from the Superior Court in Cochise County No.
SO200CR201400529 The Honorable James L. Conlogue, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel, Phoenix By Amy M. Thorson, Assistant Attorney
General, Tucson Counsel for Appellee.
William Lovell, Tucson Counsel for Appellant.
Miller authored the opinion of the Court, in which Judge
Espinosa concurred and Presiding Judge Staring dissented.
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.
and Procedural Background
"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." 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.
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 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."
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."
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
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
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
Challenging only the suppression ruling, Hernandez appeals
and we have jurisdiction pursuant to A.R.S. §§
13-4031 and 13-4033(A)(1).
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).
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." 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).
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.
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.
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.
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.
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. §
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
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