United States District Court, D. Arizona
REPORT AND RECOMMENDATION
JAMES A. TEILBORG, Magistrate Judge.
Petitioner David Owens, who is confined in the Arizona State Prison Complex-Eyman, Meadows Unit, in Florence, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer on February 21, 2014 (Doc. 15), and Petitioner filed his Reply on March 19, 2014 (Doc. 18).
The pre-sentence report provides the following account of the facts:
An extensive investigation was directed by Detective Tony Ruppel into area home burglaries occurring between June and November 2001, with similar modus operandi: Cutting or removing screens from windows to gain entrance, master bedroom affected only, mostly jewelry taken, nothing rummaged through, little or no latent finger prints, no shoe impressions in the dirt and block walls concealing entry into houses that looked expensive. A search warrant was obtained on November 5, 2001 for the residence of defendant David Owens (38)... Evidence was gathered during the search linking the defendant to multiple home burglaries in the area. Also found was pornographic material involving children.
Detective Ramona Tepfer headed up the investigation into the pornographic materials found in the defendant's home. This investigation revealed the defendant had surreptitiously video-taped multiple victims, mainly juvenile females, while they were dressing, playing or sleeping. This videotaping occurred during the same time frame as the burglaries. He had also molested a female juvenile victim by reaching through a window and touching her in the vaginal area while she slept, while he was videotaping at the same time. The defendant's modus operandi in these incidents was to gain entrance into rooms (mainly bedrooms) by cutting or removing screens to windows, using night vision equipment and videotape victims while they were unaware. The defendant was also known to cut pieces of carpet and glue them to the bottoms of his shoes so as to be quieter during both his burglaries and videotaping.
(Exh. V at 2-3.) The pre-sentence report stated Petitioner had committed nine burglaries occurring approximately between July and November of 2001, and that he had stolen property ranging in worth from $3, 400 and $25, 000. (Id. at 3-4.) The report also listed seven instances between June and November of 2001, in which Petitioner illegally entered homes and unlawfully videotaped six young girls ranging in age from 5 to 14 years old, and one adult female. (Id. at 4.) The report also indicated that Petitioner had sexually molested one of the minor victims while videotaping her. (Id.)
On November 16, 2001, Petitioner was indicted by grand jury with 33 counts in cause number CR-2001-1461, including: 11 counts of second-degree burglary, class 3 felonies (counts 1, 3, 5, 7, 16, 18, 20, 23, 26, 30, 33); six counts of theft, class 3 felonies (counts 2, 4, 6, 8, 9, 12); three counts of first-degree trafficking in stolen property, class 2 felonies (counts 10, 11, 13); 12 counts of unlawful surreptitious videotaping, class 5 felonies (counts 14, 17, 19, 21, 22, 24, 25, 27, 28, 29, 31, 32); and one count of molestation of a child, a class 2 felony (count 15). (Exh. A.) On January 10, 2002, Petitioner was indicted by a grand jury and charged with 19 counts of sexual exploitation of a minor, class 2 felonies, in matter number CR-2002-0051, in connection with child pornography that was found on his computer. (Exh. B.) The State subsequently filed allegations of prior felony convictions, which included: four counts of burglary from 1984 in San Bernardino County, California; seven counts of concealing stolen property also from 1984 in San Bernardino, California; vehicle theft in 1993 in San Diego, California; and lewd and lascivious acts upon a child under the age of 14 in 1995, in Riverside County, California, which was a dangerous crime against children. (Exh. D.)
During a January 22, 2002 arraignment, Petitioner, who was represented by the Mohave County Public Defender's Office, pleaded not guilty. (Exhs. C, EEE.) On February 5, 2002, Petitioner filed a motion to suppress a number of items obtained during the search of his home, including electronic equipment such as videotapes, cameras, notebooks, CDs, and other computer equipment, claiming that these had been obtained in an unlawful search. (Exh. I.) The facts surrounding the search of Petitioner's home, as presented in the suppression hearing, were described by the trial court as follows:
On November 2, 2001, Cerbat Justice of the Peace John Taylor issued a search warrant as requested by the Kingman Police Department. The search warrant was for 2732 Walapai Avenue in Kingman, regarding burglary, theft and trafficking in stolen property investigations of David Owens. There is no dispute that this warrant was valid and issued upon a finding of probable cause by Judge Taylor.
The search team, among others, consisted of Kingman Police Department Officers Anthony Ruppel and Ramona Tepfer and Department of Public Safety Officer David Huerta. Upon entry of the residence at 2732 Walapai, in the course of processing the scene, Officer Ruppel located a photograph of a minor girl dressed in a towel. Officer Ruppel knew this young girl and questioned how such a photograph was in the possession of the defendant. Officer Tepfer found in plain view handwritten notes that, based on her sex and computer crime training and experience, she believed to be child pornography sites. Independent of those findings, Officer Huerta generally from a narcotic detail, found a tape on a VCR and started to play it. Officer Huerta testified that on search warrants with his detail (M.A.G.N.E.T.) that their search warrants typically have language that allow officers to play VCR tapes in VCRs. This procedure was not in the Kingman Police Department search warrant presented to Judge Taylor.
The testimony presented indicated that when these items were found that the search was halted and the premises remained secured by on scene law enforcement. Officer Ruppel took the new information and telephoned the issuing magistrate to expand the search to include items that may have evidence of child pornography such as computers, VCRs, DVDs, floppy disc, mailing lists, photographs and anything to do with pre-teen pornographic websites. This presentation to Judge Taylor was made under oath telephonically from the Kingman Police Department. A transcript of this affidavit was admitted in evidence as Exhibit 4. Judge Taylor did swear in Officer Ruppel and asked him for the State's reasons to expand the search warrant. Officer Ruppel first told Judge Taylor about the handwritten note of possible pornographic websites of preteens, the VCR incident and lastly about the photographs. Judge Taylor asked probative questions which were appropriately responded to by Officer Ruppel. Judge Taylor then stated that he gave his permission to conduct the additional search for items specifically set out.
Officer Ruppel returned to the Walapai residence and the search for burglary, theft, trafficking in stolen property and sex crimes against children was conducted. The record reflects that the entire search occurred after Officer Ruppel returned with Judge Taylor's authority to seize items that may contain evidence of sex crimes against children. Officer Ruppel was away from the scene approximately one-half hour. Officer Ruppel had the Kingman Police Department staff transcribe the conversation with Judge Taylor. No one contests the authenticity of this transcription.
In his motion to suppress, Petitioner argued that the electronic and computer materials were not within the scope of the warrant, and that the State had failed to obtain a new warrant as required by the Fourth Amendment, the Arizona Constitution, and Arizona law. (Exh. I.) The State filed a response on February 15, 2002. (Exh. J.) Petitioner filed a reply on February 21, 2002. (Exh. K.)
On March 5, 2002 the court held an evidentiary hearing on the motion to suppress. (Exhs. L, CCC.) Although attorney Michael Grondin initially represented Petitioner, on the first day of the evidentiary hearing, another attorney from the Mohave County Public Defender's Office, Frank E. Dickey, appeared to represent Petitioner, and did so throughout the hearing. (Exh. CCC.) At the end of the first day, Petitioner had the following exchange with the court concerning the substitution:
MR. OWENS: It wasn't brought to my attention -
THE COURT: You have the right to remain silent. Anything you say could be used against you.
MR. OWENS: I understand that, Your Honor. I -
MR. DICKEY: Because Mr. Grondin is not here, Your Honor.
MR. OWENS: I don't know, but I am just saying it wasn't brought to my attention. Mr. Grondin assured me that he'd be my lawyer. He also has other information and knowledge concerning this -
THE COURT: Well, I don't know where Mr. Grondin is today or what the activities of the public defender's office attorney, so I am unable to help you with that.
MR. OWENS: I understand that. I just was making a note here that this was not brought to my attention, and Mr. Grondin does have more information me and him exchanged and he remains as my attorney. No disrespect to the public defender's and Court for giving -
THE COURT: There's still many opportunities for whatever Mr. Grondin knows to be conveyed, and perhaps you can be back at this continuation of this hearing and I am going to continue this hearing.
(Exh. CCC at 21-22.) The hearing continued on March 14, 2002, at the end of which the court ordered supplemental briefing. (Exh. BBB at 59-60.) On March 22, the State filed a supplemental brief, citing additional authority concerning telephonic search warrants. (Exh. M.)
On March 25, Petitioner moved to substitute his prior attorney Michael Grondin, who was no longer with the public defender's office. (Exh. N.) On April 9, 2002, Mr. Grondin filed a supplemental memorandum on Petitioner's behalf, citing a number of cases concerning the requirement for a written affidavit or warrant, and arguing that the officers lacked good faith, and that the inevitable discovery doctrine did not permit officers to conduct searches without warrants. (Exh. P.)
On April 24, 2002, the court denied Petitioner's motion to suppress. (Exh. Q.) The court held that there did not appear to be an Arizona case directly on point with the issues. (Id.) The court found that once officers found the handwritten notes by the computer of purported child pornography sites, they had probable cause to search for child sex crimes evidence, but needed additional authority to seize those items. (Id.) The officers sought this authority, but failed to obtain a writing as required by A.R.S. § 13-3911. The court concluded, however, that to invalidate the search on this basis would be to exalt form over substance. (Id.) The court found that:
[T]here is a distinction that may be drawn between the issuance of an original warrant and the expansion of an already issued and signed warrant. In those situations where the privacy interest of an individual has already been breached because of probable cause, it seems that when officers are lawfully in a protected area that the discovery of items in plain view that may be evidence of other criminal activity there is perhaps a lesser reasonable expectation of privacy. Consequently it follows that the appropriate standard to determine the validity of a search warrant that is expanded by evidence of possible new crimes becomes substantial compliance.
(Id.) The court pointed out that "Judge Taylor gave specific and unequivocal authority... to search for items relating to sex crimes against children in the possession of David Owens." (Id.) Citing the case of State v. Morrongiello , 193 Cal. Rpt. 105 (1983), the court held that given that the original warrant lawfully placed law enforcement in the Petitioner's residence, any expansion of the search after obtaining permission from the court should be recognized as proper procedure. (Id.)
On May 8, 2002, after the court denied the motion to suppress, Petitioner and the State filed a stipulation to sever counts 14-23 in matter CR-2001-1461 and join them with all counts of the indictment in CR-2002-0051. (Exh. R.)
On August 20, 2002, Petitioner entered into a plea agreement, whereby he agreed to plead guilty to five counts of burglary in the second degree, all class 3 felonies, as charged in counts 1, 3, 5, 7 and 12; two counts of trafficking in stolen property in the first degree, class 2 felonies, as charged in counts 10 and 11; and 12 counts of unlawful surreptitious taping, each class 5 felonies, as charged in counts 14, 17, 19, 21, 22, 24, 25, 27, 28, 29, 31 and 32. (Exh. T.) As part of the plea agreement, the remaining counts were dismissed. (Id.)
The agreement provided that Petitioner would receive a sentence of 7 years in prison for one count of burglary, and 8 years for each of the four remaining burglary counts. (Id.) Petitioner would also receive 10 years for each count of trafficking in stolen property, 3.5 years for each of 11 counts of surreptitious taping, and 2.5 years for one count of surreptitious taping. (Id.) Petitioner's sentence totaled 100 years and the State agreed not to prosecute him for any other crime he had committed, other than homicide. (Id.)
The agreement stated that Petitioner "shall not have any right to appeal from the judgment or sentence imposed as a result of this stipulated guilty plea." (Id.) The agreement also stated that Petitioner "gives up any and all motions, defenses, objections or requests which he has made or raised, or could assert hereafter, and agrees to the court's entry of judgment against him and imposition of a sentence upon him consistent with the stipulation." (Id.)
On August 8, 2002, the court held a change-of-plea hearing. (Exhs. U, AAA.) During the hearing, the court went over the terms of the agreement with Petitioner, including the various counts to which he was pleading guilty, Petitioner's admission to the prior convictions, and the fact that he would be sentenced with one historical prior on each count. (Exh. AAA at 3-5.) The court had the following exchange with Petitioner:
THE COURT: And is it your signature on the bottom of the third page of this plea agreement?
THE DEFENDANT: Yes, it is.
THE COURT: And did you read the entire agreement before you signed it?
THE DEFENDANT: Yes, I did.
THE COURT: And has your attorney also explained this ...