State v. Smith

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CHARLES EUGENE SMITH, Appellant.

No. 1 CA-CR 14-0168
FILED 5-28-2015

Appeal from the Superior Court in Mohave County
No. S8015CR201200284
The Honorable Derek C. Carlisle, Judge
The Honorable Steven F. Conn, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge Michael J. Brown joined.
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Decision of the Court

G E M M I L L, Judge:

¶1 Charles Eugene Smith appeals his convictions and sentences
for manufacture of dangerous drugs, possession of drug paraphernalia, and
misconduct involving weapons. For the following reasons, we affirm.

BACKGROUND

¶2 On December 19, 2011, a known, confidential informant
contacted the police department to report that “Charles Smith” had told the
informant that Smith was making “meth” in his fifth-wheel. The informant
claimed that he had been inside Smith’s fifth-wheel where he saw several
empty boxes of pseudoephedrine and a soda bottle containing a two-stage
liquid. The informant also indicated that Smith said he had enough
material in the soda bottle to produce three grams of methamphetamine.

¶3 After this report, police detectives, with the informant, drove
to and observed Smith’s trailer. The detectives also confirmed from public
records that a “Charles Smith” lived at the address. In his affidavit in
support of a search warrant, Officer E.B. explained that the informant had,
on “over 20 occasions in the past four years,” provided verified, true
information to the police department. As a result, Officer E.B. believed the
informant was reliable.

¶4 Two days later, Officer E.B., as part of his application for a
search warrant, filed an affidavit of probable cause for a search of the fifth-
wheel and surrounding outbuildings with the Mohave County Superior
Court. Relying on Officer E.B.’s probable cause affidavit, a superior court
judge (hereinafter “the magistrate”)1 issued a “no-knock” search warrant
for the fifth-wheel trailer, outbuildings, and Smith’s Dodge pickup truck.
The subsequent search revealed multiple items associated with drug use
and manufacturing, including a coffee grinder and funnels containing
pseudoephedrine residue, an HCL generator, tubing connected to the
generator that contained meth crystals, and a vial containing 0.16 grams of
methamphetamine. Police also found a functional semi-automatic pistol in
a cupboard.

1 Mohave County Superior Court Judge Derek Carlisle heard Smith’s case
in Superior Court. Because Judge Carlisle was the judge who issued the
search warrant, the motion to suppress was transferred to Judge Steven
Conn for resolution.

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¶5 Later that day, police officers performed a traffic stop of
Smith’s truck at a local convenience store. Inside the truck were two
containers of lye, a chemical used in the manufacture of meth. Officer E.B.,
who was involved in the traffic stop, took Smith to the Highway Patrol
office for an interview. During the interview, Smith admitted he lived in
the fifth-wheel trailer, but denied ever making meth or having used meth
in at least six months. Although he was wearing a holster at the time of the
police interview, Smith also denied owning a gun. Smith was subsequently
arrested.

¶6 A jury convicted Smith of one count of manufacturing a
dangerous drug and one count of possession of drug paraphernalia, as well
as misconduct involving a weapon. The court later entered judgment and
imposed a mitigated six-year prison sentence for the manufacturing
offense, 323 days for the possession offense, and a one year sentence for the
weapons conviction. The sentences for the drug counts were ordered to run
concurrently, but the weapons misconduct sentence was consecutive to
those. Smith was also given credit for 323 days of presentence
incarceration.

¶7 Smith timely appeals his convictions and sentences. We have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

I. Motion to Suppress Evidence

¶8 Smith argues that the trial court erred when it denied his
motion to suppress evidence based on what he contends was an unlawful
search and seizure. Prior to trial, Smith filed a motion to suppress the
evidence found in the search of his fifth-wheel trailer, claiming that the
warrant issued was not supported by probable cause. The court denied his
motion and admitted the evidence found as a result of the search.

¶9 We review the court’s denial of a motion to suppress for an
abuse of discretion. State v. Crowley, 202 Ariz. 80, 83, ¶ 7, 41 P.3d 618, 621
(App. 2002). We also presume the validity of a search warrant, granting
deference to the decision of the issuing magistrate. State v. Hyde, 186 Ariz.
252, 272, 921 P.2d 655, 675 (1996). “Doubtful or marginal affidavits should
be considered in light of the presumption of validity accorded search
warrants.” State v. Edwards, 154 Ariz. 8, 12, 739 P.2d 1325, 1329 (App. 1986).

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Accordingly, the burden of proving that a warrant was invalid lies with the
defendant. Crowley, 202 Ariz. at 83, ¶ 7, 41 P.3d at 621.

¶10 Under both the United States and Arizona Constitutions, a
search warrant may issue only when supported by probable cause. U.S.
Const. amend. IV; Ariz. Const. art. 2, § 8. The United States Supreme Court
has explained that a determination of probable cause requires a magistrate
to make a “practical, common-sense decision” regarding whether there is a
“fair probability that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Prior to the
Supreme Court’s decision in Illinois v. Gates, courts followed a rigid test to
determine whether an informant’s tip was sufficient to give rise to probable
cause. Id. The test required the court to consider as independent elements
the “veracity, reliability, and basis of knowledge” of an informant’s tip to
police. Id. at 230. A deficiency in one element could not be overcome by
sufficient evidence of another. Id. at 230 n.5.

¶11 Recognizing the inflexibility of such a test, Gates abandoned
it and held that probable cause determinations are dependent on the totality
of the circumstances giving rise to suspicion. Id. at 238; see also Crowley, 202
Ariz. at 85, ¶ 13, 41 P.3d at 623 (explaining that Gates established a “less
mechanistic approach to determining probable cause”). To decide whether
probable cause exists, the magistrate must examine “all the circumstances
set forth in the affidavit before him [or her], including the ‘veracity’ and
‘basis of [the informant’s] knowledge.’” Id. at 238; see also State v. Buccini,
167 Ariz. 550, 556, 810 P.2d 178, 184 (1991) (adopting Gates).

¶12 Smith points to three reasons he claims the supporting
affidavit was insufficient to give rise to probable cause. We examine each
in turn.

A. Specificity of Information

¶13 Smith’s first claim is that the information given by the
confidential informant was not specific enough to show probable cause.
When a party challenges a magistrate’s determination of probable cause, it
is the job of a reviewing court to determine, based on the totality of the
circumstances presented in the affidavit, that there was a “substantial
basis” on which to conclude that probable cause existed. Gates, 462 U.S. at
238–39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). We review
the trial court’s denial of a motion to suppress for an abuse of discretion.

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State v. Mendoza-Ruiz, 225 Ariz. 473, 475, ¶ 6, 240 P.3d 1235, 1237 (App.
2010).

¶14 We conclude that the trial court did not abuse its discretion in
denying the motion to suppress because there was a substantial basis to
conclude that probable cause existed in this case. The informant stated that
he was with Smith in his fifth-wheel, where he observed materials used for
making meth. This information is sufficiently specific to allow a reasonable
person to determine that there is a fair probability that evidence of a
particular crime will be found in a particular place. See Gates, 462 U.S. at
238. Smith argues that there is no evidence the informant knew that empty
pseudoephedrine boxes and soda bottles with two-stage liquids inside were
indicators of drug manufacturing. Even if true, the absence of information
in the affidavit that the informant knew that what he saw were indicators
of drug manufacturing does not make the probable cause statement
insufficient; the investigating officer knew from his own experience that
such materials are often indicative of narcotics labs. Furthermore, the
informant stated that Smith admitted he was using the materials to
manufacture meth and that he had enough supply to make three grams of
the drug. Examining all of the facts outlined in the affidavit, we conclude
that it was sufficiently specific, and the court had sufficient information to
believe that there was a fair probability that evidence of drug
manufacturing would be found in Smith’s fifth-wheel.

B. Reliability of the Confidential Informant

¶15 Smith next contends that the probable cause affidavit did not
adequately set forth the reliability of the confidential informant. As the
basis of the informant’s reliability, the investigating officer stated that the
informant had worked with police for four years and given more than 20
verified tips. Smith argues that because it fails to establish that the
informant had given verified tips regarding specific criminal activity in
particular, the affidavit lacked a sufficient basis for the conclusion that the
informant was reliable.

¶16 Although the officer’s affidavit did not indicate whether the
informant’s past 20 tips led to arrests or seizures of narcotics, see People v.
Mason, 132 Cal. App. 3d 594, 599 (Cal. Ct. App. 1982) (holding an affidavit
insufficient when it stated that an informant made controlled drug buys,
but never stated that the informant gave relevant information to the police),
Gates requires a common-sense, rather than a technical interpretation of a
warrant affidavit, Gates, 462 U.S. at 238. Under the Gates analysis, it was

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not unreasonable for the trial court to conclude that the informant’s history
of providing tips, which were “verified as true and correct,” was sufficient
to establish the informant’s reliability. See State v. McCall, 139 Ariz. 147,
156–57, 677 P.2d 920, 929–30 (1983) (allowing the court to draw reasonable
conclusions from facts given, even when those conclusions were not
expressly stated by the warrant affidavit).

¶17 Additionally, the informant was not an anonymous,
unknown informant. The confidential informant was known to the police
and had a four-year history of working with the investigating detectives.
He also went with the detectives to verify the address and location of
Smith’s trailer, giving the officers an in-person opportunity to assess his
honesty and the veracity of the tip. We therefore conclude that the trial
court did not abuse its discretion by denying the motion to suppress
because the affidavit and surrounding circumstances were sufficient to
establish the reliability of the confidential informant. See Edwards, 154 Ariz.
at 12–13, 739 P.2d at 1329–30 (upholding determination of probable cause
despite questions surrounding an informant’s reliability).

C. Police Corroboration

¶18 Finally, Smith argues that the tip was not sufficiently
corroborated. When detectives went to confirm the information given them
by the confidential informant, they verified the address and location of the
fifth-wheel and that a man named Charles Smith lived there. They did not,
however, verify any incriminating information. Smith therefore argues that
probable cause did not exist.

¶19 In Gates, the Supreme Court recognized the value of
independent police corroboration to prove the veracity and reliability of an
anonymous tip. 462 U.S. at 242–43. As Gates emphasized, however,
corroboration of a tip is simply one of the many factors a court should
consider when determining whether an informant’s tip gives rise to
probable cause. Id. at 246 (explaining that the level of corroboration of the
tip in that case may not have satisfied the more rigid test). And even before
Gates adopted the totality-of-the-circumstances rule, this court recognized
that it is not necessary to verify all the information in a tip, including
incriminating details, even when the tip by itself is not detailed enough to
give rise to probable cause. State v. Watkins, 122 Ariz. 12, 15, 592 P.2d 1278,
1281 (App. 1979) (“An undisclosed informant’s tip found wanting . . . may
provide the basis for a finding of probable cause if parts of it have been
corroborated by independent sources.”). When, as here, the tip contains

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“observable and verifiable facts” that are sufficiently detailed, verification
of all the facts contained therein is not required to validate the warrant. See
Edwards, 154 Ariz. at 12, 739 P.2d at 1329. As a result, establishing probable
cause did not depend on additional corroboration of details of criminal
activity.

¶20 Based on our review of the affidavit and record, we agree that
under the totality of the circumstances, the magistrate had enough reliable
information to determine there was probable cause to issue a search
warrant for Smith’s fifth-wheel. The trial court, as a result, did not abuse
its discretion when it denied Smith’s motion to suppress.2

II. Consecutive Sentences

¶21 Smith also argues that the trial court erred by imposing
consecutive, rather than concurrent, sentences for his conviction of
misconduct involving weapons and felony drug charges. Because Smith
did not object at sentencing, we review for fundamental error. State v.
Henderson, 210 Ariz. 561, 567–68, ¶¶ 19–20, 115 P.3d 601, 607–08 (2005). An
illegal sentence constitutes fundamental error. State v. McDonagh, 232 Ariz.
247, 248–49, ¶ 7, 304 P.3d 212, 213–14 (App. 2013).

¶22 For possessing a gun during the commission of a felony, the
jury also convicted Smith of misconduct involving weapons under A.R.S. §
13-3102(A)(8). For that conviction, the court imposed a mitigated one-year
sentence to be served consecutively to the sentences imposed for the felony
drug convictions. Smith argues that the consecutive sentence violates
A.R.S. § 13-116, which prohibits imposing multiple punishments for the
same act:

An act or omission which is made punishable in different ways by
different sections of the laws may be punished under both, but in no
event may sentences be other than concurrent. An acquittal or
conviction and sentence under either one bars a prosecution
for the same act or omission under any other, to the extent the
constitution of the United States or of this state require.

2 Smith also argues that the trial court erred in determining that the good-
faith exception justified the search. See United States v. Leon, 468 U.S. 897,
922 (1984); State v. Hyde, 186 Ariz. 252, 273, 921 P.2d 655, 676 (1996). Because
we hold that the warrant was facially valid, we need not determine whether
the good-faith exception applies.

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(Emphasis added.) Smith asserts that because manufacturing drugs and
possessing a weapon while manufacturing drugs constitute a single act, it
was error to impose consecutive sentences.

¶23 In State v. Gordon, 161 Ariz. 308, 312, 778 P.2d 1204, 1208
(1989), the Arizona Supreme Court explained the framework for
determining when a set of facts involving multiple convictions constitutes
a “single act.” Prior to Gordon, the court followed a rigid “identical
elements test” to decide whether two acts were distinguishable from one
another. Id. Under that test, the court eliminates the evidence supporting
one charge, then determines whether the evidence remaining is sufficient
to support the elements of the other charge. Id. If there is sufficient
evidence remaining to support conviction under the second charge, the
crimes constitute different acts and consecutive sentences are permissible.

¶24 In Gordon, however, our supreme court acknowledged that
the identical elements test was both difficult to apply and sometimes led to
inconsistent results. Id. Accordingly, the court articulated two other factors
for consideration when determining what constitutes a single act under
A.R.S. § 13-116. In addition to the identical elements test, a trial court
should also decide whether it is factually possible to commit the ultimate
crime without committing the lesser crime. Id. at 315; 778 P.2d at 1211. If
so, the crimes more likely constitute different acts. Finally, a court should
consider the nature of the danger or harm imposed by the two crimes. Id.
at 314, 778 P.2d at 1210. When the lesser charge is intended to prevent a
harm distinct from and additional to that addressed by the underlying
crime, the two crimes are likely different acts. Id.; State v. Cotten, 228 Ariz.
105, 109, ¶ 12, 263 P.3d 654, 658 (App. 2011).

¶25 This court previously applied the Gordon test to uphold
consecutive sentences for felony drug charges and misconduct involving
weapons. In State v. Siddle, 202 Ariz. 512, 518, ¶ 18, 47 P.3d 1150, 1156 (App.
2002), this court applied the three Gordon factors and determined that
consecutive sentences for felony drug charges and misconduct involving
weapons under A.R.S. § 13-3102(A)(8) did not violate § 13-116. Even
though the evidence presented to support the two charges did not pass the
identical elements test, the other two Gordon factors were satisfied: (1) it is
possible to commit a felony drug offense without committing weapons
misconduct, and (2) the harm posed by possessing a weapon during the
commission of a felony drug offense is distinct from that posed by the drug
offense itself. Id. Accordingly, the court upheld the consecutive sentences.
Id.

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¶26 We believe the reasoning of Siddle is applicable here. Smith
was convicted of knowingly manufacturing methamphetamines, a
dangerous drug. Because he possessed a weapon during the commission
of that felony drug offense, Smith was also convicted of misconduct
involving weapons. See A.R.S. § 13-3102(A)(8). Commission of the drug
offense is necessary to sustain a conviction for misconduct involving
weapons; accordingly, the two crimes cannot pass the identical elements
test. Nonetheless, the other two Gordon factors are applicable and weigh in
favor of treating the two crimes as different acts. It is possible to knowingly
manufacture a dangerous drug without also possessing a weapon.
Similarly, the harm posed by manufacturing a drug poses a risk distinct
from that posed by the potential use of a weapon during the course of the
manufacturing. The two crimes represent different acts, and consecutive
sentences are therefore permissible. Consequently, the trial court did not
commit error, much less fundamental error, by imposing consecutive
sentences.

CONCLUSION

¶27 We affirm the convictions and sentences.

:ama

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