Opinion
No. 1 CA-CR 13-0803
01-13-2015
STATE OF ARIZONA, Appellant, v. JAY BRANDON LEWIS, Appellee.
COUNSEL Maricopa County Attorney's Office, Phoenix By Gerald R. Grant Counsel for Appellant Maricopa County Public Defender's Office, Phoenix By Mikel Steinfeld Counsel for Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2012-113674-001
The Honorable Karen A. Mullins, Judge
REVERSED AND REMANDED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Gerald R. Grant
Counsel for Appellant
Maricopa County Public Defender's Office, Phoenix
By Mikel Steinfeld
Counsel for Appellee
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined. THUMMA, Judge:
¶1 The State appeals from the superior court's suppression of evidence relating to a global positioning system (GPS) tracking device based on a search warrant the court found was invalid. Because the search warrant was valid, the order suppressing the evidence is reversed and this matter is remanded for further proceedings not inconsistent with this decision.
FACTS AND PROCEDURAL HISTORY
This court considers only the evidence presented at the suppression hearing. State v. Garcia, 224 Ariz. 1, 7 ¶ 6, 226 P.3d 370, 376 (2010).
¶2 Early on the morning of March 7, 2012, workers at a Scottsdale business saw a white male on the roof of a neighboring building push something off the roof. They then saw the man get into a dark, older extended cab Ford pickup truck. One witness identified the truck's license plate number. That same day, the owner of the business in the neighboring building confirmed that a roof-top air conditioning unit had been stripped, resulting in an estimated $6000 in damages. After receiving a report of the incident, the Scottsdale Police Department determined the license plate belonged to a 1991 Ford F-150 pickup truck registered to Lewis.
¶3 Scottsdale Detective Chris Watson then drove by the Tempe home listed on Lewis' registration and saw the Ford pickup. Still later on March 7, 2012, Watson wrote a search warrant and supporting affidavit to surreptitiously install a GPS tracking device on the pickup. After review, a magistrate issued the requested search warrant and Watson installed the GPS tracking device on the pickup. The GPS tracking device permitted officers to track the movement of Lewis' pickup in real time and collect data regarding the pickup's movement.
¶4 Two days later, on March 9, 2012, Watson was notified that Lewis' pickup was moving in a specified area and officers went to the area and located the pickup. Officers saw Lewis on the roof of a vacant building, taking items from air conditioning units and lowering them into his truck. Officers followed Lewis to his home and then a storage unit, where they arrested him. Lewis was charged with one count of burglary in the 3rd degree, a Class 4 felony, for his March 9, 2012 activities.
¶5 Watson removed the GPS tracking device from the pickup on March 9, 2012. Approximately two weeks after the investigation was completed, Watson mailed the notice of the warrant to Lewis at his home address.
¶6 Before trial, Lewis filed a motion to suppress, arguing all the evidence obtained as a result of the GPS tracking device should be suppressed because, as relevant here, the search warrant allowing the GPS lacked particularity as to the place to be searched and the person or things to be seized.
A. The Terms Of The Search Warrant And Affidavit.
¶7 The search warrant and affidavit, which were attached to Lewis' motion, bear the label "Search Warrant and Affidavit" at the bottom of each page. Although the documents were presented as two separate exhibits at the suppression hearing, the pages are consecutively numbered 1 through 7, with the warrant at pages 1 and 2, and the affidavit at pages 3 through 7. The same magistrate signed page 2 of the warrant and page 7 of the affidavit and faxed both documents to Watson on the same date.
¶8 Page 1 of the warrant authorizes the police to "affix a self powered detachable GPS tracking device" . . . [o]n the vehicle known as: Black 1991 Ford pickup truck," listing the vehicle identification and license plate numbers, stating it was registered to Lewis and listing his operator license number. Page 3 of the affidavit requests permission to "SURREPTITIOUSLY SEARCH [the pickup] for the sole purpose of affixing a self-powered detachable GPS tracking device and allowing operation and/or monitoring of said device twenty four hours a day, seven days a week." Page 3 requests permission "TO SEARCH AND SEIZE THE FOLLOWING ITEMS: GPS Tracking Data obtained through real time or historical data in furtherance of an ongoing criminal investigation." Page 6 requests authorization to surreptitiously affix the GPS tracking device "anywhere" on the pickup "anytime of the day" and to be able to do so "on public property and/or within the curtilage of private property in a way that will not reveal or compromise the ongoing investigation;" "monitor via real time or historical data" the transmissions of the GPS device "twenty four hours a day, seven days a week for the purpose of conducting surveillance wherever the vehicle may travel in furtherance of an ongoing criminal investigation;" "continue [] monitoring and surveillance for a period not to exceed thirty (30) days from this date without extension" and to surreptitiously remove the GPS device "upon completion of said surveillance or prior to the expiration of this order." Page 7 requests permission to delay providing "receipt/return notification" to Lewis of the placement of the monitoring device until "completion of the investigation."
B. Evidence At The Suppression Hearing.
¶9 At the suppression hearing, the superior court heard testimony from Watson and other officers and argument. Watson testified that he authored both the affidavit and the warrant and faxed both to the magistrate. He requested that the warrant and the return be sealed to keep the documents from becoming part of the public record and to keep individuals who access public records from learning about police tactics. Watson testified that after he "got the warrant back," he placed the GPS device on Lewis' pickup himself. The court asked Watson the following questions:
Q. And in that search warrant, just to clarify the extent of that, your - - the sole purpose of that search warrant was to place a tracking device on the black Ford pickup truck with the license plate listed on Page 3 of the probable cause statement?Lewis argued that the warrant "fail[ed] for a lack of particularity" because it "entirely omitted any reference or description of the items to be seized" and did not "request the authorization to monitor the GPS data and track the vehicle" and obtain "locational data," which Watson said "was the whole point of the GPS unit." Lewis also argued the affidavit's request to monitor the pickup did not cure the defect in the warrant because "the affidavit [wasn't] served along with the warrant" or "incorporated by reference in the warrant."
A. Yes, that's correct.
Q. And beyond that, you're not asking to search anything - - any other property that belongs to the defendant or the defendant personally himself, correct?
A. That is correct.
¶10 The superior court denied the motion to suppress in a detailed minute entry. In doing so, the court rejected Lewis' arguments and concluded that the search warrant was not "invalid for lack of particularity," finding that Lewis was "seeking an unacceptable 'literal' interpretation of A.R.S. § 13-3913" and that "the use of the term 'GPS tracking device,' while not as expressive as stated in the Affidavit, is more akin to a minor error and does not go to the substance of the Search Warrant."
C. Lewis' Motion To Reconsider.
¶11 Lewis moved to reconsider, challenging the superior court's "particularity" finding, and arguing the warrant's "complete failure" to contain any authorization to monitor the GPS data and seize it was a material error affecting the substance of the warrant. Lewis also argued for the first time that the warrant's failure to indicate when and where the device would be affixed or how long the monitoring and seizing of data would occur were defects. Lewis attached six search warrants for GPS tracking devices issued in Maricopa County, arguing they showed the warrant in this case lacked particularity.
¶12 In response, the State argued that no more "specificity" was necessary because "by authorizing the use of a GPS tracking device, the warrant clearly authorized the State to obtain GPS tracking data." The State also noted that case law established that courts "could fill in the gaps" if necessary. The State further argued that the affidavit specifically addressed Lewis' "particularity" issues, including that the affidavit specified the GPS was to be monitored and requested that device be affixed and monitored for a limited 30-day period.
¶13 In supplemental briefing, Lewis focused primarily on the lack of particularity and argued the warrant did not contain "any expiration on the length of time" that the GPS could be installed and monitored. Lewis also argued that the lack of particularity was "demonstrated by comparison with the numerous examples of valid GPS warrants provided with the Motion for Reconsideration."
¶14 In granting reconsideration, the superior court agreed with Lewis that the warrant lacked particularity. The court noted that Lewis had offered "by way of comparison, a series of other warrants which set forth the level of detail arguably missing in the instant [w]arrant." The court then found the warrant failed "because here no effort is made to describe the information to be seized." It also found that the warrant failed to state or address: "(1) when and where the GPS device may be placed;" (2) how long the GPS tracking device could remain on the pickup; "(3) what information may be collected and preserved;" "(4) how much information may be collected and/or stored" and (5) "what information may be preserved." The superior court distinguished State v. Ault, 150 Ariz. 459, 466-67, 724 P.2d 545, 552-53 (1986), finding that the affidavit supporting the warrant in Ault "sufficiently described the place to be searched and the items to be seized." The court also rejected the State's argument that "the mere mention of a GPS device 'implies' that tracking data is to be seized," finding that was not an adequate description of the items to be seized. The court stated the warrant was deficient because it was "wholly devoid of any description of the information to be gathered by the GPS."
¶15 After granting Lewis' motion to reconsider, and granting his motion to suppress, the superior court granted the State's motion to dismiss the case without prejudice, and this timely appeal followed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4032(1) (2015).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
¶16 The factual findings underlying a motion to suppress are reviewed for abuse of discretion, but legal conclusions are reviewed de novo. State v. Moody, 208 Ariz. 424, 445 ¶ 62, 94 P.3d 1119, 1140 (2004); State v. Newell, 212 Ariz. 389, 397 ¶ 27, 132 P.3d 833, 841 (2006). To be constitutionally valid under the Fourth Amendment, a search warrant must describe with sufficient specificity and accuracy the place to be searched and the things to be seized. See Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984); Berger v. State of N.Y., 388 U.S. 41, 54-55 (1967); State v. Dragos, 20 Ariz. App. 14, 15, 509 P.2d 1051, 1052 (1973); see also A.R.S. § 13-3915(C) (requiring warrant to include description of "person, building, premises or vehicle" to be searched and "property, persons, or things" to be seized describing each with "reasonable particularity"). This specificity requirement prevents "general warrants" that would allow "exploratory rummaging in a person's belongings." Andresen v. Maryland, 427 U.S. 463, 479-80 (1976).
¶17 "A presumption exists in favor of the validity of search warrants" issued by a neutral magistrate. State ex rel. Collins v. Superior Court, 129 Ariz. 156, 158, 629 P.2d 992, 994 (1981); State v. Kerr, 142 Ariz. 426, 430, 690 P.2d 145, 149 (App. 1984); State v. White, 145 Ariz. 422, 427, 701 P.2d 1230, 1235 (App. 1985). Moreover, a warrant should not be invalidated "by a hypertechnical interpretation" when a magistrate has found probable cause to issue it. Ault, 150 Ariz. at 466, 724 P.2d at 552. A supporting affidavit may cure defects in the warrant through "a commonsensical and realistic" interpretation of both. Id. at 467, 724 P.2d at 553. "[A] defective description in the warrant may be saved by an adequate description in the affidavit." State v. Moorman, 154 Ariz. 578, 583, 744 P.2d 679, 684 (1987). "[F]or an affidavit to save a defective warrant, it must appear at a minimum that the executing officer had the affidavit with him and referred to it; some courts also require that the affidavit be physically connected to the warrant and that the warrant expressly refer to the affidavit." Id.
¶18 The State argues the superior court erred in finding the search warrant did not meet the particularity requirements and in finding the supporting affidavit was insufficient to cure any perceived deficiencies. In Moorman, the Arizona Supreme Court addressed a situation where the authoring officer failed to list the items to be seized in the appropriate portion of the warrant. Id. at 582, 744 P.2d at 683. In concluding that the list of items contained in the officer's affidavit cured that defect, the court reasoned:
[The officer] filled out the affidavit for the search. The justice of the peace signed both the warrant and the affidavit. The warrant referred to the items to be seized as "such being more fully described in the affidavit." [The officer] executed the warrant and was present during the search. He took both documents to the scene of the search, although he cannot remember whether they were physically attached. [The] chief medical-legal examiner
for the forensic science section of the University of Arizona [] examined both documents before searching the room. Under these facts, where the warrant referred to the affidavit, two documents were kept together during the search, and the investigating officer saw both, we believe that the description in the affidavit saved the defective warrant from being an exploratory warrant. This type of technical mistake does not require suppression.Id. at 583, 744 P.2d at 684 (citing Massachusetts v. Sheppard, 468 U.S. 981 (1984)). Giving this same type of consideration to the affidavit in this case, Lewis' challenge to the warrant does not require suppression.
¶19 First, viewed as a whole, the warrant adequately described the things to be seized with sufficient particularity. As the State notes, a warrant seeking authorization to place a tracking device on a vehicle differs in kind from a more typical warrant seeking authorization to search a person, structure or vehicle to seize tangible physical items. The type of "exploratory rummaging" condemned in Andresen, 427 U.S. at 479, is not present when placing an electronic tracking device on a vehicle. As the superior court correctly reasoned in initially denying the motion to suppress, the request to affix a "GPS tracking device" to a vehicle sufficiently describes the item to be seized. The request to place a "tracking device" on a vehicle inherently connotes that law enforcement is seeking to track the vehicle's movement to obtain information about its movements and location. Therefore, the court's initial reasoning that Lewis' arguments were too "literal" an interpretation of the particularity requirement is correct. By authorizing police to place a GPS device on Lewis' pickup, logic dictates that the warrant also authorized them to obtain information from that device regarding the pickup's movements and location.
¶20 Lewis' motion to reconsider was based, in no small part, on examples of other GPS search warrants. The "level of detail" in those examples clearly appears preferable and is not present in the warrant in this case. Those examples also indicate that the warrant here could have been better written. That possibility, however, does not establish the applicable inquiry or answer the relevant question. Instead, the inquiry is whether the affidavit was incorporated into the warrant, thereby curing any claimed defect in the warrant. Moorman, 154 Ariz. at 583, 744 P.2d at 684.
Lewis argues the State agreed with the superior court "that the affidavit could not be relied upon because it was not incorporated into the search warrant." That argument does not accurately reflect the record and, even if the language Lewis quotes could be read as a concession of error, this court would not be bound by it. State v. Dominquez, 192 Ariz. 461, 463, 967 P.2d 136, 138 (App. 1998).
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¶21 Although the warrant does not expressly "reference" the affidavit, the warrant and the affidavit are a single document. While they are not physically attached in the record on appeal, as noted above, both documents are consecutively paginated and each page bears the label "SEARCH WARRANT AND AFFIDAVIT." Both were sent by Watson to the magistrate in a single packet when applying for the warrant, and the magistrate signed the last pages of the warrant (Page 2) and the affidavit (Page 7) on the same date and returned both to Watson at the same time. The affidavit specifies that the police sought to "seize" GPS tracking information on the pickup in both real time and historical data, and that they sought authority to monitor the transmissions "twenty four hours a day, seven days a week," for a period "not to exceed" 30 days. The affidavit also specifies that the police would "surreptitiously" place and remove the GPS device and not notify Lewis of the monitoring until they completed their investigation. Taken together, the search warrant and affidavit (being part and parcel of the search warrant) describe with sufficient specificity both the place to be searched and the things to be seized. See Sheppard, 468 U.S. at 988 n.5; A.R.S. §§ 13-3913, -3915(C). Because the warrant was valid, the motion to suppress was not well taken. See Moody, 208 Ariz. at 445 ¶ 62, 94 P.3d at 1140; State v. Zamora, 220 Ariz. 63, 67 ¶ 7, 202 P.3d 528, 532 (App. 2009).
CONCLUSION
¶22 Under the applicable law discussed above, the search warrant was valid. Accordingly, the order granting Lewis' motion to suppress is reversed and this matter is remanded for further proceedings not inconsistent with this decision.