The STATE of Arizona, Appellee, v. Matthew Thomas SNYDER, Appellant.
No. 2 CA-CR 2015-0077
Court of Appeals of Arizona, Division 2.
October 7, 2016
382 P.3d 109
¶39 Under the plain language of the UIFSA, absent a timely objection, the Illinois order was confirmed by operation of law, and Mother was precluded from later objecting to any matter that could have been asserted at the time of registration, including the amount of arrears alleged by Father. I would affirm the orders of the trial court in their entirety.
Steven R. Sonenberg, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant
Judge Staring authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.
OPINION
STARING, Judge:
¶1 Matthew Snyder was convicted after a jury trial of two counts of possession of a deadly weapon by a prohibited possessor, one count of possession of a dangerous drug, and one count of possession of drug paraphernalia. The trial court sentenced him to concurrent prison terms, the longest of which was 2.5 years. On appeal, Snyder challenges the court‘s denial of his motion to suppress evidence obtained during the search of his backpack, the sufficiency of evidence related to the possession of an antique pistol, and the jury instructions and testimony related to the operability of the antique pistol. On the record before us, we conclude the search of Snyder‘s backpack was unconstitutional and reverse the court‘s ruling and vacate Snyder‘s convictions and sentences.1
¶2 When reviewing the denial of a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing those facts in the light most favorable to upholding the trial court‘s ruling. See State v. Wyman, 197 Ariz. 10, 12, 3 P.3d 392, 394 (App. 2000). In January 2013, S.D., a loss-prevention officer at a Tucson grocery store, observed Snyder select two steaks at the butcher‘s counter, place them in a shopping bag from another store, and walk towards the exit. Snyder was carrying a backpack, but S.D. did not see him place anything in it. S.D. confronted Snyder and, with the help of another person, detained him. During the confrontation, Snyder suffered a broken knee cap.
¶3 Tucson Police Department (TPD) Officer Ives arrived approximately ten minutes later in response to a shoplifting dispatch, and store employees told him Snyder was being held in the security office. According to Ives, the security office was “oddly shaped,” consisting of two separate rooms: a smaller one in which Snyder was detained and a larger one for employees only. Ives testified there was “either no door” to the smaller room “or the door was open.”
¶4 At the security office, Ives spoke with S.D., who told Ives his version of what had taken place. Ives then advised Snyder of his Miranda2 rights before questioning him. Snyder told Ives he was about to purchase the steaks when he realized he did not have a certain “card” he had intended to use to pay for them, and that he started to walk out of the store to get the card from his car. Throughout Ives‘s questioning, Snyder remained bound in handcuffs S.D. had placed on him when he was detained.
¶5 After speaking to S.D. and Snyder, Ives decided to arrest Snyder for shoplifting. Snyder, however, was never arrested or issued a citation for that offense. Before Ives replaced S.D.‘s handcuffs with his own, he instructed TPD Officer Dave, who had just arrived, to search Snyder‘s backpack. The backpack was in the other room, an area of the security office designated for employees, next to the doorway leading into the room where Snyder was detained. Inside the backpack, Dave found an antique flintlock pistol, a .22-caliber handgun, a small bag containing “white crystalline powder that [he] believe[d] to be methamphetamine,” and several rounds of ammunition.
¶6 Because Snyder had injured his knee during the confrontation with S.D., paramedics were called, and he was transported by ambulance to a hospital. Dave took Snyder‘s backpack to the police station. After Snyder was released from the hospital, he was indicted for the offenses noted above.
¶7 Snyder moved to suppress the evidence obtained from the search of his backpack. At the suppression hearing, Snyder argued he was never placed under arrest by Ives and thus his backpack could not have been searched incident to arrest. He also argued no exigent circumstances existed to justify searching the backpack without a warrant because it was not in an area where he could reach it and he was in handcuffs throughout the encounter. The trial court found Snyder had been arrested as of the time the backpack was searched, but did not rule on whether the search was a valid search incident to arrest. Rather, the court found the search “would [have been] inevitable due to the defendant‘s property being searched upon arrest and transport[ ]” and denied the motion to suppress. This appeal followed his convictions and sentences. We have jurisdiction pursuant to
Motion to Suppress
¶8 Snyder challenges the suppression ruling on three bases: he was never placed under arrest, therefore a search of his backpack could not be justified as a search incident to arrest; even if he had been placed under arrest, his backpack was not within an area under his immediate control; and, any search of his backpack was not inevitable. We review a trial court‘s ruling on a motion to suppress for an abuse of discretion, but we review constitutional and purely legal issues
Arrest
¶9 Whether an arrest has occurred is a mixed question of fact and law. See State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996). While we defer to the trial court‘s factual determinations, we review its legal conclusion de novo. See id.
¶10 “An arrest is complete when the suspect‘s liberty of movement is interrupted and restricted by the police.” State v. Winegar, 147 Ariz. 440, 447-48, 711 P.2d 579, 586-87 (1985). Whether an arrest has occurred is based on an objective view of the evidence, not the subjective beliefs of the parties. Id. at 448, 711 P.2d at 587 (“Indeed, ‘[a] certain set of facts may constitute an arrest whether or not the officer intended to make an arrest and despite his disclaimer that an arrest occurred.’ “), quoting Taylor v. Arizona, 471 F.2d 848, 851 (9th Cir. 1972) (alteration in Winegar). “The issue turns upon an evaluation of all the surrounding circumstances to determine whether a reasonable person, innocent of any crime, would reasonably believe that he was being arrested.” Id.
¶11 A significant factor in determining whether an arrest has occurred “is the extent that freedom of movement is curtailed and the degree and manner of force used.” State v. Ault, 150 Ariz. 459, 464, 724 P.2d 545, 550 (1986). “Another significant factor is the display of official authority, such that ‘a reasonable person would ... not [feel] free to leave.’ ” Id., quoting Winegar, 147 Ariz. at 448, 711 P.2d at 587. “[H]andcuffing a suspect is an indicia of arrest.” State v. Rowland, 172 Ariz. 182, 184, 836 P.2d 395, 397 (App. 1992). Giving a defendant Miranda warnings is also “considered a factor weighing in favor of concluding that there was an arrest because most people associate the warnings with arrest.” Id.
¶12 Snyder argues he was not placed under arrest because the police did not restrict his freedom of movement; rather, “the only restriction of freedom of movement came from the loss prevention officer who handcuffed [him] and placed him in the manager‘s office to wait for the police to arrive.” Snyder further argues there was no indication from either police officer that he was being placed under arrest and there was no show of authority by either officer to which he could submit.
¶13 We disagree. Snyder was detained by S.D., placed in handcuffs, and kept in a separate room located in a security office to await the police. When Ives arrived, he gave Snyder Miranda warnings and questioned him about the incident. Then, after speaking to S.D. and Snyder, Ives replaced S.D.‘s handcuffs on Snyder with his own. Viewing the facts objectively, a reasonable person would reasonably believe he was being arrested by at least that point and would not believe he was free to leave. See Ault, 150 Ariz. at 464, 724 P.2d at 550 (“No reasonable person would have believed that he was free to leave the scene at this point.“). The trial court correctly concluded Snyder had been placed under arrest.3
Search Incident to Arrest
¶14 Snyder argues the search of his backpack “cannot be justified as a search incident to arrest because the reasons justifying a search incident to arrest were not present” and the “backpack was not in [an] area under his immediate control.” Based on the record before us, we agree.
¶15 In reviewing 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.” See Wyman, 197 Ariz. 10, ¶ 5, 3 P.3d at 395. Notably, the state bears the burden of proving the lawfulness of a search by a preponderance of the evidence.
¶16 The Fourth Amendment prohibits unreasonable searches.
¶17 An officer is permitted to search a person incident to a lawful arrest, but the search is circumscribed to “the arrestee‘s person and area ‘within his immediate control,’ ” that is, “the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), abrogated on other grounds by Gant, 556 U.S. at 343, 129 S.Ct. 1710. The search is further limited to those “areas in the arrestee‘s ‘immediate control’ at the time of arrest.” United States v. Camou, 773 F.3d 932, 937 (9th Cir. 2014) (emphasis added), quoting Gant, 556 U.S. at 339, 129 S.Ct. 1710; see also United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) (“[W]arrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ ... or no exigency exists.“), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The limited search allowed by the exception “ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.” Gant, 556 U.S. at 339, 129 S.Ct. 1710.
¶18 “If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search,” the justifications for the search, officer safety and evidence preservation, “are absent and the rule does not apply.” Id. And an officer may not “routinely search[] any room other than that in which an arrest occurs—or, for that matter, [search] through all the desk drawers or other closed or concealed areas in that room itself.” Chimel, 395 U.S. at 763, 89 S.Ct. 2034. Thus, in determining the validity of a search incident to a lawful arrest, we conduct a two-fold inquiry: (1) was the searched item within the arrestee‘s immediate control when he was arrested; and (2) was the search contemporaneous to the arrest. See State v. Dean, 206 Ariz. 158, ¶ 29, 76 P.3d 429, 436 (2003). The state must demonstrate both in order for the exception to apply.
¶19 The state argues Snyder‘s backpack was within his immediate control because it was next to the entrance of the room in the security office where Snyder was detained. According to the state, Snyder could have “quickly reached the backpack (notwithstanding the handcuffs) in order to obtain a weapon or destroy evidence.” We disagree.
¶20 The evidence presented at the suppression hearing established that when Ives arrived, Snyder was already in handcuffs and had been separated from his backpack, which was in another room. Snyder remained in handcuffs and separated from his backpack as Ives questioned him and S.D. for the next ten to twenty minutes. When Ives then de-
¶21 The state relies upon State v. Noles, 113 Ariz. 78, 546 P.2d 814 (1976), to support its argument that the search of Snyder‘s backpack was a valid search incident to arrest. But in Noles, the defendant was not already in handcuffs when he was placed under arrest. Id. at 80, 546 P.2d at 816. Rather, after being informed by an accomplice that he was armed with two firearms, and aware that he was the subject of an arrest warrant, law enforcement officers entered the defendant‘s motel room with guns drawn and found him lying on a bed. Id. He was immediately handcuffed and the officers proceeded to search the nightstand next to the bed. Id. Our supreme court found the search valid as one incident to arrest because the search was confined to “an area within the immediate control of the defendant at the time of arrest.” Id. at 82, 546 P.2d at 818.
¶22 Here, the state has failed to shoulder its burden of demonstrating the lawfulness of the search. As noted above, Snyder had been detained in handcuffs and separated from his backpack for approximately twenty minutes prior to his arrest. The backpack was in another room, and Snyder was suffering from a significant knee injury. Thus, unlike Noles, in which the search was confined to an area within the defendant‘s immediate control, the nightstand next to the bed where he was arrested, Snyder‘s backpack was not in an area within his immediate control at the time of arrest. The search therefore did not amount to a valid search incident to arrest.
Inevitable Discovery
¶23 Although we conclude the evidence found in Snyder‘s backpack was obtained as the result of an unlawful search, “[i]llegally obtained physical evidence may be admitted if the State can demonstrate by a preponderance of the evidence that such evidence inevitably would have been discovered by lawful means.” State v. Davolt, 207 Ariz. 191, ¶ 35, 84 P.3d 456, 469 (2004); see also Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Snyder argues the search of his backpack could not be justified under the inevitable discovery doctrine because the search was not inevitable, and any concern for officer safety or evidence preservation was absent.
¶24 We note at the outset that although the trial court‘s ruling on this matter was based on the doctrine of inevitable discovery, the state neglected to address this issue in its answering brief. And, at oral argument, the state represented that it is not relying on the doctrine in support of its argument that the evidence from the backpack was properly admitted. Snyder urges us to find the state has conceded that the inevitable discovery doctrine does not apply and, therefore, does not justify the court‘s ruling.
¶25 “Failure to argue a claim usually constitutes abandonment and waiver of that claim.” State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). At the same time, however, we are obliged to uphold a trial court‘s ruling if legally correct. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 7, 288 P.3d 111, 113 (App. 2012). We need not resolve this dichotomy here, however. “[W]aiver is a procedural concept that courts do not rigidly employ in mechanical fashion,” State v. Aleman, 210 Ariz. 232, ¶ 24, 109 P.3d 571, 579 (App. 2005), and we may employ our discretion when determining whether “to address a significant, albeit waived, issue,” see State v. Kinney, 225 Ariz. 550, n.2, 241 P.3d 914, 918 n.2 (App. 2010). Given the constitutional nature of the inevitable discovery exception and the court‘s reliance on it, we choose to address the issue.
¶27 In State v. Calabrese, 157 Ariz. 189, 191, 755 P.2d 1177, 1179 (App. 1988), we concluded the inevitable discovery doctrine did not apply to an “accelerated” booking search of a defendant arrested for a misdemeanor.5 There, officers arrived at a hospital to find the defendant forcibly detained by security guards for refusal to leave the grounds. Id. at 190, 755 P.2d at 1178. The officers handcuffed the defendant “because of his agitated state and his conduct.” Id. After speaking to hospital security personnel, they decided to arrest the defendant for criminal trespass and searched his pockets, finding a syringe and cocaine. Id. We held the inevitable discovery rule was inapplicable. Id. at 191, 755 P.2d at 1179. We first noted that because the offense for which the defendant had been arrested was a misdemeanor, it was not inevitable that he would have been subject to an inventory search. Id.; see
The legitimate purposes of a booking inventory search do not justify a premature search performed before the booking process has even begun. If we were to allow all warrantless searches to be justified by the argument that any evidence would ultimately have been discovered on booking at the jail, police officers would have a license to immediately and thoroughly search the person and effects of any individual arrested without a warrant for any minor but bookable offense in the hope of discovering evidence of a more serious crime. That would result in the arrestee being booked on the greater charge and the search being justified as an accelerated booking search. We do not believe that constitutes a permissible exception to the requirement for a warrant.
157 Ariz. at 191, 755 P.2d at 1179.
¶28 Given the record before us, and following the reasoning of Calabrese, we disagree that the search of Snyder‘s backpack was inevitable. Ives intended to arrest Snyder for shoplifting, mostly likely a misdemeanor under the circumstances of this case. See
¶30 The state also argued in the trial court that the search of Snyder‘s backpack was inevitable because TPD general orders require officers transporting suspects to search them before placing them in a police vehicle.7 According to Ives, it is standard policy that all personal property belonging to an arrestee who is being transported to the Pima County Jail “will be searched prior to it being placed in [the police] vehicle.” The reason for conducting such a search is “for [officer] safety and for jail staff safety, and [to] prevent contraband and other items from getting into the jail.”8 But, as noted above, Snyder was not taken to jail and was not transported in a police vehicle. The state therefore failed to demonstrate that it was inevitable that his backpack would have been searched incident to jail booking, which never occurred in the near aftermath of his arrest, or his transport, which occurred only by ambulance to the hospital.
¶31 Further, although officer safety is a critically important concern, it does not universally justify the warrantless search of any and all items possessed by an arrestee. Ordinarily, when the arrestee‘s property has already been seized, the justifications of immediate officer safety and evidence preservation no longer apply. See Chadwick, 433 U.S. at 15, 97 S.Ct. 2476 (finding that upon law enforcement officers’ removal of luggage or other personal property from person‘s exclusive control, danger no longer exists that person “might gain access to the property to seize a weapon or destroy evidence,” and search of property not incident to arrest); see also Lafayette, 462 U.S. at 649, 103 S.Ct. 2605 (Marshall, J., concurring) (“[A]lthough a concern about weapons might have justified seizure of the bag, such a concern could not have justified the further step of searching the bag following its seizure.“). “Of course, there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality.” Chadwick, 433 U.S. at 15 n.9, 97 S.Ct. 2476 (emphasis added). But Ives gave no such reason, nor does the record contain any expression of any reason to believe Snyder‘s backpack contained an immediately dangerous instrumentality prior to the search.
Disposition
¶32 For the foregoing reasons, we hold the trial court erred in denying Snyder‘s motion to suppress the evidence resulting from the search of his backpack. Accordingly, we reverse the court‘s ruling, vacate the convictions and sentences, and remand for further proceedings consistent with this opinion.
STARING, Judge