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State v. Becerra

Court of Appeals of Arizona, Second Division

January 25, 2016


Appeal from the Superior Court in Pima County. No. CR20111519001. The Honorable Scott Rash, Judge.

Mark Brnovich, Arizona Attorney General,Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Amy Pignatella Cain, Assistant Attorney General, Tucson, Counsel for Appellee.

Steven R. Sonenberg, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant.

Judge Miller authored the opinion of the Court, in which Judge Espinosa concurred and Chief Judge Eckerstrom dissented.


Page 568

 MILLER, Judge:

[¶1] Rosa Becerra was convicted after a jury trial of possession of drug paraphernalia and methamphetamine for sale and sentenced to a combined prison term of five years. On appeal, she contends the trial court erred in denying her motion to suppress the methamphetamine when it concluded that her written and oral consent to search her car included inspection by a drug-detection dog (K-9). For the reasons that follow, we affirm.

Factual and Procedural Background

[¶2] In reviewing a trial court's ruling on a motion to suppress, the appellate court considers only the evidence presented at the suppression hearing. State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). In addition, we " view the facts in the light most favorable to sustaining the trial court's ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014). Only the officer who conducted the search testified at the suppression hearing.

[¶3] In 2011, a Department of Public Safety officer stopped Becerra's car for speeding and a cracked windshield. After issuing a written warning for the traffic violation and a repair warning for the windshield, the officer asked Becerra if he could search the vehicle, to which she said yes. The officer then gave her a consent-to-search form, which stated in both English and Spanish:

I, [name], give consent to search my vehicle and any of its contents under my control. I understand that:
(1) I can refuse to allow my vehicle to be searched.
(2) I can withdraw my consent to search at any time.
(3) Any evidence found during this search can be used against me in court.
(4) This consent does not include property of any individual adult passengers. Separate consent must be obtained from those individuals.

After confirming that Becerra could read Spanish, the officer asked her to read through the form and sign it if she agreed, and added that if she had any questions she could ask him. She signed the Spanish portion of the form. He asked her if she understood the form, and she said yes.[1] Their conversation was in English.

Page 569

[¶4] The officer directed Becerra and her passengers to exit the car and stand on a sidewalk about twenty feet from the car. He went to his patrol car, which was parked behind Becerra's car, and retrieved his K-9. The officer testified that his patrol car was visible from the sidewalk and Becerra was able to see him take the K-9 out of the patrol car. Becerra was standing close enough that the officer " [m]ost definitely" could have heard her if she had said something to him, but she did not. He testified that throughout the investigation, he never saw or heard her do or say anything to indicate that she withdrew her consent to search the car.

[¶5] The officer had the K-9 conduct an exterior sniff of Becerra's car by walking all the way around it. The K-9 did not alert to the exterior of the car. The officer next directed the K-9 to sniff the interior of the car. The K-9 alerted to a purse placed on the driver's seat.[2] The officer returned the K-9 to his vehicle and then searched the purse, finding the methamphetamine inside.

[¶6] In her motion to suppress Becerra argued the seizure of the methamphetamine violated the Fourth Amendment because the use of a K-9 to sniff the interior of the car exceeded the scope of her consent. The trial court denied the motion, finding Becerra freely and intelligently consented to a search and the actual search remained within the bounds of her consent. A jury found her guilty of the charge and after she was convicted and sentenced as described above, she appealed. We have jurisdiction pursuant to A.R.S. § § 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Consent to Search Vehicle With K-9

[¶7] A warrantless search of a car without the driver's consent or probable cause to believe it contains contraband or other evidence of a crime violates the Fourth Amendment. See U.S. Const. amend. IV; California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) (automobile exception to warrant requirement justified by lessened expectation of privacy in vehicle); see also Ariz. Const. art. II, § 8; State v. Reyna, 205 Ariz. 374, 375, ¶ 5, 71 P.3d 366, 367 (App. 2003). Because the state did not assert the officer had probable cause to search her car, Becerra's consent was the only issue addressed at the suppression ...

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