Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2012-115567-001 The Honorable Lisa Ann VandenBerg, Judge Pro Tempore The Honorable Dawn M. Bergin, Judge
Arizona Attorney General's Office, Phoenix By William Scott Simon Counsel for Appellee.
Maricopa County Public Defender's Office, Phoenix By Terry Reid Counsel for Appellant.
Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Andrew W. Gould and Judge Patricia K. Norris joined.
KESSLER, PRESIDING JUDGE.
¶1 Appellant Kurt Andrew Goettl appeals his convictions and sentences for possession of dangerous drugs for sale (methamphetamine), possession of drug paraphernalia (plastic baggies), and possession or use of narcotic drugs (hydrocodone). Goettl argues that the superior court abused its discretion by failing to suppress and admitting text message evidence obtained from his cell phone during a warrantless search in violation of the Fourth Amendment. Goettl argues his convictions should be reversed, and admission of the text messages was not harmless error because such evidence was "the only direct evidence supporting [his] confession" that he possessed methamphetamine for sale and "absent the text messages . . . the jury would give less weight to [his] confession . . . ." (Emphases added.) Because we determine any error in admitting the text message evidence was harmless beyond a reasonable doubt, we affirm his convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 Detective G observed Goettl run a red light on his bicycle. Thereafter, Detective G surveilled Goettl and watched as he met a woman on a bicycle. As Goettl and the woman walked together with their bicycles Goettl opened a saddle bag on the back of his bicycle and then made a "hand-to-hand transaction" with the woman. Goettl and the woman then rode away from each other. Observing the hand-to-hand transaction was significant to Detective G because such a transaction "is when typically a drug item is transferred from one person to the other" for drugs or payment. Detective G followed Goettl, arrested him, and searched him. During the search, Detective G found a bag of pills later determined to contain hydrocodone, $480 in cash, and a bag containing a crystal substance later determined to be one gram of methamphetamine. In Goettl's saddle bag, Detective G found more bags containing a substance later determined to total two grams of methamphetamine as well as small clear plastic bags that were empty.
¶3 Detective G also viewed and later photographed text messages on Goettl's phone purportedly reflecting that the purpose of meeting the woman was to sell her drugs. Goettl was taken to the city jail where he was given Mirandawarnings and interviewed by Detective G.
¶4 Goettl moved to suppress the text messages arguing they were obtained in violation of his Fourth Amendment rights. The superior court refused to suppress the text messages after determining that cell phones are "containers" which may be searched incident to arrest.
¶5 At trial Detective G testified that during the police interview Goettl stated that the woman wanted to buy drugs from him, but he talked her out of that and gave her some money. Although Goettl did not tell Detective G that he was selling drugs that day, Goettl stated he did not have a job, his only source of income was selling methamphetamine, and that the $480 was cash he made from selling methamphetamine. Goettl said that he got the methamphetamine with which he was found earlier that day from his supplier and stated that he typically bought one half ounce to one ounce from his supplier. Detective G also testified that Goettl admitted that he used methamphetamine earlier that day. Goettl told Detective G that he believed the pills he had were Vicodin and he had traded methamphetamine for them because sometimes people asked for pills. After Goettl's hearsay objection was overruled, Detective G read into evidence the text message conversation that took place between Goettl and the woman before their encounter. In addition, the photographs of the messages were admitted into evidence.
¶6 Detective M testified about his training and experience for eighteen years as a patrol officer and narcotics detective and opined that based on the totality of the circumstances the methamphetamine Goettl possessed was for the purpose of sale. Detective M testified about what he takes into account when forming such opinions and stated that he formed his opinion in Goettl's case after reviewing the police reports, evidence, and police interview of Goettl. Detective M explained that when forming his opinions about whether drugs are for sale as opposed to personal use, a person's statements to police are the most important factor. According to Detective M, his opinion was largely based on the statements provided by Goettl during the police interview including that Goettl traded a bag of methamphetamine for Vicodin, that he did not have a regular job, and that Goettl told police that the $480 in cash with which he was found was drug sale proceeds. Detective M explained that selling drugs is a "cash business" and people selling drugs typically carry "bulk cash." He also thought that Goettl's statement about trading methamphetamine for Vicodin because sometimes people asked for Vicodin indicated that Goettl was a person who sells drugs and wanted to have product on hand if someone asked for it.
¶7 Apart from Goettl's statements, Detective M's opinion that Goettl possessed the methamphetamine for sale was based on Goettl possessing multiple small plastic bags, typical of those used by drug dealers, which contained methamphetamine, as well as other unused small plastic bags. Detective M explained that in his experience, drug sellers tend to buy a quantity of drugs and then repackage the drugs in smaller quantities for resale using small plastic baggies like the ones Goettl had. According to Detective M if a person intended the drugs for personal use, there would be no reason to have multiple small bags of drugs. In addition, Detective M noted that Goettl was not found with any tools to use drugs, such as a ...