Opinion
No. 2 CA-CR 2017-0406
04-04-2019
THE STATE OF ARIZONA, Appellee, v. BILLY JAMES BUCKNER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, and Kristen Canada, a student certified pursuant to Rule 38(d), Ariz. R. Sup. Ct., Tucson Counsel for Appellee Michael Villarreal, Florence 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201601774
The Honorable Lawrence M. Wharton, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General,
and Kristen Canada, a student certified pursuant
to Rule 38(d), Ariz. R. Sup. Ct., Tucson
Counsel for Appellee Michael Villarreal, Florence
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 After a jury trial, Billy Buckner was convicted of possession of a dangerous drug, possession of marijuana, two counts of possession of drug paraphernalia, and displaying fictitious plates. The trial court sentenced him to concurrent prison terms, the longest of which is 4.5 years. On appeal, he contends the court erred by denying his motion to suppress, arguing the arresting officer lacked probable cause for a warrantless arrest. We affirm.
The trial court imposed a sixty-four-day jail term for displaying fictitious plates, noting Buckner had served sixty-four days before sentencing.
¶2 In reviewing a motion to suppress, we view the evidence in the light most favorable to upholding the trial court's ruling, State v. Morris, 809 Ariz. Adv. Rep. 7, ¶ 2 (App. 2019), and consider only the facts presented at the suppression hearing, see State v. Herrera, 232 Ariz. 536, ¶ 24 (App. 2013). In his motion to suppress, Buckner argued the officer lacked probable cause to arrest him for trespass because he never saw Buckner "in a nonresidential structure or a fenced commercial yard" and because the officer never saw Buckner operate a vehicle with a fictitious plate. At the subsequent evidentiary hearing, the arresting officer testified that, early in the morning of July 4, 2016, he encountered Buckner inside the "wall[ed] dumpster area just outside" a closed retail business, "going through the dumpster" with a flashlight. The officer further testified the dumpster was surrounded by "a block wall and also a metal gate." A search incident to arrest uncovered the contraband leading to Buckner's convictions for possession, and the license plate on an ATV parked just outside the structure was for a different vehicle that was not registered in Buckner's name. The court denied the motion to suppress, concluding the area containing the dumpster was a nonresidential structure. See generally A.R.S. §§ 13-1501(10), (12), 13-1503(A). It declined to address whether the officer had probable cause to arrest Buckner based on the purportedly fictitious license plate.
¶3 Buckner now argues the arresting officer lacked probable cause to arrest him because there was no evidence the business "did not permit 'dumpster diving' at all hours of the day or night and whether the store was open or closed." Thus, he reasons, there was no probable cause to conclude that he had entered and remained "unlawfully" in the nonresidential structure, thus committing second-degree criminal trespass under § 13-1503(A).
¶4 The Fourth Amendment to the United States Constitution prohibits unreasonable seizures. Morris, 809 Ariz. Adv. Rep. 7, ¶ 9. Accordingly, to make a warrantless arrest, a law enforcement officer must have "probable cause to believe that an offense has been committed and the person to be arrested is the offender." Id. That is, the officer must have sufficient information to reasonably and objectively believe "that an offense is being or has been committed." Id. (quoting State v. Aguilar, 228 Ariz. 401, ¶ 14 (App. 2011)). There need only be a "probability or substantial chance of criminal activity, not an actual showing of such activity." Id. (quoting State v. Sisco, 239 Ariz. 532, ¶ 15 (2016)). Although we review the trial court's ruling denying Buckner's motion for an abuse of discretion and defer to its factual findings, we review its probable cause determination de novo. Id. ¶ 10.
¶5 Buckner has cited no authority, and we find none, suggesting a law enforcement officer is required to determine before arrest whether a person found inside a structure on the premises of a closed retail business had permission to be there. Buckner did not claim that he had permission to be there, nor were there objective indications that he had such permission; certainly a law enforcement officer need not presume he did and thereby disregard the objective indications of the owner's intentions—block walls and a gate. As we have noted, probable cause requires only a probability of criminal activity. Id. ¶ 9. That probability existed here.
Because the trial court did not err in finding the officer had probable cause to conclude Buckner had committed trespass, we need not address the state's assertion that Buckner waived the argument he now raises on appeal by failing to specifically assert it in his motion to suppress. Nor need we address the state's claim that we may affirm the trial court's ruling on a ground the court declined to address. See State v. Wood, 180 Ariz. 53, 72 (1994) ("Our disposition of the other issues on appeal, however, makes it unnecessary to reach this issue."). Additionally, we do not address Buckner's suggestion the officer was required to release him and contact the business "at a later date and time to ascertain whether 'dumpster diving' was prohibited" and, if necessary, file "[c]riminal misdemeanor charges . . . by summons." He has waived this argument because he does not develop or support it in any meaningful way. See State v. Sanchez, 200 Ariz. 163, ¶ 8 (App. 2001). --------
¶6 We affirm Buckner's convictions and sentences.