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State v. Hernandez

Court of Appeals of Arizona, Second Division

June 23, 2017

The State of Arizona, Appellee,
Anthony Lito Hernandez, Appellant.

         Appeal from the Superior Court in Cochise County No. SO200CR201400529 The Honorable James L. Conlogue, Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee.

          John William Lovell, Tucson Counsel for Appellant.

          Judge Miller authored the opinion of the Court, in which Judge Espinosa concurred and Presiding Judge Staring dissented.


          MILLER, Judge:

         ¶1 After a jury trial, Anthony Lito Hernandez was convicted of transportation of methamphetamine for sale, possession of marijuana, and possession of drug paraphernalia, and sentenced to a combined prison term of eleven years. On appeal, he challenges the trial court's denial of his motion to suppress evidence. Resolving this issue requires us to determine whether law enforcement officers attempting to complete an investigatory stop for a civil traffic violation were required to obtain a search warrant before approaching the vehicle after the driver pulled into a private driveway. For the reasons that follow, we conclude Hernandez's constitutional rights were not violated by the officers approaching the vehicle stopped in the driveway. We therefore affirm the order denying Hernandez's motion to suppress, and his convictions and sentences.

         Factual and Procedural Background

         ¶2 "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing it in the light most favorable to sustaining the trial court's ruling."[1] State v. Reyes, 238 Ariz. 575, ¶ 2, 364 P.3d 1134, 1135 (App. 2015). On the night of September 11, 2014, Cochise County Sheriff's Deputies Villa and Gilbert, on patrol in Willcox, observed a vehicle make an abrupt stop and then an immediate turn. The officers followed as the vehicle made a series of turns at various intersections in a random zigzag pattern. When they were able to get close enough, they ran a license plate check on the car, which "indicated that there had been an insurance cancellation" the previous month.

         ¶3 The deputies had to catch up with the car to initiate a traffic stop regarding the insurance cancellation. When the patrol car closed within two to three car lengths of the vehicle, they activated their emergency lights. Shortly thereafter, the vehicle turned[2] onto a private driveway, not stopping, and proceeded into the backyard area of the residence. The deputies did not know if Hernandez had any connection to the property and were not concerned about the home ownership because "we were trying to make a traffic stop of the vehicle." Deputy Villa explained that he followed Hernandez's car onto the property "[b]ecause that's where the vehicle took us when we attempted to stop it." He did not believe there would be any danger to the public, to himself, or to any other law enforcement officers if he did not make immediate contact with the car. Neither did Deputy Villa "give any thought at all to getting a warrant to search the vehicle."

         ¶4 Deputy Gilbert was asked whether he "fe[lt] that immediate contact was necessary with the operator of the motor vehicle to prevent any harm to the community, " and he thought "there was." He stated, "I fe[lt] based on previous training and experience, he is deciding to run, has decided to run or is already going to and that immediate contact needs to be made."

         ¶5 As Deputy Villa attempted to call in the stop on his cell phone rather than the radio because of transmission difficulties, Deputy Gilbert approached the vehicle. Hernandez had already begun to get out and was directed to remain inside. Deputy Gilbert walked toward the car and smelled marijuana. He then ordered Hernandez to step out and place his hands behind his back, after which Deputy Gilbert handcuffed Hernandez and checked him for weapons. During the pat-down, he found a large, folded stack of paper currency and an empty plastic baggie in one of Hernandez's pockets. In other pockets, Deputy Gilbert found a wallet and two "stack[s] of folded United States currency of various denominations." Altogether, Hernandez was carrying over $2, 400. The search of Hernandez's car revealed a burned marijuana cigarette, a metal spoon with char marks on the bottom and "a burned substance in it, " and a clear plastic baggie containing suspected methamphetamine.

         ¶6 Hernandez initially denied knowing the identity or ownership of the residence where he stopped. It was later determined that the residence was occupied by Hernandez's girlfriend.

         ¶7 Hernandez was arrested and indicted on various drug offenses. He moved to suppress the evidence seized by the deputies and the trial court held an evidentiary hearing, also requesting supplemental memoranda. At a pretrial conference, the court denied the motion, stating in part:

Mr. Hernandez was within the curtilage of his girlfriend's home when he was detained for a civil traffic offense. There was no probable cause or reasonable suspicion that he was engaged in any criminal activity, prior to his detention. . . . Mr. Hernandez clearly was an invitee . . . and he had a reasonable expectation of privacy within the curtilage of the home. . . . [B]ased upon the evidence, the Court does find that the pursuit began in public, and then it went into the backyard which is clearly curtilage, but it's not in the home. I know there are cases that indicate, well, if it's curtilage, it should be viewed just like the home, but this circumstance is a little bit different. It's the girlfriend's home. It's in the backyard. It's not actually through the entryway. . . . If you look at the entire thing in terms of reasonableness, is it reasonable? Was it reasonable for the officers to follow into the backyard under the circumstances? I guess my answer on that would be that it was, and there was no violation of the [Four]th Amendment that would necessitate suppression.[3]

         ¶8 Challenging only the suppression ruling, Hernandez appeals and we have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).


         ¶9 Hernandez argues the deputies' entry onto private property without a warrant to complete the investigation of a civil infraction violated his rights under the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution. In reviewing a ruling on a motion to suppress for an alleged Fourth Amendment violation, "we defer to the trial court's factual findings, but we review de novo mixed questions of law and fact and the trial court's ultimate legal conclusion." State v. Wyman, 197 Ariz. 10, ¶ 5, 3 P.3d 392, 395 (App. 2000). The state must prove the lawfulness of a search by a preponderance of the evidence. Ariz. R. Crim. P. 16.2(b).

         ¶10 The Fourth Amendment assures "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."[4] U.S. Const. amend. IV. Accordingly, law enforcement officers may not enter a person's home to arrest him or her without an arrest warrant, the consent of the person, or exigent circumstances. Payton v. New York, 445 U.S. 573, 576 (1980) (Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest). "Mere incantation of the phrase 'exigent circumstances'" is not sufficient. State v. Martin, 139 Ariz. 466, 474, 679 P.2d 489, 497 (1984), quoting People v. Barndt, 604 P.2d 1173, 1175 (Colo. 1980). For instance, where the state has determined that an offense is minor and no imprisonment is possible, officers may not enter the person's home even when investigating an offense that just occurred. Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (exigent-circumstances exception does not apply where DUI suspect left vehicle and entered his home). Rather, "an objectively reasonable basis must exist for officers to believe that the circumstances justify a warrantless entry." State v. Wilson, 237 Ariz. 296, ¶ 9, 350 P.3d 800, 802 (2015).

         ¶11 One such exigent circumstance is the "hot pursuit of a Fleeing felon." State v. Love, 123 Ariz. 157, 159, 598 P.2d 976, 978 (1979). Under this exception, "a suspect may not defeat an arrest which has been set in motion in a public place . . . by the expedient of escaping to a private place." United States v. Santana, 427 U.S. 38, 43 (1976); see also State v. Tassler, 159 Ariz. 183, 185, 765 P.2d 1007, 1009 (App. 1988) (once officers formed intent to arrest defendant, "[t]hat arrest could not be defeated by [a] retreat"). Hot pursuit involves "some element of a chase, " Santana, 427 U.S. at 42 n.3, and "immediate or continuous pursuit . . . from the scene of a crime." Welsh, 466 U.S. at 753; United States v. Johnson, 256 F.3d 895, 907 (9th Cir. 2001). However, hot pursuit "need not be an extended hue and cry 'in and about (the) public streets, '" and "[t]he fact that [a] pursuit . . . ended almost as soon as it began [does] not render it any the less a 'hot pursuit' sufficient to justify [a] warrantless entry." Santana, 427 U.S. at 43.

         ¶12 Under the Fourth Amendment, curtilage - "the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life'" -is generally considered part of the home. Oliver v. United States, 466 U.S. 170, 180 (1984), quoting Boyd v. United States, 116 U.S. 616, 630 (1886). "A driveway[, however, ] is only a semiprivate area." State v. Cobb, 115 Ariz. 484, 489, 566 P.2d 285, 290 (1977), quoting United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975); see also State v. Blakley, 226 Ariz. 25, ¶ 7, 243 P.3d 628, 630 (App. 2010) (driveway, although in curtilage, considered semiprivate). For the purposes of our analysis, we accept the trial court's finding that Hernandez did not enter the house, but was within the curtilage. This fact, however, remains relevant in determining whether the deputies' actions in following Hernandez's car into the backyard were reasonable.

         ¶13 Hernandez argues the trial court erroneously relied on Santana when denying his motion to suppress. There, an undercover officer arranged a drug sale with a suspect, who guided the officer to Santana's house, where the suspect took marked money from the officer, went inside, and returned with several envelopes of heroin. 427 U.S. at 39-40. The officer arrested the suspect and took her to a police station. Id. at 40. Several other officers then drove to the house and saw Santana standing in the doorway. Id. The officers identified themselves and Santana retreated into the house, prompting the officers to follow and apprehend her inside. Id. at 40-41. They found some of the marked money on her person. Id. at 41. The Court considered "whether [Santana's] act of retreating into her house could thwart an otherwise proper arrest, " and concluded "it could not" because the officers were engaged in "a true 'hot pursuit.'" Id. at 42.

         ¶14 While not disputing that the deputies' pursuit of him began in public, Hernandez argues he did not try to flee or evade the deputies, which he contends are necessary to find that law enforcement was in "hot pursuit." Furthermore, he maintains Santana only considered scenarios in which "the police possessed probable cause to arrest" a defendant and where the defendant's actions "created an exigency whereby evidence of a serious crime would have been destroyed had police delayed their pursuit." He reasons that because the failure to have automobile insurance is a civil infraction and there was no concern evidence would be destroyed by his actions, there was not the predicate probable cause.

         ¶15 The state argues "it is irrelevant that [Hernandez] was not subject to arrest for the civil traffic violation because, by the time [the] deputies followed [Hernandez] into the backyard, they had probable cause to arrest him for a felony offense, " citing A.R.S. § 28-622.01. It posits that an objective viewing of the failure to stop and purposeful turn onto private property "gave the deputies probable cause to arrest him for unlawful flight." Alternatively, the state suggests Hernandez's "failure to stop" violated A.R.S. § 28-1595(A).[5]

         ¶16 Section 28-622.01 provides, "A driver of a motor vehicle who willfully flees or attempts to elude a pursuing official law enforcement vehicle . . . is guilty of a class 5 felony." We have interpreted "attempt to elude" to connote "adroit maneuvers[, ] quick turns, driving with the lights off, driving where the pursuing vehicle could not follow, or attempting to hide." State v. Fogarty, 178 Ariz. 170, 172, 871 P.2d 717, 719 (App. 1993). "The term 'flee' usually, but not always, connotes speed." Id. However, "any refusal to stop on command of an officer who is in a police car violates the felony flight statute because of the potential for personal danger inherent in vehicular pursuit, even if that pursuit does not attain excessive speeds or involve reckless driving." Id. at 171, 871 P.2d at 718. Section 28-1595(A) provides, "The operator of a motor vehicle who knowingly fails or refuses to bring the operator's motor vehicle to a stop after being given a visual or audible signal or instruction by a peace officer . . . is guilty of a class 2 misdemeanor."[6]

         ¶17 After the deputies had activated their emergency lights, signaling Hernandez that he must stop, he did not stop on the wide shoulder of the road. He turned onto the private driveway and continued driving "to the back side of the residence down the driveway, " where he began exiting the vehicle. Deputy Gilbert exited the patrol car quickly and ordered Hernandez back into his car for officer safety and to prevent him from leaving the area. Although it was a short period between the activation of the lights and Hernandez's entry onto the driveway, this sequence of events followed several minutes during which the deputies followed Hernandez while he made numerous random turns in what a reasonable observer could have interpreted as an attempt to lose the patrol car. At the time Hernandez entered the driveway, the deputies were unaware that he had any connection to the property. Under the totality of the ...

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