State v. Edwards

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DAVID RAYMOND EDWARDS, Appellant.

No. 1 CA-CR 13-0238
FILED 03/11/2014

Appeal from the Superior Court in Mohave County
No. S8015CR201101261
The Honorable Derek C. Carlisle, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Mohave County Legal Defender’s Office, Kingman
By Diane S. McCoy
Counsel for Appellant

1
 STATE v. EDWARDS
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined.

B R O W N, Judge:

¶1 David Raymond Edwards appeals his convictions and
sentences for possession of marijuana and possession of drug
paraphernalia. Edwards argues the trial court erred by denying his
motion to suppress evidence seized from his home pursuant to a search
warrant. For the following reasons, we affirm.

BACKGROUND

¶2 In October 2011, Peter McCluney was arrested and found in
possession of marijuana, drug paraphernalia, and narcotic pills. The
arresting officers notified the Bullhead City Police Department’s narcotics
bureau of the arrest, and Officer Marvin Harris interviewed McCluney,
who admitted possession of the drugs and paraphernalia and reported
that he purchased the marijuana from Edwards. McCluney explained that
he purchased several ounces of marijuana from Edwards every month,
sometimes weekly. McCluney informed Officer Harris that “Edwards
would have anywhere from two pounds to as high as twenty one pounds
of marijuana at his residence at one time.”

¶3 Officer Harris drove McCluney to Edwards’ neighborhood
and McCluney identified Edwards’ former and current residences located
on the same street. Officer Harris drove McCluney down the street twice,
and McCluney identified Edwards’ current residence both times.

¶4 Following the interview, Officer Harris learned that
Edwards had a previous conviction for possession of marijuana. Officer
Harris also determined that the contract for utilities for the residence
McCluney identified was in Edwards’ wife’s name. Based on this
information, and the interview with McCluney, Officer Harris submitted a
probable cause affidavit and obtained a search warrant for Edwards’
residence.

¶5 Police officers executing the search warrant at Edwards’
residence found drug paraphernalia and more than a pound of marijuana.

2
 STATE v. EDWARDS
Decision of the Court

The State charged Edwards with one count of possession of marijuana for
sale, a class four felony, and one count of possession of drug
paraphernalia, a class six felony.

¶6 Edwards filed a motion to suppress the evidence seized from
his residence, arguing that the affidavit supporting the search warrant
failed to demonstrate McCluney’s reliability and that the warrant was
therefore invalid. The State responded that the search warrant affidavit
set forth sufficient probable cause to support the warrant. The State
further argued that, even if the search warrant affidavit was facially
invalid, the officers acted in good faith and therefore the motion to
suppress should be denied. After an evidentiary hearing on the motion,
the trial court denied Edwards’ motion to suppress, finding “there was
sufficiently reliable information” in the affidavit to establish the necessary
probable cause and the officers acted in good faith even if probable cause
was lacking.

¶7 The matter proceeded to trial and a jury found Edwards
guilty of possession of drug paraphernalia. The jury acquitted him of
possession of marijuana for sale, but convicted him of the lesser-included
offense of possession of marijuana. At sentencing, the court suspended
imposition of a sentence and placed Edwards on probation for a period of
three years. Edwards timely appealed.

DISCUSSION

¶8 Edwards argues that the trial court erred by denying his
motion to suppress. He contends that the seized evidence should not
have been admitted because the search warrant was deficient and the
police officers lacked good faith in executing it.

¶9 “The Fourth Amendment to the United States Constitution
requires that search warrants be issued only upon a showing of probable
cause supported by oath.” State v. Collins, 21 Ariz. App. 575, 576, 522 P.2d
40, 41 (1974); U.S. const. amend. IV (“[N]o Warrant shall issue but upon
probable cause, supported by Oath or affirmation.”). The Arizona
Constitution provides similar protections. Ariz. Const. art. 2, § 8 (“No
person shall be disturbed in his private affairs, or his home invaded,
without authority of law.”).

¶10 In determining whether the requisite probable cause exists,
the “task of the issuing magistrate is simply to make a practical, common-
sense decision whether, given all the circumstances set forth in the
affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of

3
 STATE v. EDWARDS
Decision of the Court

persons supplying hearsay information, 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). The duty of the reviewing court,
then, is “to ensure that the magistrate had a substantial basis for
concluding that probable cause existed.” Id. (internal quotations omitted).

¶11 We review a trial 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). “[W]e defer to the trial court’s factual determinations,
but the ultimate ruling [whether suppression of evidence is warranted] is
a conclusion of law we review de novo.” State v. Box, 205 Ariz. 492, 495,
¶ 7, 73 P.3d 623, 626 (App. 2003). “We restrict our review to consideration
of the facts the trial court heard at the suppression hearing.” State v.
Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996). Search warrants
are presumed valid and the defendant carries the burden of proving the
invalidity of the warrant. Crowley, 202 Ariz. at 83, ¶ 7, 41 P.3d at 621; see
also Ariz. R. Crim. P. 16.2(b) (explaining that the State has the burden of
proving the lawfulness of all evidence to be used at trial, but if such
evidence is obtained by a valid search warrant, it is the defendant’s
burden to establish a “prima facie case that the evidence taken should be
suppressed”).

¶12 Edwards first contends the search warrant was defective
because it was predicated on information provided by an informant
lacking personal knowledge. Citing State v. Williams, 184 Ariz. 405, 407,
909 P.2d 472, 474 (App. 1995), for the proposition that “an unreliable
informant who lacks personal knowledge cannot provide probable cause,”
Edwards argues the warrant lacked sufficiently specific detail to establish
McCluney’s personal knowledge and to demonstrate that the information
was not stale.

¶13 “An affidavit relying on hearsay is not to be deemed
insufficient . . . so long as a substantial basis for crediting the hearsay is
presented.” Gates, 462 U.S. at 241-42 (internal quotation omitted). An
officer may validly “rely upon information received through an
informant, rather than his direct observations, so long as the informant’s
statement is reasonably corroborated by other matters within the officer’s
knowledge.” Id. (internal quotation omitted). When “an informant is
right about some things, he is more probably right about other facts,”
including claims regarding illegal activities. Id. at 244. “It is enough, for
purposes of assessing probable cause, that corroboration through other
sources of information reduced the chances of a reckless or prevaricating
tale, thus providing a substantial basis for crediting the hearsay.” Id. at

4
 STATE v. EDWARDS
Decision of the Court

244-45 (internal quotation omitted). Corroboration of “entirely innocent
activity” may be sufficient to demonstrate probable cause. Id. at 245 n.13.

¶14 Contrary to Edwards’ argument, the affidavit in this case
demonstrates McCluney had personal knowledge that Edwards possessed
drugs at his residence. As set forth in the affidavit, McCluney purchased
several ounces of marijuana from Edwards at least monthly and, at times,
on a weekly basis. Although not expressly stated, the affidavit also
implied that McCluney had purchased drugs from Edwards for an
extended period of time, as demonstrated by McCluney’s knowledge of
the location of Edwards’ previous residence and the length of time
(approximately ten years) Edwards occupied that home. Edwards
correctly notes that the affidavit did not specify when McCluney
purchased marijuana from Edwards, but McCluney’s disclosures
regarding the duration and frequency of his purchases, in addition to his
statement that Edwards kept “anywhere from two pounds to as high as
twenty one pounds of marijuana” at his residence at any given time,
established that “there [wa]s a fair probability that contraband or evidence
of a crime [would be] found” at Edwards’ home. See Gates, 462 U.S. at 238.

¶15 Before applying for a search warrant, Officer Harris drove
McCluney to Edwards’ residence to verify that McCluney knew its
location, and Officer Harris confirmed that Edwards occupied the home
by checking the named party responsible for the utilities to the property
(Edwards’ wife). In addition, Officer Harris checked Edwards’ criminal
history and discovered that he had a previous conviction for possession of
marijuana. McCluney’s information, as corroborated by independent
police investigation, was sufficient to establish probable cause for the
warrant.

¶16 Edwards also argues that McCluney lacked credibility and
therefore the warrant is invalid. We disagree. In general, a named
informant is “more reliable than an anonymous . . . tipster [because] the
former runs the greater risk that he may be held accountable if his
information proves false.” United States v. Salazar, 945 F.2d 47, 50-51 (2d
Cir. 1991). Here, McCluney’s identity was clearly known to police and set
forth in the affidavit. Edwards contends, however, that McCluney’s
motivation in providing information to the police was suspect because, as
disclosed at the suppression hearing, McCluney expressed great concern
to Officer Harris that his wife could be charged with a crime and,
although Officer Harris was certain he never offered McCluney “anything
himself,” the officer could not recall whether he had made any assurances
with regard to McCluney’s wife. It is not clear from this record whether

5
 STATE v. EDWARDS
Decision of the Court

McCluney received any promises on behalf of his wife, but even assuming
he was offered favorable treatment in exchange for his statements, this
would not render them per se unreliable. United States v. Patayan Soriano,
361 F.3d 494, 505 (9th Cir. 2004). In Patayan Soriano, the court noted an
offer of favorable treatment to an informant and explained that the
informant “was presumably motivated to provide information after his
arrest out of hope that his cooperating would result in more lenient
treatment for himself by the authorities. [The informant] could not
achieve that goal if he gave false information, so the circumstances in
which he provided the information further served to corroborate its
reliability.” Id.; see also United States v. Harris, 403 U.S. 573, 583 (1971)
(“That the informant may be paid or promised a ‘break’ does not eliminate
the residual risk and opprobrium of having admitted criminal conduct.”);
United States v. Davis, 617 F.2d 677, 693 (D.C. Cir. 1979) (noting that an
admitted criminal participant has strong incentive to tell the truth because
“should he lie to the police,” he “risks disfavor with the prosecution”).

¶17 Additionally, an informant’s inculpatory statements may
demonstrate credibility. Patayan Soriano, 361 F.3d at 505-06 (explaining
that reliability may be demonstrated by an “admission against penal
interest”) (internal quotation omitted). Here, McCluney admitted
possession of the drugs and drug paraphernalia found on his person.
Although Edwards correctly notes the police already had substantial
evidence McCluney committed those crimes, McCluney’s admissions
were nonetheless incriminating. And, McCluney’s information regarding
Edwards in no way exculpated him from possession charges. We
conclude McCluney’s status as a named informant, his motivation to
cooperate with the police to procure favorable treatment for himself and
his wife, and his incriminating statements were sufficient to establish his
credibility as an informant.

¶18 Viewing the totality of the circumstances, the record
supports the trial court’s finding that McCluney was a reliable and
credible informant. Accordingly, because probable cause existed for the
search warrant, the trial court did not abuse its discretion in denying
Edwards’ motion to suppress. 1

1 Edwards also argues the warrant was so lacking in probable cause
that the good-faith exception to the warrant requirement does not apply.
See Ariz. Rev. Stat. § 13-3925. Because we conclude the warrant was
supported by probable cause, we need not address this argument.

6
 STATE v. EDWARDS
Decision of the Court

CONCLUSION

¶19 For the foregoing reasons, Edwards’ convictions and
sentences are affirmed.

:gsh

7