from the Superior Court in Cochise County No. CR201500193 The
Honorable John F. Kelliher Jr., Judge.
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Kathryn A. Damstra, Assistant Attorney General,
Tucson Counsel for Appellee.
Hartzell, Tucson Counsel for Appellant.
Judge Eckerstrom authored the opinion of the Court, in which
Judge Eppich and Judge Vásquez concurred.
ECKERSTROM, Chief Judge.
Cody Lohse appeals from his convictions and sentences for
numerous drug-related offenses, arguing the trial court erred
by denying his motions to suppress evidence. He contends law
enforcement obtained a search warrant based on information
gained by unlawfully trespassing into his curtilage and that
the search warrant failed to describe his home with
sufficient particularity. We vacate the decision of the trial
court in part and remand for further proceedings.
and Procedural History
"In reviewing a motion to suppress, we consider only the
evidence presented at the suppression hearing and view the
facts in the light most favorable to sustaining the trial
court's ruling." State v. Gonzalez, 235
Ariz. 212, ¶ 2 (App. 2014). While investigating an
aggravated assault in March 2015, an operations commander
with the Cochise County Sheriff's Office received a tip
that the assailant had been seen at Lohse's home and that
Lohse could identify him. When the commander arrived at
Lohse's home, he opened and walked through first the
unlocked gate of a four-foot-high chainlink fence and then
the gate of a six-foot-tall opaque, wooden, privacy fence.
Although a witness testified that one of the fences also
displayed a "private property sign, " the commander
testified only that there "could have been" such a
sign, but he could not recall. In any event, the trial court
did not make a factual determination concerning whether such
a sign had been posted. After passing through both gates, the
commander went straight to the front door where he knocked
and identified himself.
When Lohse opened the door, the commander immediately smelled
the odor of raw marijuana coming from inside the home. Lohse
admitted there was a small amount of marijuana in the house,
and another officer confirmed that no one present possessed a
"medical marijuana card." See A.R.S.
§ 36-2801(13), (14). The commander then called narcotics
detectives, who obtained a search warrant and discovered
morphine, methamphetamine, marijuana, a handgun, a shotgun,
and several items of drug paraphernalia.
Before trial, Lohse filed motions to suppress all evidence
uncovered by the search of his home, arguing
"sheriff's personnel trespassed into the curtilage
of [his] home" and that the search warrant was invalid
because it listed an address different than his own.
Following a hearing, the trial court denied both motions,
finding the officers had legitimately entered the curtilage
pursuant to their community-caretaking function and, although
the search warrant listed a neighbor's address, "the
affidavit . . . accurately describe[d] the residence actually
Following trial, the jury found Lohse guilty of possession of
a narcotic drug, possession of marijuana, two counts of
misconduct involving weapons, and five counts of possession
of drug paraphernalia. The trial court suspended imposition of
sentence and placed Lohse on concurrent terms of probation,
the longest of which were four years. Lohse appealed; we have
jurisdiction. See A.R.S. §§ 13-4031,
As a threshold matter, the trial court erred by determining
the community-caretaking function justified the officers'
intrusion into Lohse's curtilage. See State v.
Mendoza-Ruiz, 225 Ariz. 473, ¶ 8 (App. 2010). This
function "arises from a police officer's status as a
'jack-of-all-emergencies,' who is 'expected to
aid those in distress, combat actual hazards, prevent
potential hazards from materializing, and provide an infinite
variety of services to preserve and protect community
safety.'" Id. ¶ 9 (quoting United
States v. Rodriguez-Morales, 929 F.2d 780, 784-85 (1st
Cir. 1991)). Accordingly, officers engaged in such tasks do
not violate the Fourth Amendment. Id. The standard
under this doctrine is whether a "prudent and reasonable
officer [would] have perceived a need to act."
Id. ¶ 8 (quoting State v. Organ, 225
Ariz. 43, ¶ 15 (2010)) (alteration in
Mendoza-Ruiz). In Mendoza-Ruiz, officers
entered the cab of a pickup truck to remove a gun that was
"clearly visible" because, after its owner was
arrested, the truck would be left in a busy, high crime area
known for shootings and aggravated assaults. Id.
¶¶ 3, 12. Similarly, in In Re Tiffany O.,
the community-caretaking function permitted an officer to
seize a juvenile's purse after receiving a report that
she had been suicidal; but it did not authorize them to
search the purse because taking it from her neutralized any
safety concern its contents may have presented. 217 Ariz.
370, ¶¶ 2, 26-31 (App. 2007).
Here, nothing in the record indicates officers entered the
curtilage of Lohse's home to address any public-safety
concern or prevent any harm from occurring. Rather, they were
investigating an aggravated assault that "had been
around for a while." As the commander recognized, making
contact with Lohse was not "an urgent necessity";
he simply did not want "to delay [the investigation] any
further." Because officers did not enter pursuant to the