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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TONY SHUMENKO GAMBLE, Appellant.
No. 1 CA-CR 16-0418
FILED 3-15-2018
Appeal from the Superior Court in Maricopa County
No. CR2014-002008-001
The Honorable Warren J. Granville, Judge
AFFIRMED
COUNSEL
The Law Office of Kyle T. Green, P.L.L.C., Tempe
By Kyle Green
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Jason Lewis
Counsel for Appellee
STATE v. GAMBLE
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kenton D. Jones joined.
M O R S E, Judge:
¶1 Tony Shumenko Gamble ("Gamble") appeals his convictions
of multiple felonies, including five counts of child prostitution, and
misdemeanor assault. Gamble argues that the trial court abused its
discretion by denying his suppression motion based on a warrantless
search of his hotel room and his Franks1 challenge to the probable cause
statement underlying a search warrant affidavit to search his cellphone. For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Tempe police officers responded to Gamble's hotel room to
conduct a welfare check on a reported juvenile female runaway
accompanying an adult male. Initially, Officer Cook ("Cook") and Sergeant
Mitchell ("Mitchell") found no one present in the room, and neither
observed nor collected any evidence.
¶3 Cook and Mitchell then learned from other officers on the
scene interviewing the juvenile's mother and sister, also a minor, about a
separate incident involving the sister, whom Gamble allegedly had
assaulted the day before.
¶4 When Cook and Mitchell returned to Gamble's room to
conduct the welfare check, Gamble answered the door while talking on a
cellphone. Based on the alleged assault, the officers immediately detained
Gamble and conducted the welfare check. While detained, Gamble
consented to a search of the room.
¶5 Subsequently, Gamble was arrested for the alleged assault on
a minor. At Gamble's request, the officers collected his property from the
room, including his cellphone which was not considered to be evidence at
that time.
1 See Franks v. Delaware, 438 U.S. 154 (1978).
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STATE v. GAMBLE
Decision of the Court
¶6 Before booking Gamble, Cook was informed that Gamble's
cellphone may contain prostitution-related evidence involving the juvenile
females. Cook submitted Gamble's cellphone to Detective Breckow
("Breckow") and advised Breckow that the cellphone had been collected
from Gamble's room and identified as Gamble’s. Breckow authored a
search warrant affidavit to search Gamble's cellphone.
¶7 Before trial, Gamble moved to suppress the cellphone
evidence. Gamble argued that the cellphone was obtained in a warrantless
search not justified by any emergency exception. Gamble also challenged
the truthfulness of the probable cause statement in the search warrant
affidavit, namely that the cellphone was in Gamble's "possession" when he
was arrested.
¶8 The superior court denied Gamble's suppression motions
after holding an evidentiary hearing. Following his convictions, Gamble
timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes ("A.R.S.") sections 12-120.21, 13-4031, and 13-4033.
DISCUSSION
¶9 Gamble contends that the superior court erred by denying his
suppression motions to exclude the cellphone evidence based on the
warrantless search of the room and his Franks challenge to the affidavit
underlying the warrant to search the cellphone.
I. STANDARD OF REVIEW
¶10 We review the superior court's ruling on a suppression
motion for abuse of discretion, consider only the evidence presented at the
suppression hearing, and view that evidence "in a light most favorable to
sustaining the trial court's ruling." State v. Adair, 241 Ariz. 58, 60, ¶ 9 (2016).
While we must defer to the superior court's factual findings, we conduct de
novo review of its legal conclusions. Id. A warrantless search is per se
unreasonable under the Fourth Amendment to the United States
Constitution, "subject to a 'few specifically established and well-delineated
exceptions.'" State v. Cheatham, 240 Ariz. 1, 2, ¶ 7 (2016) (citation omitted)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The search of one's
home or person generally requires a warrant absent "'the exigencies of the
situation' [which] make the needs of law enforcement so compelling that
the warrantless search is objectively reasonable under the Fourth
Amendment." Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (quoting
McDonald v. United States, 335 U.S. 451, 454 (1948)).
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STATE v. GAMBLE
Decision of the Court
¶11 "The reasonableness of a police officer's response in a given
situation is a question of fact for the trial court." State v. Bennett, 237 Ariz.
356, 359, ¶ 9 (App. 2015) (quoting State v. Fisher, 141 Ariz. 227, 238 (1984)).
Whether a probable cause determination comports with the Fourth
Amendment to the United States Constitution is a mixed question of law
and fact that we review de novo. Cheatham, 240 Ariz. at 2, ¶ 6. The superior
court's "finding on whether the affiant deliberately included misstatements
of law or excluded material facts is a factual determination, upheld unless
'clearly erroneous.'" State v. Buccini, 167 Ariz. 550, 554 (1991).
II. THE SUPERIOR COURT DID NOT ERR IN DENYING THE
SUPPRESSION MOTIONS
A. The Warrantless Search
¶12 Gamble claims that the superior court erred in denying his
motion to suppress because the officers possessed knowledge undermining
the emergency aid exception, "did not have enough information to justify a
warrantless entry into" the room, and had no reasonable basis to believe the
underage female in the room was in danger or that criminal activity was
occurring. Contrary to Gamble's arguments, the record supports the
superior court's decision to deny suppression of the evidence obtained from
Gamble's hotel room.
¶13 Based on the information provided by the juvenile's family
and hotel personnel, officers had reason to believe that a juvenile female
was accompanying an adult male in the particular room, and that there had
been an assault by that male on the juvenile's underage sister. Cook and
Mitchell responded to Gamble's room to conduct the welfare check and
detained Gamble based on the alleged assault. While he was detained,
Gamble consented to the search of his room. Gamble was subsequently
arrested for the alleged assault and the officers then collected his cellphone
and other property at Gamble's request.
¶14 Beyond Gamble's consent to search, the officers' conduct was
reasonable pursuant to the emergency aid exception. Warrantless entries
are lawful when law enforcement reasonably believes that someone located
within needs immediate aid or assistance, and a reasonable basis exists to
associate the emergency with the place to be searched. Bennett, 237 Ariz. at
358-59, ¶ 9; see also Brigham City, Utah v. Stuart, 547 U.S. 398, 406 (2006)
(holding that warrantless entry is justified when officers have a "reasonable
basis" to believe that an injured person "might need help" or that "violence
was just beginning"). Thus, the superior court did not err in its
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STATE v. GAMBLE
Decision of the Court
determination that the officers' conduct was justified by the urgency of the
information provided to them by the juveniles' family and hotel personnel.
Moreover, because Gamble specifically asked the officers to retrieve his
cellphone, the superior court did not err in concluding that Gamble's
cellphone was in his possession, and obtained by the officers with his
consent, before it was determined to be evidence. See State v. Paredes, 167
Ariz. 609, 612 (App. 1991) ("A warrantless search is valid if conducted after
voluntary consent is given.").
B. The Search Warrant Affidavit
¶15 After officers determined that Gamble's cellphone potentially
contained prostitution-related evidence, Breckow authored the affidavit,
which reads in pertinent part, "[t]he phone was removed from the
possession of Tony Gamble and is now in the possession of the Tempe
Police Department . . . ." The affidavit also contains information that at the
time of his arrest, Gamble "had almost $500 in cash in his possession as well
as a large 'Samsung' brand cell phone."
¶16 Gamble claims that the superior court abused its discretion by
denying his motion to suppress the cellphone evidence based on an alleged
Franks violation. Gamble contends that the cellphone "was actually found
in the hotel room," and the statement in the affidavit that it was found in
Gamble's possession was, therefore, a material misrepresentation.
¶17 The superior court correctly rejected this argument. An
affidavit underlying a search warrant is presumed valid. Franks, 438 U.S.
at 171. The affidavit must assert particular facts and circumstances upon
which probable cause to search exists so that a magistrate may make a
neutral determination. Id. at 165. But this does not require 100% accuracy;
only that the affidavit be "'truthful' in the sense that the information put
forth is believed or appropriately accepted by the affiant as true." Id.
¶18 At the evidentiary hearing, Breckow testified that the
cellphone was among Gamble's possessions in the room when the officers
collected it. Breckow stated that he believed the affidavit's statements were
accurate and the statement that the cellphone was in Gamble's possession
was not meant to mislead the court or imply that the cellphone was
obtained directly from Gamble's person.2 The superior court did not clearly
err when it found that Gamble had constructive possession of the cellphone
2It is undisputed that the cellphone was not on Gamble's person at the time
of his arrest.
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STATE v. GAMBLE
Decision of the Court
when officers seized it and, therefore, there was no material
misrepresentation in the affidavit.
¶19 Because Gamble did not establish by a preponderance of the
evidence that the affidavit contained false statements necessary to the
probable cause finding, the superior court did not err by denying the
suppression of the evidence.
CONCLUSION
¶20 For the abovementioned reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6