Opinion
No. 1 CA-CR 14-0030
04-21-2015
STATE OF ARIZONA, Appellee, v. KENRICK FONCETTE, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By David Simpson Counsel for Appellee Blumberg & Associates, Phoenix By Bruce E. Blumberg Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2012-008318-002
The Honorable Teresa A. Sanders, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By David Simpson
Counsel for Appellee
Blumberg & Associates, Phoenix
By Bruce E. Blumberg
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined. CATTANI, Judge:
¶1 Kenrick Foncette appeals from his convictions of possession of marijuana for sale and possession of drug paraphernalia and the resulting sentences. Foncette argues the superior court erred by denying his motions to suppress evidence discovered in his hotel room after what he argues were illegal searches. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 One night in late October 2010, Foncette and another man were driving a rental car in Tempe. Around 11:30 p.m., Officer Shearan of the Tempe Police Department stopped the car for a traffic violation. During the stop, Officer Shearan smelled fresh marijuana emanating from the car and requested the assistance of a drug-detection dog.
¶3 Officer Ribotta and his police dog arrived at the traffic stop, and the dog alerted to the exterior of the vehicle, then to the seam of the backseat leading to the trunk, and then to the trunk when opened. The officers searched the car, but did not find marijuana. They did, however, smell an "overwhelming odor of fresh marijuana" coming from the trunk.
¶4 After the stop, Officer Manchak, driving an unmarked vehicle, followed Foncette and his companion to a hotel. Hotel staff buzzed the officers into the lobby, where Officer Manchak confirmed Foncette's room number with the front desk clerk. Officer Ribotta and his dog (without being informed of Foncette's room number) walked down the appropriate hallway, and the dog alerted to Foncette's room.
¶5 Officer Shearan knocked on the hotel room door several times. Less than one minute after the first knock, Foncette opened the door slightly, and, at the officers' request, fully opened it. Officers Shearan and Manchak smelled an odor of fresh marijuana as soon as Foncette opened the door.
¶6 In light of the dog's alert and the odor of marijuana, the officers asked Foncette and his companion to step out of the room. Foncette left the room, but his companion, who was lying on the bed inside, did not respond. Officer Shearan and two or three other officers entered the room to remove Foncette's companion; they all left as soon as Officer Shearan walked him out of the room.
¶7 Foncette and his companion were detained in the hallway and spoke briefly with the officers. A magistrate then issued a warrant for a nighttime search of the hotel room, and the search revealed saran wrap and foam sealant (often used to package marijuana) as well as over 20 pounds of marijuana. Foncette was arrested and charged with possession of marijuana for sale and possession of drug paraphernalia.
¶8 Before trial, Foncette filed two motions to suppress. In the first motion, he argued that the use of the police dog to investigate by sniffing in the hotel hallway was an unreasonable search under the Fourth Amendment and that the late-night search pursuant to the warrant violated Arizona's statutory restriction on nighttime searches. In the second motion, Foncette asserted—among other claims—that the officers' warrantless entry into the room to remove his companion violated the Fourth Amendment. As relevant here, the superior court denied the motions.
In the second motion, Foncette also sought suppression of statements he made to police while detained in the hallway, alleging untimely warnings under Miranda v. Arizona, 384 U.S. 436 (1966). The superior court granted that portion of the motion, and that decision is not at issue on appeal.
¶9 A jury found Foncette guilty as charged, and he timely appealed after sentencing. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1), 13-4031, and -4033.
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
¶10 We review the superior court's denial of a motion to suppress for an abuse of discretion. State v. Davolt, 207 Ariz. 191, 202, ¶ 21, 84 P.3d 456, 467 (2004). We defer to the superior court's factual findings but review de novo issues of law, including the court's ultimate legal determination that the search complied with the Fourth Amendment. Id.; State v. Jacot, 235 Ariz. 224, 227, ¶ 9, 330 P.3d 981, 984 (App. 2014); State v. Blakley, 226 Ariz. 25, 27, ¶ 5, 243 P.3d 628, 630 (App. 2010). We consider only evidence presented at the suppression hearing and view this evidence in the light most favorable to sustaining the ruling. Jacot, 235 Ariz. at 227, ¶ 9, 330 P.3d at 984. I. Investigation Using Drug-Detection Dog.
¶11 The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A search occurs when the state acquires information by physically intruding into constitutionally protected areas without license to do so. Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013). The government's invasion of an individual's reasonable expectation of privacy also constitutes a search under the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 113 (1984); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
¶12 Foncette first argues that the use of the dog to sniff for drugs in the hotel hallway was an unreasonable search under the Fourth Amendment. He claims both that he had a reasonable expectation of privacy in the hallway outside his room and that the dog's sniff impermissibly detected private information from inside the room.
¶13 Foncette relies on the Supreme Court's decision in Jardines, in which the Court held that police officers conducted an improper search by entering onto the curtilage of a home with a drug-sniffing dog and having the dog sniff the porch area. 133 S. Ct. at 1417-18. Critical to the majority decision in Jardines was the officers' physical intrusion onto a constitutionally protected area (the curtilage of a home) without a license (express or implied) to enter the area for their specific purpose (a drug-sniff by a police dog). Id. at 1415-16.
¶14 Here, however, the officers did not impermissibly cross into a constitutionally protected area to investigate with the dog. Although hotel guests are entitled to full constitutional protection against unreasonable searches and seizures that infringe on their expectation of privacy within the room, see Davolt, 207 Ariz. at 202, ¶¶ 23-24, 84 P.3d at 467, here, the hallway outside Foncette's hotel room was not a private area. Instead it was a public access area within the hotel, open (even overnight) to hotel staff and management as well as other hotel guests and their guests. See, e.g., State v. Kosman, 181 Ariz. 487, 490, 892 P.2d 207, 210 (App. 1995) ("Defendant had no reasonable expectation of privacy in the area outside his door [in an apartment complex] because the area is a public place where anyone, including the police, had a right to be."). Although close in proximity to a private area, the public access hallway outside the door was not the type of area "to which the activity of home life extends" so as to qualify as curtilage of the hotel room. Oliver v. United States, 466 U.S. 170, 182 n.12 (1984); see also United States v. Dunn, 480 U.S. 294, 300-01 (1987) (stating that extent of home's curtilage is determined by assessing "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by").
¶15 Moreover, hotel personnel in this case permitted the officers, including the drug dog, to enter, even though it was nighttime. This authorization from the hotel management—who had the right to control access to the hallway—provided any required license for the officers to enter the hallway. Compare Jardines, 133 S. Ct. at 1416.
Foncette also references the Arizona Constitution's protection of privacy in temporary residences and suggests that hotels should be considered equivalent to the home. But Foncette fails to develop any specific argument justifying this position under state law or to address the cases that distinguish hotels from homes with regard to, for instance, the extent of the surrounding curtilage area.
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¶16 Foncette also claims that the officers' use of the dog to sniff for drugs invaded his reasonable expectation of privacy within the room because it detected information about items inside the private area. But "any interest in possessing contraband cannot be deemed 'legitimate,'" so state actions that reveal only contraband do not compromise any privacy interest that society accepts as reasonable. Illinois v. Caballes, 543 U.S. 405, 408 (2005). Under United States Supreme Court precedent, using a well-trained drug-detection dog to sniff for drugs "discloses only the presence or absence of narcotics, a contraband item," and thus generally does not constitute an improper search. United States v. Place, 462 U.S. 696, 707 (1983); Caballes, 543 U.S. at 409; see also, e.g., United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998); United States v. Vasquez, 909 F.2d 235, 238 (7th Cir. 1990); United States v. Roby, 122 F.3d 1120, 1125 (8th Cir. 1997); United States v. Colyer, 878 F.2d 469, 477 (D.C. Cir. 1989). But see United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir. 1985) (concluding that a dog sniff at the door of an apartment constituted a search because it detected the contents of a private, enclosed space subject to the heightened expectation of privacy within a dwelling).
¶17 Under Jardines, there is an exception to the general propriety of using a dog to sniff for drugs when that investigation is conducted from within a constitutionally protected area without license to do so. 133 S. Ct. at 1415-18. Here, however, the officers were legally present in the hallway from which the dog sniffed for drugs. Accordingly, Foncette has not shown that the officers' conduct violated the Fourth Amendment. II. Initial Warrantless Entry.
¶18 Foncette next challenges the officers' warrantless entry into the hotel room. Specifically, he claims that the police created the risk of destruction of evidence that the State cites to justify entry without a warrant.
¶19 A search conducted without a warrant is presumptively unreasonable under the Fourth Amendment. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011); Katz, 389 U.S. at 357. Nevertheless, because the cornerstone of Fourth Amendment protection is "reasonableness," there are certain exceptions to the warrant requirement. King, 131 S. Ct. at 1856. One such exception applies in the case of exigent circumstances, including an exigent "need 'to prevent the imminent destruction of evidence.'" Id. (citation omitted). Preventing destruction of evidence does not, however, justify warrantless entry if the police themselves created the exigency "by engaging or threatening to engage in conduct that violates the Fourth Amendment." Id. at 1858.
¶20 Here, the officers' conduct comported with the Fourth Amendment. As noted above, the officers were lawfully present in the hallway with the authorization of hotel management. See supra ¶ 15. From there, they could reasonably seek a consent-based encounter by knocking on the hotel room door. See King, 131 S. Ct. at 1858; see also Jardines, 133 S. Ct. at 1416 ("[A] police officer not armed with a warrant may approach a home and knock, precisely because that is 'no more than any private citizen might do.'") (citation omitted). Although the officers knocked on Foncette's door sometime after midnight, the late-night knock was not unreasonable in the wake of the traffic stop a short time earlier; Foncette in fact answered the door less than one minute after the officers first knocked, suggesting that it was not unreasonable to believe Foncette might still be awake despite the late hour.
¶21 Foncette had no obligation to open the door in response to the officers' knock, see King, 131 S. Ct. at 1862, but he did so, and the officers immediately smelled fresh marijuana. At that point, it was not unreasonable to ask Foncette and his companion to leave the room to preserve the status quo while waiting for a warrant, nor was it unreasonable to make a limited entry to remove the companion—without opening containers or otherwise searching for evidence—when the companion did not leave the room.
¶22 Foncette alleges that the police had improperly decided to enter the room before knocking, but the touchstone of the analysis is the objective reasonableness of the officers' conduct, not their alleged subjective intent or whether they could have proceeded differently. See id. at 1859 ("Our cases have repeatedly rejected a subjective approach, asking only whether the circumstances, viewed objectively, justify the action.") (citations and internal quotation marks omitted); see also id. at 1859-60 (rejecting a test that would invalidate an exigency if it was reasonably foreseeable the conduct would create the exigency); id. at 1860-61 (rejecting a rule that would "fault law enforcement officers if, after acquiring evidence that is sufficient to establish probable cause to search particular premises, the officers do not seek a warrant but instead knock on the door and seek either to speak with an occupant or to obtain consent to search"). Accordingly, the officers briefly entered the hotel room pursuant to a valid exigent circumstance, and the superior court did not err by denying Foncette's motion to suppress on this ground. III. Nighttime Search.
¶23 Finally, Foncette argues that the evidence obtained from the search pursuant to the warrant should have been suppressed because the warrant improperly authorized a late-night search without good cause in violation of Arizona's statutory restriction on nighttime searches. We review a finding of good cause for a nighttime search for an abuse of discretion. State v. Adamson, 136 Ariz. 250, 259, 665 P.2d 972, 981 (1983).
¶24 Under A.R.S. § 13-3917, search warrants generally may not be served overnight—between 10:00 p.m. and 6:30 a.m.—unless the magistrate allows nighttime service on a showing of good cause. Good cause exists if the reasons given in support of a nighttime search comport with common sense and "as a whole reasonably support[] the inference that the interests of justice are best served by the authorization of nighttime service." State v. Jackson, 117 Ariz. 120, 122, 571 P.2d 266, 268 (1977) (citation omitted).
¶25 As an initial matter, Arizona law does not contemplate suppression of evidence to remedy a violation of the nighttime search statute (absent a constitutional violation). A.R.S. § 13-3925(A) ("Any evidence that is seized pursuant to a search warrant shall not be suppressed as a result of a violation of this chapter except as required by the United States Constitution and the constitution of this state."). Here, Foncette alleges only a statutory violation, and we have found no constitutional violation, so his request for relief on this basis is unavailing.
¶26 Moreover, the circumstances existing when the warrant issued provided ample cause for a nighttime search. Foncette relies on State v. Rypkema, in which the state sought to justify a nighttime warrant on the basis that the target was a drug trafficker who had allegedly just received a large quantity of cocaine, and that drug sales often occur at night. 144 Ariz. 585, 588, 698 P.2d 1304, 1307 (App. 1985). This court held that good cause for a nighttime search could not be based solely on the nature of the contraband (drugs) and the generic allegation that drug sales often occur at night, without any indication that the trafficker was aware of police presence, much less that the contraband would actually be transferred or destroyed under the circumstances presented. Id. at 589, 698 P. 2d at 1309.
¶27 Here, in contrast, Foncette and his companion were alerted to the police presence at least by the time Foncette opened the door after the knock, and their awareness that the police were at their door raised a concrete risk that the drugs might be destroyed, rather than the inchoate risk alleged in Rypkema. See, e.g., King, 131 S. Ct. at 1857 ("[I]n the vast majority of cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement.").
¶28 Furthermore, Foncette and his companion were detained in the hallway sometime before approximately 2:40 a.m., when the search warrant was faxed. Given the risk of destruction of evidence, the two men could not readily be released back into the room until the search had occurred, and it was not unreasonable to authorize an immediate nighttime search rather than requiring Foncette, his companion, and the officers to stand by for almost four hours until daytime.
CONCLUSION
¶29 Foncette's convictions and sentences are affirmed.