State v. Morris

THE STATE OF ARIZONA, Appellee, v. DANNY RAY MORRIS, Appellant.

No. 2 CA-CR 2015-0458

ARIZONA COURT OF APPEALS DIVISION TWO

May 29, 2018

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Cochise County

No. CR201400380

The Honorable John F. Kelliher Jr., Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Kathryn A. Damstra, Assistant Attorney General, Tucson

Counsel for Appellee

John William Lovell, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.

ESPINOSA, Judge:

¶1 Following a jury trial, Danny Morris was convicted of possession of marijuana for sale and four counts of possession of drug paraphernalia. The trial court sentenced him to 10.5 years' imprisonment for the drug possession offense, to be followed by three years of supervised probation for the paraphernalia possession offenses. On appeal, Morris raises a number of issues relating to the search warrant and his motion to suppress the evidence resulting from the search. He also argues the court erred in admitting certain other evidence and in precluding him from calling a late-disclosed witness. For the following reasons, we affirm.

Factual and Procedural Background

¶2 In reviewing a motion to suppress, we consider only the facts presented to the trial court at the suppression hearing, viewing those facts in the light most favorable to upholding the court's ruling. State v. Mendoza-Ruiz, 225 Ariz. 473, n.1 (App. 2010). In February 2014, after being arrested with a backpack containing marijuana, A.H. informed Cochise County Sheriff's detectives she had been at Morris's house the previous day to deliver water for "undocumented alien drug mules" on the property. While there, she had seen "8-10 bundles of marijuana" in the house, and Morris had cut the marijuana in her backpack from one of those bundles. A.H. also said Morris had received the bundles of marijuana on the property after they were dropped there by "an ultra light air craft," although it is unclear whether she personally witnessed the delivery or heard about it from Morris. A.H. also mentioned having "seen a handgun at the house" and that Morris had traded marijuana in exchange for a vehicle, without stating when either incident had occurred or how she knew about the latter. The record does not reflect precisely when the interview took place or how long it lasted, but it was evening by the time A.H. left the police substation.

¶3 Based on the information A.H. provided, along with three outstanding warrants for Morris's arrest, including one for failure to appearon marijuana and paraphernalia charges, Detective Hudson contacted Justice of the Peace Timothy Dickerson about submitting a search warrant application via fax. Judge Dickerson swore in the detective by telephone and reviewed the faxed affidavit and warrant, ultimately signing the warrant and emailing it back. Detective Hudson's "supervisors and the powers that be" then decided to utilize a SWAT team to conduct and serve the warrant, but there was not enough time remaining in the day "to have all of the resources brought in before the 10:00 p.m. . . . time-frame for a daytime search." Hudson again contacted Judge Dickerson about changing the warrant to a nighttime search, to which the judge agreed.

¶4 Following the execution of the search warrant by the SWAT team, evidence was obtained that resulted in the charges against Morris, who had not been present that night and was not actually found and arrested for some weeks. Morris filed a motion to suppress all the evidence on the basis that it had been obtained in violation of the state and federal constitutions, A.R.S. §§ 13-3913, 13-3914, and 13-3917, and Franks v. Delaware, 438 U.S. 154 (1978), and State v. Buccini, 167 Ariz. 550 (1991). The trial court held a two-day hearing on the motion to suppress, but ultimately denied the motion on each basis alleged. Morris was subsequently convicted and sentenced as noted above, and we have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Search Warrant

¶5 "We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo." State v. Moody, 208 Ariz. 424, ¶ 62 (2004) (internal citation omitted). However, when a defendant has not objected to an alleged error before the trial court, our review is limited to fundamental error, which is that "going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, ¶ 19 (2005), quoting State v. Hunter, 142 Ariz. 88, 90 (1984). Additionally, "we are required to affirm [a trial] court's denial of [a] motion to suppress for any legally correct reason." State v. Boteo-Flores, 230 Ariz. 551, ¶ 8 (App. 2012).

Nighttime Search

¶6 Morris first argues the nighttime execution of the search warrant by the SWAT team violated his rights under the Fourth Amendment to the U.S. Constitution and article II, § 8 of the ArizonaConstitution. In particular, he argues there was no good cause for the warrant to be served at night, as required by § 13-3917, and therefore the search violated article II, § 8 of the Arizona Constitution, which states, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Morris additionally argues "the use of SWAT to serve the search warrant at night was unreasonable and, therefore, in violation of the Fourth Amendment." We address these arguments in turn.

¶7 Section 13-3917 provides, "Upon a showing of good cause therefor, the magistrate may, in his discretion[,] insert a direction in the warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant may be served only in the daytime." The statute defines "night" as "the period from ten p.m. to six-thirty a.m." § 13-3917. As he did below, Morris cites State v. Rypkema, 144 Ariz. 585 (App. 1985), in support of his argument challenging the requisite showing of good cause.

¶8 In Rypkema, this court addressed good cause under § 13-3917 where the state asserted the nighttime search was merited because of "the urgency of the moment," the commonness of "drug sales at night," the defendant's reputation as a known drug trafficker, and information the defendant "allegedly just brought back to the residence a large quantity of cocaine." Id. at 588. We concluded good cause had not been established, noting the affidavit did "not indicate drug transfers observed at any time, much less during the night, nor any facts from which the magistrate could infer that there was a possibility of a violent confrontation during a daytime search." Id. at 589. In fact, we found the affidavit "made no effort whatsoever, as testified to by the affiant, to set forth any reasons why the house should be searched at night." Id. We concluded "[t]he state's reliance on the nature of the contraband and the allegation that drug sales often occur at night [we]re insufficient to support a nighttime search," to which there is a "strong historical aversion." Id. at 588-89.

¶9 Here, the state attempts to distinguish Rypkema, arguing "the possible presence of numerous people on the property and of at least one firearm, combined with the quantity of marijuana, posed the possibility of a violent confrontation." The state additionally argues the fact that Morris had given A.H. some marijuana and traded more to someone else for a vehicle, along with the "undocumented alien drug mules" present on the property, "leads to a reasonable inference that the immigrants were there to move the bundles of marijuana that had recently arrived by ultralight aircraft." We are unpersuaded.

¶10 Two instances of drug trades, only one of which was actually identified as having occurred on the property, do not rise to the level that sales were "occurring during all times of the day and night from the residence to be searched" accepted by our supreme court in State v. Jackson, 117 Ariz. 120, 122 (1977), and discussed in Rypkema, 144 Ariz. at 589. Nor does the presence of "undocumented alien drug mules" and one handgun, without more, suggest a daytime search would have heightened the possibility of a violent confrontation. See Rypkema, 144 Ariz. at 589, citing Tuttle v. Superior Court, 174 Cal. Rptr. 576, 580 (Ct. App. 1981) ("The crux of this case . . . is that there are no facts within the affidavit which could reasonably allow a magistrate to infer that it was probable the contraband would be moved or the possibility of a violent confrontation lessened by nighttime service.").

¶11 Like the affiant in Rypkema, Detective Hudson's testimony at the suppression hearing indicates he had not demonstrated good cause for a nighttime search. 144 Ariz. at 589. Indeed, he acknowledged that when he had telephoned Judge Dickerson the second time to request nighttime service of the warrant, he may not have even informed the judge the request was based on the SWAT team needing more time. And the detective expressly stated he had offered no additional information to justify the nighttime search. Both his testimony and that of Judge Dickerson suggested they believed nighttime service was warranted merely because of the movable nature of the contraband. But that is insufficient to establish good cause under § 13-3917. See id.

¶12 As Morris acknowledges, however, A.R.S. § 13-3925(A) states, "Any evidence that is seized pursuant to a search warrant shall not be suppressed as a result of a violation of...