State v. Soliven ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
GARRETT R. SOLIVEN, Appellant.
No. 1 CA-CR 20-0128
FILED 9-2-2021
Appeal from the Superior Court in Maricopa County
No. CR2015-002917-001
The Honorable Roy C. Whitehead, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Andrew Stuart Reilly
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
STATE v. SOLIVEN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
W I L L I A M S, Judge:
¶1 Garrett Soliven appeals his convictions and sentences for,
among other things, molestation of a child, sexual conduct with a minor,
sexual abuse, sexual exploitation of a minor, and furnishing obscene or
harmful items to a minor. For reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Soliven started molesting his stepdaughter when she was
eight years old. The abuse continued, and when the victim turned sixteen
Soliven began having sexual intercourse with her. A formal investigation
began in 2015 after the victim and her biological father reported the abuse
to police. During an interview with Detective Hoffman, the victim
explained that on prior occasions she and Soliven had exchanged photos of
each other’s genitals via text message. The victim also relayed that Soliven
had recently taken her cell phone away.
¶3 A few days after the interview, police officers obtained a
search warrant authorizing “an immediate search be made of [Soliven and
his residence].” The warrant also identified fifteen specific items (or groups
of items) which police were authorized to search, including Soliven’s cell
phone, the victim’s cell phone, and other electronic devices, as follows:
3. Any and all cellular phones, whether operating or not . . .
used by [Soliven or the victim] . . . utilizing the number
[ending in 5202 and 2266].
....
5. Any and all Micro-SD cards or similar electronic memory
devices capable of being used in a cellular phone[.]
6. Any and all CD’s DVD’s jump drives, external hard-drives,
Micro-SD cards or other devices used for the storage of
electronic media[.]
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STATE v. SOLIVEN
Decision of the Court
....
12. Any and all electronic data processing storage devices;
computers and computer systems including central
processing units; internal and peripheral storage devices such
as fixed disks, external hard disks, floppy disk drives and
diskettes . . . optical storage devices or other memory storage
devices . . . .
¶4 The following day, Soliven was interviewed at the police
station. At the same time, other officers searched his home. Soliven was not
given a copy of the warrant, although police took it with them to search the
home, nor was he told that a search warrant had been issued. Police seized
Soliven’s cell phone, which he had with him at the police station. Soliven
also informed police that the victim’s cell phone was in his vehicle at the
station. The officers indicated that they needed the cell phone and Soliven,
along with the officers, went to the vehicle where Soliven retrieved it.
Soliven was not arrested at that time; he left the station following his
interview. A search of Soliven’s cell phone showed several nude photos of
the victim, including photos of Soliven and the victim having sex.
¶5 Soliven moved the trial court to suppress, in part, evidence
found on the cell phones, which was denied. A jury convicted Soliven as
charged on a mixture of twenty-five felony or misdemeanor counts, and
acquitted him on ten counts. Included among Soliven’s convictions were
the felonies of molestation of a child, sexual conduct with a minor, sexual
abuse, sexual exploitation of a minor, furnishing obscene material or
harmful items to a minor, and the misdemeanors of indecent exposure, and
contributing to delinquency of a minor. Soliven was sentenced to 38.5 years
of imprisonment. This timely appeal followed. We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-2101(A)(1),
13-4031 and 13-4033(A)(1).
DISCUSSION
¶6 Soliven challenges the propriety of the officer’s not only
seizing the cell phones pursuant to the warrant, but searching them
thereafter under the authority of the same warrant. He argues that an
additional warrant should have been obtained before the officers were
legally authorized to search the contents of the phones.
¶7 The Fourth Amendment to the United States Constitution
protects a person from “unreasonable searches and seizures,” and law
enforcement officers are generally required to obtain a search warrant,
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STATE v. SOLIVEN
Decision of the Court
supported by probable cause, before conducting a search. Maryland v.
Dyson, 527 U.S. 465, 466 (1999) (“The Fourth Amendment generally requires
police to secure a warrant before conducting a search.”); see Frimmel v.
Sanders, 236 Ariz. 232, 239, ¶ 26 (App. 2014) (“The Fourth Amendment . . .
requires a search warrant be issued only upon probable cause.”); see also
State v. Hoskins, 199 Ariz. 127, 137-38, ¶ 30 (2000) (“A police officer has
probable cause when reasonably trustworthy information and
circumstance would lead a person of reasonable caution to believe that a
suspect has committed an offense.”). A search warrant must “particularly
describ[e] the place to be searched, and the persons or things to be seized.”
State v. Ray, 185 Ariz. 89, 92 (App. 1995) (alteration in original) (quoting U.S.
Const. amend. IV). A warrantless search is reasonable only if it falls under
an exception to the warrant requirement. Riley v. California, 573 U.S. 373, 382
(2014).
¶8 When reviewing the denial of a motion to suppress, we “defer
to the trial court’s factual findings absent an abuse of discretion,” but
review de novo the trial court’s “ultimate legal determination that the
search complied with the dictates of the Fourth Amendment.” State v. Valle,
196 Ariz. 324, 326, ¶ 6 (App. 2000). We “restrict our review to consideration
of the facts the trial court heard at the suppression hearing,” State v.
Blackmore, 186 Ariz. 630, 631 (1996), and will affirm the court’s ruling if it
was legally correct for any reason, State v. Huez, 240 Ariz. 406, 412, ¶ 19
(App. 2016).
¶9 Soliven contends the trial court erred in concluding that the
United States Supreme Court in Riley v. California did not mandate the
requirement of obtaining an additional warrant to search the cell phones
beyond the warrant to seize the cell phones. 573 U.S. 373. As the trial court
noted, Soliven’s reliance on Riley is supported insofar as it “emphasizes the
very private nature of [] cell phones” and that “law enforcement needed to
obtain a warrant prior to searching the cell phones.” Beyond that, Riley has
little application here. Riley addressed two consolidated cases, both of
which involved warrantless searches of the defendants’ cell phones. Id.Here, however, police officers obtained a search warrant for the cell phones
before seizing the phones or searching the phones’ contents. And while
Soliven pontificates that Riley was meant to apply to cases beyond the
exceptional warrantless search situations, he cites no supporting authority.
The trial court correctly distinguished Riley from this case.
¶10 Soliven further argues that evidence should have been
suppressed because the warrant only directed law enforcement to seize the
cell phones and memory devices, but not to search their contents. To the
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STATE v. SOLIVEN
Decision of the Court
contrary, as noted supra ¶ 3, the warrant expressly authorized the
immediate search of Soliven and his residence, including Soliven’s cell
phone, the victim’s cell phone, and other electronic devices. No other
warrant was required to search the cell phones.
¶11 Soliven also contends the police officers’ failure to provide
him with a copy of the warrant resulted in an unlawful seizure. Apart from
the knock and announce requirements set out in A.R.S. § 13-3916(B),
Arizona law does not require that a defendant be notified of the existence
of a search warrant, nor does the law indicate that a warrant must be served
directly upon a defendant in order to carry out a search or seizure
authorized thereby. A.R.S. §§ 13-3911–3925; see also Nordelli v. United States,
24 F.2d 665, 666–67 (9th Cir. 1928) (there was no ground for suppressing
evidence when warrant was not read or exhibited to defendant until after
search and seizure because there was no such requirement in the statute).
Where the warrant expressly authorized the seizure of both cell phones,
Soliven’s notice of the warrant was not required.
¶12 Finally, Soliven argues he did not voluntarily retrieve the
victim’s cell phone from his vehicle. In making this argument, Soliven relies
on the fact that he was escorted by two police officers who were both armed.
Notably, Soliven was not under arrest, and the trial court found there was
insufficient evidence from which it could find “law enforcement overcame
[Soliven’s] will.” Indeed, there is nothing in the record showing the officers
threatened, coerced, or prevented Soliven from leaving the station or that
they coerced him into retrieving the cell phone from his vehicle. The trial
court’s factual finding is reasonably supported by the record. See State v.
Estrada, 209 Ariz. 287, 288, ¶ 2 (App. 2004). Soliven has failed to show where
the trial court erred.
CONCLUSION
¶13 For the foregoing reasons, we affirm Soliven’s convictions.
AMY M. WOOD • Clerk of the Court
FILED: AA
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