State v. White

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CR 21-0207
FILED 5-10-2022

Appeal from the Superior Court in Mohave County
No. S8015CR202000138
The Honorable Douglas Camacho, Judge Pro Tempore

REMANDED FOR FURTHER PROCEEDINGS

APPEARANCES

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

Gilbert H. White, Kingman
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 Randall M. Howe and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Gilbert White appeals his conviction and sentence for
possession of dangerous drugs for sale. He contends an officer’s affidavit
did not support the judge’s finding of probable cause for a search warrant
because it contained material misrepresentations and omissions. Thus, he
argues the trial court erred by denying his request for a hearing pursuant
to Franks v. Delaware, 438 U.S. 154 (1978), and by denying his motion to
suppress. We agree the affidavit was insufficient regardless of the alleged
veracity problems. The evidence seized during the search may nonetheless
have been admissible under the good faith exception to the exclusionary
rule. See State v. Coats, 165 Ariz. 154, 157–58 (App. 1990). Because the record
is not adequately developed on that issue, we remand for further
proceedings.

BACKGROUND

¶2 In January 2020, Detective Carlos Cortez, a member of the
Department of Public Safety gang task force, received an anonymous tip
that Gilbert White was selling drugs from a house in Kingman. Detective
Cortez investigated and submitted an affidavit to obtain a search warrant.
As grounds for probable cause, Cortez stated the following in his affidavit:

In the first week of January 2020, Your Affiant received an
anonymous tip regarding Gilbert White. The subject, who
desired to remain anonymous, stated Gilbert White lives at
[the specified address] and is involved in the sale of
Methamphetamine. It was also stated that Gilbert delivers
drugs using a bicycle. This person is not a reliable informant.

Based on this information, Your Affiant conducted
surveillance on the residence for several days. Your Affiant
was able to identify Gilbert White conducting a driver’s
license check. A photograph of Gilbert White was obtained.
While conducting surveillance, Your Affiant was able to
observe Gilbert White inside [the specified address], using his

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cell phone. On January 10, 2020[,] Your Affiant observed
Gilbert White leave the [specified] property on a large size
bicycle with orange rims. Your Affiant observed and followed
Gilbert White as he rode his bicycle to a nearby residence and
visited for approximately 15 minutes. Gilbert then rode the
bicycle back to the residence [at the specified address]. Gilbert
White is married to Kathleen White. An Arizona driver’s
license check shows the address of [the specified address]
listed as her residence. Your Affiant observed Kathleen on the
property. She walked out of the residence and checked the
[mailbox].

On January 11, 2020, Your Affiant was conducting
surveillance at the [specified] residence. While doing so, Your
Affiant observed two subjects exit the [specified] residence
and enter a vehicle parked in front of the residence. Your
Affiant followed the vehicle and conducted a traffic stop
within the City limits of Kingman. During this traffic [stop],
Your Affiant contacted the driver of the vehicle. During the
traffic stop, the driver was in possession of approximately 5
grams of meth. The driver did not want to disclose where he
purchased the meth. The driver did advise he paid $100.00 for
the meth. The driver said he was coming from his friend’s
house on [the street of the specified address].

Gilbert White’s Criminal history shows the following:

[A list of Gilbert White’s eight previous arrests on various
drug charges]

From 1992 to 2014 Gilbert White has been arrested a total of 8
times on drug-related charges.

An employment check conducted by an AZDPS analyst
revealed that Gilbert White shows no source of income and is
currently not employed.

The affidavit also contained an allegation that White had committed the
crimes of possessing dangerous drugs and drug paraphernalia, a summary
of Detective Cortez’s training and 17 years of experience as a police officer,
and background information on common practices of drug criminals based
on Cortez’s training and experience. See A.R.S. §§ 13-3407, -3415. After
reviewing the affidavit, the court issued a warrant to search the specified
property for methamphetamine and other drug-trafficking evidence.

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¶3 The following day, Detective Cortez and other officers
executed the search warrant and found White inside a trailer on the
property. After Cortez gave him a Miranda1 warning, White admitted to
“selling a small amount of drugs here and there” and told Cortez about
some methamphetamine in the trailer. In the trailer, officers found a digital
scale, a bag of cash, and a baggie containing 19 grams of methamphetamine.

¶4 The State charged White with possession of dangerous drugs
for sale, a class 2 felony. A.R.S. § 13-3407(A)(2), (B)(2). White moved to
suppress the evidence seized in the search, arguing Detective Cortez’s
affidavit did not establish probable cause because it contained intentional,
material misrepresentations and omissions. See Franks, 438 U.S. at 155–56
(holding that defendant entitled to evidentiary hearing upon substantial
preliminary showing that probable cause depends on false statements in
affidavit made knowingly and intentionally, or with reckless disregard for
truth). Specifically, White argued the affidavit was materially inaccurate
because (1) he was not married to the woman named in the affidavit,
Kathleen, and (2) Kathleen’s last name was not White. He also argued the
affidavit was materially incomplete because it omitted (3) the address listed
on his driver’s license, which was not the specified address, (4) the name of
the driver Cortez pulled over, (5) the fact that the driver wasn’t arrested or
charged, (6) the fact that Cortez did not see White at the specified address
on the day of the traffic stop, and (7) the fact that Cortez “made no effort to
identify the friend” mentioned by the driver.

¶5 At the suppression hearing, Kathleen testified that she had
been seeing White for 21 years but had never been married to him and did
not share his last name. She also testified that he stayed at the specified
address, a few weeks each month for several days. No other evidence was
introduced during the hearing. After argument, the trial court concluded
that the alleged misrepresentations and omissions were immaterial to the
probable cause determination. The court found further that Detective
Cortez’s affidavit was sufficient to establish probable cause, so it denied
White’s request for a Franks hearing and his motion to suppress. A jury
subsequently found White guilty as charged, and the trial court sentenced
him to seven years’ imprisonment. White timely appealed.2

1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 White also petitioned for special action review after the denial of his
motion to suppress, but we declined jurisdiction. See White v. Camacho,
1 CA-SA 21-0067 (Ariz. App. Apr. 20, 2021) (order declining special action
jurisdiction).

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DISCUSSION

¶6 Generally, under both the Fourth Amendment to the United
States Constitution and Article 2, Section 8, of the Arizona Constitution, the
police must have a warrant supported by probable cause to search and seize
evidence from a person’s home. State v. Gay, 214 Ariz. 214, 218, ¶ 8 (App.
2007). The probable cause determination must be made by a detached,
disinterested magistrate based on sworn statements. Frimmel v. Sanders, 236
Ariz. 232, 239, ¶ 26 (App. 2014); see also A.R.S. §§ 13-3913, -3914. Evidence
seized in violation of these constitutional principles must be suppressed,
unless the good faith exception or another exception applies. State v. Peoples,
240 Ariz. 244, 247, ¶ 9 (2016).

¶7 White argues the trial court abused its discretion by denying
his request for a Franks hearing and by denying his motion to suppress. We
review the denial of a request for a Franks hearing de novo. Frimmel, 236
Ariz. at 238, ¶ 25. We review the denial of a motion to suppress for an abuse
of discretion, considering only the evidence presented at the suppression
hearing in the light most favorable to affirming. See State v. Goudeau, 239
Ariz. 421, 439, ¶ 26 (2016).

I. Probable Cause Supporting Issuance of the Search Warrant

¶8 We agree with the trial court that the alleged veracity
problems in Cortez’s affidavit were immaterial to a probable cause finding
because they did not significantly call into question White’s connection to
the specified address or the vague statements of the driver who possessed
methamphetamine. But contrary to the trial court, we conclude that
Cortez’s affidavit was insufficient to establish probable cause regardless of
the alleged misstatements and omissions.3

¶9 Probable cause exists if, “given all the circumstances set forth
in the affidavit before [the magistrate], including the ‘veracity’ and ‘basis of
knowledge’ of 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). “[A]n anonymous
tip is insufficient to establish probable cause,” unless it is corroborated by
police investigation or coupled with other evidence. United States v. Clark,
31 F.3d 831, 834 (9th Cir. 1994) (citing Gates, 462 U.S. at 241–45).

3 Because we find probable cause lacking, we need not further address
the court’s denial of White’s request for a Franks hearing.

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¶10 To adequately corroborate an anonymous tip, an affidavit
must provide more than “mere confirmation of innocent static details.”
United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir. 1993) (“The fact that a
suspect lives at a particular location or drives a particular car does not
provide any indication of criminal activity.”). “Prediction of significant
future activity,” on the other hand, “does provide a reasonable basis for
evaluating the validity of an anonymous tip.” Id. Corroboration of criminal
activity is not required, however; even “seemingly innocent activity” may
be suspicious in the context of the tip. Gates, 462 U.S. at 243 n.13. The level
and character of detail in the tip, and in particular, the degree to which the
tip indicates an intimate familiarity with details “relating not just to easily
obtained facts and conditions existing at the time of the tip,” are also
relevant to the court’s inquiry. Id. at 245.

¶11 Although we review the existence of probable cause de novo,
Goudeau, 239 Ariz. at 439, ¶ 26, our task is to decide only “whether the
totality of the circumstances indicates a substantial basis for the
magistrate’s decision,” and we resolve close cases in favor of validity. State
v. Hyde, 186 Ariz. 252, 272 (1996). We do not consider this a close case.

¶12 Here, the anonymous tip contained no predictive details to
corroborate, so Detective Cortez was only able to corroborate several
innocent static details. Cortez verified that White was present at the
specified address and that he used a bicycle, but neither of these details
suggested White was selling drugs. Cf. Mendonsa, 989 F.2d at 367–69
(finding probable cause lacking, in part because officer only verified that
man, cars, and house matched anonymous tipper’s description). White’s
short bicycle trip to a nearby residence might have been slightly suspicious,
at least in the context of the tip, but a single observation was not enough to
corroborate the allegation that White was using the bicycle to sell drugs,
given the myriad of innocent explanations for his trip. Cf. United States v.
Vargas, 931 F.2d 112, 113–14 (1st Cir. 1991) (finding anonymous tip that
defendant was selling cocaine corroborated in part by observation of
thirteen people, alone or in pairs, making short visits to his house during
single evening).

¶13 In addition, the tip itself bore little indicia of reliability.
Detective Cortez described the tipper as an anonymous person who “is not
a reliable informant.”4 And the level of detail in the tip was scant at best,

4 It is unclear whether Detective Cortez meant that the tipper had
proven to be unreliable or that the tipper’s reliability was merely unproven.

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demonstrating no intimate familiarity with White or his criminal enterprise.
The facts that White stayed at the specified address and used a bicycle were
things any of his neighbors might know and, taken alone, allude to nothing
other than the innocent behavior of a person using a bicycle for
transportation. C.f. Gates, 462 U.S. at 245 (noting that detailed, predictive
information about defendants’ travel plans likely obtained only from
defendants themselves).

¶14 Finally, the evidence stemming from Detective Cortez’s
independent investigation is not enough to overcome the lack of
corroboration and the reliability problems. The fact that White was
supposedly married to a woman who lived at the residence provided no
indication of criminal activity. And the fact that a single visitor was found
in possession of methamphetamine after leaving the house is not probative
because the affidavit did not connect White to the drugs, did not indicate
White was at the house when the visit took place, and did not say how long
the visit lasted. Cf. State v. Keitz, 1 CA-CR 08-0807, 2010 WL 286776, at *2–3,
¶¶ 8–9, 13 (Ariz. App. Jan. 26, 2010) (mem. decision) (finding probable
cause to search defendant’s house where car’s occupants admitted buying
methamphetamine from defendant, during traffic stop, after police saw
defendant interreact with them for a few minutes at house).

¶15 In sum, the information contained in the affidavit did not
provide the court with a substantial basis to find probable cause, and the
search warrant was therefore invalid.

II. Good Faith Exception

¶16 Although we conclude the search warrant was invalid, we are
bound to uphold the trial court’s ruling if the result was correct for any
legally sound reason. See State v. Perez, 141 Ariz. 459, 464 (1984). Mindful of
this obligation, we consider the applicability of the good faith exception to
the exclusionary rule. Under the good faith exception, illegally obtained
evidence need not be suppressed “when the police act with an objectively
reasonable good-faith belief that their conduct is lawful.” State v. Weakland,
246 Ariz. 67, 69–70, ¶¶ 6–7 (2019) (quotation omitted) (explaining that
exclusionary rule is intended “solely” to deter future violations and that
exclusion cannot be justified by deterrence rationale when police act
reasonably and in good-faith). “[T]he good faith exception is precluded,” as

Either way, the tipper’s reliability does not weigh in favor of probable
cause.

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relevant here, “when a warrant is based on an affidavit that lacks any
indicia of probable cause, thus rendering ‘official belief in its existence
entirely unreasonable’” and “when a warrant is ‘so facially deficient . . .
that the executing officers cannot reasonably presume it to be valid.’” State
v. Crowley, 202 Ariz. 80, 92, ¶ 35 (App. 2002) (quoting United States v. Leon,
468 U.S. 897, 923 (1984)). If the good faith exception to the exclusionary rule
is applicable here, then the trial court did not err in denying White’s motion
to suppress. See generally Coats, 165 Ariz. at 157–58 (discussing good faith
exception under A.R.S. § 13-3925, Ariz. Const. art. 2, § 8, and U.S. Const.
amends. IV, V).

¶17 Because the court denied the request for a Franks hearing and
summarily found the warrant was supported by probable cause, the good
faith exception was not raised in the trial court. The parties have not had an
opportunity to address its application in these circumstances. For that
reason, we remand for further proceedings on whether the evidence
admitted at trial was admissible under the good faith exception. Depending
on whether the State meets its burden to prove the good faith exception
applies, the trial court must either reaffirm or vacate White’s conviction and
sentence. See Crowley, 202 Ariz. at 91, ¶ 32.

CONCLUSION

¶18 We remand for further proceedings consistent with this
decision.

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

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