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State v. Ehmke

Court of Appeals of Arizona, First Division, Department D

October 31, 2013

STATE OF ARIZONA, Appellee,
v.
WOLFGANG WILHELM EHMKE Appellant.

         Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2011-152885-001 The Honorable Edward Bassett, Judge

James J. Haas, Maricopa County Public Defender Phoenix By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant

Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Section Chief Counsel and Craig W. Soland, Assistant Attorney General Criminal Appeals Section Attorneys for Appellee

MEMORANDUM DECISION

DONN KESSLER, Judge

¶1 Wolfgang Wilhelm Ehmke ("Ehmke") appeals his conviction for misconduct involving weapons, arguing that the superior court erred by failing to suppress evidence of the guns police found during a warrantless search of a vehicle he was operating on a suspended license. For the following reasons, we affirm Ehmke's convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 While on duty and driving a designated police vehicle, Mesa Police Detective D.H. saw Ehmke standing in the road near a gas station. Detective D.H. called the career criminal squad to obtain more information on Ehmke. A career criminal squad detective advised Detective D.H. that Ehmke's license currently was suspended and that he had an outstanding warrant for driving on a suspended license. Alone and having previous experience with Ehmke, Detective D.H. remained in his vehicle and requested the help of additional units in taking Ehmke into custody.

¶3 While waiting for those additional units, Detective D.H. observed Ehmke get into the driver's seat of a minivan and begin to drive away. Detective D.H. followed Ehmke and saw him commit several traffic violations. Knowing that several other officers were near his location, Detective D.H. initiated a traffic stop to prevent Ehmke from entering the freeway.

¶4 Detective D.H. removed Ehmke from the minivan and detained him in handcuffs. Ehmke was arrested at the scene after the police confirmed the outstanding warrant. While looking inside the minivan to ensure that no one was in the passenger or back seats, Detective D.H. saw a large amount of cash sitting in the open glove box. Further, Detective D.H. noticed that Ehmke's "pant pockets were pulled out like he had just pulled something out of them." Given the circumstances, Detective D.H. called for a canine unit, which arrived ten to fifteen minutes later.[1]

¶5 The drug detection dog alerted to the vehicle for illegal drugs. Detective D.H. and the other officers then searched the vehicle and discovered one handgun in a backpack and a Desert Eagle 40 caliber handgun in a laundry tub, both of which were in the passenger compartment.

¶6 The State indicted Ehmke on two counts of misconduct involving weapons. Ehmke moved to suppress evidence of the guns, arguing that the warrantless search that uncovered the guns did not fall into any recognized exception to the warrant requirement. Specifically, Ehmke argued that the search was unreasonable as a search incident to arrest under Arizona v. Gant, 556 U.S. 332 (2009) . Alternatively, Ehmke contended that the search exceeded the scope of an inventory search because it was conducted in bad faith and executed for "investigative purposes."

¶7 The State did not seek to justify the seizure or the search on the basis of search incident to arrest. Rather, the State maintained that the police had probable cause to search the vehicle because of the drug dog's alert to the vehicle. Alternatively, the State argued that the evidence inevitably would have been discovered during an inventory search—which the written policies of the Mesa Police Department ("the Department") required—because the circumstances required the vehicle to be towed and impounded.[2]

¶8 At the evidentiary hearing on the motion to suppress, Detective D.H. testified that the officers found the guns while conducting a search based on probable cause, which arose from the drug dog's alert to the vehicle. He also testified that, under the circumstances, the vehicle inevitably would have been towed and impounded pursuant to Arizona Revised Statutes ("A.R.S.") section 28-3511(a)(1) (2013).[3] Thus, pursuant to the Department's written policies, [4] the officers would have performed an inventory search of the vehicle "no matter what." Detective D.H. ...


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