State v. Crowley

41 P.3d 618

202 Ariz. 80

The STATE of Arizona, Appellant, v. Robert Orbry CROWLEY, Appellee.

No. -0162.

Court of Appeals of Arizona, Division 2, Department A.

February 22, 2002.

Barbara LaWall, Pima County Attorney, By Elizabeth Hurley, Tuscon, for Appellant.

Clay Hernandez, Tucson, for Appellee.

OPINION

BRAMMER, Presiding Judge.

¶ 1 Appellee Robert Orbry Crowley was charged with possession of a narcotic drug for sale, possession of marijuana, and possession of drug paraphernalia. Based primarily on State v. Berge, 130 Ariz. 135, 634 P.2d 947 (1981), the trial court granted Crowley's motion to suppress evidence that had been seized from Crowley's home, finding invalid the warrant that had authorized the search. The state dismissed the case and filed this appeal pursuant to A.R.S. § 13-4032. Challenging the trial court's order granting Crowley's motion to suppress, the state contends that Berge is no longer good law in light of the United States Supreme Court's decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and case law from other jurisdictions, both federal and state, decided since Gates. The state alternatively maintains that the trial court erred in rejecting its claim that the police officers relied on the warrant in good faith and that the court should have denied the motion to suppress on that basis. For the reasons stated below, we affirm.

BACKGROUND

¶ 2 No witnesses testified at the suppression hearing. The parties agreed that the trial court could rule based on their memoranda, the transcript of the telephonic affidavit submitted to obtain the search warrant, and the warrant.¹ Based on that scant record, the undisputed facts are summarized below.

¶ 3 In June 2000, United States Customs officials in Oakland, California, intercepted a package from the Netherlands, apparently after a specially trained police dog had "alerted" to it. A postal examiner x-rayed and opened the package, finding that it contained a little over two pounds of hashish. The package was addressed to "Robert Crowley" at a residence in Tucson; a different name was listed on the package as the return addressee. The package was forwarded to Agent Berndt of the Metropolitan Area Narcotics Trafficking Interdiction Squad (MANTIS) in Tucson, who had its contents tested, confirming that the substance was hashish. Officers verified through a utilities check that a Robert Crowley lived at the delivery address listed on the package. A Tucson police officer telephoned the residence, and a person identifying himself as "Bob" answered.

¶ 4 On July 27, 2000, Berndt telephoned a magistrate and orally delivered his affidavit in support of his request for a search warrant, to be executed on July 28, authorizing police to search Crowley's residence for the package, which Berndt stated officers would deliver to the residence that day, and any other illegal drugs or evidence of drug-related activities. The magistrate issued the warrant. As the trial court noted at the hearing on the motion to suppress, there was no evidence that Crowley had expected the package, nor did Berndt present any information suggesting that Crowley had sent the package to himself. Other than the package, the officers had no information suggesting that Crowley unlawfully possessed drugs or was involved in drug-related activities.

¶ 5 Officers inserted an electronic device into the package that would signal them when the package was opened. They attempted to deliver the package to Crowley's address on July 28, 2000, but no one was there. An undercover United States Customs officer did deliver the package, however, on August 1. Crowley accepted it but did not open it, placing it on a shelf. The warrant was executed about an hour later. In searching the residence, officers found paraphernalia for growing marijuana, hallucinogenic mushrooms, and a pound of marijuana. They also found the unopened package of hashish. The prosecutor avowed to the trial court at the hearing on the motion to suppress that, after the house had been searched and Crowley had been arrested, an officer had called the magistrate and asked whether it had been appropriate for the officers to have executed the warrant that day, rather than on July 28. The magistrate responded that that was "okay."

¶ 6 Crowley filed a motion to suppress all of the evidence seized, arguing that the package had been unlawfully detained in the first instance because authorities did not have a warrant; that, based primarily on Berge, an anticipatory warrant such as the one issued here may not be predicated on the future commission of a crime when that crime will only occur if facilitated by future acts of the police seeking the warrant and providing the evidence of probable cause; and that the warrant was invalid when executed because it had expired. The trial court rejected the motion on all grounds except the lack of probable cause under Berge. The court found insufficient evidence to support the warrant because the police had not established probable cause on Crowley's "knowing possession or intent to knowingly possess" the drugs in the package. The court rejected the state's argument that the search had been valid because the officers had made a mistake but had acted in "good faith" in relying on the warrant. The trial court stated that, other than the package itself, there was no evidence that Crowley had committed or would commit a crime.²

STANDARD OF REVIEW

¶ 7 We will not disturb a trial court's ruling on a motion to suppress evidence absent a clear abuse of discretion. State v. Fisher, 141 Ariz. 227, 686 P.2d 750 (1984). In reviewing the trial court's decision, we are mindful that its "task [wa]s to determine whether the totality of the circumstances indicates a substantial basis for the magistrate's decision" to issue a warrant. State v. Hyde, 186 Ariz. 252, 272, 921 P.2d 655, 675 (1996). See also Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). We note, too, that a reviewing court must grant deference to a magistrate's decision. Hyde. See also Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547 ("[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review."); United States v. Whitner, 219 F.3d 289 (3d Cir.2000) (same). A reviewing court must presume a search warrant is valid; it is the defendant's burden to prove otherwise. Greehling v. State, 136 Ariz. 175, 665 P.2d 57 (1983); see also Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

BERGE IS STILL GOOD LAW

¶ 8 The state contends, as it did below, that Gates effectively invalidated Berge, primarily by establishing a more fluid, flexible, totality-of-the-circumstances test for determining whether there was probable cause to support a warrant. According to the state, had the trial court applied the correct test in reviewing the magistrate's decision to issue the warrant, the court would have been compelled to deny the motion to suppress. Additionally, the state maintains that Gates demands that greater deference be paid to the issuing judge's decision than previously, suggesting this, too, was a departure from Berge that would have produced a different result here had it been applied. And, relying on post-Gates case law from federal courts and other states, the state insists Berge is an outdated anomaly. Those more recent cases, the state argues, involved similar factual scenarios in which courts found sufficient evidence had been presented to support the issuance of a warrant to search the residence of the recipient of a package known to contain contraband. Based on those authorities, the state maintains, we must find the following information established probable cause to support the warrant in this case: the very fact that a package of hashish had been mailed to Crowley; Crowley's acceptance of the package, albeit during a delivery controlled by law enforcement; and the presence of the package in Crowley's residence.

¶ 9 Berge was decided in 1981, almost two years before Gates, and is virtually indistinguishable on its facts from the case before us. There, our supreme court reversed the trial court's denial of the defendant's motion to suppress evidence that had been seized after his residence was searched pursuant to a warrant based, like here, on the interception of a package containing contraband and addressed to the defendant. The police then delivered the package to the defendant's residence. However, in Berge, unlike here, a confidential informant had told a narcotics detective that the defendant would be receiving by United Parcel Service (UPS) a package from Atlanta, Georgia, containing marijuana to sell in Phoenix. Pursuant to law enforcement officers' instructions, UPS intercepted a package addressed to the defendant with an Atlanta, Georgia, return address. After a police dog alerted to the package, officers obtained a warrant and opened it, finding two, one-pound bags of marijuana and $275 in cash. Based on this information, a magistrate issued a warrant authorizing officers to search the defendant and his residence after the police delivered the package to the residence. Officers rewrapped and delivered the package; the defendant accepted it and left the residence. Unable to find the defendant, officers returned to the residence and searched it. Although they did not find the package they had delivered, they did find some marijuana and drug paraphernalia. When the defendant returned, officers arrested and searched him, finding a small amount of marijuana and $275; the money contained fluorescent residue officers had sprayed on the contents of the package.

¶ 10 The trial court in Berge denied the defendant's motion to suppress all the evidence that had been seized. The defendant argued that the warrant was invalid because it was prospective or anticipatory; that is, because the package...