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State v. Foncette

Court of Appeals of Arizona, First Division

August 11, 2015

STATE OF ARIZONA, Appellee,
v.
KENRICK FONCETTE, Appellant

Appeal from the Superior Court in Maricopa County. No. CR2012-008318-002. The Honorable Teresa A. Sanders, Judge.

Arizona Attorney General's Office, Phoenix, By David Simpson, Counsel for Appellee.

Blumberg & Associates, Phoenix, By Bruce E. Blumberg, Counsel for Appellant.

Presiding Judge Kent E. Cattani delivered the opinion of the Court, in which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.

OPINION

Page 329

Kent E. Cattani, Judge.

[¶1] Kenrick Foncette appeals from his convictions of possession of marijuana for sale and possession of drug paraphernalia and the resulting sentences. Foncette argues the superior court erred by denying his motions to suppress evidence discovered in his hotel room after what he argues were illegal searches. Specifically, he claims police officers violated his Fourth Amendment rights by using a drug-detection dog in the hallway outside his hotel room and by manufacturing an exigency to justify their subsequent warrantless entry into the hotel room. We conclude that he has not shown a Fourth Amendment violation.

[¶2] Foncette further asserts that, although the officers obtained a search warrant after securing the room, the warrant impermissibly authorized a late-night search without good cause in violation of Arizona's statutory restriction on nighttime searches, Arizona Revised Statutes (" A.R.S." ) § 13-3917.[1] Absent a constitutional violation, however, suppression is not an authorized remedy for a purely statutory violation of the nighttime

Page 330

search statute, see A.R.S. § 13-3925(A), and ample cause supported nighttime service of the warrant in any event. For these reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶3] One night in late October 2010, Foncette and another man were driving a rental car in Tempe. Around 11:30 p.m., Officer Shearan of the Tempe Police Department stopped the car for a traffic violation. During the stop, Officer Shearan smelled fresh marijuana emanating from the car and requested the assistance of a drug-detection dog.

[¶4] Officer Ribotta and his police dog arrived at the traffic stop, and the dog alerted to the exterior of the vehicle, then to the seam of the backseat leading to the trunk, and then to the trunk. The officers searched the car, but did not find marijuana. They did, however, smell an overwhelming odor of fresh marijuana coming from the trunk.

[¶5] After the stop, Foncette and his companion were allowed to leave, and Officer Manchak, driving an unmarked vehicle, followed them to a hotel. Hotel staff buzzed the officers into the lobby, where Officer Manchak confirmed Foncette's room number with the front desk clerk. Officer Ribotta (without being informed of Foncette's room ...


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