State v. Scott

THE STATE OF ARIZONA, Appellee,

v.MONTANA L. SCOTT, Appellant.

2 CA-CR 2011-0388

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT A

Dated: November 8, 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Not for Publication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 Nos. CR200900423 and CR200900721 (Consolidated)

Honorable Bradley M. Soos, Judge Pro Tempore

AFFIRMED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani, Joseph T. Maziarz,

and Kathryn A. Damstra

Tucson

Attorneys for Appellee

Harriette P. Levitt

Tucson

Attorney for Appellant

ECKERSTROM, Presiding Judge.

¶1 After a jury trial, appellant Montana Scott was convicted of possession of a dangerous drug, possession of drug paraphernalia, theft by control, and two counts ofweapons misconduct. He was sentenced to a six-month jail term for theft, to be followed by presumptive, concurrent prison terms on the remaining counts, the longest being ten years. On appeal, he argues law enforcement officers did not have probable cause to search his recreational vehicle (RV), the trial court should have suppressed his statements to the officers, and insufficient evidence supports his drug-related convictions. For the following reasons, we affirm Scott's convictions and sentences.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the convictions. State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 914 (2005). Casa Grande Police Detective Mark McCabe testified that an investigation in March 2009 of two "vehicle pursuits" had led him to a residential property in Pinal County where Scott allegedly lived. The property consisted of a "large main redwood painted trailer style house," a travel trailer or camper on one side of the main house, and an RV on the other side of the house. A few vehicles were parked around the main house, and behind the RV was a large trailer from a tractor-trailer that appeared to be used as a storage unit. As he approached the main house, McCabe heard yelling from inside and saw people inside "getting up and running back and forth." At that time, Scott came out onto the porch; McCabe recognized him from his driver's license photograph and stated that he wanted to speak to Scott about the vehicle pursuit.

¶3 McCabe asked Scott if he lived there, and Scott replied that he did. McCabe also asked about another person suspected of being involved in the vehicle pursuit, Harvey Ullrich. Scott stated Ullrich had left the residence "a little while ago."

McCabe was concerned for officer safety because of the unknown people inside the house, and Scott gave the officers permission to conduct a protective sweep of the house. They found a woman in the master bedroom and another woman hiding in the shower. They found Ullrich, for whom they had an arrest warrant, attempting to hide in a closet. They also found a plastic bag of methamphetamine in the master bedroom.

¶4 Based on the methamphetamine in the bedroom, McCabe then sought a search warrant for the premises. During the ensuing search, the officers also found several small glass pipes caked with methamphetamine residue in the bedroom. They found two small bags of methamphetamine in the kitchen cabinets, along with a digital scale and four glass pipes with burnt methamphetamine residue. In the RV, officers found a "sawed-off shotgun" on a shelf, a rifle on a shelf, a stolen laptop computer, and a glass pipe with methamphetamine residue inside.

¶5 As a result of the search, Scott was arrested and charged with possession of a dangerous drug, possession of drug paraphernalia, theft by control, and three counts of misconduct involving weapons. He was tried in absentia, and the jury found him guilty of all charges. Before he was sentenced, the trial court granted the state's motion to dismiss with prejudice one count of weapons misconduct. After being taken into custody, Scott was sentenced as set forth above to a six-month, flat-time jail sentence for theft by control, to be served consecutively to presumptive, concurrent prison sentences on the other counts. This timely appeal followed.¹

Discussion

Probable Cause for Search

¶6 Scott argues the officers did not have probable cause to search his RV. However, he has raised this fact-intensive question for the first time on appeal, and, therefore, he has forfeited review for all but fundamental error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 600, 607 (2005); State v. Cañez, 202 Ariz. 133, ¶ 70, 42 P.3d 564, 586 (2002) ("[W]e will review for fundamental error even absent a pretrial motion to suppress."). But although the issue of probable cause was discussed at length at the hearing on Scott's motion to suppress based on Franks v. Delaware, 438 U.S. 154, 155-56 (1978), there was no evidence taken and no factual development on the question.² Rather, the hearing was limited to whether the search warrant affidavit contained information that Detective McCabe knew or should have known to be false. Thus, Scottcannot show fundamental, prejudicial error because "our record is wholly inadequate" to decide the issue. State v. Estrella, ___ Ariz. ___, n.1, 286 P.3d 150, 153 n.1 (App. 2012).

Suppression of Statements

¶7 Scott argues the trial court erred in admitting the statement he made to a police officer outside the residence about possessing a stolen laptop computer because the officer had not read him the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). The court found the statement was voluntary and "made in compliance with Miranda" and denied Scott's motion to suppress it. When reviewing the denial of a motion to suppress entered after a suppression hearing, we consider only the evidence presented at that hearing and view it in the light most favorable to upholding the trial court's order. State v. Carlson, 228 Ariz. 343, ¶ 2, 266 P.3d 369, 370 (App. 2011). Although we defer to the trial court's factual findings, we review de novo its ultimate legal conclusions. See State v. Newell, 212 Ariz. 389, ¶ 27, 132 P.3d 833, 841 (2006).

¶8 At the hearing, Casa Grande Police Officer Terry Pickett testified that when he had arrived at the residence, he was assigned with "keeping security at the scene" and "[k]eeping an eye" on Scott while Detective McCabe obtained the search warrant. Pickett did not provide the Miranda warnings to Scott, but rather engaged in what he described as a "casual conversation" with him. As part of that conversation, Pickett asked Scott whether a person named Chris had been to the residence before. Scott replied he knew Chris and had bought a laptop computer from him for $75. When Pickett expressed that he was "surprised you could buy a laptop for $75," Scott said that the computer probably had been stolen. After that statement, Pickett ended the conversationabout the laptop. As stated above, during the subsequent search, officers found a stolen laptop in the RV.

¶9 Individuals are not constitutionally entitled to the protection of Miranda every time they speak to a law enforcement officer. State v. Carter, 145 Ariz. 101, 106, 700 P.2d 488, 493 (1985). Rather, Miranda's procedural safeguards are limited to defendants that are subject to custodial interrogation. 384 U.S. at 444. Here, Scott was not in custody when he made the inculpatory statement about the laptop computer, and, therefore, Pickett was not required to have given the Miranda warnings.³ See State v. Stanley, 167 Ariz. 519, 523, 809 P.2d 944, 948 (1991).

¶10 "'A person is in custody if he is under arrest, or if his freedom of movement is restrained to a degree associated with formal arrest.'" State v. Ramirez, 178 Ariz. 116, 123, 871 P.2d 237, 244 (1994), quoting United States v. Brady, 819 F.2d 884, 887 (9th Cir. 1987). We assess "whether under the totality of the circumstances a reasonable person would feel that he was in custody or otherwise deprived of his freedom of action in a significant way." Carter, 145 Ariz. at 105, 700 P.2d at 492. Factors to be considered when determining whether an individual is in custody include "the site of the questioning; whether objective indicia of arrest are present; . . . the length and form of the interrogation[; and] . . . the method used to summon the individual." State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371 (1983). Another factor is whether theinvestigation is focused on the individual, if that focus is communicated to him. Stansbury v. California, 511 U.S. 318, 325 (1994); accord Stanley, 167 Ariz. at 523, 809 P.2d at 948. Objective indicia of arrest include being "subjected to the booking process," the use of physical restraints, and the drawing of weapons. Cruz-Mata, 138 Ariz. at 373, 674 P.2d at 1371.

¶11 Here, the site of questioning was Scott's residence. "Generally, interrogating a person in his home does not create the type of atmosphere to be held of doubtful validity, especially when the questioning is investigatory rather than accusatory." State v. Thompson, 146 Ariz. 552, 556, 707 P.2d 956, 960 (App. 1985). There was no evidence he was placed in restraints or told he was not free to leave. Cf. State v. Fulminante, 161 Ariz. 237, 243, 778 P.2d 602, 608 (1988) (prisoner not in custody when not in restraints and free to leave interrogator's presence), aff'd, 499 U.S. 279 (1991). Nor was there evidence that Officer Pickett displayed a weapon during their encounter. McCabe testified that Scott could have ingested methamphetamine during the time the officers were at the residence, a fact that could imply his freedom of movement was not restricted to the extent it would have been had he been placed under arrest. Finally, the questions Pickett asked were not focused on Scott as a suspect, but rather on another person, "Chris." Cf. Thompson, 146 Ariz. at 556, ...