State of Arizona v. Alexander Joel Huerta

FILED BY CLERK
FEB 10 2010
COURT OF APPEALS
DIVISION TWO
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2009-0078
Appellant, ) DEPARTMENT A
)
v. ) OPINION
)
ALEXANDER JOEL HUERTA, )
)
Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20081516
Honorable Deborah Bernini, Judge
REVERSED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines and Amy S. Ruskin Tucson
Attorneys for Appellant
David Alan Darby Tucson
Attorney for Appellee
E S P I N O S A, Presiding Judge.
¶1 After the trial court granted Alexander Huerta‟s motion to suppress all
evidence related to a sheriff‟s deputy‟s discovery of cocaine in an unclaimed duffle bag,
the state dismissed all pending charges against Huerta and now appeals the trial court‟s
suppression ruling. Finding no illegal search occurred, we reverse.
Factual and Procedural History
¶2 We review the facts in the light most favorable to upholding a trial court‟s
ruling on a motion to suppress. State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269
(App. 2007). The following facts are undisputed. In April 2008, Huerta and his son were
outside their home loading items into Huerta‟s pickup truck when two men in a sport-
utility vehicle (SUV) approached and began shouting and firing guns at them. Huerta
produced his own weapon, returned fire, and the SUV sped away. Not seeing his son and
fearing he had been kidnapped, Huerta chased the SUV in his truck, spilling items from
the bed of the truck onto the roadway.
¶3 A Pima County sheriff‟s deputy responding to reports of gunfire arrived at
a location near Huerta‟s home and found people attempting to clear the road. He directed
them to stop and then picked up several items lying in the street. After the deputy had
moved the items to the sidewalk, Huerta returned to the scene and described what had
happened. He appeared nervous and initially declined to identify any of the property,
indicating he was too worried about his son to think about it. After learning his son was
at a neighbor‟s house, Huerta was again asked about the property and he claimed
everything except a duffle bag. When Huerta was specifically asked about the bag, he
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neither admitted nor denied owning it.1 The deputy subsequently unzipped the bag and
discovered several wrapped “blocks” of cocaine. Huerta was arrested and officers
obtained a search warrant for his home and vehicle. Following a pretrial hearing, the trial
court granted Huerta‟s motion to suppress all evidence acquired as a result of the
deputy‟s opening the duffle bag and the state voluntarily dismissed the charges to seek
appellate review of that ruling. We have jurisdiction over the state‟s appeal pursuant to
A.R.S. § 13-4032(6).
Discussion
¶4 The state contends the trial court erred in suppressing the evidence obtained
as a result of the search of the duffle bag, arguing it had been abandoned and Huerta
retained no privacy interest in its contents. Neither the state nor Huerta has cited any
controlling authority relating to the specific circumstances presented here, and we have
found none. Accordingly, we find this a matter of first impression in Arizona. In
reviewing a trial court‟s ruling on a motion to suppress evidence, we evaluate
discretionary issues for an abuse of discretion but review legal and constitutional issues
de novo. State v. Allen, 216 Ariz. 320, ¶ 11, 166 P.3d 111, 114 (App. 2007). Whether a
defendant has abandoned property is a factual determination, see State v. Rogers, 186
Ariz. 508, 511, 924 P.2d 1027, 1030 (1996), that we review for clear and manifest error,
1
At the hearing on Huerta‟s motion to suppress, the arresting officer initially
testified that when asked, Huerta indicated the duffle bag was not his. On
cross-examination, he clarified that Huerta “was silent about” the bag and did not
affirmatively say whether it was or was not his.
3
see State v. Dean, 206 Ariz. 158, ¶ 9, 76 P.3d 429, 432 (2003). Whether a particular
expectation of privacy is recognized under constitutional law is reviewed de novo. Allen
216 Ariz. 320 ¶ 15, 166 P.3d at 115.
¶5 Both the United States and Arizona Constitutions forbid unreasonable
searches and seizures, U.S. Const. amends. IV and XIV; Ariz. Const. art. II, § 8, and
warrantless searches are “per se unreasonable,” Katz v. United States, 389 U.S. 347, 357
(1967); see also State v. DeWitt, 184 Ariz. 464, 468, 910 P.2d 9, 13 (1996). A person
retains no privacy interest, however, in abandoned property and may not invoke the
exclusionary rule for evidence uncovered as the result of its search. See State v. Huffman,
169 Ariz. 465, 466-67, 820 P.2d 329, 330-31 (App. 1991). A court will find that property
has been abandoned only when “„the person prejudiced by the search had voluntarily
discarded, left behind, or otherwise relinquished his interest in the property in question so
that he could no longer retain a reasonable expectation of privacy with regard to it at the
time of the search.‟” State v. Walker, 119 Ariz. 121, 126, 579 P.2d 1091, 1096 (1978),
quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973). An intent to
abandon property “„is determined by objective factors, not the defendant‟s subjective
intent.‟” People v. Pereira, 58 Cal. Rptr. 3d 847, 852 (Cal. Ct. App. 2007), quoting
People v. Daggs, 34 Cal. Rptr. 3d 649, 652 (Cal. Ct. App. 2005). And “[t]he appropriate
test is whether defendant‟s words or actions would cause a reasonable person in the
searching officer‟s position to believe that the property was abandoned.” Id. at 852-53.
4
¶6 The state argues that cases from other jurisdictions on which the trial court
relied are readily distinguishable from this one and urges us to reverse its ruling. In
response, Huerta highlights aspects of these cases that he contends support the court‟s
finding. Although the authorities he cites share some factual elements with the present
case, we agree with the state that they are distinguishable and that the distinctions are
important.
¶7 Huerta relies on Commonwealth v. Holloway, 384 S.E.2d 99, 103-04 (Va.
Ct. App. 1989), in which the Virginia Court of Appeals held a defendant‟s failure to
claim luggage “need not be interpreted as abandonment.” There, drug enforcement
agents boarded a train, told the defendant‟s companion they were investigating illegal
drugs on the train, and asked the defendant and his companion if they owned two
particular pieces of luggage, which were searched and found to contain drugs after
neither the defendant nor any other passenger claimed them. Id. at 101. The state argued
the search was proper because the defendant had abandoned the luggage by not claiming
it when asked. Id. In upholding the trial court‟s suppression ruling, the court noted the
luggage had been in a proper place for storage on the train, and the owner could have
chosen not to answer or have been unavailable when the agents were questioning other
passengers. Id. at 103-04.
¶8 Huerta argues that, as in Holloway, a failure to respond does not establish
abandonment. As the state points out, however, the court expressly noted that the
defendant was aware of the drug investigation and could exercise his right to remain
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silent rather than claiming the luggage and incriminating himself. Holloway, 384 S.E.2d
at 104. But see United States v. Trimble, 986 F.2d 394, 399 (10th Cir. 1993) (police
investigation or pursuit does not render abandonment involuntary). The Holloway court
also emphasized that the luggage was properly stored on the train. 384 S.E.2d at 104.
Accordingly, the owner reasonably could expect the luggage to remain on the train if he
or she did not claim it while the agents were onboard seeking information.
¶9 Here, the deputy responded to a report of shots fired and had no reason to
suspect the duffle bag contained drugs. Therefore, claiming the bag, whose contents law
enforcement had neither suspicion about nor the right to inspect, would not have
incriminated Huerta at all. Cf. Holloway, 384 S.E.2d at 100, 104 (officers boarded train
specifically to investigate defendant‟s possible drug possession and announced intention
to seek drugs). Additionally, unlike the bag in Holloway, this duffle bag was not stored
in an appropriate place, but was found lying in a roadway. Moreover, Huerta claimed all
the other items except the duffle bag. Accordingly, we find Holloway inapposite.
¶10 In State v. Joyner, 669 P.2d 152 (Haw. 1983), also cited by Huerta, the
defendant was found not to have abandoned a bag by remaining silent when police
questioned him. There, officers executing a search warrant for evidence of gambling at a
bathhouse smelled marijuana in the sauna; they arrested another man, who had marijuana
on his person, and then asked the others present who owned a bag lying near the
defendant. Id. at 153. Although the defendant did not claim it, the trial court found he
had exhibited “indicia of ownership” by placing the bag, at most, two feet from himself
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in the sauna. Id. at 154. The Hawaii Supreme Court upheld the suppression of evidence
in the bag, expressly refusing to equate “passive failure to claim potentially incriminating
evidence” with abandonment of property. Id. at 153.
¶11 Huerta relies on Joyner for the proposition that passive silence is not
tantamount to abandonment. But, his conduct cannot be deemed “passive” when he had
affirmatively claimed each and every other item that had been found in the street.
Moreover, as we noted in our discussion of Holloway, Huerta would not have
incriminated himself by claiming the duffle bag because the deputy had no reason to
suspect it contained contraband, unlike the officers in both Holloway and Joyner. Other
courts have held that a person must claim an item when given the opportunity to do so to
avoid a finding of abandonment. See United States v. Hernandez, 7 F.3d 944, 947 (10th
Cir. 1993) (defendant abandoned backpack by failing to claim it after border patrol agent
on bus repeatedly asked who owned it); People v. Henry, 730 N.W.2d 248, 248 (Mich.
2007) (defendant‟s failure to object or assert ownership when police looked inside bag
reflected intent to disavow connection with bag); see also State v. Farinich, 430 A.2d
233, 236 (N.J. Super. Ct. App. Div. 1981) (failure to deny ownership not construed as
claim of privacy interest for purposes of abandonment).
¶12 Huerta also contends Joyner supports his additional argument that, because
“the duffle bag was located in close proximity to [him]” and nobody else approached to
claim it, the deputy should have inferred that he owned it. This argument is without merit
as it ignores the fact that Huerta‟s proximity to the bag was wholly fortuitous. Before
7
Huerta returned to the scene, the deputy had cleared the road, piling the items from the
street onto the sidewalk. Huerta‟s position in relation to the items was no more
significant than it would have been had the deputy immediately loaded them into a
vehicle and sent them to the sheriff‟s department as lost property or evidence.
¶13 The third case Huerta cites, State v. May, 608 A.2d 772 (Me. 1992), is
similarly inapplicable. In May, a police officer opened a Velcro-fastened wallet
inadvertently left in his patrol car by a man who had been arrested and released. Id. at
774-75. The officer knew the owner‟s identity and had no reason to open the wallet in
order to return it. Id. at 776 n.3. The court ruled the wallet had not been abandoned and
the officer‟s opening it could not be justified as a search of abandoned property. Id. at
776.
¶14 Although Huerta likens the duffle bag to the lost wallet in May, a finding of
2
abandonment here need not rest on the bag‟s loss from Huerta‟s truck. In May, the
defendant had no opportunity to claim his wallet before it was searched. Id. at 773.
2
The state argues that, contrary to May‟s holding, Huerta‟s initial loss of items
from his truck constituted abandonment. Although some authority supports this
contention, see United States v. Arias-Villanueva, 998 F.2d 1491, 1501-02 (9th Cir. 1993)
(key abandoned when unwittingly left in police car), overruled on other grounds by
United States v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007), resolving the issue is
unnecessary to our resolution of this case, and we decline to decide whether the
inadvertent loss of an item can constitute abandonment. See State v. Bernini, 220 Ariz.
536, ¶ 10, 207 P.3d 789, 792 (App. 2009) (appellate court should only decide questions
required to dispose of appeal under consideration).
8
Here, however, the deputy could not be certain who owned the duffle as it and other
items were lying on a public street when he arrived and a number of people were
handling the property. And Huerta, unlike the defendant in May, had ample opportunity
to claim the bag yet failed to do so during the approximately two hours he spent on the
side of the road with the deputy and despite being specifically asked if it was his.
¶15 We conclude that none of the cases on which the trial court relied would
require the suppression of this evidence, even were they controlling authority in Arizona.
Rather, we agree with the state that the appropriate test here is one that considers the
totality of the circumstances. See United States v. Liu, 180 F.3d 957, 961 (8th Cir. 1999)
(court must consider all objective facts to determine if property abandoned); United
States v. Nordling, 804 F.2d 1466, 1469 (9th Cir. 1986) (whether property abandoned
determined in light of totality of circumstances; important factors include denial of
ownership and physical relinquishment of property); see also Pereira, 58 Cal. Rptr. 3d at
852-53 (appropriate test includes reasonable perception of officer). As the state correctly
notes, the context here is all-important.
¶16 When asked about the property that had fallen in the street, Huerta
expressly claimed every item except the duffle bag. It is difficult to see how the deputy
should have interpreted Huerta‟s silence regarding this bag as indicating he intended to
retain a privacy interest in it when he had unequivocally asserted ownership of the other
items. Nor did Huerta face a constitutional dilemma of choosing between his privacy
interests and his right against self-incrimination; as noted earlier, the deputy had no
9
reason to suspect the bag contained contraband and would have had no reason to open it
had Huerta claimed it. Cf. Joyner, 669 P.2d at 153 (no abandonment when defendant
forced to choose between expectation of privacy and right against self-incrimination);
Holloway, 384 S.E.2d at 103-04 (same). In fact, the officer testified that had Huerta
claimed the bag, he would not have opened it.
¶17 Finally, this is not a situation in which the status quo could have been
maintained. Any reasonable person would anticipate that the police would not have left
the unclaimed bag on the side of the street, but would have taken custody of it and
routinely opened and inspected it for indications of ownership as well as safety
considerations.3 By not claiming the duffle bag in these circumstances, Huerta
effectively elected the latter option. See Nordling, 804 F.2d at 1470 (bag abandoned
when “it was virtually certain” it would be opened, inspected, and given to authorities
before defendant could reassert control). From the totality of the circumstances here, we
can only conclude Huerta intentionally abandoned the bag and thereby sacrificed any
privacy interest he had in it. That being so, the deputy‟s search of the bag did not violate
Huerta‟s constitutional rights, and the trial court erred in suppressing the evidence. See
3
The state alternatively argues that the contents of the duffle bag would have been
admissible under the “inevitable discovery” doctrine which would justify an otherwise
illegal warrantless search. See State v. Rojers, 215 Ariz. 555, ¶ 18, 169 P.3d 651, 655
(App. 2007). But we need not reach that issue because, here, that the bag would have
been opened by authorities in any event is part of the totality of the circumstances to
consider in determining the threshold question of whether Huerta had a reasonable
privacy interest in it.
10
Walker, 119 Ariz. at 126-27, 579 P.2d at 1096-97 (no standing to challenge search of
abandoned property).
¶18 Huerta requests that, if we find he had no reasonable expectation of privacy
under the federal constitution, we separately consider the propriety of the search under
the Arizona Constitution. Article II, § 8 of our constitution has, on occasion, been
interpreted apart from the federal constitution and found to afford a defendant greater
privacy protections. See, e.g., State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549
(1986); State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984). The
circumstances under which Arizona courts analyze article II, § 8 in this manner, however,
are exceedingly narrow. Except when the privacy of a person‟s home has been invaded,
this provision does not confer any additional protection not contained in our federal
constitution. See Bolt, 142 Ariz. at 264-65, 689 P.2d at 523-24 (Arizona‟s constitutional
provisions “specific in preserving the sanctity of homes”); State v. Juarez, 203 Ariz. 441,
¶ 15, 55 P.3d 784, 788 (App. 2002) (except in home search context, protections of article
II, § 8 concomitant with federal constitution). This case does not involve the warrantless
search of a home and, accordingly, we decline Huerta‟s invitation to analyze this issue
separately under our state constitution.
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Disposition
¶19 Because we have found Huerta abandoned the duffle bag and its search was
therefore lawful, we remand this matter to the trial court for further proceedings
consistent with this decision.
PHILIP G. ESPINOSA, Presiding Judge
CONCURRING:
JOSEPH W. HOWARD, Chief Judge
VIRGINIA C. KELLY, Judge.
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