State v. Aquino

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

GARY T. AQUINO, Appellant.

No. 1 CA-CR 19-0381
FILED 8-20-2020

Appeal from the Superior Court in Maricopa County
No. CR 2018-001663-001
The Honorable Andrew J. Russell, Judge Pro Tem

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Dawnese Hustad
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Chief Judge Peter B. Swann1
joined.

C A M P B E L L, Judge:

¶1 Gary Aquino appeals his convictions and sentences for
several drug possession and paraphernalia counts. Challenging the
constitutionality of the Glendale Police Department (“GPD”) inventory
search policy, Aquino asserts that officers unlawfully searched a closed
container found inside his impounded vehicle. In the alternative, he argues
that even if GPD’s policy is legally sufficient, the officers failed to abide by
its terms in this case, thereby rendering their inventory search illegal. We
disagree and affirm.

BACKGROUND

¶2 After observing Aquino’s vehicle fail to stop at an
intersection, Glendale Police Officer Clontz initiated a traffic stop. Once
Aquino’s vehicle came to a stop, the officer ran its license plate and
discovered that the plate number was registered to a different vehicle.
When Officer Clontz subsequently ran a search on the photo identification
card Aquino provided him, he learned that Aquino’s driver’s license was
suspended.

¶3 At that point, Officer Clontz’s backup, Officer Doughty,
arrived. Officer Clontz advised Officer Doughty that due to the suspension
of Aquino’s driver’s license, the vehicle needed to be impounded. Officer
Doughty began taking inventory of the items in Aquino’s vehicle, listing
the items he removed from the vehicle for safekeeping on a vehicle removal
report form.

1Chief Judge Peter B. Swann replaces the Honorable Kenton D. Jones, who
was originally assigned to this panel. Judge Swann has read the briefs and
reviewed the record.

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¶4 During his search of the vehicle’s interior, Officer Doughty
removed a black bag from the front passenger seat. According to the officer,
the bag was not locked and may have been open. Inside, Officer Doughty
found a clear plastic bag with a white crystalline substance that he believed
to be methamphetamine.

¶5 Officer Doughty then abandoned his inventory search and,
based on probable cause, proceeded to search the vehicle for other
contraband. He found two paper towels containing what appeared to be
marijuana in one and methamphetamine in another. One paper towel was
tucked under the gearshift molding and the other paper towel was found
in a hole behind the loose car stereo.

¶6 When questioned at the scene, Aquino admitted that the
substances were methamphetamine and marijuana. Subsequent lab testing
confirmed that the substances were in fact methamphetamine and
marijuana.

¶7 The State charged Aquino with possession or use of
dangerous drugs, possession or use of marijuana, and possession of drug
paraphernalia. Before trial, Aquino filed a motion to suppress evidence,
alleging that the drugs and paraphernalia (the packaging for the drugs)
seized from his vehicle were obtained through an illegal search. After an
evidentiary hearing, the superior court denied his motion. The court found
that the initial stop was justified based on the traffic infraction and because
the car’s license plate number was registered to a different vehicle. And,
once the officer determined that Aquino’s driver’s license was suspended,
he was required to impound the car. The court also found that items of
value were properly removed from the vehicle and catalogued prior to
impound pursuant to department policy. Accordingly, Officer Doughty
found the methamphetamine as a part of a valid inventory search. Once the
methamphetamine was discovered, the inventory search lawfully changed
to a warrantless search of the vehicle supported by probable cause.

¶8 After a jury trial, Aquino was convicted on all three counts.
He timely appealed from his convictions and sentences.

DISCUSSION

¶9 Aquino appeals the denial of his motion to suppress evidence.
He asserts that the inventory search was unlawful because GPD does not
have a sufficient policy establishing standardized procedures for searching
closed containers during inventory searches. Alternatively, to the extent a

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sufficient policy exists, he contends the officers’ failure to follow the policy
rendered the inventory search unlawful.

¶10 “We review a denial of a motion to suppress for an abuse of
discretion, but review constitutional issues de novo.” State v. Driscoll, 238
Ariz. 432, 433, ¶ 2 (App. 2015) (quoting State v. Gonzalez, 235 Ariz. 212, 214,
¶ 7 (App. 2014)). In conducting our review, we view the evidence presented
in the light most favorable to upholding the superior court’s ruling and
defer to the court’s findings of fact. State v. Organ, 225 Ariz. 43, 46, ¶ 10
(App. 2010) (citation omitted).

¶11 The Fourth Amendment does not forbid all searches and
seizures, only those that are unreasonable. Elkins v. United States, 364 U.S.
206, 222, (1960). As a general rule, in order to be reasonable, a search or
seizure must be made upon probable cause and pursuant to a legally issued
warrant. Vale v. Louisiana, 399 U.S. 30, 34 (1970). However, “because the
ultimate touchstone of the Fourth Amendment is reasonableness, those
requirements are subject to certain exceptions.” Organ, 225 Ariz. at 46, ¶ 11
(citing Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)); see also Katz v.
United States, 389 U.S. 347, 357 (1967) (stating that the Fourth Amendment’s
requirement of a valid warrant supported by probable cause is “subject
only to a few specifically established and well-delineated exceptions”).

¶12 “Inventory searches are a well-defined community caretaking
exception to the probable cause and warrant requirements of the Fourth
Amendment.” Organ, 225 Ariz. at 48, ¶ 20 (citing Colorado v. Bertine, 479 U.S.
367, 371 (1987)). Inventory procedures serve three “strong governmental
interests”: “[1] to protect an owner’s property while it is in the custody of
the police, [2] to insure against claims of lost, stolen, or vandalized property,
and [3] to guard the police from danger.” Bertine, 479 U.S. at 372. “An
inventory search of a vehicle is valid if two requirements are met: (1) law
enforcement officials must have lawful possession or custody of the vehicle,
and (2) the inventory must have been conducted in good faith and not used
as a subterfuge for a warrantless search.” Organ, 225 Ariz. at 48, ¶ 21.

¶13 Once law enforcement officers determined that Aquino was
driving on a suspended license, they were required to impound his vehicle
for 30 days. See A.R.S. § 28-3511(A)(1)(a), (E). Because Officer Clontz had
lawful possession of the vehicle, the first requirement of a valid inventory
search was satisfied. See Organ, 225 Ariz. at 48, ¶ 22 (citing In re One 1969
Chevrolet 2-Door, I.D. No. 136379K430353, 121 Ariz. 532, 535–36 (App. 1979)
(holding an inventory search invalid when officers were not required to
take physical custody of a vehicle, the vehicle did not create a safety hazard,

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and police made no inquiry into other methods of protecting the vehicle).
Therefore, the only question on appeal is whether the inventory search was
conducted in good faith.

¶14 Aquino argues the inventory search was conducted in bad
faith because Officer Doughty searched a closed container, the black bag,
and the GPD policy does not sufficiently regulate inventory searches of
closed containers. He asserts the GPD policy is “Constitutionally
inadequate” because it does not “guide . . . officers’ execution of inventory
searches,” but rather only “refers to ‘department policy’” without offering
one. Looking at the written materials and the officers’ testimony
collectively, we disagree.

¶15 “[A]n inventory search conducted pursuant to standard
procedures is presumptively considered to have been conducted in good
faith and therefore reasonable,” Organ, 225 Ariz. at 48, ¶ 21 (citing Bertine,
479 U.S. at 372), because this requirement “tend[s] to ensure that the
intrusion w[ill] be limited in scope to the extent necessary to carry out the
caretaking function.” South Dakota v. Opperman, 428 U.S. 364, 375 (1976). The
requisite standardized procedures may be written or established through
officer testimony. See State v. West, 176 Ariz. 432, 441 (1993), overruled on
other grounds, State v. Rodriguez, 192 Ariz. 58, 64, ¶ 30 n.7 (1998); see also
Organ, 225 Ariz. at 48, ¶ 24. While standard procedures that require
“opening all containers or of opening no containers are unquestionably
permissible, it would be equally permissible, for example, to allow the
opening of closed containers whose contents officers determine they are
unable to ascertain from examining the containers’ exteriors.” Florida v.
Wells, 495 U.S. 1, 4 (1990).

¶16 In Bertine, the United States Supreme Court considered
whether, and under what circumstances, police officers may inventory the
contents of closed containers found in vehicles lawfully taken into their
custody. 479 U.S. at 369. During the inventory search of Bertine’s
impounded vehicle, an officer opened a closed backpack, a nylon bag
within the backpack, and closed metal canisters located inside the nylon
bag. Id. The officer found drugs, contraband, and cash in the canisters. Id.
Reversing the suppression of this evidence, the Supreme Court
acknowledged that “reasonable police regulations relating to inventory
procedures administered in good faith satisfy the Fourth Amendment.” Id.
at 374.

¶17 The Supreme Court added that nothing in its jurisprudence
“prohibits the exercise of police discretion so long as that discretion is

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exercised according to standard criteria and on the basis of something other
than suspicion of criminal activity.” Id. at 375. The standard procedures
governing the inventory search of Bertine’s vehicle “mandated the opening
of closed containers and the listing of their contents.” Id. at 374 n.6.
Accordingly, the Court held that the Fourth Amendment did not prohibit
the use of the evidence found during the inventory search of Bertine’s
vehicle. Id. at 375.

¶18 The GPD’s policy on inventory searches includes searching
the car for valuables and completion of a vehicle removal report. This policy
required an officer to complete an inventory of valuables removed from the
vehicle for safekeeping. At the suppression hearing, Officer Clontz agreed
that it is “common practice to inventory a vehicle prior to it being towed”
in order to protect the owner and his or her property, as well as to protect
the police from any “claims of wrongdoing,” such as theft or loss of
property. GPD general order 24.106(C) provides, “[a]n inventory taken
solely to protect the arrested driver’s possession(s) is completely non-
exploratory and is not a search. This procedure for safekeeping purposes
can best be justified if the officer follows departmental policy in carrying
out the inventory process.” The vehicle removal report includes a section
for creating an inventory in accordance with GPD general order 51.643.

¶19 Officer Doughty testified that he searched Aquino’s vehicle
before it was impounded, in accordance with GPD general order 51.643.
While the order begins with the phrase “[i]n any collision . . . ,” it goes on
to establish what should be removed from a vehicle “where the owner or
responsible party for the vehicle is transported from the scene or is
otherwise unable to take possession of their vehicle and property . . . .” as
here, when law enforcement was required to impound the vehicle. Under
these circumstances, “. . . an inventory form shall be filled out describing
the vehicle and the property remaining in the vehicle.” GPD general order
51.643(B). “Items of value such as wallets . . . and other valuables found at
the scene of the collision or left in the vehicle shall be logged into property
at the police station for safekeeping if the items cannot be immediately
returned to the owner.” GPD general order 51.643(C).

¶20 A search of an unlocked container that may hold property or
effects that need to be listed on the vehicle removal report falls within the
GPD policy, including GPD general order 24.106(C) and general order
51.643(B)–(C), and therefore does not violate the Fourth Amendment. See
Wells, 495 U.S. at 4; see also United States v. Mundy, 621 F.3d 283, 290 (3rd Cir.
2010). Because GPD general order 51.643 required Officer Doughty to
inventory valuables within the car, which included Aquino’s bag, the policy

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sufficiently regulates the scope of the search, directing officers to describe
“property remaining in the vehicle.” See generally People v. Gipson, 203 Ill.2d
298, 311 (2003) (“Here, the policy of inventorying anything of value found
in the passenger compartment or trunk was sufficient to allow the opening
of containers that may contain valuables.”).

¶21 In this case, the standard procedures governing inventory
searches required Officer Doughty to search the black bag located in the
passenger compartment of the vehicle and inventory its contents for
safekeeping. The policy is constitutional, and the superior court did not
abuse its discretion by denying Aquino’s motion to suppress the evidence
found during the inventory of his vehicle.

¶22 In the alternative, Aquino argues that even if GPD’s policy
was sufficient, the officers failed to follow the policy, rendering the
inventory search unlawful. We disagree.

¶23 Officer Doughty testified that he carried out the inventory
process, which included filling out the vehicle removal report, in
accordance with his training and with GPD policy. Aquino points out that
Officer Doughty did not “note the disposition of Aquino’s wallet” on the
tow sheet, nor log it into evidence, and asserts this deviation from the policy
rendered the search unlawful. However, GPD general order 51.643 directs
officers to log items of value, “such as wallets,” into property for safe-
keeping at the police station if the items are taken as part of an inventory
search. While the search of Aquino’s car began as an inventory search and
later became a search based on probable cause, the entire bag and its
contents were seized as evidence. The bag, including Aquino’s
identification and phone, were indicia of ownership of the bag containing
the methamphetamine. Thus, Officer Doughty did not deviate from the
policy.

¶24 Similarly, Aquino asserts the officers’ failure to let him
retrieve his personal property from the vehicle prior to the inventory search
rendered the search unlawful. Aquino does not cite any statute or case law
supporting his argument, instead asserting only that this “underscores the
random manner” in which officers generally conduct inventory searches.
Officer Clontz’s testimony established that he impounded Aquino’s
personal property, logging some items as evidence and others for
safekeeping, consistent with GPD policy.

¶25 Lastly, Aquino maintains that Officer “Clontz admitted that
GPD’s orders are not mandatory, but merely ‘general guidelines’ . . . .”

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However, Officer Clontz clarified that the orders are regarded as
“guidelines” because they do not offer step-by-step instructions for how to
conduct an inventory search. And, Officer Doughty testified that he
completed the inventory search consistent with his training and with GPD
policy.

¶26 Because Officer Doughty conducted the inventory search in
accordance with the written and testimonial standardized procedures, the
search was presumptively conducted in good faith. Organ, 225 Ariz. at 48,
¶ 21. Based on the evidence presented, the superior court did not abuse its
discretion in finding the inventory search was valid under the Fourth
Amendment and did not err by denying Aquino’s motion to suppress.

CONCLUSION

¶27 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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