SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0188-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 07-0365
JOSE SALVADOR GUILLEN, )
) Pima County
Appellant. ) Superior Court
) No. CR20064552
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Michael J. Cruikshank, Judge
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals Division Two
222 Ariz. 81, 213 P.3d 230 (2009)
VACATED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Joseph L. Parkhurst, Assistant Attorney General Tucson
Attorneys for State of Arizona
EMILY DANIES Tucson
Attorney for Jose Salvador Guillen
________________________________________________________________
R Y A N, Justice
¶1 The question presented is whether a resident’s consent
to search her home is invalid because it was preceded by an
allegedly illegal search of which the resident was unaware. We
hold that the consent to search is valid under the
circumstances.
I
¶2 In March 2006, police received information that Jose
Guillen was storing marijuana in his garage; no investigation
took place at that time. Eight months later, after confirming
that the house was unoccupied, police called a narcotics officer
with a drug-sniffing dog to the scene. The home was not
enclosed by a fence and no signs prohibited public access to the
front of the house. The garage was attached to the house and
accessible by a driveway. The narcotics officer and the dog
walked up the driveway to the garage door. After sniffing the
door’s bottom seam, the dog began barking and scratching,
indicating that he had detected the odor of marijuana.
¶3 One to two hours later, Guillen’s wife returned home.
Officers approached her in the driveway and asked if they could
continue talking inside. She agreed. Without mentioning the
dog sniff, the officers told her that they had information that
marijuana was being stored at the house and asked for permission
to search it. Mrs. Guillen granted permission and led the
officers to the garage, where they detected a “strong odor of
marijuana.” The narcotics officer then brought the dog into the
garage and the dog signaled at an unlocked freezer that he
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detected the odor of marijuana. Mrs. Guillen permitted the
officers to open that freezer, which was empty but smelled of
marijuana. After obtaining a telephonic search warrant, the
officers searched two locked freezers and found bales of
marijuana.
¶4 Before trial, Guillen moved to suppress evidence
discovered in his garage and his subsequent statements to the
police, arguing that the dog sniff violated his rights under the
Fourth Amendment of the United States Constitution and Article
2, Section 8 of the Arizona Constitution. The superior court
denied Guillen’s motion, concluding that whether the dog sniff
was an illegal search was irrelevant because Mrs. Guillen
voluntarily consented to the search.
¶5 A jury subsequently convicted Guillen of possession of
marijuana for sale and drug paraphernalia, and the trial court
sentenced him to prison.
II
¶6 A divided panel of the court of appeals reversed and
remanded. State v. Guillen, 222 Ariz. 81, __ ¶ 33, 213 P.3d
230, 240 (2009). The majority began by analyzing the dog sniff
under the Fourth Amendment and Article 2, Section 8 of the
Arizona Constitution. The majority concluded that “a dog sniff
reaching into a home does not rise to the level of a ‘cognizable
infringement’ under the Fourth Amendment to the United States
3
Constitution.” Id. at __ ¶ 17, 213 P.3d at 234 (quoting
Illinois v. Caballes, 543 U.S. 405, 409 (2005)). However,
citing State v. Ault, 150 Ariz. 459, 466, 724 P.2d 545, 552
(1986), and State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519,
523-24 (1984), which held that Article 2, Section 8 is more
specific than its federal counterpart in protecting the home,
the court of appeals concluded that “a canine sniff that occurs
at the threshold of a home, and collects information from
inside, intrudes upon an expectation of privacy that our society
has long recognized as reasonable.” Id. at __ ¶ 24, 213 P.3d at
237. But because Article 2, Section 8 “contains no language
comparable to that of its federal counterpart requiring a
warrant for all searches in the home,” id. at __ ¶ 30, 213 P.3d
at 239, the majority concluded that “officers need only a
reasonable suspicion that contraband may be found in a home
. . . to conduct a canine sniff search of the exterior of the
home.” Id. The court remanded the matter for a determination
of whether the officers had reasonable suspicion before
conducting the dog sniff. Id. at __ ¶ 30, 213 P.3d at 239-40.
¶7 Turning to the issue of Mrs. Guillen’s consent, the
court of appeals stated that if the trial court on remand found
that the officers did not have reasonable suspicion, it then
would have to “determine whether the officers used the
information acquired to trigger the next step in their
4
investigation – asking for consent to search the house – or
whether . . . they would have taken that step regardless of the
outcome of the dog sniff.” Id. at __ ¶ 32, 213 P.3d at 240.
¶8 Dissenting, Judge Espinosa was “unconvinced [that] the
trial court erred in concluding Mrs. Guillen’s consent obviated
the need to discuss the constitutionality of the dog sniff[,]”
id. at __ n.13 ¶ 34, 213 P.3d at 241 n.13, but primarily
challenged the majority’s conclusion that a dog sniff, conducted
from the officer’s lawful position outside the home, violates
the state constitution. Id. at __ ¶¶ 37-55, 213 P.3d at 243-48.
¶9 The State petitioned for review, arguing that the
court of appeals erred in interpreting the state constitution
and, in any event, Mrs. Guillen’s voluntary consent obviated the
need to reach the state constitutional question. Because this
case involves a matter of first impression, we granted review.
We have jurisdiction under Article 6, Section 5(3) of the
Arizona Constitution and Arizona Revised Statutes § 13-4032
(2001).
III
A
¶10 The Fourth Amendment provides in part that “[t]he
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated.” Unlawful entry into a home is the
5
“chief evil” against which the provision protects. See, e.g.,
Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (quoting United
States v. United States District Court, 407 U.S. 297, 313
(1972)). It “applies to action by state officers under the Due
Process Clause of the Fourteenth Amendment.” State v. Davolt,
207 Ariz. 191, 202 ¶ 23, 84 P.3d 456, 467 (2004) (citing Mapp v.
Ohio, 367 U.S. 643, 655 (1961)). Arizona’s constitutional
counterpart to the Fourth Amendment, Article 2, Section 8,
provides that “[n]o person shall be disturbed in his private
affairs, or his home invaded, without authority of law.” See
Bolt, 142 Ariz. at 264-65, 689 P.2d at 523-24 (observing that
Arizona’s constitutional provision is “specific in preserving
the sanctity of homes and in creating a right of privacy”).
Thus, as a general rule police must obtain a warrant before
searching premises in which an individual has a reasonable
expectation of privacy. Katz v. United States, 389 U.S. 347,
356-57 (1967); State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200,
209 (1996); Bolt, 142 Ariz. at 265, 689 P.2d at 524.
¶11 One long recognized exception to the warrant
requirement is consent. Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d
at 468 (citing Katz, 389 U.S. at 357). To be valid, consent
must be voluntarily given, and whether the consent was voluntary
“is a question of fact to be determined from the totality of the
circumstances.” Id. (citing Schneckloth v. Bustamonte, 412 U.S.
6
218, 248-49 (1973)). Consent must “not be coerced, by explicit
or implicit means, by implied threat or covert force.”
Schneckloth, 412 U.S. at 228. The state bears the burden of
showing that consent to search was voluntary. See United States
v. Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th Cir. 1988);
State v. Monge, 173 Ariz. 279, 281, 842 P.2d 1292, 1294 (1992).
¶12 Here, defense counsel made clear at the suppression
hearing below that Guillen was not challenging the voluntariness
of Mrs. Guillen’s consent or her authority to consent to the
search. See, e.g., United States v. Matlock, 415 U.S. 164, 171
(1974) (holding that voluntary consent to search premises by
occupant who possesses common authority to the premises is valid
against absent co-occupant); State v. Lucero, 143 Ariz. 108,
109, 629 P.2d 287, 288 (1984) (recognizing exception to warrant
requirement where “person having authority to consent to a
warrantless search[] does so”). Rather, he argued that the
first dog sniff at the garage perimeter was illegal, and it
necessarily tainted Mrs. Guillen’s subsequent consent to search,
requiring exclusion of the evidence discovered in the garage.
B
¶13 Evidence seized following consent to a search must be
suppressed if the consent is tainted by a prior constitutional
violation. Brown v. Illinois, 422 U.S. 590, 602 (1975); United
States v. Taheri, 648 F.2d 598, 601 (9th Cir. 1981); Davolt, 207
7
Ariz. at 203 ¶ 29, 84 P.3d at 468. Exclusion deters police
misconduct “by removing the incentive for such conduct.” State
v. Booker, 212 Ariz. 502, 504 ¶ 13, 135 P.3d 57, 59 (App. 2006)
(citing United States v. Calandra, 414 U.S. 338, 347 (1974));
State v. Kempton, 166 Ariz. 392, 398, 803 P.2d 113, 119 (App.
1990).1 Suppression, however, is not required if the
unconstitutional conduct is sufficiently attenuated from the
subsequent seizure. See Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d
at 468; Monge, 173 Ariz. at 281, 842 P.2d at 1294. “[T]he
unconstitutional acts of an officer taint a consensual search
unless there are sufficient intervening circumstances between
the unlawful conduct and the consent to truly show that it was
voluntary.” Kempton, 166 Ariz. at 398, 803 P.2d at 119.
¶14 In Brown, the Supreme Court set forth a test to
determine whether the taint of the illegal conduct is
sufficiently attenuated from evidence subsequently obtained by
voluntary consent. 422 U.S. at 603-04. Under that test, courts
consider (1) the time elapsed between the illegality and the
acquisition of the evidence; (2) the presence of intervening
circumstances; and (3) “particularly, the purpose and flagrancy
of the official misconduct.” Id.; see also Davolt, 207 Ariz. at
1
This Court has held that for purposes of the Arizona
Constitution, the “exclusionary rule to be applied as a matter
of state law is no broader than the federal rule.” Bolt, 142
Ariz. at 269, 689 P.2d at 528.
8
203 ¶ 30, 84 P.3d at 468.2
C
¶15 Assuming, without deciding, that the dog sniff
violated Article 2, Section 8, we conclude that Mrs. Guillen’s
consent was valid because under Brown’s three-factor test,
intervening circumstances obviated any alleged taint and the
first dog sniff conducted from outside the garage was not
flagrant police misconduct.
¶16 Mrs. Guillen’s consent was obtained within a few hours
after the dog sniff took place. Although this fact favors
Guillen, see Delgadillo-Velasquez, 856 F.2d at 1300 (citing
cases in which courts have held invalid consent given between a
few minutes and a few hours after the illegal conduct), it does
not weigh heavily in our analysis because of the presence of
intervening circumstances. See State v. Reffitt, 145 Ariz. 452,
459, 702 P.2d 681, 688 (1985) (noting that the “factor of
temporal proximity is scarcely outcome determinative” and “is
often the least helpful of [Brown’s] three criteria”).
¶17 Mrs. Guillen’s lack of knowledge of the dog sniff
2
In analyzing whether a confession was obtained by
exploitation of an illegal arrest, the Court in Brown also
considered whether the police gave Miranda warnings to be “an
important factor.” 422 U.S. at 603. “Although Brown dealt with
the exclusion of a defendant’s statements, [the reasoning in
Brown] applies equally to contraband revealed by [a] consent
search.” Kempton, 166 Ariz. at 398, 803 P.2d at 119 (citing
Taheri, 648 F.2d at 601).
9
constitutes a major break in the causal chain. See, e.g.,
United States v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000)
(“Lack of knowledge of a prior search is an intervening factor
which dissipates the coercion inherent in a request for consent
made after an unconstitutional search.”), rev'd on other grounds
by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001);
United States v. Carson, 793 F.2d 1141, 1155 (10th Cir. 1986)
(holding that a defendant waived his Fourth Amendment rights
when he consented to search without knowledge of prior illegal
police search); cf. Moran v. Burbine, 475 U.S. 412, 422 (1986)
(“Events occurring outside of the presence of the suspect and
entirely unknown to him surely can have no bearing on the
capacity to comprehend and knowingly relinquish a constitutional
right.”).
¶18 It is uncontested that Mrs. Guillen was unaware of the
dog sniff when she consented to the search.3 Because Mrs.
Guillen knew nothing of the dog sniff, no link between the
alleged illegality and the consent was established. Furrow, 229
F.3d at 814. Thus, she was “in the same posture . . . as a
person not previously subject to an illegal entry.” Id.
3
At the suppression hearing, the State offered to admit a
recording of the conversation between the officers and Mrs.
Guillen. Defense counsel said that the court need not listen to
the recording because he was not challenging the voluntariness
of her consent.
10
¶19 Regarding Brown’s final factor, flagrancy of the
alleged violation, nothing suggests that the officers knowingly
violated Guillen’s rights by conducting the first dog sniff from
outside his garage. First, none of the traditional markers of
privacy appeared: no wall or fence obstructed entry onto
Guillen’s property, and no signs alerted the officers that such
entry was prohibited. The front entrance and garage were
publicly accessible. See United States v. Velazco-Durazo, 372
F. Supp. 2d 520, 524-25 (D. Ariz. 2005) (holding that generally
“there is no rule of private or public conduct which makes it
illegal per se, or a condemned invasion of privacy, . . . to
walk up the steps and knock on the front door of [a residence to
ask] questions of the occupant thereof”) (quoting Davis v.
United States, 327 F.2d 301, 303 (9th Cir. 1964)); Baker v.
Clover, 177 Ariz. 37, 39, 864 P.2d 1069, 1071 (App. 1993)
(concluding that walkways and driveways leading to the home are
“only semi-private” and recognizing a “reasonable expectation
that various members of society may use the walkway in the
course of attending to personal or business pursuits with
persons residing in the home, including police officers on
police business”) (quoting State v. Cloutier, 544 A.2d 1277,
1279-80 (Me. 1988)); State v. Lopez, 115 Ariz. 40, 42, 563 P.2d
295, 297 (App. 1977) (holding that an officer may approach
carport located in unfenced rear yard); see also Florida v.
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Royer, 460 U.S. 491, 497 (1983) (“[L]aw enforcement officers do
not violate the Fourth Amendment by merely approaching an
individual on the street or in another public place, by asking
him if he is willing to answer some questions, by putting
questions to him if the person is willing to listen, or by
offering in evidence in a criminal prosecution his voluntary
answers to such questions.”).
¶20 Second, the case law on dog sniffs of the exterior of
a residence accessible to the public is far from clear. Dog
sniffs of cars and luggage or other containers in public places
plainly do not constitute searches under the Fourth Amendment.
See Caballes, 543 U.S. at 408-09 (holding that a canine sniff
performed on the exterior of a lawfully detained car
“compromises no legitimate privacy interest”) (quoting United
States v. Jacobsen, 466 U.S. 109, 123 (1984)); State v. Morrow,
128 Ariz. 309, 312-13, 625 P.2d 898, 901-02 (1981) (holding that
a dog sniff of luggage in a public place is not a search); State
v. Martinez, 26 Ariz. App. 210, 212, 547 P.2d 62, 64 (1976),
aff’d and adopted, 113 Ariz. 345, 554 P.2d 1272 (1976) (holding
that use of narcotics dog by police officers, who lawfully
stopped defendants’ vehicle to investigate possible presence of
marijuana, did not constitute a search).
¶21 Notwithstanding these cases, neither this Court nor
the United States Supreme Court has analyzed the
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constitutionality of dog sniffs conducted at the exterior of a
residence under the Fourth Amendment or the Arizona
Constitution. Moreover, cases from other jurisdictions are
split on whether dog sniffs of the exterior of a residence
violate the Fourth Amendment or their respective state
constitutions. Compare Hoop v. State, 909 N.E.2d 463, 470 (Ind.
Ct. App. 2009) (holding that a dog sniff of a private residence
requires reasonable suspicion to prevent arbitrary searches),
and State v. Dearman, 962 P.2d 850, 853 (Wash. Ct. App. 1998)
(concluding that a dog sniff “expose[d] information that could
not have been obtained without the [use of the dog]” and
therefore use of a trained narcotics dog at a residence
constituted a search under the state constitution) (citation
omitted), with Stabler v. State, 990 So. 2d 1258, 1263 (Fla.
Dist. Ct. App. 2008) (holding dog sniff at front door of
apartment violated no legitimate expectation of privacy, and
therefore, was not a search), and People v. Jones, 755 N.W.2d
224, 229 (Mich. Ct. App. 2008) (holding that defendant had no
reasonable expectation of privacy at entrance of property that
is open to the public, and “[a]ny contraband sniffed by the
canine while on defendant’s front porch . . . fell within the
‘canine sniff’ rule”). Given these circumstances, we conclude
that any supposed “flagrancy of the official misconduct [was] de
minimis.” State v. Blackmore, 186 Ariz. 630, 635, 925 P.2d
13
1347, 1352 (1996); see also Reffitt, 145 Ariz. at 460, 702 P.2d
at 689 (even if police actions in illegally arresting defendant
were “erroneous and regrettable,” they “did not involve flagrant
or purposeful misconduct” so as to taint subsequent confession).
D
¶22 Mrs. Guillen’s consent was sufficiently attenuated
from any alleged prior illegality. Accordingly, the court of
appeals erred in ordering a remand for the trial court to
determine whether the officers’ request for her consent was
based in part on the positive dog sniff. Guillen, 222 Ariz. at
__ ¶ 32, 213 P.3d at 240. Such a determination would be
irrelevant to the question of whether Mrs. Guillen voluntarily
consented. See, e.g., Furrow, 229 F.3d at 814; see also United
States v. Liss, 103 F.3d 617, 621 (7th Cir. 1997) (stating that
“an officer's motivation . . . is irrelevant. . . . The fact
that an officer had actual suspicion, however obtained, cannot
render invalid a consent for which the officer did not need any
suspicion at all to request”) (citation omitted). Therefore,
the trial court did not err in ruling that the evidence seized
from the garage should not be suppressed.
IV
¶23 For the foregoing reasons, we vacate the opinion of
the court of appeals and affirm Guillen’s conviction.
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_____________________________________
Michael D. Ryan, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
15