Opinion
No. 2 CA-CR 2016-0380
07-10-2017
THE STATE OF ARIZONA, Appellant, v. DUSHAWN L. SMITH, Appellee.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Appellant Robert A. Kerry, Tucson Counsel for Appellee
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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pima County
No. CR20145028002
The Honorable Danelle B. Liwski, Judge
REVERSED AND REMANDED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Appellant Robert A. Kerry, Tucson
Counsel for Appellee
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly concurred. ECKERSTROM, Chief Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 The state appeals from the trial court's ruling granting appellee Smith's motion to suppress. For the following reasons, we reverse the judgment of the trial court.
Factual and Procedural Background
¶2 In reviewing a trial court's decision on a motion to suppress, we consider only the evidence admitted at the suppression hearing, which we view in the light most favorable to upholding the court's ruling. State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App. 2007). In December 2014, officers with the Tucson Police Department conducted an undercover narcotics buy. One officer approached D.G. and asked him if he would buy drugs for her. D.G. agreed and said he would contact someone named "D." D.G. went into an apartment with money provided by the officer and came back out with drugs.
¶3 Officers arrested D.G., then approached the apartment and knocked on the door. When M.W. opened the door, an officer told her "that there was a 911 hang-up call from that apartment." He asked her who else was in the apartment, and she told him that I.L. and Smith were inside. The officer had prior contact with both M.W. and Smith and knew Smith as "D." The officer told M.W. he wanted to make sure everyone in the apartment was safe and asked if she and the other occupants of the apartment would be willing to come outside.
¶4 Upon exiting the apartment, Smith was arrested. After being read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Smith participated in an interview. The officers relied on Smith's statements when they requested a search warrant for the apartment.
The state asserts that this is the case, but the affidavit used to secure the search warrant is not included within the record on appeal. Nor did the state present testimony specifying the contents of the affidavit.
¶5 Smith moved to suppress his statements and the evidence found in the apartment, arguing that they were the fruit of his illegal seizure. The trial court agreed, concluding that "a reasonable person would not have felt that under the totality of the circumstances he was free to decline to leave the apartment and disengage the police." The state appealed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4032(6).
Probable Cause
¶6 The trial court concluded that the officers illegally seized Smith because the ruse used by the officers to get him to leave the apartment was coercive. The state claims the use of the ruse was permissible, but argues that even if Smith was illegally seized, the court erred in suppressing Smith's statements because police officers had probable cause to arrest Smith when he was asked to leave the apartment. In New York v. Harris, the United States Supreme Court concluded that, when a person is arrested illegally in his home, but the arrest is supported by probable cause, subsequent statements will not be suppressed because they are not the result of the illegal seizure. 495 U.S. 14, 18-19 (1990). Because we agree that the state had probable cause to arrest Smith, we conclude that the court erred in suppressing Smith's statements.
Smith has not raised a claim under Article II, § 8 of the Arizona Constitution, and we therefore do not consider whether Harris contradicts this provision. See State v. Mariano, 160 P.3d 1258, 1268 (Haw. App. 2007) (finding Harris incompatible with that state's constitutional protection of home privacy). --------
¶7 "Probable cause exists where the arresting officers have reasonably trustworthy information of facts and circumstances which are sufficient in themselves to lead a reasonable man to believe an offense . . . has been committed and that the person to be arrested . . . did commit it." State v. Richards, 110 Ariz. 290, 291, 518 P.2d 113, 114 (1974). "Probable cause is a flexible, nontechnical, and practical concept," and, in determining whether it exists, we may consider "the collective knowledge of all of the officers involved in the case." State v. Keener, 206 Ariz. 29, ¶¶ 15-16, 75 P.3d 119, 122-23 (App. 2003).
¶8 Here, at the time Smith was seized, officers knew the following facts: (1) D.G., the person they approached to purchase drugs for them, said he would get them from "D"; (2) D.G. had entered an apartment with money and come out of the apartment with drugs; (3) no one had entered or exited the apartment in the time in between the drug purchase and the time officers approached the door; (4) the only people in the apartment were M.W., I.L., and Smith, and the only person who had an initial of "D" was Smith; (5) an officer familiar with Smith knew him as "D." All together, these facts furnished probable cause to arrest Smith. See State v. Aguilar, 228 Ariz. 401, ¶ 15, 267 P.3d 1193, 1195 (App. 2011).
¶9 Accordingly, even assuming Smith's arrest was illegal, the trial court erred in concluding that his statements should be suppressed.
Disposition
¶10 For the foregoing reasons, we reverse the judgment of the trial court. We remand the case for further proceedings consistent with this decision.