State v. Aguirre

THE STATE OF ARIZONA, Appellee,

v.HILARIO AGUIRRE, Appellant.

2 CA-CR 2012-0173

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO

FILED BY CLERK: December 21, 2012

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

Cause No. S1100CR201002346

Honorable Bradley M. Soos, Judge Pro Tempore

AFFIRMED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani, Joseph T. Maziarz,

and Joseph L. Parkhurst

Tucson

Attorneys for Appellee

Harriette P. Levitt

Tucson

Attorney for Appellant

VÁSQUEZ, Presiding Judge.

¶1 After a jury trial, Hilario Aguirre was convicted of conspiracy to commit possession and transportation of marijuana for sale, possession of marijuana for sale, and illegally conducting an enterprise. The trial court sentenced him to concurrent, aggravated prison terms, the longest of which was twenty years. On appeal, Aguirre argues the court erred by denying his motion to suppress evidence obtained during an unconstitutional search of his property and by sentencing him to aggravated prison terms based on improper aggravating factors. For the reasons that follow, we affirm.

Factual Background and Procedural History

¶2 In reviewing the denial of a motion to suppress, we consider only the evidence presented at the suppression hearing, State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996), which we view in the light most favorable to supporting the trial court's ruling, State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). On October 11, 2010, Pinal County Sheriff's Deputy James Rimmer was on assignment with the Pinal County Narcotics Task Force conducting surveillance of property in rural Pinal County suspected of being used by a Mexican drug cartel as part of a large-scale drug operation. Rimmer had received information from a confidential informant that there were approximately six thousand pounds of marijuana on the property. Consistent with the information he had received from the informant, Rimmer observed a red Chevrolet pickup truck with two male occupants arrive at the property's main entrance. One of the occupants got out of the vehicle, opened a locked gate, and closed it after the vehicle wasdriven onto the property. About thirty minutes later, one of the men drove away in the truck, leaving the other on the property.

¶3 The man who had remained at the property was observed walking around holding some sort of gardening tool "pretending to do yard work." Rimmer, together with Special Agent Wakefield of Immigration and Customs Enforcement and other Pinal County Sheriff's deputies, drove to the gate and called the man over to speak with them. The man, who was visibly nervous and spoke with a trembling voice, furnished his driver's license to the officers and was identified as Rick Teran. He stated he did not live on the property or know who owned it, but was there to "clean up." Rimmer asked Teran if there was anything illegal on the property, to which he responded there was "a lot" of "weed" but it was "not [his] place." Teran said, "I don't want any trouble, they will get me."

¶4 Rimmer asked Teran for permission to enter the property so that he could show them the marijuana. Teran agreed but stated he did not have a key to the locked gate, so Rimmer and Wakefield climbed over the fence. As Rimmer pulled himself over the fence, he saw three men exit one of the trailers on the property and run toward the desert. Rimmer and Wakefield ran after the men but abandoned the pursuit after alerting other officers who apprehended the individuals a short time later. Rimmer and Wakefield then conducted a protective sweep of the property to confirm no one else was hiding. While conducting the sweep, Rimmer observed several hundred bales of marijuana in various structures and vehicles.

¶5 After Rimmer and Wakefield determined no other individuals were present, they left the property and secured it while they obtained a search warrant. During a subsequent search of the property, officers discovered 306 bales of marijuana weighing over five thousand pounds.

¶6 Aguirre later was identified as the man officers had seen arriving at and departing from the property in the red truck and was apprehended the same day. He also was determined to be the owner of the property. Aguirre admitted he had known about the marijuana and stated he had been paid to store it on his property.

¶7 Aguirre was indicted for conspiracy to possess and transport marijuana for sale, illegally conducting an enterprise, transportation of marijuana for sale, and possession of marijuana for sale. Aguirre was acquitted of transportation of marijuana for sale but was convicted of the lesser-included offense of possession of marijuana for sale. The jury also found him guilty of illegally conducting an enterprise and of conspiracy, and found the amount of marijuana involved was in excess of four pounds. See A.R.S. § 13-3405(B). Aguirre was sentenced as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A).

Discussion

Motion to Suppress

¶8 Aguirre first challenges the trial court's denial of his motion to suppress, claiming the officers' warrantless entry onto his property violated his rights under the Fourth Amendment of the United States Constitution and article II, § 8 of the ArizonaConstitution.¹ Specifically, Aguirre argues the court erred in finding: (1) the initial contact between the officers and Teran was lawful because the police were in a public place; (2) Teran had common authority over the premises to consent to police entry onto the property; (3) once police entered the property, exigent circumstances justified a protective sweep; and (4) the search warrant was valid. "In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court with respect to the factual determinations it made but review the court's legal conclusions de novo." State v. Olm, 223 Ariz. 429, ¶ 7, 224 P.3d 245, 248 (App. 2010).

Public Place

¶9 Aguirre first argues that when the law enforcement officers approached Teran at the property's main gate, they were not in a public place. In the trial court, Aguirre argued that the property was protected against unlawful searches by the Fourth Amendment. However, he did not argue below, as he does on appeal, that officers had intruded into a protected area before they climbed over the fence; instead, he apparently conceded that "they were legally outside the fenced property." Because Aguirre did not make this argument below, he has forfeited the right to seek relief on this issue for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error). Furthermore, because he does not argue on appeal that the error is fundamental, and because we find no error that can be so characterized, the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (fundamental error argument waived on appeal); State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it finds it).

¶10 Additionally, Aguirre has not provided any citation to the record or relevant legal authority to support this argument. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellant's brief shall contain argument with "citations to the authorities, statutes and parts of the record relied on"); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to offer sufficient argument waives claim on appeal). Although Aguirre refers to state's exhibit 2 in his reply brief, which apparently is a map of the property, that exhibit is not a part of the record on appeal, and it was Aguirre's duty, as the party seeking relief, to prepare and perfect the record. See State v. Mendoza, 181 Ariz. 472, 474, 891 P.2d 939, 941 (App. 1995). And "[w]here matters are not included in the record on appeal, the missing portions of the record will be presumed to support the action of the trial court." State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982). We therefore do not consider this argument further.

Common Authority

¶11 Aguirre next argues the trial court erred in determining Teran had authority to consent to the officers' entry onto the property. This is a mixed question of law and fact that we review de novo. State v. Flores, 195 Ariz. 199, ¶ 11, 986 P.2d 232, 236 (App. 1999).

¶12 Subject to a few well-recognized exceptions, a warrant is required to search an area in which an individual has a reasonable expectation of privacy. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); see also U.S. Const. amends. IV, XIV, § 1; Ariz. Const. art. II, § 8. One such exception is a search conducted pursuant to valid consent. United States v. Matlock, 415 U.S. 164, 165-66 (1974). Consent to search can be given by a third party if the third party has apparent "common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. at 170; see also Illinois v. Rodriguez, 497 U.S. 177, 179 (1990).

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Matlock, 415 U.S. at 171 n.7 (internal citations omitted);...