State of Arizona v. Anthony Lito Hernandez

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
ANTHONY LITO HERNANDEZ,
Appellant,
No. CR-17-0325-PR
Filed May 18, 2018
Appeal from the Superior Court in Cochise County
The Honorable James L. Conlogue, Judge
No. CR-201400529
AFFIRMED
Opinion of the Court of Appeals, Division Two
VACATED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Amy M. Thorson (argued),
Assistant Attorney General, Criminal Appeals Section, Tucson, Attorneys
for State of Arizona
John William Lovell, John William Lovell Esq., Tucson; and David J.
Euchner (argued), Pima County Public Defender’s Office, Tucson,
Attorneys for Anthony Lito Hernandez
Timothy Sandefur, James Manley, Goldwater Institute, Phoenix, Attorneys
for Amici Curiae Goldwater Institute and Professor Erik Luna
Maricopa County Public Defender, Amy Kalman (argued), Deputy Public
Defender, Phoenix; and Timothy J. Eckstein, Osborn Maledon PA, Phoenix,
Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice
STATE V. HERNANDEZ
Opinion of the Court
JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL, TIMMER, BOLICK, and GOULD joined. JUSTICE BOLICK
concurred.
JUSTICE LOPEZ, opinion of the Court:
¶1 We consider whether law enforcement officers violated a
defendant’s rights under the Fourth Amendment to the United States
Constitution and article 2, section 8 of the Arizona Constitution when they
followed the defendant’s vehicle onto a private driveway to complete a
traffic stop which began on a public road. We hold that the defendant’s
rights were not violated.
BACKGROUND
¶2 On the night of September 11, 2014, two Cochise County
Sheriff’s Deputies on patrol in Willcox began following a vehicle after
observing it turn at several intersections in an apparent effort to elude the
officers. While following the vehicle, the officers ran a license plate check,
which indicated that the vehicle’s insurance had been cancelled the
previous month.
¶3 The officers turned on their emergency lights to initiate a
traffic stop for the insurance cancellation and, seconds later, the vehicle
drove onto the shoulder of the road, ran over a curb as it maneuvered onto
a private driveway, and led officers along the length of the driveway and
into the backyard area of a residence. The officers did not know if the
vehicle’s driver had a connection to the property, but one officer stated that
he followed the vehicle “because that’s where the vehicle took us when we
attempted to stop it.” One of the officers testified that he did not perceive
any immediate danger to himself or the public, but the other officer testified
that he thought it necessary to contact the driver because his actions posed
a potential danger to the public.
¶4 The driver, Anthony Lito Hernandez, stopped the vehicle,
opened the door, and began to step out. An officer told Hernandez to
remain inside the vehicle. On approaching the vehicle, the officer smelled
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STATE V. HERNANDEZ
Opinion of the Court
marijuana and ordered Hernandez to get out and place his hands behind
his back. During a pat-down search, the officer found $2,446 in cash and an
empty plastic baggie. Inside the vehicle, the officers found a burned
marijuana cigarette, a metal spoon with char marks on the bottom and “a
burnt substance in it,” and a clear plastic baggie containing suspected
methamphetamine. Hernandez told the officer he did not know the
property owner, but the home was later determined to be occupied by his
girlfriend.
¶5 Hernandez was indicted for possession of marijuana,
possession of drug paraphernalia, and transporting methamphetamine for
sale. After the trial court denied his motion to suppress the evidence seized
from him and his vehicle, a jury found Hernandez guilty of those offenses.
¶6 In a divided opinion, the court of appeals affirmed, stating
that “[a] police officer in continuous vehicular pursuit of a person under
investigation for a violation of the law cannot be arbitrarily stopped by the
person’s entry onto private property,” and that “[a]ny contrary rule would
encourage flight to avoid apprehension.” State v. Hernandez, 242 Ariz. 568,
576 ¶ 27 (App. 2017). The dissent concluded that the officers’ encroachment
“upon constitutionally protected curtilage,” without a warrant, was per se
unreasonable, as the State had failed to show exigent circumstances. Id. at
581 ¶ 49.
¶7 We granted review because the case presents a recurring issue
of statewide importance. We have jurisdiction under article 6, section 5(3)
of the Arizona Constitution and A.R.S. § 12-120.24.
DISCUSSION
¶8 This Court “review[s] for abuse of discretion the trial court’s
factual findings on the motion to suppress, but review[s] de novo the trial
court’s ultimate legal determination that the search complied with the
Fourth Amendment.” State v. Gilstrap, 235 Ariz. 296, 297 ¶ 6 (2014). “We
view the facts in the light most favorable to support the trial court’s ruling
on [a] motion to suppress.” State v. Cook, 115 Ariz. 188, 192 (1977).
¶9 Hernandez argues that the officers’ warrantless entry into the
area of his girlfriend’s property where the driveway met the backyard
violated his rights under the Fourth Amendment to the United States
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Opinion of the Court
Constitution. 1 Under the Fourth Amendment, law enforcement officers
generally must obtain a warrant to enter a protected area to make an arrest.
See Payton v. New York, 445 U.S. 573, 576 (1980). However, “because the
ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the
warrant requirement is subject to certain exceptions.” Brigham City v.
Stuart, 547 U.S. 398, 403 (2006). For example, no warrant is required when
a person consents to an officer’s entry or exigent circumstances justify the
intrusion. Payton, 445 U.S. at 583.
¶10 As a preliminary matter, Hernandez contends that we should
not address the consent and exigent circumstances issues because the State
did not raise them in the trial court. We disagree. Although “[w]e do not
ordinarily consider issues not raised in the trial court or court of appeals,”
if “good reason exists, this court may and will entertain such questions” as
the “rule is jurisprudential rather than substantive.” Jimenez v. Sears,
Roebuck & Co., 183 Ariz. 399, 406 n.9 (1995). Good reason exists to address
the identified issues because they were decided by the trial court and the
court of appeals, the parties submitted post-argument briefs addressing the
consent issue at our request, and we will “affirm the trial court’s ruling if
the result was legally correct for any reason.” State v. Carlson, 237 Ariz. 381,
387 ¶ 7 (2015) (quoting State v. Perez, 141 Ariz. 459, 464 (1984)).
I. Reasonable Expectation of Privacy
¶11 Fourth Amendment protections apply to government
intrusions that involve a common law trespass, United States v. Jones, 565
U.S. 400, 407–10 (2012), or areas in which an individual has a reasonable
expectation of privacy, Katz v. United States, 389 U.S. 347, 360 (1967).
Because Hernandez does not contend the officers committed a trespass as
to him, the issue is whether he had a reasonable expectation of privacy in
the driveway and its confluence with the backyard of his girlfriend’s home.
An expectation of privacy generally extends to the curtilage of a home, or
“the area to which extends the intimate activity associated with the ‘sanctity
of a man’s home and the privacies of life,’” because it is considered part of
1 Hernandez also argues that his rights were violated under article 2,
section 8 of the Arizona Constitution. As discussed in ¶ 23 infra, the
Arizona Constitution does not command a different result here.
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Opinion of the Court
the home. Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v.
United States, 116 U.S. 616, 630 (1886)).
¶12 Hernandez claimed that he did not reside at the residence, but
that he spent the night there frequently. The State does not contest his claim
on appeal. “[A]n overnight guest has a legitimate expectation of privacy in
his host’s home.” Minnesota v. Olson, 495 U.S. 91, 98 (1990); see also Georgia
v. Randolph, 547 U.S. 103, 113 (2006); State v. Peoples, 240 Ariz. 244, 249 ¶ 18
(2016). Thus, if the driveway and its confluence with the backyard
constitute curtilage, then Hernandez, as an overnight guest, had a
reasonable expectation of privacy in it.
¶13 The court of appeals accepted the trial court’s analysis that
Hernandez’s vehicle came to rest on the curtilage of his girlfriend’s home
but, citing State v. Cobb, 115 Ariz. 484, 489 (1977), questioned whether the
driveway, as “only a semiprivate area,” qualified for the full protection
afforded curtilage. Hernandez, 242 Ariz. at 572 ¶ 12. In Cobb, an officer
visited the defendant’s home to investigate a recent neighborhood robbery
and, after speaking with him, discovered a stolen brooch on the driveway.
115 Ariz. at 486–87. The defendant moved to suppress evidence of the
brooch because the officer’s seizure of it on the driveway, within the
curtilage of his home, violated the Fourth Amendment. Id. at 488. This
Court held that the officer properly seized the brooch, noting that the
defendant consented to his presence on the property and that “[a] driveway
is only a semiprivate area” in which the expectation of privacy is contingent
“upon the nature of the activities and the degree of visibility from the
street.” Id. at 489 (quoting United States v. Magana, 512 F.2d 1169, 1171 (9th
Cir. 1975)).
¶14 The court of appeals misread Cobb to the extent it inferred that
an entire driveway is always semi-private and, as such, never warrants an
expectation of privacy equivalent to the home. See Hernandez, 242 Ariz.
at 572 ¶ 12. Cobb does not announce a categorical rule, but rather clarifies
that “[t]he test . . . should be that of reasonableness, both of the possessor’s
expectations of privacy and of the officers’ reasons for being on that
driveway.” 115 Ariz. at 489 (quoting Magana, 512 F.2d at 1171).
¶15 Under these circumstances, where the officers contacted
Hernandez on the driveway’s confluence with the back of the home which
was at least partially obscured from public view, we hold that Hernandez
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STATE V. HERNANDEZ
Opinion of the Court
held a reasonable expectation of privacy. But, even if an individual has a
reasonable expectation of privacy in a protected area, the warrant
requirement does not apply if the person consents to an officer’s entry.
II. Consent
¶16 We conclude that the officers did not impermissibly invade
Hernandez’s reasonable expectation of privacy in the curtilage of his
girlfriend’s home because he impliedly consented to the officers’ entry to
complete the traffic stop.
¶17 “[C]onsent to a search need not be express but may be fairly
inferred from context.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2185
(2016). During a traffic stop, officers typically follow the pursued vehicle
until it stops. Once officers initiate a traffic stop, the driver of the pursued
vehicle does not have a legal right to fail or refuse to stop. See A.R.S. § 28-
1595(A) (“The operator of a motor vehicle who knowingly fails or refuses
to bring the operator’s motor vehicle to a stop after being given a visual or
audible signal or instruction by a peace officer . . . is guilty of a class 2
misdemeanor.”). Although the driver’s acquiescence to the stop, which is
compelled by law, may not indicate consent to the stop itself, the driver’s
choice to lead the officers to a specific location for the stop constitutes the
driver’s implied consent to the officer’s presence at that location. Cf. Brown
v. McClennen, 239 Ariz. 521, 522 ¶ 1 (2016) (noting that “[c]onsent cannot be
given ‘freely and voluntarily’ if the subject of a search merely acquiesces to
a claim of lawful authority” (quoting Bumper v. North Carolina, 391 U.S. 543,
548–49 (1968))). Accordingly, police may reasonably assume that if a
pursued driver, in acquiescence to a traffic stop, turns into a private
driveway, the driver unequivocally communicates consent through his
conduct in causing the stop’s occurrence on the property. See State v. Tucker,
118 Ariz. 76, 79 (1978) (noting that “the constitutional protection against
unreasonable searches demands a waiver by unequivocal words or conduct
expressing consent”).
¶18 Because Hernandez, like any motorist, does not have a legal
right to refuse to comply with an officer’s attempt to conduct a traffic stop,
he had only two lawful options: stop his vehicle on the public road (and
protect the privacy of the curtilage) or, as he did, stop his vehicle in his
girlfriend’s driveway and thereby impliedly consent to the officers’
presence there. See State v. Castaneda, 150 Ariz. 382, 389 (1986) (“A third
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Opinion of the Court
party validly consents to the search” of property when: “(1) the consent is
voluntarily given; and (2) the third party has common authority over or
other sufficient relationship to the premises or property searched or
seized.” (internal quotation marks omitted) (quoting State v. McGann, 132
Ariz. 296, 300 (1982))); State v. Weber, 887 N.W.2d 554, 567 (Wis. 2016)
(reasoning that, where a defendant “declined to submit to a law
enforcement officer’s lawful attempts to conduct a traffic stop,” the
defendant instead could have “chosen to stop on the highway, or even in
his driveway” and the police “never would have entered his garage”).
¶19 Here, Hernandez could not reasonably harbor any
expectation that his girlfriend’s curtilage would remain free from police
intrusion when he led officers there after they initiated a traffic stop on a
public road. Police officers generally may navigate onto a private driveway
to the same extent as a private citizen. Cf. Florida v. Jardines, 569 U.S. 1, 8
(2013) (“[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.’” (quoting Kentucky v. King, 563 U.S. 452, 469 (2011))). The officers’ entry
onto the driveway to effectuate a traffic stop that began on a public road
does not change the analysis because Hernandez effectively invited them
there. As one of the officers testified, he followed Hernandez onto private
property because “that’s where the vehicle took us when we attempted to
stop it.” Hernandez’s claim that he did not try to flee or elude the traffic
stop is of no moment. By leading pursuing officers onto an ungated
driveway, Hernandez impliedly consented to the officers’ entry onto the
curtilage to complete the stop.
¶20 To the extent Hernandez contends that he was unaware of the
officers’ efforts to stop him, the record (viewed in the light most favorable
to the trial court’s ruling) belies his claim and supports the trial court’s
implicit findings. Before the officers attempted to initiate the traffic stop,
Hernandez made several suspicious turns, which caused the officers to
believe he was attempting to elude them. Hernandez’s seemingly erratic
maneuvers, while perfectly legal and perhaps understandable, provide
context for the ensuing events; they render implausible any suggestion that
he was unaware that the officers were following and, ultimately,
attempting to stop him. After the officers initiated the traffic stop by
activating their emergency lights and following Hernandez for a few
seconds, Hernandez drove over a curb and into the backyard area rather
than pull his vehicle over on the wide shoulder of the road.
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STATE V. HERNANDEZ
Opinion of the Court
¶21 Hernandez suggests that, because the officers were following
him closely, he likely did not have sufficient time to safely stop on the road.
But even if true, this would not absolve Hernandez of his legal obligation
to comply with the traffic stop, nor would it explain why he could not have
stopped in the road after passing his girlfriend’s driveway. In any event,
his speculation undercuts his claim because it demonstrates his likely
awareness of the officers’ attempt to stop him and belies his purported
inability to stop on the road because he managed, instead, to execute an
abrupt turn onto the driveway. Viewing these facts in the light most
favorable to upholding the trial court’s ruling, Cook, 115 Ariz. at 192, we
conclude that the trial court did not err in denying Hernandez’s
suppression motion.
¶22 The State also argues, and the court of appeals held, that the
officers’ warrantless entry onto Hernandez’s girlfriend’s property was
justified under the hot pursuit doctrine because the officers had probable
cause to believe that Hernandez was attempting to flee the traffic stop. See
King, 563 U.S. at 460 (“Police officers may enter premises without a warrant
when they are in hot pursuit of a fleeing suspect.”). Because we hold that
Hernandez impliedly consented to the stop, we decline to reach this issue.
III. Arizona Constitution
¶23 Hernandez argues that the officers violated his rights under
article 2, section 8 of the Arizona Constitution, which provides that “[n]o
person shall be disturbed in his private affairs, or his home invaded,
without authority of law.” The Arizona Constitution’s protections under
article 2, section 8 are generally coextensive with Fourth Amendment
analysis; however, this Court has recognized more expansive protections
under the Arizona Constitution concerning officers’ warrantless physical
entry into a home. See, e.g., State v. Ault, 150 Ariz. 459, 463 (1986); State v.
Bolt, 142 Ariz. 260, 264–65 (1984); see also State v. Peltz, 242 Ariz. 23, 30 ¶ 24
n.3 (App. 2017) (“[T]he right of privacy under article II, § 8 has not been
expanded beyond that provided by the Fourth Amendment, except in cases
involving unlawful, warrantless home entries.”). We are not persuaded
that the scope of the Arizona Constitution’s protections exceeds the Fourth
Amendment’s reach under the circumstances of this case. By choosing to
lead the officers onto private property after they attempted to stop his
vehicle on a public road, thereby impliedly consenting to the officers’
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STATE V. HERNANDEZ
Opinion of the Court
presence and interaction with him on his girlfriend’s driveway, Hernandez
was not illegally “disturbed in his private affairs.” Ariz. Const. art. II, § 8.
Accordingly, we hold that the officers’ actions did not violate Hernandez’s
rights under article 2, section 8.
CONCLUSION
¶24 No citizen has a legal right to ignore or defy an officer’s
attempt to conduct a lawful traffic stop on a public road. Knowingly failing
to comply with a traffic stop is a crime. When the officers attempted to stop
Hernandez, he had two lawful options: stop on the public road or lead
officers onto private property to complete the stop. Contrary to his
argument, the Constitution does not provide a third option positing that a
driver may decline to stop on a public road and retreat onto private
property, which provides a Fourth Amendment sanctuary from the law.
The third option is untenable, as it would endanger police officers and the
public by incentivizing flight from law enforcement. Here, because
Hernandez impliedly consented to the location of the stop where he led the
officers in his vehicle, the officers’ actions comported with Fourth
Amendment standards.
¶25 We affirm the trial court’s denial of Hernandez’s motion to
suppress, affirm Hernandez’s convictions and resulting sentences, and
vacate the court of appeals’ opinion.
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STATE V. HERNANDEZ
JUSTICE BOLICK, Concurring
BOLICK, J., concurring.
¶26 I join the Court’s well-stated core holding that “the driver’s
choice to lead the officers to a specific location for the stop constitutes the
driver’s implied consent to the officer’s presence at that location.” Supra
¶ 17. I write separately to emphasize that the Court’s decision stops right
there.
¶27 The Court properly recognizes that Hernandez had a
reasonable expectation of privacy in the curtilage to the home. Supra
¶¶ 12, 15. In his dissent below, Judge Staring correctly concluded that,
absent exigent circumstances, a warrant ordinarily is required for police
intrusion even in an unenclosed driveway, and certainly in a backyard.
Hernandez, 242 Ariz. at 577 ¶¶ 32–33, 581 ¶ 49 (Staring, J., dissenting) (citing,
inter alia, Jardines, 569 U.S. at 7–10 and State v. Olm, 223 Ariz. 429, 433 ¶ 11,
434 ¶ 17 (App. 2010)). But here, the officers properly initiated a stop on a
public street, and by law Hernandez was obliged to comply. Supra ¶ 17.
Hernandez chose to do so in his girlfriend’s driveway, thereby impliedly
authorizing the limited police presence there. To hold otherwise would
exempt from lawful police stops anyone who turns into a driveway where
that person resides or is a guest. This is not a game of tag, where touching
home-base shields the pursued.
¶28 The implied-consent holding here provides a narrower and
far more solid basis for police presence on private property than the hot-
pursuit exigency relied on by the court of appeals. Hernandez, 242 Ariz. at
572–76 ¶¶ 11–27. The hot pursuit exigency requires “immediate or
continuous pursuit of the [defendant] from the scene of a crime.” Welsh v.
Wisconsin, 466 U.S. 740, 753 (1984). Welsh emphasized “that an important
factor to be considered when determining whether any exigency exists is
the gravity of the underlying offense for which the arrest is being made.”
Id. The pursuit here, which involved a minor civil infraction, and in which
an arrest could not have even been initially contemplated, hardly qualifies
as hot pursuit, for the reasons ably stated in Judge Staring’s dissent.
Hernandez, 242 Ariz. at 577–81 ¶¶ 34–49 (Staring, J., dissenting).
¶29 Finally, I agree that Hernandez has not demonstrated “that
the scope of the Arizona Constitution’s protections exceeds the Fourth
Amendment’s reach under the circumstances of this case.” Supra ¶ 23. The
language of Arizona Constitution article 2, section 8 is starkly different from
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STATE V. HERNANDEZ
JUSTICE BOLICK, Concurring
the language of the Fourth Amendment. Compare Ariz. Const. art. II, § 8
(“No person shall be disturbed in his private affairs, or his home invaded,
without authority of law.”), with U.S. Const. amend. IV (“The right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . .”). It is
axiomatic, as a matter of constitutional or statutory interpretation, that
where different language is used in different provisions, we must infer that
a different meaning was intended. Rochlin v. State, 112 Ariz. 171, 176 (1975)
(comparing sections of the Arizona Constitution with other state
constitutions, the Court concluded that any “difference in language must
be respected. If the authors of the constitution had intended the sections to
mean the same thing they could have used the same or similar language.
The fact that they did not, requires the conclusion that the sections were
meant to be different.”); see also Ault, 150 Ariz. at 466 (“While our
constitutional provisions were generally intended to incorporate federal
protections, they are specific in preserving the sanctity of homes and in
creating a right of privacy.” (citation omitted)). As a former chief justice of
this Court has aptly observed, our Constitution’s “framers had the
opportunity to ponder more than 100 years of United States history before
penning their own constitution, allowing them to adopt or adjust
provisions employed by the federal government or other states to meet
Arizona’s needs.” Rebecca White Berch et al., Celebrating the Centennial: A
Century of Arizona Supreme Court Constitutional Interpretation, 44 Ariz. St. L.J.
461, 468 (2012). “Had the framers merely intended to mirror the guarantees
found in the Federal Bill of Rights, they could have simply adopted the first
eight amendments of the U.S. Constitution.” Id. at 469.
¶30 The Court correctly observes that it has interpreted article 2,
section 8’s second provision, pertaining to sanctity of the home,
significantly more broadly than the United States Supreme Court has
interpreted the Fourth Amendment. Supra ¶ 23; see, e.g., Ault, 150 Ariz. at
466 (deciding “on independent state grounds” not to apply the federal
inevitable discovery doctrine, because “exceptions to the warrant
requirement are narrow and we choose not to expand them”); Bolt, 142 Ariz.
at 265 (holding that police entries into a home to secure them pending
warrant “are ‘per se unlawful’ under our state constitution,” a holding
“based upon . . . its specific wording, and our own cases, independent of
federal authority”). It is also true, as the Court observes, that the Court has
not extended article 2, section 8 beyond the Fourth Amendment outside of
the context of the home. Supra ¶ 23. But the Court has never expressly held,
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STATE V. HERNANDEZ
JUSTICE BOLICK, Concurring
based on considered analysis, that article 2, section 8’s first provision,
protecting a person’s “private affairs” against warrantless government
intrusion, is coextensive with the United States Supreme Court’s
interpretation of Fourth Amendment protections. Given that we have
recognized that the second provision provides greater protection than the
Fourth Amendment, it would be odd to construe the first provision more
narrowly, in lockstep with the Supreme Court’s ever-evolving Fourth
Amendment jurisprudence. See State v. Jean, 243 Ariz. 331, 353–54 ¶¶ 92–96
(2018) (Bolick, J., concurring in part and dissenting in part), petition for cert.
docketed, No. 17-8419 (U.S. Apr. 6, 2018).
¶31 Although Hernandez raised state constitutional arguments,
he did not argue persuasively why we should interpret article 2, section 8
to require a different result under the circumstances here. Such arguments
could properly encompass the constitutional text’s plain meaning, its
context in our Declaration of Rights, its history and purpose, and analysis
of similar provisions in other state constitutions. I agree with my colleagues
that it is not obviously apparent that article 2, section 8 proscribes the police
conduct here. But further consideration of this provision’s scope must
await future cases.
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