State v. Snow

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellant,

v.

RORY ELDON SNOW, Appellee.

No. 1 CA-CR 17-0463
FILED 5-29-2018

Appeal from the Superior Court in Maricopa County
No. CR2016-138508-001
The Honorable Warren J. Granville, Judge

VACATED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Appellant

Law Office of Carrie M. Spiller, PLLC, Phoenix
By Carrie M. Spiller
Counsel for Appellee
 STATE v. SNOW
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

C A T T A N I, Judge:

¶1 The State appeals from the superior court’s order granting
Rory Eldon Snow’s motion to suppress evidence (methamphetamine and
methamphetamine paraphernalia) discovered during a warrantless search
of his person. For reasons that follow, we vacate the suppression ruling.

FACTS AND PROCEDURAL BACKGROUND

¶2 Detective Seymore (a Goodyear police officer assigned to the
Arizona Department of Public Safety’s State Gang Task Force) was on
patrol with his partner one evening in mid-August 2016. While speaking
with an individual on an access road just off the southbound lanes of a main
road, the detective observed a southbound bicyclist cross the main road and
continue riding south in the northbound lanes. The detective and his
partner drove after the bicyclist and activated lights to stop him a few
blocks later.

¶3 Snow—the bicyclist—identified himself and provided a state
identification card. While the other detective ran Snow’s information to
check for outstanding warrants, Detective Seymore asked Snow several
questions, including whether he was carrying anything illegal. Snow
responded by stating either that he had a “G pipe” or that he had an “oil
burner.” The detective then searched Snow and found a methamphetamine
pipe in one pocket and a bag of methamphetamine in the other. The
detective arrested Snow immediately thereafter.

¶4 The State charged Snow with possession of
methamphetamine, a class 4 felony, and possession of drug paraphernalia,
a class 6 felony. Snow moved to suppress the evidence discovered in the
search, arguing both that the initial stop was unjustified and that the
warrantless search itself violated the Fourth Amendment. The court
conducted an evidentiary hearing, at which Detective Seymour testified
that when he asked Snow if he was carrying anything illegal, Snow
responded that he had a “G pipe,” which the detective recognized as a term

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Decision of the Court

for an item used to smoke methamphetamine. Snow testified that he did
not say he had a “G pipe” but instead said he had an “oil burner.” After
considering the testimony, the superior court granted Snow’s motion and
suppressed the evidence, reasoning that the search was not simply a frisk
for weapons, that the detective lacked probable cause to search Snow’s
pockets absent prior observation of criminal activity, and that the search
was not a search incident to arrest because Snow was not arrested until after
the search was completed.

¶5 On the State’s motion, the court dismissed the case without
prejudice, and the State appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) § 13-4032(6).

DISCUSSION

¶6 We review the superior court’s ruling on a motion to suppress
for an abuse of discretion, but review de novo its ultimate legal conclusions,
including its assessment of the existence of probable cause. State v. Goudeau, 239 Ariz. 421, 439, ¶ 26 (2016) (as amended); State v. Booker, 212 Ariz. 502,
504, ¶ 10 (App. 2006).

¶7 The Fourth Amendment to the United States Constitution
prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. A
warrantless search is presumed unreasonable unless justified under a
specific, well-defined exception to the warrant requirement. State v. Blakley, 226 Ariz. 25, 27, ¶ 6 (App. 2010). One such exception is a search incident to
arrest, which allows a contemporaneous search to accompany a lawful
arrest (here, one supported by probable cause). See Arizona v. Gant, 556 U.S.
332, 338 (2009); Rawlings v. Kentucky, 448 U.S. 98, 111 (1980); State v. Bonillas, 197 Ariz. 96, 98, ¶ 7 (App. 1999).1 A search incident to arrest may occur
before formal arrest as long as probable cause for the arrest existed at the
time of the search. Rawlings, 448 U.S. at 111; State v. Carroll, 111 Ariz. 216,
218–19 (1974); Bonillas, 197 Ariz. at 98, ¶ 7.

¶8 Here, the superior court erred by concluding that because
Snow was not arrested until after the search, the search could not be
considered a search incident to arrest. Assuming Snow told the detective
that he was carrying a “G pipe,” known to the detective as a type of drug

1 Another exception is an investigatory stop and frisk for weapons, see
Terry v. Ohio, 392 U.S. 1, 30–31 (1968), but the State does not contend that
the search in this case was proper on this basis, and the evidence at the
suppression hearing supports the court’s conclusion that it was not.

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Decision of the Court

paraphernalia, the detective had probable cause to arrest him for possession
of drug paraphernalia—even absent other evidence of criminal conduct.
See State v. Durham, 108 Ariz. 233, 234–35 (1972) (noting that when a suspect
told an officer that he had heroin for his own personal use, “[t]his
admission, alone, justified an immediate arrest”); see also A.R.S. § 13-
3415(A) (classifying possession of drug paraphernalia as a class 6 felony);
A.R.S. § 13-3883(a)(1) (authorizing a warrantless arrest based on probable
cause that the person to be arrested committed a felony offense). With
probable cause for the arrest before the search, the fact that the search
immediately preceded formal arrest does not invalidate it. Rawlings, 448
U.S. at 111; Carroll, 111 Ariz. at 218–19; Bonillas, 197 Ariz. at 98, ¶ 7.

¶9 Snow suggests that under the rule of corpus delicti, his
statement, standing alone, cannot support probable cause for a search. But
Snow offers no authority for applying this rule—which prohibits conviction
of an accused based solely on the accused’s confession without
corroborating evidence—in the context of a pretrial suppression hearing.
Cf. State v. Jones, 198 Ariz. 18, 21–24, ¶¶ 9–16 (App. 2000) (holding that the
rule of corpus delicti does not apply at a preliminary hearing). And although
Snow posits that his statement was given in response to illegal questioning,
the superior court did not find that the detective’s queries amounted to
custodial interrogation. See Berkemer v. McCarty, 468 U.S. 420 (1984).

¶10 Arguably, the superior court could have credited Snow’s
testimony that he only disclosed having an “oil burner” (which in theory
could refer to something other than drug paraphernalia) rather than the
detective’s testimony that Snow admitted possessing a “G pipe.” But the
court’s ruling does not reflect any such fact-based determination, and in
any event, because the superior court did not analyze whether Snow’s
statement established probable cause for an arrest, we vacate the ruling.

CONCLUSION

¶11 We vacate the ruling on Snow’s motion to suppress.

AMY M. WOOD • Clerk of the Court
FILED: AA

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