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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GILBERT HENRY WHITE, Appellant.
No. 1 CA-CR 22-0510
FILED 6-6-2023
Appeal from the Superior Court in Mohave County
No. S8015CR202000138
The Honorable Douglas Camacho, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Gilbert H. White, St. Johns
Appellant
STATE v. WHITE
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Anni Hill Foster joined.
H O W E, Judge:
¶1 Gilbert White appeals his conviction and sentence for
possession of dangerous drugs for sale. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 This is the second appeal after the superior court denied
White’s motion to suppress evidence.1 In January 2020, Detective Carlos
Cortez, a member of the Arizona Department of Public Safety gang task
force, received an anonymous tip from an informant that White was selling
drugs from a house in Kingman, Arizona. After investigating, Detective
Cortez submitted a sworn affidavit to obtain a search warrant. His affidavit
provided information about (1) the tip, (2) his attempts to corroborate the
tip through observations, (3) White’s drug-related criminal history, (4) the
presence of individuals who possessed drugs at the house, and (5) White’s
lack of income. The court found that grounds for probable cause existed
and issued the search warrant. Detective Cortez and other officers executed
the search warrant at the house and found methamphetamine.
¶3 The State charged White with possession of dangerous drugs
for sale, a class 2 felony. White moved to suppress the evidence seized in
the search, arguing that Detective Cortez’s affidavit did not establish
probable cause because it contained material misrepresentations and
omissions. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978) (holding that
defendant is entitled to an evidentiary hearing upon a substantial
preliminary showing that probable cause depends on false statements in an
affidavit made knowingly and intentionally, or with reckless disregard for
the truth). White contended, among other arguments, that the affidavit
1 The facts and procedural history for this appeal are recounted in
State v. White, 1 CA-CR 21-0207, 2022 WL 1467508 (App. May 10, 2022).
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STATE v. WHITE
Decision of the Court
inaccurately described that he was married and omitted the address listed
on his driver’s license.
¶4 After a suppression hearing, the trial court denied White’s
request for a Franks hearing and his motion to suppress. A jury then found
White guilty of possession of dangerous drugs for sale. The trial court
sentenced White to seven years’ imprisonment. White appealed and argued
that the trial court erred by denying his request for a Franks hearing and his
motion to suppress because Detective Cortez’s affidavit did not support the
trial court’s finding of probable cause given its material misrepresentations
and omissions.
¶5 This court held on appeal that “the affidavit was insufficient
[to establish probable cause] regardless of the alleged veracity problems,”
but “[t]he evidence seized during the search may nonetheless have been
admissible under the good faith exception to the exclusionary rule.” White,
2022 WL 1467508, at *1 ¶ 1. Concluding the record was not adequately
developed on the applicability of the good faith exception, the court
remanded the case for further proceedings. Id. at *5 ¶ 17.
¶6 On remand, the trial court held an evidentiary hearing on
whether the evidence seized during the search was admissible under the
good faith exception to the exclusionary rule. White waived his right to
counsel and represented himself at the hearing. Detective Cortez testified
that he believed all the information in his affidavit was true when he wrote
it. He testified that he had no reason to believe that White was not married
when he submitted the affidavit because he knew that White had obtained
a marriage license. He also testified he did not intentionally omit from the
affidavit the address listed on White’s driver’s license. He testified that
although the informant had not undergone the departmental review to be
deemed reliable, he nevertheless corroborated the tip by seeing that White
was inside the house that the informant had described, rode a bicycle to
another person’s house, and someone who had just left the house the
informant had described had drugs on him.
¶7 The trial court found that Detective Cortez’s testimony was
credible. It also found that (1) Detective Cortez did not intentionally or
recklessly mislead the judge with the information in the affidavit; (2) the
judge did not abandon his role as a neutral and detached magistrate; and
(3) the warrant was not so facially deficient that the executing officers could
not reasonably presume it to be valid. Finally, the trial court found that
officers could reasonably believe that probable cause existed given that the
detective’s affidavit included information about (1) the tip from the
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STATE v. WHITE
Decision of the Court
informant that White was selling drugs, (2) the attempts the detective made
to corroborate the tip through observations, (3) White’s drug-related
criminal history, (4) the presence of individuals who possessed drugs at the
house from where White was allegedly selling drugs, and (5) White’s lack
of income.
¶8 The trial court therefore held that the officers’ reliance on the
warrant was a technical violation of White’s Fourth Amendment rights and
that the good faith exception to the exclusionary rule applied. It denied
White’s motion to suppress and reaffirmed its previous judgment and
sentence. White timely appealed.
DISCUSSION
¶9 White argues that the State failed to show that the good faith
exception to the exclusionary rule applied because the warrant was based
on an affidavit that lacked any indicia of probable cause.2 We review de
novo whether the State showed that the good faith exception to the
exclusionary rule applied. State v. Crowley, 202 Ariz. 80, 91 ¶ 32 (App. 2002).
¶10 Evidence obtained in violation of the Fourth Amendment to
the United State Constitution is generally inadmissible in a subsequent
criminal trial. See State v. Valenzuela, 239 Ariz. 299, 302 ¶ 10 (2016). But
evidence obtained “as a result of a good faith mistake or technical violation”
will not be suppressed. See A.R.S. § 13–3925; see also United States v. Leon,
468 U.S. 897, 922 (1984). “Good faith mistake” means “a reasonable
judgmental error concerning the existence of facts that if true would be
sufficient to constitute probable cause.” A.R.S. § 13–3925(F)(1). The good
faith exception does not apply when (1) “the magistrate has been misled by
information that the affiant knew was false or would have known was false
but recklessly disregarded the truth”; (2) “the issuing magistrate has wholly
abandoned his or her judicial role”; (3) “a warrant is based on an affidavit
that lacks any indicia of probable cause, thus rendering official belief in its
existence entirely unreasonable”; and (4) “a warrant is so facially deficient
. . . that the executing officers cannot reasonably presume it to be valid.”
Crowley, 202 Ariz. at 92 ¶ 35 (internal citation and quotation marks omitted).
2 White does not argue that the other situations that render the good
faith exception inapplicable were present. As a result, he has waived those
claims. See State v. Vassell, 238 Ariz. 281, 285 ¶ 18 (App. 2015) (failure to
argue a claim ordinarily waives that claim).
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STATE v. WHITE
Decision of the Court
¶11 The threshold is high for establishing that “a warrant is based
on an affidavit that lacks any indicia of probable cause.” Messerschmidt v.
Millender, 565 U.S. 535, 546–47 (2012). To prove that the good faith exception
applies, the State must show that the warrant was not based on an affidavit
“so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Crowley, 202 Ariz. at 91–92 ¶¶ 32, 35. To
show that an indicium of probable cause existed, the State must present
“[l]ess proof [] than to demonstrate [that] probable cause” existed. See
United States v. Matthews, 12 F.4th 647, 655 (7th Cir. 2021), cert. denied, 142
S. Ct. 1212 (2022); see also United States v. Bynum, 293 F.3d 192, 195 (4th Cir.
2002) (explaining that the threshold for showing an indicium of probable
cause “is a less demanding [] than the ‘substantial basis’ threshold required
to prove the existence of probable cause”).
¶12 The record supports the trial court’s finding that the State
satisfied its burden of showing that the good faith exception applied.
Detective Cortez testified that he believed all the information in his affidavit
was true at the time, and the court found his testimony credible. Detective
Cortez’s affidavit included information about (1) the tip from the informant
that White was selling drugs, (2) the attempts he made to corroborate the
tip through observations, (3) White’s drug-related criminal history, (4) the
presence of individuals who possessed drugs at the house from where
White was allegedly selling drugs, and (5) White’s lack of income. Detective
Cortez also consulted his supervisor about the warrant’s sufficiency. See
Messerschmidt, 565 U.S. at 553–54 (explaining that a supervisor’s approval
of the warrant supported the officer’s belief that probable cause existed). A
police officer with that information could have reasonably believed that
probable cause existed. Also, “the fact that a neutral magistrate [] issued
[the] warrant is the clearest indication that the officers acted in an
objectively reasonable manner or . . . in objective good faith.” Id. at 546
(citation and internal quotation marks omitted). Finally, White presented
no contradictory evidence during the hearing. The warrant therefore was
not based on an affidavit “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.” Leon, 468 U.S.
at 923. White has shown no error.
¶13 White also argues that the affidavit did not establish a nexus
between him, the house, and the criminal activity. A warrant affidavit
“must establish a reasonable nexus between the crime or evidence and the
location to be searched.” United States v. Crews, 502 F.3d 1130, 1136–37 (9th
Cir. 2007). Because Detective Cortez’s affidavit established a reasonable
nexus between the crime and the location to be searched, supra ¶12, White’s
argument fails.
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STATE v. WHITE
Decision of the Court
CONCLUSION
¶14 We affirm White’s conviction and resulting sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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