Not For Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County No. CR20103792002 The Honorable Richard E. Gordon, Judge The Honorable Howard Fell, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix By Alan L. Amann, Assistant Attorney General, Tucson Counsel for Appellee
Manch Law Firm PLLC, Tucson By Eric S. Manch Counsel for Appellant
Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.
HOWARD, Chief Judge:
¶1 After a jury trial, appellant Christian Garza was convicted of attempted production of marijuana and possession of drug paraphernalia. On appeal, he argues the trial court erred by denying his motions to suppress, his motion to dismiss for preindictment delay, and in failing to declare a mistrial. Because we conclude exigent circumstances did not exist, we vacate the ruling on the motion to suppress and remand for a limited suppression hearing.
Factual and Procedural Background
¶2 "In reviewing the denial of a motion to suppress evidence, we consider only the evidence that was presented at the suppression hearing, which we view in the light most favorable to sustaining the trial court's ruling." State v. Kinney, 225 Ariz. 550, ¶ 2, 241 P.3d 914, 917 (App. 2010). In October 2008, two police officers went to a residence looking for a fugitive. The door to the residence was secured by an outer screen door and an inner door. When they knocked, Jeremiah Garza answered the door. As he did so, officers smelled the "overwhelming" odor of fresh marijuana. Jeremiah admitted he had marijuana in the residence, and the officers discovered he had a warrant out for his arrest. The officers placed him under arrest and then went back to the door and asked to enter. Christian shut the door on the officers and told them to "get off his curtilage." The officers continued to knock on the door and demand entry. Several times, Christian returned and opened the inner door, again told the officers to leave, that he was contacting his attorney, and closed the inner door. From the outside, the officers observed Christian walking around and heard banging noises, as though he was slamming doors.
¶3 After fifteen minutes, the officers removed the outer screen door, detained Christian as he opened the inner door, and forced entry into the residence. They conducted a "protective sweep, " which included removing the doorknob from a locked bedroom door and determining there were no other occupants of the residence. Inside the locked bedroom the police discovered a large number of marijuana plants. They then sought and obtained a warrant and conducted a more thorough search of the premises.
¶4 Christian was charged and convicted of attempted production of marijuana and possession of drug paraphernalia and sentenced to probation for two years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
¶5 Christian first argues the trial court erred by denying his motion to suppress evidence obtained from the warrantless search of his residence, claiming no exigent circumstances justified the search. He reasons that the officers had no basis to believe he was destroying evidence or that anyone else was in the residence and therefore no exigency existed. "We review the denial of a motion to suppress for an abuse of discretion." State v. Perez, 233 Ariz. 38, ¶ 25, 308 P.3d 1189, 1195 (App. 2013). But we review de novo whether exigent circumstances existed because that determination involves a mixed question of law and fact. See State v. Soto, 195 Ariz. 429,
¶ 7, 990 P.2d 23, 24 (App. 1999).
¶6 The Arizona Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Ariz. Const. art. II, § 8. This constitutional provision is both more explicit and more protective than its federal counterpart in "preserving the sanctity of homes and in creating a right of privacy." See State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984). Absent certain exceptions, police may not conduct warrantless searches of a home. State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986). One such exception is the protective sweep, which allows officers to search "adjoining areas [of the residence] where persons posing a danger might be found." State v. Fisher, 226 Ariz. 563, ¶¶ 8-9, 11, 250 P.3d 1192, 1194-95 (2011). But "specific facts, and not mere conjecture, are required to justify a protective sweep ...