from the Superior Court in Cochise County No. CR201500359 The
Honorable Wallace R. Hoggatt, Judge.
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Casey D. Ball, Assistant Attorney General, Phoenix
Counsel for Appellee.
J. Zohlmann, Tombstone Counsel for Appellant.
Judge Vásquez authored the opinion of the Court, in
which Presiding Judge Staring and Judge Brearcliffe
Vásquez, Chief Judge.
After a jury trial, Maria Sallard was convicted of conspiracy
to commit transportation of marijuana for sale,
transportation of marijuana for sale, possession of drug
paraphernalia, and making a false statement to a law
enforcement agency. The trial court sentenced her to
concurrent prison terms, the longest of which are 4.25 years.
On appeal, Sallard argues the court erred by denying her
motion to suppress the data collected from her cell phone
during a search after she had invoked her rights pursuant to
Miranda.She also argues the court erred by
considering extrinsic evidence from her codefendant's
suppression hearing without permitting her to confront and
cross-examine the witnesses. For the following reasons, we
and Procedural Background
We view the evidence and all reasonable inferences therefrom
in the light most favorable to affirming Sallard's
convictions. See State v. Miles, 211 Ariz. 475,
¶ 2 (App. 2005). One evening in July 2014, Detective
Jeffrey Richardson saw a white truck being driven by Sheri
Hogan with Sallard as a passenger. The truck had "two
[old] bales of hay in the . . . pickup bed of the
vehicle." Richardson followed the truck and observed
speed and lane-usage violations. He also noticed that Hogan
was "watching [him] very closely in the rear view or
side view mirrors" and that Sallard was "moving
stuff around in the back seat." Because of the traffic
violations, Richardson "activated [his traffic]
equipment" and stopped the truck.
As Richardson approached the truck, he noticed Sallard had
her cell phone in her hand and asked her to put it away. He
then asked Hogan and Sallard for their information-Sallard
provided a false name, which she later admitted. Richardson
then asked Hogan to step out of her truck so that he could
write a warning for the traffic violations. While writing the
warning, Richardson asked Hogan about her whereabouts for the
day. As Hogan responded, Richardson observed her
"getting nervous, pacing back and forth," and
"making gestures" toward Sallard. At that point,
Richardson returned to the truck, where he observed Sallard
using her cell phone again and "moving around in the
front seat." When Richardson questioned Sallard about
her whereabouts, she gave a different response than Hogan.
Richardson returned to Hogan and asked her again about where
the two had been and where they were going that day, and
Hogan changed her previous account.
Richardson continued to write Hogan's warning but
requested a canine unit based on "reasonable suspicion
that criminal activity was afoot." When the canine
arrived, it conducted "an exterior sniff of the
vehicle," and, after the canine had alerted, Richardson
conducted a probable-cause search. At that time, Officer Paul
Barco and Detective Clemente Rodriguez had arrived on scene
and were assisting Richardson with the search. In the truck,
they found brown packages containing "almost 50
pounds" of marijuana. Sallard was placed under arrest,
read her rights pursuant to Miranda, and agreed to
speak with Barco. But, at some point during the interview,
Sallard became "unwilling to answer any more
questions," and Barco notified Richardson and Rodriguez
that Sallard had "invoked" and that he had stopped
all questioning. Sallard was then transported to the Douglas
During booking, Richardson directed Rodriguez "to
request consent [from Sallard] to search [her] phone."
Rodriguez was aware Sallard "had invoked" and
understood it to mean that "she didn't want to
answer questions." Sallard was brought from her holding
cell and told that "she [could] g[i]ve permission . . .
[to] extract the data from the cell phone" and it
"would go with her" once she was able to leave, or
he "would have to ask for a search warrant" and
"the cell phone would . . . be placed into evidence
until [he] drafted a search warrant." Sallard was
presented with a consent form, read and agreed she understood
the document, and subsequently signed it.
A grand jury indicted Sallard for conspiracy to commit
transportation of marijuana for sale, conspiracy to commit
possession of marijuana for sale, transportation of marijuana
for sale, possession of marijuana for sale, possession of
drug paraphernalia, and making a false statement to a law
enforcement agency. At trial, some evidence gleaned from
Sallard's cell phone was introduced during her
cross-examination by the state, and she was convicted and
subsequently sentenced as described above. This appeal
followed. We have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Sallard argues the trial court erred by denying her motion to
suppress the contents of her cell phone because it was
searched after she had invoked her rights to remain silent
and to counsel. We review the denial of a motion to suppress
for an abuse of discretion, State v. Cornman, 237
Ariz. 350, ¶ 10 (App. 2015), but we review legal and
constitutional issues de novo, State v. Aguilar, 228
Ariz. 401, ¶ 12 (App. 2011). "In reviewing a motion
to suppress, we consider only the evidence presented at the
suppression hearing and ...