State v. Tichenor

THE STATE OF ARIZONA, Appellant, v. DARREN CHAD TICHENOR, Appellee.

No. 2 CA-CR 2015-0380

ARIZONA COURT OF APPEALS DIVISION TWO

August 4, 2016

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NOT FOR PUBLICATION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. 31.24.

Appeal from the Superior Court in Pima County

No. CR20150939001

The Honorable Christopher C. Browning, Judge

REVERSED AND REMANDED

COUNSEL

Barbara LaWall, Pima County Attorney

By Jacob R. Lines, Deputy County Attorney, Tucson

Counsel for Appellant

Law Office of Scott A. Ewing, PLC, Tucson

By Scott A. Ewing

Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Miller concurred.

VÁSQUEZ, Presiding Judge:

¶1 Appellee Darren Tichenor was charged with multiple drug-related offenses after marijuana, hashish, and firearms were seized from his home pursuant to a search warrant. Relying on Franks v. Delaware, 438 U.S. 154 (1978), Tichenor moved to suppress the evidence, arguing a detective had applied for the warrant using false information and an unreliable informant's tip. The trial court granted the motion and dismissed the case. In this appeal pursuant to A.R.S. § 13-4032(6), the state argues the court erred when it concluded that, after removing the unreliable and false information, the affidavit did not support a finding of probable cause. For the following reasons, we reverse the court's order and remand for further proceedings.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to upholding the trial court's order granting the motion to suppress. State v. Vera, 196 Ariz. 342, ¶ 3, 996 P.2d 1246, 1247 (App. 1999). In February 2015, Tucson Police Department Detective Mark Ewings received an anonymous tip that Tichenor was cultivating marijuana in his home. The informant stated Tichenor had only one arm, the "residence had been involved with illegal drug sales for approximately 30 years," there were "over 100 plants, roughly 4 feet tall," in the home, and the odor was "apparent from the street." The informant also stated there were "numerous firearms in the residence."

¶3 During the investigation that followed, Ewings and other law enforcement officers conducted in person and video surveillance of the home "for several days." The video showed "interactions" occurring between people at the property, but theofficers could not determine "the nature of those interactions." The officers also conducted two traffic stops of individuals leaving the home, but no narcotics were found. However, Ewings obtained electricity bills for Tichenor's home, as well as three neighboring homes, and determined that Tichenor had "a very high utility usage."

¶4 On February 18, 2015, Ewings conducted a "knock and talk" investigation at Tichenor's residence. Tichenor answered the door, came out of the house, and locked the door behind him. While the door was open, Ewings smelled "a strong odor of fresh marijuana." Tichenor explained that he was authorized to possess marijuana under the Arizona Medical Marijuana Act (AMMA)¹ and had one ounce of marijuana in his home. He then took out his wallet and presented a valid card identifying him as a registered qualifying patient but not authorizing him to cultivate marijuana. Ewings also noticed that, in the wallet, Tichenor had "a large amount of U.S. currency."

¶5 When Tichenor declined to consent to a search of his home, Ewings contacted a magistrate to obtain a search warrant and gave the following telephonic affidavit:

Law Enforcement received an anonymous tip stating that . . . Tichenor was illegally cultivating marijuana at his residence . . . . A records check on that residence showed that . . . Tichenor does own that location.

A records check on his electricity usage and his utilities showed extremely high usage for the past twelve months. Similar houses in the neighborhood were compared. The electric usage here . . . is approximately 4 to 5 times higher than any of the other residences. Your honor, basedon my training and experience, I know that marijuana grows require a large amount of electricity due to the types of equipment that is used to cultivate marijuana indoors.

Your honor, we began conducting surveillance at this location. We did make two traffic stops on previous days. No narcotics were located during those stops.

Your honor, additionally with that tip that we received, it stated that there were approximately 80 to 100 marijuana plants growing at this location and that Tichenor has been growing for a long period of time. The tip also stated that there were numerous firearms in the residence and additionally that he was contacted here at this residence in 2011 by Tucson Police Department. At that time he did have a rifle here at the residence.

Your honor, on today's date we did conduct a knock and talk at the residence. On top of the front door there was a surveillance camera mounted. We did make contact with . . . Tichenor, who opened the door. As he exited the residence, he locked the door behind him. When he did open the door I could smell a very strong odor of fresh marijuana coming from inside the residence. I spoke with him briefly. He stated that he had an ounce of marijuana inside the residence. He denied that he was cultivating marijuana. He did present us with a valid medical marijuana card that shows he is a patient and that he is not authorized to cultivate marijuana. I did notice as he was obtaining this that he had a large amount of whatappeared to be U.S. currency inside of his wallet.

He would not consent to a search of the residence. He stated that the reason that his utilities were high was because he had a large house. The listed car that I described is parked in front of the residence. And your honor, overall the evidence in this case, based on my training and experience, is more consistent with a large amount of marijuana or a marijuana cultivation operation rather than one ounce of personal use marijuana inside the residence.

The magistrate issued the search warrant, and officers seized drugs and other evidence from Tichenor's home. A grand jury indicted Tichenor for possession of marijuana for sale, production of marijuana, possession of a narcotic drug, possession of drug paraphernalia, and seven counts of possession of a deadly weapon during the commission of a felony drug offense.

¶6 Tichenor filed a motion to suppress and requested a hearing pursuant to Franks, arguing the anonymous tip was unreliable and Ewings had misrepresented the electricity usage at Tichenor's residence. During his testimony at the evidentiary hearing, Ewings conceded that much of the informant's tip could not be corroborated or was simply untrue. He acknowledged the physical description given by the informant was not accurate as Tichenor in fact had both his arms. Ewings also admitted he could not smell marijuana from the street; surveillance efforts had not revealed any apparent drug transactions; and, during an unrelated search of Tichenor's home in 2011, officers had found no evidence of marijuana cultivation, thereby contradicting the claim that Tichenor had grown marijuana for thirty years. Accordingly, the trial court found the tip was unreliable.

¶7 Ewings also admitted during the hearing that he had misrepresented or omitted some facts regarding Tichenor'selectricity bills. Ewings conceded that Tichenor's electricity bill was actually "3.8 times higher than the average of the utilities in the other [homes] that [he] had collected," not four to five times higher. And, Ewings had failed to include in his affidavit a portion of Tichenor's explanation for the high bills: He "worked on cars" at the residence.

¶8 After hearing arguments, the trial court granted the motion to suppress, relying in part on our recent decision in State v. Sisco (Sisco I), 238 Ariz. 229, 359 P.3d 1 (App. 2015), which has now been vacated by our supreme court in State v. Sisco (Sisco II), 239 Ariz. 532, ___ P.3d ___ (2016). The court further noted that there was no "evidence to show that [Ewings] can quantify the amount of marijuana which might be in a residence, or in anywhere, by the . . . strength of the odor."

¶9 The state moved to dismiss the charges without prejudice and initiated this appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4032(6).

Discussion

¶10 The state argues the trial court erred by granting the motion to suppress on the basis that the underlying affidavit lacked probable cause. We will not disturb the court's factual determinations on whether the affidavit deliberately included misstatements or excluded material facts unless clearly erroneous. State v. Buccini, 167 Ariz. 550, 554, 810 P.2d 178, 182 (1991). But we review de novo the court's legal determination whether the remaining facts in the affidavit establish probable cause. Id. at 555, 810 P.2d at 183.

¶11 The Fourth Amendment of the United States Constitution requires that search warrants be issued upon a showing of probable cause supported by an oath or affirmation. U.S. Const. amend. IV; see also U.S. Const. amend. XIV, § 1. Arizona provides similar protections. See Ariz. Const. art. II, § 8 ("No person shall be disturbed in his private affairs, or his home invaded, without authority of law."); A.R.S. § 13-3913 ("No search warrant shall be issued except on probable cause, supported by affidavit . . . .").

Once issued by a magistrate, search warrants, and their supporting affidavits, are presumed valid. State v. Ault, 150 Ariz. 459, 466-67, 724 P.2d 545, 552-53 (1986).

¶12 In this case, Tichenor sought to rebut the presumption of the warrant's validity on two grounds. First, he challenged the reliability and credibility of the anonymous informant. See Illinois v. Gates, 462 U.S. 213, 238 (1983) (magistrate's probable cause determination must include consideration of "'vera...