DocketNumber： No. 2 CA-CR 2015-0229
Judges： Authored, Espinosa, Miller, Staring
Filed Date： 6/23/2017
Status： Precedential
Modified Date： 11/2/2024
OPINION
¶ 1 After a jury trial, Anthony Lito Hernandez was convicted of transportation of methamphetamine for sale, possession of marijuana, and possession of drug paraphernalia, and sentenced to a combined prison term of eleven years. On appeal, he challenges the trial court’s denial of his motion to suppress evidence. Resolving this issue requires us to determine whether law enforcement officers attempting to complete an investigatory stop for a civil traffic violation were required to obtain a search warrant before approaching the vehicle after the driver pulled into a private driveway. For the reasons that follow, we conclude Hernandez’s constitutional rights were not violated by the officers approaching the vehicle stopped in the driveway. We therefore affirm the order denying Hernandez’s motion to suppress, and his convictions and sentences.
Factual and Procedural Background
¶ 2 “In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing it in the light most favorable to sustaining the trial court’s ruling.”
¶ 3 The deputies had to catch up with the car to initiate a traffic stop regarding the insurance cancellation. When the patrol car closed within two to three car lengths of the vehicle, they activated their emergency lights. Shortly thereafter, the vehicle turned
¶ 5 As Deputy Villa attempted to call in the stop on his cell phone rather than the radio because of transmission difficulties, Deputy Gilbert approached the vehicle. Hernandez had already begun to get out and was directed to remain inside. Deputy Gilbert walked toward the car and smelled marijuana. He then ordered Hernandez to step out and place his hands behind his back, after which Deputy Gilbert handcuffed Hernandez and checked him for weapons. During the pat-down, he found a large, folded stack of paper currency and an empty plastic baggie in one of Hernandez’s pockets. In other pockets, Deputy Gilbert found a wallet and two “stack[s] of folded United States currency of various denominations.” Altogether, Hernandez was carrying over $2,400. The search of Hernandez’s car revealed a burned marijuana cigarette, a metal spoon with char marks on the bottom and “a burned substance in it,” and a clear plastic baggie containing suspected methamphetamine.
¶ 6 Hernandez initially denied knowing the identity or ownership of the residence where he stopped. It was later determined that the residence was occupied by Hernandez’s girlfriend.
¶ 7 Hernandez was arrested and indicted on various drug offenses. He moved to suppress the evidence seized by the deputies and the trial court held an evidentiary hearing, also requesting supplemental memoranda. At a pretrial conference, the court denied the motion, stating in part:
Mr. Hernandez was within the curtilage of his girlfriend’s home when he was detained for a civil traffic offense. There was no probable cause or reasonable suspicion that he was engaged in any criminal activity, prior to his detention.... Mr. Hernandez clearly was an invitee ... and he had a reasonable expectation of privacy within the curtilage of the home.... [Bjased upon the evidence, the Court does find that the pursuit began in public, and then it went into the backyard which is clearly curtilage, but it’s not in the home. I know there are cases that indicate, well, if it’s curtilage, it should be viewed just like the home, but this circumstance is a little bit different. It’s the girlfriend’s home. It’s in the backyard. It’s not actually through the entryway.... If you look at the entire thing in terms of reasonableness, is it reasonable? Was it reasonable for the officers to follow into the backyard under the circumstances? I guess my answer on that would be that it was, and there was no violation of the [Four]th Amendment that would necessitate suppression.3
¶ 8 Challenging only the suppression ruling, Hernandez appeals and we have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Discussion
¶9 Hernandez argues the deputies’ entry onto private property without a warrant to complete the investigation of a civil infraction violated his rights under the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution. In reviewing a ruling on a motion to suppress for an alleged Fourth Amendment violation, “we defer to the trial court’s factual findings, but we review de novo mixed questions of law and fact and the trial court’s ultimate legal conclusion.” State v. Wyman, 197 Ariz. 10, ¶ 5, 3 P.3d 392, 395 (App. 2000). The state must prove the lawfulness of a search by a preponderance of the evidence. Ariz. R. Crim. P. 16.2(b).
¶ 10 The Fourth Amendment assures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and sei
¶ 11 One such exigent circumstance is the “hot pursuit of a fleeing felon.” State v. Love, 123 Ariz. 157, 159, 598 P.2d 976, 978 (1979). Under this exception, “a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place.” United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); see also State v. Tassler, 159 Ariz. 183, 185, 765 P.2d 1007, 1009 (App. 1988) (once officers formed intent to arrest defendant, “[t]hat arrest could not be defeated by [a] retreat”). Hot pursuit involves “some element of a chase,” Santana, 427 U.S. at 42 n.3, 96 S.Ct. 2406, and “immediate or continuous pursuit ... from the scene of a crime.” Welsh, 466 U.S. at 753, 104 S.Ct. 2091; United States v. Johnson, 256 F.3d 895, 907 (9th Cir. 2001). However, hot pursuit “need not be an extended hue and cry ‘in and about (the) public streets,’” and “[t]he fact that [a] pursuit ,.. ended almost as soon as it began [does] not render it any the less a ‘hot pursuit’ sufficient to justify [a] warrant-less entry,” Santana, 427 U.S. at 43, 96 S.Ct. 2406.
¶ 12 Under the Fourth Amendment, curtilage—“the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life’”—is generally considered part of the home, Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886). “A driveway[, however,] is only a semiprivate area.” State v. Cobb, 115 Ariz. 484, 489, 566 P.2d 285, 290 (1977), quoting United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975); see also State v. Blakley, 226 Ariz. 25, ¶ 7, 243 P.3d 628, 630 (App. 2010) (driveway, although in curtilage, considered semiprivate), For the purposes of our analysis, we accept the trial court’s finding that Hernandez did not enter the house, but was within the curtilage. This fact, however, remains relevant in determining whether the deputies’ actions in following Hernandez’s car into the backyard were reasonable.
¶ 13 Hernandez argues the trial court erroneously relied on Santana when denying his motion to suppress. There, an undercover officer arranged a drug sale with a suspect, who guided the officer to Santana’s house, where the suspect took marked money from the officer, went inside, and returned with several envelopes of heroin. 427 U.S. at 39-40, 96 S.Ct. 2406, The officer arrested the suspect and took her to a police station. Id. at 40, 96 S.Ct. 2406. Several other officers then drove to the house and saw Santana standing in the doorway. Id, The officers identified themselves and Santana retreated into the house, prompting the officers to
¶ 14 While not disputing that the deputies’ pursuit of him began in public, Hernandez argues he did not try to flee or evade the deputies, which he contends are necessary to find that law enforcement was in “hot pursuit.” Furthermore, he maintains Santana only considered scenarios in which “the police possessed probable cause to arrest” a defendant and where the defendant’s actions “created an exigency whereby evidence of a serious crime would have been destroyed had police delayed their pursuit.” He reasons that because the failure to have automobile insurance is a civil infraction and there was no concern evidence would be destroyed by his actions, there was not the predicate probable cause.
¶ 15 The state argues “it is irrelevant that [Hernandez] was not subject to arrest for the civil traffic violation because, by the time [the] deputies followed [Hernandez] into the backyard, they had probable cause to arrest him for a felony offense,” citing A.R.S. § 28-622.01. It posits that an objective viewing of the failure to stop and purposeful turn onto private property “gave the deputies probable cause to arrest him for unlawful flight.” Alternatively, the state suggests Hernandez’s “failure to stop” violated A.R.S. § 28-1595(A).
¶ 16 Section 28-622.01 provides, “A driver of a motor vehicle who willfully flees or attempts to elude a pursuing official law enforcement vehicle ... is guilty of a class 5 felony.” We have interpreted “attempt to elude” to connote “adroit maneuvers[,] quick turns, driving with the lights off, driving where the pursuing vehicle could not follow, or attempting to hide.” State v. Fogarty, 178 Ariz. 170, 172, 871 P.2d 717, 719 (App. 1993). “The term ‘flee’ usually, but not always, connotes speed.” Id. However, “any refusal to stop on command of an officer who is in a police car violates the felony flight statute because of the potential for personal danger inherent in vehicular pursuit, even if that pursuit does not attain excessive speeds or involve reckless driving.” Id. at 171, 871 P.2d at 718. Section 28-1595(A) provides, “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.”
¶ 17 After the deputies had activated their emergency lights, signaling Hernandez that he must stop, he did not stop on the wide shoulder of the road. He turned onto the private driveway and continued driving “to the back side of the residence down the driveway,” where he began exiting the vehicle. Deputy Gilbert exited the patrol car quickly and ordered Hernandez back into his car for officer safety and to prevent him from leaving the area, Although it was a short period between the activation of the lights and Hernandez’s entry onto the driveway, this sequence of events followed several minutes during which the deputies followed Hernandez while he made numerous random turns in what a reasonable observer could have interpreted as an attempt to lose the patrol cai*. At the time Hernandez entered the driveway, the deputies were unaware that he had any connection to the property. Under the totality of the circumstances, a reasonable deputy in that situation could
¶ 18 Hernandez and the dissent also contend that there were no public safety issues, no concern that Hernandez was attempting to flee and, therefore, no realistic probability of a conviction for flight from an officer. First, Deputy Gilbert clearly stated that he exited and approached the vehicle on his own because he was concerned about both public safety and flight. Second, Hernandez’s analysis adopts facts about the occupants of the home different from what he initially stated, and the true circumstances were only discovered later through investigation. If Hernandez had pulled into a driveway and backyard of a stranger, the concerns of Deputy Gilbert would have had even greater force. Finally, whether Hernandez could have been convicted of flight from law enforcement involves elements far beyond the reasonableness of the deputies’ conduct here.
¶ 19 As previously noted, although in some circumstances “the gravity of the underlying offense” is an important factor in determining whether an exigency exists, Welsh, 466 U.S. at 753, 104 S.Ct. 2091, law enforcement in continuous pursuit of a suspect for investigation of minor offenses may justify a warrantless intrusion into the curti-lage of a constitutionally protected area. See Johnson, 256 F.3d at 908 n.6.
¶ 20 In 2013, the U.S. Supreme Court clarified that it had never laid down “a categorical rule for all cases involving minor offenses, saying only that a warrant is ‘usually’ required.” Stanton v. Sims, — U.S. -, 134 S.Ct. 3, 6, 187 L.Ed.2d 341 (2013) (per cu-riam), quoting Welsh, 466 U.S. at 750, 104 S.Ct. 2091. Noting that “neither Welsh nor Johnson involved hot pursuit,” the Court stated that, “despite our emphasis in Welsh on the fact that the crime at issue was minor—indeed, a mere nonjailable civil offense—nothing in the opinion establishes that the seriousness of the crime is equally important in cases of hot pursuit.” Stanton, — U.S. -, 134 S.Ct. at 6. The Court also noted that California properly had refused to limit the hot pursuit exception to felony suspects in two cases: People v. Lloyd, 216 Cal.App.3d 1425, 265 Cal.Rptr. 422 (1989), and In re Lavoyne M., 221 Cal.App.3d 154, 270 Cal.Rptr. 394 (1990). Stanton, — U.S. -, 134 S.Ct. at 7. We find these cases persuasive.
¶ 21 In Lloyd, a police officer activated his emergency lights to effect a stop after observing the appellant’s brother Calvin run a red light. 265 Cal.Rptr. at 423. Calvin refused to pull over, accelerating and running a stop sign before finally parking on the curb in front of a house. Id. Law enforcement then approached him and asked for his license and
¶ 22 Lavoyne M. presented similar circumstances. There, having observed a vehicle run multiple stop signs, an officer activated his lights and siren in an attempt to effectuate a stop, but the driver refused to pull over. 270 Cal.Rptr. at 394. Eventually the car did stop in front of a house, and the driver ran inside. Id. at 395. An officer recognized the driver from prior contact as a minor too young to have a driver’s license, indicating a civil traffic violation. Id. The officer immediately followed the driver into the home, and placed him under arrest. Id. The Lavoyne M. court held that the “[mlinor’s refusal to comply with the attempts to detain him provided probable cause for the officer to arrest him,” citing Cal. Penal Code § 148 and Lloyd. Lavoyne M., 270 Cal.Rptr. at 396.
¶ 23 In addition to California, several jurisdictions have held that the hot pursuit exigency applies to eases involving less serious offenses. In Middletown v. Flinchum, 95 Ohio St.3d 43, 765 N.E.2d 330, 332 (2002), a case the trial court here relied on in denying Hernandez’s motion, the Ohio Supreme Court held:
Although Santana deals with the issue of warrantless home arrests in the context of a felony suspect, we see no reason to differentiate appellant’s offense and give him a free pass merely because he was not charged with a more serious crime. The basic fact remains that appellant fled from police who were in lawful pursuit of him and who had identified themselves as police officers.
Illinois, Massachusetts, and Wisconsin have all adopted similar rules. People v. Wear, 371 Ill.App.3d 517, 311 Ill.Dec. 41, 867 N.E.2d 1027, 1042 (2007) (“[T]he doctrine of hot pursuit does not care whether it was a Terry stop or an arrest that the police officer set in motion before pursuing a suspect into a private place.”), aff'd, 229 Ill.2d 545, 323 Ill.Dec. 359, 893 N.E.2d 631 (2008); Commonwealth v. Jewett, 471 Mass. 624, 31 N.E.3d 1079, 1089 (2015) (noting “such a categorical distinction would arbitrarily permit perpetrators of serious misdemeanors ‘to avoid punishment merely because of how the legislature had labelled an infraction’ ”), quoting State v. Paul, 548 N.W.2d 260, 267 (Minn. 1996); State v. Weber, 372 Wis.2d 202, 887 N.W.2d 554, ¶ 33 (2016) (“[T]he mere fact that the underlying offenses at issue in this ease are misdemeanors is not a bar to application of the hot pursuit doctrine,”).
¶ 24 A minority of jurisdictions have applied a more stringent standard in cases of hot pursuit. In State v. Bolte, 115 N.J. 579, 560 A.2d 644 (1989), a case the trial court here declined to follow, the Supreme Court of New Jersey held that an officer in hot pursuit of a driver observed committing numerous traffic infractions violated the Fourth Amendment by following him first into his driveway, then into his garage, and finally into his house where the officer effected an arrest, stating:
We reject the State’s contention that hot pursuit alone can support a warrantless entry into a home. Although the State argues that citizens should not be encouraged to elude arrest by retreating into their homes, the question whether hot pursuit by police justifies a warrantless entry depends on the attendant circumstances.
Id. at 654.
¶ 25 Even were we to adopt the reasoning in Bolte, this case is distinguishable on several grounds. First, the officer followed Bolte first into his driveway, then into his garage, then into the home itself, and finally made
¶26 To the extent Hernandez and the dissent contend it is bad policy to authorize law enforcement to stop a motorist to investigate the absence of vehicle insurance, the criticism can only be addressed by the legislature. It has concluded that driving without insurance is an offense that requires law enforcement authority to stop a vehicle suspected of lacking insurance, A.R.S. §§ 28-1594, 28-4033; further, refusal to stop for this offense is punishable as a misdemeanor or a felony, A.R.S. §§ 28-622.01, 28-1595(A). It is within the legislature’s power to prohibit driving without insurance without authorizing officers to stop motorists for such a violation, but it decided otherwise. See, e.g., A.R.S. § 28-909 (failure to wear seatbelt is traffic violation, but no authority to stop motorist driving without a seatbelt “unless the peace officer has reasonable cause to believe there is another alleged violation of a motor vehicle law”); Tucson City Code § 20-160 (no law enforcement authority to stop motorists violating hands-free cell phone ordinance). Moreover, assessing the reasonableness of law enforcement’s conduct under the Fourth Amendment takes into account the decision of the state legislature regarding the seriousness of the offense and the authority of officers to investigate it. See Welsh, 466 U.S. at 754, 104 S.Ct. 2091 (statute is “best indication of the State’s interest in precipitating an arrest, and is one that can be easily identified both by the courts and by officers faced with a decision to arrest”).
¶ 27 In sum, Hernandez’s attempt to elude law enforcement by entering a private driveway constituted probable cause that he was attempting to flee, despite the fact that the reason for the stop was a civil traffic violation. The Fourth Amendment does not require that the deputies must “shrug [their] shoulders and go obtain a warrant” when the initial violation was for a minor offense.
Disposition
¶ 28 For the foregoing reasons, we affirm the trial court’s denial of Hernandez’s motion to suppress. Accordingly, Hernandez’s convictions and sentences are affirmed.
. Following oral argument in this court, we requested that the Cochise County Superior Court provide us with the exhibits from the suppression hearing. The clerk’s office subsequently informed us that it could not locate them.
. The nature of the turn was described as elongated or sweeping. The angle of the turn is not dispositive of the Fourth Amendment issue or even a significant fact.
. In addition to the excerpted statements already noted, the trial court stated: "And based upon the circumstances of this case, I do find that the reasoning of [United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976)] does apply to Mr. Hernandez’[s] case."
. "The Arizona Constitution is even more explicit in safeguarding this liberty: 'No person shall be disturbed in his private affairs, or his home invaded, without authority of law,' " State v. Martin, 139 Ariz. 466, 473, 679 P.2d 489, 496 (1984), quoting Ariz. Const. art. II, § 8 (emphasis in Martin). But other than in the context of a war-rantless entry into the home itself, Arizona's courts have concluded that the protections of art, II, § 8 are coextensive with those of our federal constitutional jurisprudence, See State v. Peltz, 242 Ariz. 23, n.3, 391 P.3d 1215, 1222 n.3(App. 2017).
. Neither Deputy Villa nor Deputy Gilbert mentioned either statute as a justification for following Hernandez onto private property. Nor did the state raise either of these arguments below. However, "[w]e are required to affirm a trial court's ruling if legally correct for any reason and, in doing so, we may address the state's arguments to uphold the court's ruling even if those arguments otherwise could be deemed waived by the state’s failure to argue them below.” State v. Boteo-Flores, 230 Ariz. 551, ¶7, 288 P.3d 111, 113 (App. 2012). This holds true even if the issue is fact-intensive, as long as "the state is presenting an argument to uphold the court’s ruling’' and "the factual record developed at the suppression hearing is sufficient for our review,” Id, ¶¶ 9-10.
. A class 2 misdemeanor is punishable by up to four months in jail. A.R.S. § 13—707(A)(2).
. Hernandez maintains he did not try to flee or elude the deputies. But the only other plausible explanation for his behavior is that he chose the backyard portion of the driveway as a safe location to pull over for the traffic stop, implicitly consenting to the deputies’ presence on the curti-lage, and therefore lacked a reasonable expectation of privacy there. Cf. State v. Fleischman, 157 Ariz. 11, 14-15, 754 P.2d 340, 343-44 (App. 1988) (implied consent to search can arise out of defendant's 9-1-1 call reporting crime at location later searched). Put another way, either Hernandez stopped for the deputies, or he did not. He is not entitled to both conflicting interpretations.
. We do not hold that a driver who stops as soon as is reasonably practicable will generate reasonable suspicion of flight merely because he failed to stop immediately. We hold only that under the totality of the circumstances in this case, the deputies reasonably could have believed that Hernandez was attempting to elude them.
.Our dissenting colleague disagrees with this assessment, but principally relies on inapposite cases that do not involve hot pursuit. See Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 1414-17, 185 L.Ed.2d 495 (2013) (warrantless intrusion without any exigency); Arizona v. Hides, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (plain view doctrine); Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (four-day warrantless search after an emergency entry responding to gunshots); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (police "entered the house and began to search for a man of the description they had been given”); United States v. Struckman, 603 F.3d 731, 745 (9th Cir. 2010) (suspect did not attempt to run); Hopkins v. Bonvicino, 573 F.3d 752, 769 (9th Cir. 2009) (entry under the emergency exception); Johnson, 256 F.3d at 898 (attempt to locate suspect who had last been seen thirty minutes prior).
. Section 148(a)(1), Cal. Penal Code, makes it a crime to “willfully resist[ ], delay[ ], or obstruct[ ] any ... peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment.”
. We need not decide and do not decide whether the result would have been the same had Hernandez entered the house before officers arrived.
. For the same reasons, we find no violation of article II, § 8 of the Arizona Constitution.