrant stated that "[b]etween December 2, 2011 and December 5, 2011," the crimes of possession of dangerous drugs and possession of drug paraphernalia were committed by Belcher. The affidavit also contained the following probable cause statement:
Between December 2, 2011 and December 5, 2011 [Viles] was contacted by a confidential and reliable informant, hereafter known as C.I. The C.I. advised that he/she was lawfully inside 865 Sea Spray, the residence of [a named individual]. The CI stated a [white male adult] who the CI knows as "Thumper" was also inside the residence and appears to be living at the residence with [a named individual]. The
CI stated that he/she observed both [a named individual] and Thumper in possession of dangerous drugs packaged for sale.
***
Through police intelligence and also the CI, Thumper has been identified as Walter John Belcher. Belcher has a long history of narcotic arrests and has served a substantial amount of time in prison for narcotics.
¶3 A magistrate approved and issued the search warrant that same day and on December 6, 2011, Viles and several other officers went to 865 Sea Spray. Belcher was home, and after Viles detained him and gave him warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Belcher admitted he had drugs and drug paraphernalia in his bedroom. Viles searched Belcher's bedroom and found a pipe used to smoke methamphetamine, a razor blade used to "shave" or "cut" methamphetamine, three syringes containing "liquid methamphetamine," a package containing 3.5 grams of methamphetamine, three baggies containing marijuana, a number of baggies containing pills later identified as methadone and alprazolam (Xanex), a "pay/ owe sheet" and $1,431 in cash.
¶4 The State charged Belcher with possession of dangerous drugs for sale (methamphetamine); possession of dangerous drugs (alprazolam); possession of narcotic drugs (methadone); possession of marijuana and possession of drug paraphernalia. Belcher filed a pretrial motion to suppress arguing the warrant was not supported by probable cause. The superior court concluded the affidavit in support of the warrant was deficient, in part, because it did not specify whether the date range "[b]etween December 2, 2011 and December 5, 2011" reflected when the informant "contacted" and "advised" the police, or when the informant also "observed" the alleged illegal activity. The court found that these statements were too "vague" to create probable cause to support the search warrant, and set a separate evidentiary hearing to determine whether the good-faith exception to the exclusionary rule applied.
The warrant also authorized the officers to search Belcher's person. The superior court, however, suppressed all evidence found as a result of that search after determining the portion of the warrant identifying Belcher as "Thumper" was not supported by probable cause and otherwise invalid, a ruling not challenged on appeal.
¶5 At the evidentiary hearing, Viles testified that he used a date range in the affidavit to protect the identity of the confidential informant (CI), so no one could "pinpoint the exact date" the CI "was inside the residence." Viles clarified, however, that he had not intended to be ambiguous about the date of the offenses; the date range was meant to refer to the totality of the actions taken by the CI including when the CI "saw the drugs," "purchased the drugs" and contacted Viles. Viles explained that, between December 2 and December 5, 2011, he "met with the" CI, "went to 865 Sea Spray," "provided [the CI] with money," "watched [the CI] go into the residence" and "exit[] the residence . . . with a plastic bag that contained methamphetamine" that the CI stated was "purchased from Thumper." Viles also testified that the affidavit was reviewed by two of his supervisors, and both determined it was sufficient.
¶6 The superior court concluded that although the affidavit was ambiguous, it was "not such a stretch" to read the affidavit as Viles intended—with the date range provided including each separate event listed (the contact, sale and purchase made inside the residence). Because it was not "completely unreasonable" to read the affidavit in this manner, the court concluded the warrant was "not so deficient to invalidate the officers' good faith reliance" on its authorization to search Belcher's residence. Accordingly, the court denied Belcher's motion to suppress the evidence seized inside his bedroom, and the items collected during the search were admitted at trial.
¶7 Belcher was then convicted of all crimes charged and sentenced to concurrent prison terms, the longest of which is 10.5 years, and was given 307 days' presentence incarceration credit. This court has jurisdiction over Belcher's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033(A) (2014).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
¶8 Belcher argues the superior court erred by finding that the police relied on the search warrant in good faith and, as a result, denied his motion to suppress. Although this court generally reviews the denial of a motion to supress for an abuse of discretion, when a ruling is based on an issue of law, the review is de novo. See State v. Hyde, 186 Ariz. 252, 275 n.7, 921 P.2d 655, 678 n.7 (1996) (superior court's good-faith ruling reviewed de novo).
¶9 The Fourth Amendment guarantees the right to be secure against unreasonable searches and seizures and provides that no warrants shall issue except upon probable cause. U.S. Const. amend. IV. The exclusionary rule recognized by the United States Supreme Court bars the State from introducing evidence obtained in violation of the Fourth Amendment. Herring v. United States, 555 U.S. 135, 141 (2009); Mapp v. Ohio, 367 U.S. 643, 659 (1961) (extending exclusionary rule to the states). The exclusionary rule, however, is not a constitutional right, nor is it designed to "redress the injury" of an unconstitutional search. Stone v. Powell, 428 U.S. 465, 486 (1976). Rather, the exclusionary rule is intended solely to deter Fourth Amendment violations. See United States v. Leon, 468 U.S. 897, 909, 921 n.22 (1984). Moreover, given the "substantial social costs" implicated, id. at 907, suppression of evidence is a remedy of "last resort," Hudson v. Michigan, 547 U.S. 586, 591 (2006). Therefore, the rule is applied only "where its remedial objectives are thought most efficaciously served." United States v. Calandra, 414 U.S. 338, 348 (1974). Such situations include circumstances where police exhibit "deliberate, reckless or grossly negligent" disregard for constitutional rights. Herring, 555 U.S. at 144.
¶10 Leon held the exclusionary rule does not bar evidence seized in reasonable, good-faith reliance on a search warrant that is later found defective for lack of probable cause. 468 U.S. at 909, 920. Leon provided, however, that subjective good faith on the part of law enforcement is insufficient to trigger the good faith exception to the exclusionary rule; instead, reliance on the warrant must be "objectively reasonable." Id. at 922; see also A.R.S. § 13-3925(C) (statutory good faith exception to exclusionary rule). Determining whether that standard is met turns on "whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 922 n.23. As a result, the exclusionary rule "remains an appropriate remedy if:" (1) a warrant is issued based on a deliberately or recklessly false affidavit; (2) a judicial officer fails to act in a neutral manner in issuing a warrant; (3) a warrant is based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" or (4) a warrant is so facially deficient that no officer could believe it to be valid. See id. at 922-23.
¶11 In this case, the superior court concluded the affidavit submitted in support of the search warrant did not establish probable cause, and the State does not challenge that ruling. Accordingly, this court assumes the search warrant was invalid and focuses solely on whether police officers properly could have relied in good faith on the search warrant.
¶12 Belcher does not argue that the affidavit contained any false information, that the magistrate failed to remain neutral or that the warrant itself was so facially deficient that no officer could believe it to be valid. Rather, his claim is that "the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." The threshold for establishing this assertion is high. See Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012). Officers are not required to make a "deep inquiry" into the reasonableness of a warrant, and "[i]n the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination." Leon, 468 U.S. at 921-22. Nonetheless, Belcher argues the warrant's failure to specify the exact date the crime was observed, in a case "where timeliness is at issue," requires exclusion of evidence seized inside his bedroom.
Although Belcher characterizes the search warrant as "facially deficient," it was not. A facially deficient search warrant fails to describe the place to be searched and the persons or things to be seized. See Groh v. Ramirez, 540 U.S. 551, 557 (2004); Leon, 468 U.S. at 923. The warrant here meets those requirements.
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¶13 It is not unreasonable for an officer to rely upon a search warrant describing a crime taking place over a small number of days, provided the information is not unduly stale (or, as stated by Belcher, is "only marginally stale"). See State v. Coats, 165 Ariz. 154, 797 P.2d 693 (App. 1990). Coats, for example, held that officers' reliance on an affidavit stating an informant had observed a drug sale at the defendant's residence "within the past seventy-two (72) hours" was objectively reasonable. 165 Ariz. at 156, 159, 797 P.2d at 695, 698; see also Leon, 468 U.S. at 901, 926 (good faith exception applied where affidavit failed to include the exact date a crime took place, but stated a drug sale had been observed "approximately five months earlier"). Likewise, even before the Leon decision, the Arizona Supreme Court held that an affidavit describing the purchase of heroin at the defendant's business "within the last three days" was adequate to support a search warrant. See State v. Torrez, 112 Ariz. 525, 528, 530, 544 P.2d 207, 210, 212 (1975).
¶14 Belcher argues, however, that the affidavit failed to describe a crime taking place within the date range provided. The affidavit stated: "Between December 2, 2011 and December 5, 2011" the CI "contacted" Viles and advised the detective that "he/she was lawfully inside 865 Sea Spray" and "observed . . . Thumper in possession of dangerous drugs packaged for sale." As Belcher points out, the paragraph could be read so that the date range referred solely to the time period in which the CI "contacted" Viles and provided him with information, rather than referring to the date the CI made his/her observations. Belcher ignores, however, the first sentence of the affidavit, which clarifies that the date range refers to the time period in which the alleged crimes were committed.
¶15 Although the affidavit could have been less ambiguous, it adequately described a crime taking place, and the information was not unduly stale. See Coats, 165 Ariz. at 159, 797 P.2d at 698. Further, Viles testified that two of his supervisors reviewed the affidavit and found it was sufficient. See Hyde, 186 Ariz. at 274, 921 P.2d at 677 (good faith holding based in part on the testimony of two detectives, uninvolved in the initial investigation, who testified to their reasons for believing the warrant at issue was supported by probable cause). Accordingly, the superior court properly could find that the lack of exact dates in the affidavit did not make the officers' reliance upon the warrant "entirely unreasonable." See Leon, 468 U.S. at 901, 926.
¶16 Belcher argues that exclusion is the appropriate remedy because it would deter "officers from presenting bare bones affidavits in the future." Although this affidavit was not perfect, it was not so deficient as to be classified as a "bare bones affidavit;" it detailed an entire investigation. See id. at 926. Further, to trigger the exclusionary rule, police misconduct "must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring, 555 U.S. at 144. The unartful drafting here does not rise to that level, meaning the superior court did not err in denying Belcher's motion to suppress.
CONCLUSION
¶17 Finding no reversible error, Belcher's convictions and resulting sentences are affirmed.