State v. Estrella

230 Ariz. 401

286 P.3d 150

The STATE of Arizona, Appellee,

v.Xavier Hipolito ESTRELLA, Appellant.

No. 2 CA–CR 2011–0076.

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

Sept. 6, 2012.

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Joseph T. Maziarz, and Diane Leigh Hunt, Tucson, Attorneys for Appellee.

Joel A. Larson, Cochise County Legal Defender, Bisbee, Attorneys for Appellant.

BRAMMER, Judge.

¶ 1 Xavier Hipolito Estrella appeals from his convictions and sentences for transportation of marijuana for sale, possession of marijuana for sale, and possession of marijuana. He argues the trial court erred in denying his motion to suppress evidence obtained from a search following the warrantless placement of a tracking device on his employer's van and the resulting stop of the van while Estrella was driving it. Although we vacate his convictions and sentences for possession of marijuana for sale and possession of marijuana, we affirm in all other respects.

Factual and Procedural Background

¶ 2 “In reviewing the grant of a motion to suppress, we view the evidence presented at the evidentiary hearing and any reasonable inferences from that evidence, in the light most favorable to upholding the trial court's order.” State v. Garcia–Navarro, 224 Ariz. 38, ¶ 2, 226 P.3d 407, 408 (App.2010). In July 2009, Drug Enforcement Administration special agent Wiel, despite not having obtained a search warrant, placed a global positioning system (GPS) tracking device on a van owned by Estrella's employer, Sierra Vista Glass company, because he had been given information the van might be used to transport illegal drugs from Sierra Vista to Tucson. Wiel attached the device while the van was parked in a public parking lot.

¶ 3 Agents remotely monitored data the device transmitted every hour regarding the van's movements and location, although the van did not move during the few days immediately after the device had been placed on it. Agents used physical surveillance to confirm the van remained in the parking lot. Agents subsequently noticed that information transmitted from the device showed the van traveling north from Sierra Vista. They then established physical surveillance of the van in Tucson. Agents monitoring the van contacted Arizona Department of Public Safety Officer Galarneau and informed him the van might be transporting marijuana. Galarneau located the van, which Estrella was driving, and stopped it for speeding and having excessive window tint. Galarneau discovered Estrella had an outstanding warrant and arrested him; a subsequent search of the van revealed it contained bundles of marijuana.

¶ 4 Estrella was indicted on one count of transportation of marijuana for sale, over two pounds; one count of possession of marijuana for sale, over four pounds; and one count of possession of marijuana, over four pounds. He moved to suppress evidence derived from the search of the van, alleging the warrantlessplacement of the GPS device on the van and collection of data it transmitted violated his Fourth Amendment rights. After an evidentiary hearing, the trial court denied the motion to suppress. A jury convicted Estrella on each count, and the court sentenced him as a repetitive offender to concurrent, presumptive prison terms, the longest of which was 9.25 years. This appeal followed.

Discussion

¶ 5 Estrella argues the trial court erred in denying his motion to suppress evidence obtained following the warrantless placement of the GPS tracking device on his employer's van and the agents' use of data from that device to track the van's movements. “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).

United States v. Jones

¶ 6 Estrella relies on the Supreme Court's recent decision in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). That case addressed whether attaching a GPS tracking device to the defendant's vehicle and then using the device to monitor the vehicle's movements constituted a search under the Fourth Amendment, ultimately concluding it did. Id. at ––––, 132 S.Ct. at 949. The Fourth Amendment provides 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,” and the Court in Jones noted a motor vehicle is indisputably an “effect” under the Amendment. Id. The Court concluded the government had “physically occupied private property for the purpose of obtaining information” and that “such a physical intrusion” would have been a “search” when the Fourth Amendment was adopted. Id.

¶ 7 Because the Fourth Amendment's text “reflects its close connection to property,” early Fourth Amendment jurisprudence was tied to common-law trespass until later cases deviated from an exclusively property-based approach, ultimately adopting the “reasonable expectation of privacy” test articulated in Justice Harlan's concurrence in Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Jones, ––– U.S. at ––––, 132 S.Ct. at 949–50. But the Court in Jones stated “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” Id. at ––––, 132 S.Ct. at 952. Consequently, the Court concluded either a trespass or an invasion of privacy, in combination with “an attempt to find something or to obtain information,” constitutes a search under the Fourth Amendment. Id. at –––– n. 5, 132 S.Ct. at 951 n. 5.

¶ 8 The Fourth Amendment common-law trespass approach in Jones requires a trespass on one's own personal “effects.” Id. at ––––, 132 S.Ct. at 949, 953. In Jones, the defendant was the exclusive driver of a vehicle registered to his wife, and the government did not challenge the Court of Appeals's conclusion that the vehicle's registration did not affect whether the defendant could make a Fourth Amendment-based objection. Id. at –––– n. 2, 132 S.Ct. at 949 n. 2. Thus the Supreme Court, concluding that if Jones was not the owner “he had at least the property rights of a bailee,” nonetheless declined to consider further “the Fourth Amendment significance of Jones's status.” Id. And the majority opinion emphasized Jones had “possessed the [vehicle] at the time the Government trespassorily inserted the information-gathering device”—distinguishing him from someone who takes possession of property upon which a device already has been installed. Id. at ––––, 132 S.Ct. at 952(distinguishing United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)).

¶ 9 Estrella argues on appeal that the placement and use of the GPS device constituted a search under the common-law trespass theory set forth in Jones. But he failed to assert that theory below. Therefore, that claim is subject only to review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d 601, 607 (2005). Estrella has not argued any error constitutes fundamental error and thus 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 if not argued).¹ Consequently, we do not address further whether the use of the GPS device was a search under a trespass theory.

Reasonable expectation of privacy

¶ 10 Although we conclude Estrella has forfeited any appellate challenge to the GPS device on a trespass theory, we address whether Estrella can challenge the placement and use of the device pursuant to Katz, 389 U.S. 347, 88 S.Ct. 507.See Jones, ––– U.S. at ––––, 132 S.Ct. at 952 (Katz's reasonable-expectation-of-privacy test augments trespass test). Even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); see also Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring). However, a search does not occur unless an individual exhibits an expectation of privacy and “ ‘society [is] willing to recognize that expectation as reasonable.’ ” Kyllo, 533 U.S at 33, 121 S.Ct. 2038,quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (alteration in Kyllo ).

¶ 11 Estrella has failed to demonstrate that any expectation he may have had was one society would deem reasonable. See Hudson v. Palmer, 468 U.S. 517, 525 n. 7, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (Supreme Court consistently emphasizes objective requirement). He contends the driver of a borrowed vehicle has an objectively reasonable expectation of privacy “regarding its contents,” relying on State v. Acosta, 166 Ariz. 254, 255–56, 801 P.2d 489, 490–91 (App.1990) (driver had standing to challenge car search revealing cocaine). However, the issue in this case is not whether Estrella had a reasonable expectation of privacy regarding the contents of the van—the alleged violation did not occur either during his detainment or the search of the van's interior. Rather, Estrella challenges the placement of the GPS device on the van's exterior and law enforcement's subsequent monitoring of the data the device transmitted. This is a much different inquiry, especially because the remote electronic monitoring of a vehicle's movement on a public road is considerably less intrusive than a physical search of the vehicle's interior that may result in the seizure of some of its contents. Cf. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (dog “sniff” not search; less intrusive than opening luggage); United States v. Knotts, 460 U.S. 276, 285, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (tracking beeper not search in part because no...