OPINION
¶ 1 After a jury trial, appellant Brian Blakley was convicted of one count of possession of marijuana for sale, and the trial court sentenced him to a presumptive, enhanced prison term of 15.75 years, ordering him to pay the maximum fine of $150,000. On appeal, he contends the court abused its discretion in 1) denying his motion to suppress evidence obtained by police after a warrant-less entry onto his property; 2) admitting documents in violation of his Confrontation Clause rights; 3) refusing to instruct the jury on the lesser-ineluded offense of simple possession; and 4) failing to consider mitigating factors at sentencing and imposing a fine he contends is excessive. For the reasons stated below, we vacate and remand for proceedings consistent with this opinion.
Factual and Procedural History
¶2 On appeal, we view the facts in the light most favorable to sustaining the verdict.
See State v. Haight-Gyuro,
¶3 When Silva reached the rear of the vehicle, Blakley approached him from behind the residence. Silva asked him “if he was storing undocumented aliens or marijuana,” and Blakley responded that he was storing marijuana. When Silva asked how much, Blakley told him there were more than 100 pounds. Silva then asked if he could search the garage, and Blakley consented. At the suppression hearing, Silva testified that during their conversation, while standing behind the vehicle, he could smell the odor of marijuana. In the garage, Silva found eight bales of marijuana weighing a total of 170 pounds. Blakley was arrested and subsequently charged with and convicted of one count of possession of marijuana for sale. This timely appeal followed.
*27 Discussion
1. Suppression of Evidence
A. Warrantless Entry
¶ 4 Blakley first contends “[t]he trial court erred as a matter of law by refusing to suppress the evidence obtained as a result of the illegal warrantless search” of the garage. He maintains that, although he consented to the search, his consent was tainted by Silva’s illegal entry into Blakley’s yard without a warrant in violation of the United States and Arizona Constitutions.
2
He therefore contends “any evidence obtained as a result of Silva’s conversation with [him] following the policeman’s illegal, warrantless entry was fruit of the poisonous tree.”
See Wong Sun v. United States,
¶ 5 When reviewing a trial court’s denial of a motion to suppress, we consider only the evidence presented at the suppression hearing,
State v. Blackmore,
¶ 6 The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable search and seizures.” U.S. Const, amend. IV. “Unlawful entry of homes was the chief evil which the Fourth Amendment was designed to prevent.”
State v. Ault,
¶ 7 The state does not dispute that the vehicle was parked in the curtilage of Blakley’s house. And, as noted above, curtilage generally falls “under the home’s [‘]umbrella’ of Fourth Amendment protection.”
Olm,
¶ 8 Relying on Olm, Blakley claims that Silva made a “fatal mistake” when he approached the vehicle instead of the front door of the residence. He contends that by continuing down the driveway, Silva had crossed into “warrant-with-search-territory.” Although Blakley asserts that Olm is disposi *28 tive in this case, we find it factually distinguishable and, thus, not controlling.
¶ 9 In
Olm,
a Tucson police officer, acting on a request from a detective, entered Olm’s property without a warrant and looked through the windshield of his vehicle to obtain the vehicle identification number (VIN).
¶ 10 On appeal, following Olm’s conviction for theft by control of a vehicle and conducting a “chop shop,”
id.
¶ 4,
¶ 11 Relying on the semiprivate nature of the driveway, the state argued below that Silva was entitled to “waltz right down it” because he could “see the whole length of the driveway and see what [he was] after.” However, in Olm, we recognized that “driveways are considered semiprivate areas not because members of the public reasonably could enter them without explicit permission, but because the activities and items in a driveway generally are more readily observable.” Id.
¶ 12 Neither of the eases the state relies upon supports its position that an officer has unfettered access to the entire driveway merely because its entire length is readily observable.
3
In
United States, v. Cisneros-Gutierrez,
¶ 13 And, we have found no Arizona cases addressing whether there is a greater expectation of privacy in semiprivate areas that the public is not expected to access freely so that they are afforded the same Fourth Amendment protections applicable to the curtilage generally. In reviewing the case law from other jurisdictions, we found two distinct categories of eases involving driveways in which the courts found no Fourth Amendment violation. In the first category, the officer entered the curtilage intending to approach an occupant of the property. 6 In the second category, the officer, intending to conduct an investigation rather than contact the occupants, nevertheless restricted his movements to areas of the driveway and walkway that the public would reasonably be expected to use to make contact with occupants of the residence. 7
¶ 14 In those cases in which the courts found the officers’ actions reasonable under the Fourth Amendment, the officers had entered an area of the driveway that led directly to the front door for the purpose of contacting an occupant of the home, or had limited their investigation to those areas ordinarily accessed by visitors. Indeed, in the only two eases we have found in which the officers went beyond the area normally used to access the front door directly in order to conduct an investigation, the courts found the officers had violated the defendants’ Fourth *30 Amendment rights. 8
¶ 15 We find instructive the analysis of the Ninth Circuit Court of Appeals in
United States v. Magana,
¶ 16 In determining whether Magana had a reasonable expectation of privacy that precluded the officers from entering the driveway and approaching him in the garage without a warrant, the Ninth Circuit stated the issue was whether the officers’ purpose for being there was reasonable: “[t]he test ... should be that of reasonableness, both of the possessor’s expectation of privacy and of the officers’ reasons for being on the driveway.” Id. at 1171. In applying this test, the court focused on the fact that the officers were present to provide back-up to their fellow officer, who was “known to be effecting the arrest of a narcotics dealer engaged in business in the residence of which the driveway formed a part.” Id. The court thus concluded that “[t]he act of ... turning into the driveway at the time and under the circumstances of this case was reasonable,” and “Magana’s privacy was not unreasonably invaded when the officers entered his driveway and then saw him throw something away.” Id. It thus held the officers’ actions passed the two-part reasonableness test and their presence in the driveway therefore was lawful. Id.
¶ 17 Here, instead of approaching the front door to make contact with any occupants of the residence, Silva walked past the pathway that led directly to the front door and continued walking down the driveway into an area ordinarily not used by visitors. And at the suppression hearing, Silva acknowledged that his original intent when he entered the property was to “knock and talk” to an occupant of the residence, but instead, he decided to investigate the vehicle. Applying Magana’s reasonableness test to the facts of this case, we conclude that in exceeding the boundaries of the area commonly accessed by visitors, with no intent to locate an occupant but, rather, for the purpose of conducting an investigation, Silva’s actions in approaching the vehicle violated Blakley’s reasonable expectation of privacy in that area of his property. Silva’s presence near the vehicle on Blakley’s driveway therefore was unlawful. And, in the absence of a warrant, or an exception to that requirement, the search of the garage that followed also was unlawful.
B. Consent
¶ 18 “One long recognized exception to the warrant requirement is consent.”
State v. Guillen,
[w]hen a consensual search is preceded by a Fourth Amendment violation, ... the government must prove not only the voluntariness of the consent under the totality of the circumstances, but ... must also “establish a break in the causal connection between the illegality and the evidence thereby obtained.”
United States v. Melendez-Garcia,
¶ 19 Blakley does not contend that his consent was involuntary. Nor does the record suggest the encounter between Silva and Blakley involved the type of overt conduct traditionally viewed as coercive. Neither Silva nor the other officers displayed weapons, forcibly entered the property, or threatened or used force against Blakley; he was not handcuffed; and Silva made no threats that he would obtain a warrant if Blakley refused consent. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(b) (4th ed. 2004) (describing factors typically supporting a finding of coercion).
¶ 20 Nevertheless, a finding of voluntary consent is merely a threshold inquiry, and the evidence still must be suppressed unless the consent was purged of the taint of Silva’s illegal entry.
See Guillen,
[w]e need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection [has been] made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
Wong Sun v. United States,
¶ 21 Applying the
Brown
factors in this case, we first address the temporal proximity of the unconstitutional conduct and the consent. Blakley consented to the search simultaneously with Silva’s illegal presence. This factor thus favors Blakley.
See, e.g., United States v. Delgadillo-Velasquez,
¶ 22 Considering Brown’s third factor, the purpose and flagrancy of the official misconduct, there was no evidence that Silva’s intrusion into a constitutionally protected area of the property was for a legitimate purpose. Silva testified at the suppression hearing that his specific intent in entering that area was to investigate the vehicle and not to make contact with any person. Indeed, he testified that he had not “see[n] anybody at all” on the property before walking into that area.
¶ 23 And, far from showing that the drug evidence was acquired by means distinguishable from the illegal entry and search, the *32 record before us demonstrates that Blakley’s admission and consent were secured by the illegal act itself. Silva testified that he could smell the odor of raw marijuana when he was standing by the vehicle during his conversation with Blakley. Nothing in the record suggests Silva could smell the marijuana pri- or to walking into the area where the vehicle was parked. The record thus suggests that information acquired after the illegal intrusion, at minimum, had some influence on the nature of the exchange between Silva and Blakley.
¶ 24 Although Blakley apparently concedes his consent was voluntary, we are mindful that he was not obligated to talk to Silva at all. Arguably, by intruding in an area not ordinarily accessed by visitors, an area in close proximity to the place where the marijuana was stored, Silva caused an encounter that would not necessarily have occurred had Silva attempted to make contact with Blakley by knocking on his front door.
See United States v. Spotted Elk,
¶25 We also observe that Silva did not give Miranda 9 warnings to Blakley either before or after Blakley had confessed to storing marijuana in his garage. In Guillen, our supreme court noted:
In analyzing whether a confession was obtained by exploitation of an illegal arrest, the Court in Brown also considered whether the police gave Miranda warnings to be “an important factor.” “Although Brown dealt with the exclusion of a defendant’s statements, [the reasoning in Brown ] applies equally to contraband revealed by [a] consent search.”
¶ 26 We therefore conclude that Silva exploited his unlawful presence by obtaining Blakley’s consent. For this reason, the trial court erred in failing to suppress the marijuana. And, as the marijuana constituted the key evidence to support his conviction, Blakley’s conviction must be vacated.
See State v. Bible,
Disposition
¶27 For the reasons above, we vacate Blakley’s conviction and sentence and remand this matter for further proceedings consistent with this opinion. 10
Notes
. At the suppression hearing, Silva testified he was not given a description of the suspicious vehicle, its license plate number, nor told why it was deemed suspicious. Thus, there was no information from which he could have determined that the vehicle he had followed was the same suspicious vehicle referred to in the phone call. Nor did Silva witness the driver of the vehicle commit any traffic violations during the drive to Blakley’s residence. However, he did observe the driver making numerous u-turns, stopping for no reason, going in "no set direction,” and "in [his] experience ... try[ing] to lose any type of surveillance or ... trailing vehicles.”
. Blakley argues the officer's search of the garage without a warrant violated his rights under the Arizona Constitution. Ariz. Const, art. 2, § 8. However, he "makes no separate argument based on the state constitutional provision; therefore, we do not separately discuss it.”
State
v.
Nunez,
. At oral argument, the state cited two cases for the proposition that an officer can enter any part of a driveway to conduct an investigation. But both cases are factually distinguishable from the case here. In
State v. Girdler,
. The state also cites to
State v. Dugan,
. The state also relies on
Pineda-Moreno
for the proposition that, in order to establish an expectation of privacy, Blakley was required to " 'support that [heightened] expectation by detailing the special features of the driveway itself (i.e., enclosures, barriers, lack of visibility from the street) or the nature of activities performed upon it.' "
See Pineda-Moreno,
.
See, e.g., United States v. Reyes,
.
See, e.g., Pineda-Moreno,
.
See Wattenburg v. United States,
.
Miranda v.
Arizona,
. In light of our resolution of this issue, we need not consider the remaining issues Blakley raises.