State v. Sallard

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          Appeal from the Superior Court in Cochise County, No. CR201500359, The Honorable Wallace R. Hoggatt, Judge.

         Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Casey D. Ball, Assistant Attorney General, Phoenix, Counsel for Appellee

         Robert J. Zohlmann, Tombstone, Counsel for Appellant

         Chief Judge Vásquez authored the opinion of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.

          OPINION

         VÁ SQUEZ, Chief Judge:

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         [¶1] 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 .^[1] 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 affirm.

          Factual and Procedural Background

         [¶2] 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, 123 P.3d 669, 670 (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.

         [¶3] 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.

         [¶4] 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 Police Department.

         [¶5] 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 ...