Opinion
2 CA-CR 2023-0239
07-23-2024
The State of Arizona, Appellant, v. Robert Allen Brown, Appellee.
Brian M. McIntyre, Cochise County Attorney By Michael A. Powell, Deputy County Attorney, Bisbee Counsel for Appellant Kimminau Law Firm P.C., Tucson By Chris J. Kimminau Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Cochise County No. S0200CR202300109 The Honorable Joel A. Larson, Judge AFFIRMED
Brian M. McIntyre, Cochise County Attorney
By Michael A. Powell, Deputy County Attorney, Bisbee
Counsel for Appellant
Kimminau Law Firm P.C., Tucson
By Chris J. Kimminau
Counsel for Appellee
Vice Chief Judge Eppich authored the decision of the Court, in which Presiding Judge Sklar and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, VICE CHIEF JUDGE:
¶1 The State of Arizona appeals from the superior court's order granting Robert Brown's motion to suppress evidence obtained as a result of a search warrant authorizing location tracking of Brown's cell phone. The state argues the court erred by concluding that the warrant was unsupported by probable cause and that the good-faith exception to the exclusionary rule did not apply. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the superior court's suppression order, considering only the evidence presented at the suppression hearing. See State v. Kjolsrud, 239 Ariz. 319, ¶¶ 2, 8 (App. 2016). In December 2022, a special agent with the Drug Enforcement Agency (DEA) applied for a search warrant to authorize the installation of a global positioning system (GPS) tracking device on Brown's cell phone. The DEA agent's affidavit in support of the warrant stated:
In December of 2022, your Affiant received information from a reliable DEA Confidential Source (CS) that Robert Allen BROWN was a retail level methamphetamine distributor operating in Cochise County, AZ. The reliable CS told your Affiant that BROWN is traveling to Tucson, AZ to purchase large quantities of methamphetamine for later distribution in Cochise County, AZ. The CS stated BROWN is utilizing cellular telephone number [xxx-xxx-xxxx] to coordinate illegal drug transactions. The CS stated BROWN utilizes cellular telephone number [(same number)] to contact BROWN's methamphetamine source of supply in Tucson, AZ. (Emphasis omitted.)
Based on this information, the agent stated he had probable cause to believe Brown's cell phone would continue to be used for illegal drug transactions in violation of A.R.S. § 13-3417, specifically, the sale and transportation for sale of methamphetamine, A.R.S. § 13-3407, as well as a conspiracy to commit those offenses, A.R.S. § 13-1003. A magistrate authorized the search warrant.
¶3 Based on the cell phone GPS data and another tip from the confidential source that Brown was driving a maroon SUV, the DEA agent located a matching vehicle driving along the interstate from Tucson toward Cochise County. The agent followed the SUV and coordinated with another law enforcement agency to surveil the vehicle. After observing several traffic violations, authorities stopped the SUV in Cochise County. Brown was identified as the driver, and a police canine positively alerted to the odor of illicit drugs during a "free air sniff" of the vehicle. A search of the SUV resulted in the seizure of one pound of suspected methamphetamine and three cell phones. Brown was charged with possession, possession for sale, and transportation for sale of methamphetamine. Brown was also charged with possession and possession for sale of fentanyl and possession of drug paraphernalia based on evidence found during a subsequent search of Brown's home.
¶4 Brown moved to suppress all evidence obtained as a result of the cell-phone-tracker warrant. He argued the affidavit contained "nothing more than unsupported claims made by a federal agent without even a hint . . . that he or other law enforcement officers had personally observed any suspicious activity or undertaken any independent investigation to corroborate the information provided by the informant." After an evidentiary hearing, the superior court granted the motion. It found the affidavit contained "no information permitting the magistrate to independently conclude that th[e] informant was reliable" and, therefore, the magistrate could not find probable cause justifying the warrant. The court also determined the good-faith exception to the exclusionary rule was inapplicable because reliance on the warrant was not objectively reasonable.
Brown also challenged a separate search warrant-issued less than a week after the cell-phone-tracker warrant-authorizing placement of a GPS tracking device on his truck. However, the DEA agent testified that this GPS tracker had not been used in Brown's arrest. The superior court's ruling on Brown's motion to suppress did not address the truck-GPS warrant, and the state makes no specific arguments related to that warrant on appeal. Therefore, we do not address it.
¶5 The superior court granted the state's motion to dismiss the case without prejudice, and the state filed this appeal from the order granting the motion to suppress. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4032(6).
Discussion I. Probable Cause Supporting Search Warrant
¶6 The state contends no evidence was presented supporting the superior court's determination that the warrant was invalid for lack of probable cause. We review a court's ruling on a motion to suppress evidence for an abuse of discretion. State v. Crowley, 202 Ariz. 80, ¶ 7 (App. 2002).
¶7 The state generally has the burden of proving the lawfulness of the acquisition of evidence it will use at trial, Ariz. R. Crim. P. 16.2(b)(1), but for evidence obtained under a warrant, the state's burden only arises after the defendant "alleges specific circumstances and establishes a prima facie case supporting the suppression of the evidence," Ariz. R. Crim. P. 16.2(b)(2)(C). The state argues Brown failed to meet that threshold because his motion relied solely on arguments of counsel and he "declined to present any evidence" regarding whether the magistrate had fulfilled her duty. We disagree.
¶8 Brown's motion to suppress alleged the warrant affidavit had failed to "recite[] sufficient reliable information to establish probable cause." More specifically, Brown argued the affidavit was insufficient because it contained only conclusory statements from an anonymous informant without any indicia of reliability. The parties stipulated to admit the warrant affidavit into evidence, and the state's assertion that Brown presented only the arguments of counsel is thus contrary to the record. Furthermore, the state conceded at the suppression hearing that Brown had made a prima facie case for suppression of the evidence obtained pursuant to the cell-phone-tracker warrant. The state is correct that the record must contain more than solely arguments of counsel before the superior court rules on a motion to suppress. See State v. Gasbarri, 248 Ariz. 619, ¶ 11 (App. 2020). However, we disagree that Brown was required to present evidence beyond the warrant affidavit itself.
¶9 The state also generally argues that the superior court's ruling is unsupported by the record. In reviewing the court's ruling, "we are mindful that its 'task [wa]s to determine whether the totality of the circumstances indicates a substantial basis for the magistrate's decision' to issue a warrant." Crowley, 202 Ariz. 80, ¶ 7 (alteration in Crowley) (quoting State v. Hyde, 186 Ariz. 252, 272 (1996)). We therefore must grant deference to the magistrate's decision, and it is the defendant's burden to rebut the presumption of a warrant's validity. Id.; see also Hyde, 186 Ariz. at 272 (concluding court did not err by finding warrant valid when "evidence was a close question" and magistrate "took some evidence and made a decision with respect to reasonable cause").
¶10 The Fourth Amendment to the United States Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." See also A.R.S. § 13-3913. "Probable cause exists when the facts known to a police officer 'would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.'" State v. Sisco, 239 Ariz. 532, ¶ 8 (2016) (quoting Florida v. Harris, 568 U.S. 237, 243 (2013)). An affidavit containing only conclusory statements that the affiant's belief that evidence of a crime may be found is based on "reliable information" from a "credible person" is insufficient to establish probable cause. Illinois v. Gates, 462 U.S. 213, 239 (1983) (quoting Aguilar v. Texas, 378 U.S. 108, 109 (1964), overruled on other grounds by Gates, 462 U.S. at 238). To find probable cause in that instance would be to "ratif[y] . . . the bare conclusions of others." Id. Although Gates rejected rigid requirements in favor of a "totality-of-the-circumstances approach," it nevertheless acknowledged the relevance of an informant's "veracity," "reliability," and "basis of knowledge" to the "commonsense, practical question" of whether probable cause exists. Id. at 230-31.
¶11 We agree with the superior court's conclusion here that the affidavit did not provide the magistrate with a substantial basis to find probable cause. The only information in the affidavit implicating Brown came from a confidential informant. As the court noted, the affidavit contained no details about how the informant had acquired the information, whether the informant had proved reliable in the past, or whether the DEA agent had verified any of the information provided. The bare assertion in the affidavit that the informant was "reliable" does not, on its own, provide a basis for crediting the hearsay. Cf. State v. Altieri, 191 Ariz. 1, ¶¶ 7, 9 (1997) (to form a basis for reasonable suspicion, "tip must show sufficiently detailed circumstances to indicate that the informant came by his information in a reliable way").
¶12 The state argues that, in reaching its conclusion, the superior court gave no deference to the magistrate's probable cause determination and instead improperly conducted a de novo review of the affidavit, ignoring evidence that the magistrate had "performed the necessary duties prior to issuing the warrant." The state points to testimony that the magistrate has required officers to supplement affidavits with additional information when lacking. The state also points to the agent's "uncontroverted testimony" that the DEA has a process for verifying the reliability of informants and that a "reliable DEA confidential source" is one whose information has either been independently corroborated or one who has provided accurate information in the past.
¶13 The state ignores, however, that neither "unsworn oral information given to supplement the written affidavit nor the matters testified to at the Superior Court hearing on the motion to suppress which were not before the magistrate can be considered." State v. Greenleaf, 11 Ariz.App. 273, 274 (1970); see also, e.g., State v. Robertson, 111 Ariz. 427, 428-29 (1975) (warrant affidavit may not be bolstered by unrecorded statements); State v. Vitale, 23 Ariz.App. 37, 40 (1975) (test is "whether at the time the affidavit was presented it contained information upon which probable cause could be found"); A.R.S. § 13-3914 (requiring affidavit to be in writing and oral statements, in lieu of or in addition to affidavit, must be recorded and taken under oath). The state also mischaracterizes the nature of the court's inquiry by suggesting it was required to find that the magistrate "failed to perform her necessary gatekeeping role prior to issuing the warrant." Instead, the relevant question is whether there was a substantial basis for the magistrate's issuance of the warrant. See Crowley, 202 Ariz. 80, ¶ 7; United States v. Leon, 468 U.S. 897, 915 (1984) ("[R]eviewing courts will not defer to a warrant based on an affidavit that does not 'provide the magistrate with a substantial basis for determining the existence of probable cause.'" (quoting Gates, 462 U.S. at 239)). And, as explained above, because the affidavit lacks any indicia of reliability of the informant's information, the court correctly determined the magistrate had no basis for finding the warrant was supported by probable cause.
The state also broadly suggests the superior court "prohibited inquiry into the required analysis" by sustaining objections to testimony from which it could determine that "the warrant was validly issued." However, the state does not develop any argument that the court's evidentiary rulings were erroneous, and thus we do not address whether evidence was improperly precluded. See State v. Vargas, 249 Ariz. 186, ¶ 22 (2020) ("[I]f the appellant fails to properly develop an argument, the court may consider it abandoned and waived.").
II. Good-Faith Exception
¶14 The state argues the superior court also incorrectly determined that the good-faith exception to the exclusionary rule was inapplicable. We review de novo whether the state met its burden of proving that the good-faith exception applies. Crowley, 202 Ariz. 80, ¶ 32.
¶15 The exclusionary rule is a judicially created remedy that safeguards Fourth Amendment rights through its deterrent effect, and whether it applies in a particular case is a separate issue from whether an individual's constitutional rights were infringed. Leon, 468 U.S. at 906. Even if evidence is obtained pursuant to a subsequently invalidated search warrant, suppression is not required if law enforcement acted in "objectively reasonable reliance" on the warrant. Id. at 922; see also A.R.S. § 13-3925 (statutory good-faith exception). Under those circumstances, the deterrent benefits produced by suppression are "marginal or nonexistent" and "cannot justify the substantial costs of exclusion." Leon, 468 U.S. at 919, 922.
Section 13-3925(C) additionally provides an exception for evidence seized "as a result of a good faith mistake or technical violation." The state, however, does not argue mistake or technical violation as a basis to not apply the exclusionary rule, and we do not address it. See Crowley, 202 Ariz. 80, ¶ 32 (state's burden to prove good-faith exception).
¶16 Suppression, however, is still an appropriate remedy if law enforcement has no reasonable grounds to believe the warrant was proper. Id. at 922-23. One such circumstance is where the affidavit is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 611 (1975) (Powell, J., concurring)).
¶17 Here, the superior court concluded that reliance on the warrant was not objectively reasonable, again, explaining the affidavit "lacks any indicia of probable cause" and pointing to the affidavit's failure to establish any facts pertaining to the reliability of the informant's tip. We agree.
The state advances arguments to rebut other circumstances in which suppression may be proper, but because the superior court determined the lack of indicia of probable cause justified suppression, we only address the arguments related thereto.
¶18 The threshold for establishing that a warrant affidavit is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" is high. Messerschmidt v. Millender, 565 U.S. 535, 547 (2012) (quoting Leon, 468 U.S. at 923). In cases where warrant affidavits are deemed sufficient, they generally contain facts that, at a minimum, create a colorable argument for probable cause. See, e.g., id. at 548-49; State v. Vail, 158 Ariz. 334, 335-36 (App. 1988); State v. Killian, 158 Ariz. 585, 585-86, 588 (App. 1988); United States v. Crews, 502 F.3d 1130, 1136-37 (9th Cir. 2007). Here, no such colorable argument exists.
¶19 It is well-established that a bare bones affidavit that merely reiterates the conclusions of others and gives virtually no basis for making a probable cause determination cannot support a search warrant. See, e.g., Gates, 462 U.S. at 239; Aguilar, 378 U.S. at 113-15 (search warrant invalid where magistrate cannot "judge for himself the persuasiveness of the facts relied on" (quoting Giordenello v. United States, 357 U.S. 480, 486 (1958)); Nathanson v. United States, 290 U.S. 41, 47 (1933) (magistrate must find probable cause from facts presented to her, "[m]ere affirmance of belief or suspicion is not enough"). This is true even when the affidavit states that a confidential informant has provided accurate information in the past. See, e.g., United States v. Barrington, 806 F.2d 529, 531-32 (5th Cir. 1986) (concluding that good-faith exception did not apply). Here, the affidavit contained nothing more than the hearsay assertion that Brown was engaged in the sale and transportation of methamphetamine and that he utilizes a cell phone for these activities. The affidavit is devoid of any facts underlying the informant's knowledge, and a finding of probable cause merely affirms the conclusions therein. Under these circumstances, the magistrate acts as a "rubber stamp" for law enforcement and their informant, see United States v. Ventresca, 380 U.S. 102, 109 (1965), and law enforcement therefore cannot have reasonably relied on the magistrate's probable cause determination.
¶20 Citing State v. Payne, 25 Ariz.App. 454 (1976), the state appears to suggest that the good-faith exception applies even to warrants based on conclusory affidavits, so long as the affidavits are not "based on falsehoods or misleading." We disagree that Payne supports this proposition. There, we did not address any exception to the exclusionary rule, and we ultimately concluded that suppression was appropriate because a warrant affidavit was based on bare conclusions and therefore not supported by probable cause. Id. at 457-58. Although suppression may be appropriate when a magistrate was misled by information in an affidavit, that is an independent justification not at issue here. See Leon, 468 U.S. at 923.
¶21 The state also points to our opinion in State v. Williams, 184 Ariz. 405 (App. 1995), to suggest that there must be some evidence of an informant's unreliability to require suppression. Although in Williams we acknowledged affirmative evidence of an informant's unreliability in concluding that the good-faith exception was inapplicable, we did not state as a principle of law that such evidence is necessary for suppression. Id. at 408.
¶22 The state further suggests that in evaluating good faith, we may consider the DEA agent's testimony that "reliable DEA confidential source," as used in the affidavit, is a term of art reserved for those informants who have been independently corroborated and have provided information in the past leading to seizures and arrests. The state contends this testimony supports a conclusion that the agent's reliance on the warrant was reasonable.
¶23 The state points to our decision in State v. Dean, 241 Ariz. 387, ¶ 10 (App. 2017), where we recognized that federal courts are "split on the issue of whether a reviewing court may look beyond the four corners of the affidavit seeking a search warrant in determining whether an officer relied on a warrant in good faith." Compare United States v. Martin, 297 F.3d 1308, 1318-19 (11th Cir. 2002) (courts may consider information outside affidavit because good-faith exception depends on totality of the circumstances), with United States v. Luong, 470 F.3d 898, 904-05 (9th Cir. 2006) (where underlying affidavit lacks indicia of probable cause, consideration of outside information to establish good faith would undermine "constitutional and prudential standards for showing probable cause"). But even assuming we may consider outside information in determining whether there was good faith, the relevant question in this case is whether the warrant "affidavit [is] 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Leon, 468 U.S. at 923 (emphasis added) (quoting Brown, 422 U.S. at 611 (Powell, J., concurring)). The fact that there exist general reliability requirements to classify an individual as a "reliable DEA confidential source" does not render reasonable the belief that the affidavit-which was silent on the issue- supported probable cause. See id. Alternatively, in cases where a defendant contends the good-faith exception should not apply because the magistrate was misled by false information or the magistrate abandoned his judicial role, see id., outside information may be necessary. Neither situation is presented in this case. We therefore agree with the superior court that the state failed to meet its burden of establishing the good-faith exception to the exclusionary rule.
Disposition
¶24 For the foregoing reasons, we affirm.