State v. Brixey ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANDREW RAYMOND BRIXEY, Appellant.
No. 1 CA-CR 18-0669
FILED 10-29-2019
Appeal from the Superior Court in Maricopa County
No. CR2015-147199-001
The Honorable Danielle J. Viola, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee
KBunited LLC, Phoenix
By Kerrie M. Droban
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge David D. Weinzweig and Judge Diane M. Johnsen joined.
STATE v. BRIXEY
Decision of the Court
H O W E, Judge:
¶1 Andrew Raymond Brixey appeals his convictions and
sentences for aggravated taking the identity of another, taking the identity
of another, and obtaining a credit card by fraudulent means or theft. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts presented at trial in the light most favorable
to sustaining the verdicts, State v. Payne, 233 Ariz. 484, 509 ¶ 93 (2013), and
the evidence presented at a suppression hearing in the light most favorable
to sustaining the trial court’s ruling, State v. Havatone, 241 Ariz. 506, 509 ¶ 11
(2017). In September 2015, the Glendale Police Department received an
anonymous tip that a woman was using narcotics in a pickup truck at a
mall. Officer Michael Acero responded and found Brittany Wellman in the
back seat of the truck. He noticed that Wellman had a device wrapped
around her arm used to inject narcotics, and he believed that she may have
been in the process of ingesting narcotics. Officer Acero arrested Wellman.
¶3 As Officer Acero arrested Wellman, Brixey walked up to the
truck. Brixey informed Officer Acero that he did not own the truck but
usually drove it. Officer Acero asked Brixey if he could search the truck,
and Brixey consented without limitation. Inside the truck, Officer Acero
found a blue money bag bearing the name of a bank behind a passenger
seat. He opened the bag and found numerous documents containing
identifying information—such as checks, tax documents, and identification
cards—of persons other than Brixey or Wellman.
¶4 Glendale Police Department detectives learned that Brixey
had applied for and received a credit card using another person’s name
whose identifying information was found in the money bag. The credit
card’s transaction history showed that Brixey had charged $805.64 on the
credit card at several businesses. Security camera footage from the stores
confirmed that Brixey purchased items on the dates and times shown in the
credit card statements. The police later arrested Brixey in October 2015, and
he was indicted for aggravated taking the identity of another, a class 3
felony; taking the identity of another, a class 4 felony; and obtaining a credit
card by fraudulent means or theft, a class 5 felony.
¶5 Brixey moved to suppress the contents of the money bag,
arguing that the officers conducted a warrantless search of his truck
without legal justification. At the evidentiary hearing, Officer Acero
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testified that the Glendale Police Department received an anonymous call
that a woman was in the back seat of a truck and attempting to “shoot[] up
some kind of narcotic in her arm.” The caller also described the truck and
gave its license plate number. Officer Acero arrived at the mall and found
a truck with the same license plate number. He looked through the truck
window and saw Wellman slumped over with a string tied above her
elbow. When Wellman exited the car, Officer Acero saw a syringe on the
floorboard. Wellman admitted that she had “a drug problem” and said that
she could not remember if she had just injected heroin or was still looking
for a vein. Officer Acero then arrested Wellman.
¶6 Officer Acero testified that shortly after he arrested Wellman,
Brixey approached. Officer Acero asked Brixey for consent to search the
truck, and Brixey said that “there was no problem.” Officer Acero found
the money bag behind a passenger seat and, thinking that it might be a
“drug kit[], with paraphernalia in it,” he opened it to see if it contained
anything related to narcotics. Instead, Officer Acero found “driver’s
licenses, checks, [a] passport, more I.D.’s, more checks, and . . . a W–2.”
¶7 Officer Acero also testified that he asked Brixey who the
money bag and documents belonged to, and Brixey claimed that they
belonged to Wellman. Wellman, however, claimed that they belonged to
Brixey. In addition to Officer Acero, Officers Genero Itri and Daniel
Gonzales testified that Brixey had consented to the search. All three officers
testified that Brixey never withdrew his consent to the search.
¶8 Brixey testified that he gave permission to remove Wellman’s
belongings from the truck but did not consent to a general search of the
truck. He also stated that when Officer Acero began to search the truck, he
told the officers that he had not given permission to search his truck. The
trial court concluded that based on the totality of the circumstances, the
three officers’ version of the facts was more credible than Brixey’s version.
The court subsequently denied suppression.
¶9 Brixey later moved a second time to suppress the contents of
the money bag, claiming that the plain view doctrine did not apply because
the incriminating nature of the documents was not immediately apparent.
The State responded that Brixey’s consent to search the truck for narcotics
included searching the money bag because narcotics could have been
within it.
¶10 At the second evidentiary hearing, Officer Acero testified that
when Brixey gave him permission to search the truck, he did not limit his
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consent to any part of the truck. During the search he found a blue bag that
was large enough to contain narcotics or paraphernalia. Officer Acero also
testified that after he unzipped the bag, he did not take any documents out
but only “thumbed through” them to search for narcotics or paraphernalia.
While doing so, he noticed that the documents contained names and
pictures of people other than Brixey or Wellman. At this point, Officer
Acero stated that he suspected Brixey may be involved in some form of
fraud. Officer Acero then testified that Brixey and Wellman both denied
ownership of the bag and both claimed it belonged to the other person. The
trial court found that the scope of Brixey’s consent included the bag and
that the names on the documents were in plain view. The trial court
subsequently denied suppression.
¶11 At trial, three victims testified that Brixey did not have
permission to possess or use the identifying documents in the money bag
and a fourth victim testified that he never applied for the credit card at issue
and did not make the charges on the credit card. The jury found Brixey
guilty as charged. It also found as aggravating factors that he committed
the offenses for pecuniary gain and caused financial harm to the victim of
the credit card offense. Brixey admitted that he was on felony release when
he committed the offenses. He also admitted to five prior felony
convictions. The court sentenced him to concurrent terms of 16 years’
imprisonment for aggravated taking the identity of another, 14 years’
imprisonment for taking the identity of another, and 9 years’ imprisonment
for obtaining a credit card by fraudulent means or theft. Brixey timely
appealed.
DISCUSSION
1. Voluntary Consent
¶12 Brixey argues that the trial court abused its discretion when it
denied his motions to suppress evidence seized during a warrantless search
because he did not consent to a search, or alternatively, the search exceeded
the scope of his consent.1 A trial court’s ruling on a suppression motion is
reviewed for an abuse of discretion, considering only the evidence at the
suppression hearing. Havatone, 241 Ariz. at 509 ¶ 11. This Court defers to
the trial court’s factual findings, including findings on credibility, when
1 On appeal, the State counters, among other things, that Brixey lacked
standing to challenge the search because he abandoned any privacy interest
in the bag by claiming that it did not belong to him. We decline to address
this argument because the State did not present it to the trial court.
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reviewing a suppression motion. State v. Moran, 232 Ariz. 528, 531 ¶ 5 (App.
2013). Legal and constitutional issues are reviewed de novo. State v. Huerta,
223 Ariz. 424, 426 ¶ 4 (App. 2010).
¶13 The Fourth Amendment to the United States Constitution and
Article 2, Section 8, of the Arizona Constitution protect against
unreasonable searches and seizures. State v. Wilson, 237 Ariz. 296, 298 ¶ 7
(2015). Generally, a warrantless search will be considered unreasonable
unless an exception applies. California v. Carney, 471 U.S. 386, 390 (1985).
One of those exceptions is when a person voluntarily consents to a
warrantless search. Florida v. Jimeno, 500 U.S. 248, 250–51 (1991); State v.
Valenzuela, 239 Ariz. 299, 302 ¶ 11 (2016). The State has the burden to prove
voluntary consent by a preponderance of the evidence. Id. at 302–03 ¶ 11.
¶14 “Determining the validity of a law enforcement officer’s
search based on consent generally involves two factors: (1) whether the
consent was voluntarily given and (2) whether the search was within the
scope of the consent.” State v. Becerra, 239 Ariz. 90, 92 ¶ 8 (App. 2016) (citing
State v. Paredes, 167 Ariz. 609, 612–13 (App. 1991)). “The standard for
measuring the scope of a suspect’s consent under the Fourth Amendment
is that of ‘objective’ reasonableness—what would the typical reasonable
person have understood by the exchange between the officer and the
suspect?” Jimeno, 500 U.S. at 251. The scope of a search “is generally defined
by its expressed object.” Id. Thus, because a reasonable person may be
expected to know that narcotics are generally carried in some form of a
container, an objectively reasonable officer may conclude that a general
consent to search a car includes consent to search containers within the car
that might contain narcotics. Id.¶15 Here, three officers testified at the first suppression hearing
that Brixey voluntarily consented to their searching the truck, did not limit
the scope of the search, and did not revoke his consent. That evidence is
sufficient to support the trial court’s finding that Brixey gave consent.
Although Brixey notes that he testified that he did not give consent to the
search, the trial court found the officers to be more credible. Because the
trial court is in the best position to make that determination, this Court
defers to its conclusion. See Moran, 232 Ariz. at 531 ¶ 5.
¶16 Regarding the scope of Brixey’s consent, the evidence showed
that Brixey did not qualify his consent to search the truck. He did not
prohibit Officer Acero from searching any containers in the truck, including
the money bag. Additionally, Brixey never revoked his consent. Thus,
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Brixey’s consent allowed Officer Acero to search any containers in the truck
for narcotics, including the money bag. See Jimeno, 500 U.S. at 251.
2. Plain View Doctrine
¶17 Brixey also argues that the trial court should have suppressed
the evidence seized from the money bag because the incriminating nature
of its contents was not “immediately apparent” to Officer Acero, thereby
making the plain view doctrine inapplicable. “The [plain view] doctrine
allows police to seize an object if they are lawfully in a position to view it,
if its incriminating character is immediately apparent, and if they have a
lawful right of access to it.” State v. Sisco, 239 Ariz. 532, 535 ¶ 11 (2016)
(internal citations omitted). “Although the phrase immediately apparent
might suggest near certainty, the [United States Supreme] Court has
rejected such an unduly high degree of certainty as to the incriminatory
character of evidence for application of the plain view doctrine . . . clarifying
that police need only have probable cause to associate the object with
criminal activity.” Id. at 536 ¶ 12 (internal quotations and citations omitted).
An officer “is not required to close his eyes to evidence which is in plain
view.” State v. Kelly, 130 Ariz. 375, 378 (App. 1981) (concluding that
glancing at documents not listed in a search warrant is permissible, but
reading the documents is not).
¶18 Here, Officer Acero received Brixey’s consent to search the
truck for narcotics related to Wellman’s arrest, and the search included
opening containers that could hold narcotics. Officer Acero therefore was
in a lawful position to view the money bag and had lawful access to it and
its contents. Upon noticing that the names on the documents were not
Brixey’s or Wellman’s, Officer Acero suspected that some sort of fraud may
have been taking place. Officer Acero then asked Brixey and Wellman if
either of them owned the bag, which they both denied. At that point, he
seized the documents. The presence of numerous financial and
identification documents bearing names and pictures of individuals other
than Brixey or Wellman showed probable cause that the documents were
associated with a crime. See United States v. Bah, 794 F.3d 617, 627 (6th Cir.
2015) (concluding that officers had probable cause to arrest a defendant on
suspicion of identity theft after they found numerous credit, debit, and gift
cards during an inventory search). Thus, the trial court did not err in finding
that the plain view doctrine applied.
¶19 Relying on State v. Shinault, 120 Ariz. 213 (App. 1978), United
States v. Garcia, 496 F.3d 495 (6th Cir. 2007), and United States v. Padilla,
986 F.Supp. 163 (1997), Brixey argues that the officers conducted an
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unlawful exploratory search of the bag’s contents. The facts here, however,
are distinguishable from all three cases.
¶20 In Shinault, officers found a ledger with a blank cover in a box
while executing a search warrant for firearms and narcotics. 120 Ariz. at
215. The officers opened the ledger, read its contents, and learned that it
referenced drug transactions. Id. An officer admitted that one purpose for
searching the ledger was to find records of who lived in the residence,
which was not a purpose stated in the warrant. Id. Thus, the Court
concluded that the ledger’s contents were not discovered inadvertently. Id.The Court further concluded that even if the ledger had been discovered
inadvertently, its evidentiary value was not immediately apparent because
its connection to narcotics was only discovered after an officer conducted
an exploratory search by opening the ledger and studying its contents. Id.¶21 In contrast to the officer in Shinault, Officer Acero did not
study the documents in the money bag, and he simply noticed others’
names on the cards and documents as he glanced through them. See Kelly,
130 Ariz. at 378 (distinguishing its facts from Shinault and concluding that
glancing at documents is permissible while reading them is not). Also, the
names on the documents were sufficient to alert Officer Acero of a possible
fraudulent crime without studying the documents further to make that
determination. Moreover, unlike in Shinault, Officer Acero testified that his
only purpose in searching the bag was to find additional narcotics evidence.
¶22 In Garcia, a search warrant allowed officers to search a house
only for cocaine. 496 F.3d at 501. During the search, officers seized
numerous documents, including crumpled pieces of notebook paper with
mathematical calculations, receipts, other financial records, and invoices.
Id. At trial, an officer testified that he needed to look through the papers to
ensure that they did not contain small packets of cocaine, but he admitted
that reading the documents was unnecessary in his search for cocaine. Id. at
510. As a result, the court concluded that the criminal nature of the
documents seized was not immediately apparent because when unread, the
officers did not have probable cause to believe that they were associated
with criminal activity. Id. at 511. Here, however, unlike the officer in Garcia,
Officer Acero never stated that he attempted to read the documents. In
contrast, he testified that as he searched the bag for narcotics, he simply
glimpsed the names on the documents.
¶23 In Padilla, officers arrived at a defendant’s home with an
arrest warrant. 986 F.Supp. at 166. The defendant consented to a search of
her home, stating that they could “look anywhere, you will see there is no
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drugs, there is no guns, I have done no drug dealing[.]” Id. The officers then
seized pieces of mail, business cards, pieces of paper with telephone
numbers on them, a notebook, a copy of a lease agreement, an address book,
a telephone bill, and a food coupon. Id. at 167. The district court determined
that the defendant’s consent was limited to only drugs and weapons. Id. at
169. The court then found that the officers were not permitted to “peruse”
the documents to determine if they were incriminatory. Id. at 170. Because
the officers had to peruse the documents before discovering their
incriminatory nature, the court determined that their incriminatory nature
was not immediately apparent. Id. The court did note, however, that officers
may “glance” at documents to see if their incriminatory nature is
immediately apparent. Id. Here, Officer Acero’s actions differed from the
officers in Padilla. Officer Acero merely glanced at the identifying
documents as he executed his search for narcotics; he did not peruse them.
As such, the trial court did not err in concluding that he did not engage in
an exploratory investigation.
CONCLUSION
¶24 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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