State v. Bowman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

KEITH ALLEN BOWMAN, Appellant.

No. 1 CA-CR 21-0403
FILED 7-14-2022

Appeal from the Superior Court in Maricopa County
No. CR2019-156353-001
The Honorable Kathleen H. Mead, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Jacob R. Lines
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
 STATE v. BOWMAN
Decision of the Court

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.

H O W E, Judge:

¶1 Keith Allen Bowman (“Bowman”) appeals his conviction and
two-year probation sentence for possession or use of a dangerous drug. For
the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 After midnight in October 2018, Officer Brandon Lewis
arrested Bowman at the Talking Stick Casino for an outstanding warrant as
Bowman emerged from his car. After handcuffing Bowman, Officer Lewis
used his flashlight to look in the car’s open door and saw a small, folded,
white plastic bag sitting on the driver’s seat. Although opaque, Officer
Lewis could see the bulge of a crystal-like substance in the bag, which he
associated—along with the bag’s shape—with methamphetamine. He
seized it after confirming that it had methamphetamine’s rock-like feel.

¶3 Bowman was charged with possession or use of a dangerous
drug. He moved to suppress the bag and methamphetamine, arguing that
the search and seizure violated the constitutional prohibition against
warrantless searches and seizures. At the suppression hearing, Officer
Lewis testified that based on his experience investigating drug cases, a
small, folded bag containing a bulging rock-like substance was likely
methamphetamine or some other illicit substance. The trial court denied the
motion to suppress, finding Officer Lewis’s search fell within the
plain-view exception to the warrant requirement. A jury convicted
Bowman for possession or use of a dangerous drug. Bowman timely
appealed.

DISCUSSION

¶4 Bowman appeals the trial court’s ruling that the plain-view
exception to the warrant requirement applied to the bag of
methamphetamine. Considering only the evidence at the suppression
hearing, this court reviews the denial of a motion to suppress for an abuse
of discretion and will only reverse for clear error. State v. Cornman, 237 Ariz.

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Decision of the Court

350, 354 ¶ 10 (App. 2015). This court reviews de novo the trial court’s legal
conclusions, however. State v. Mitchell, 234 Ariz. 410, 413 ¶ 11 (App. 2014).

¶5 Prohibiting “unreasonable searches and seizures,” the Fourth
Amendment to the United States Constitution provides that “no warrants
shall issue, but upon probable cause.” See also Ariz. Const. art. 2 § 8; A.R.S.
§ 13–3913. Probable cause exists when facts and observed behaviors would
cause a reasonable person to believe that contraband or evidence of a crime
is present. State v. Sisco, 239 Ariz. 532, 535–36 ¶¶ 8, 15–16 (2016). The facts
must be seen and weighed as “understood by those versed in the field of
law enforcement,” United States v. Cortez, 449 U.S. 411, 417–18 (1981), based
on their law enforcement experiences, State v. Ahumada, 225 Ariz. 544, 549
¶ 18 (App. 2010).

¶6 While searches and seizures generally require warrants, e.g.,
State v. Cheatham, 240 Ariz. 1, 2 ¶ 7 (2016), a warrantless seizure will still be
considered reasonable under the “plain view doctrine,” Minnesota v.
Dickerson, 508 U.S. 366, 372, 374–75 (1993). The plain-view doctrine permits
an officer to seize an object without a warrant when (1) they are in a lawful
position to view it, (2) the object’s “incriminating character is immediately
apparent,” and (3) the officer has a lawful right to access it. Sisco, 239 Ariz.
at 535–36 ¶ 11. The “immediately apparent” standard is synonymous with
probable cause. Id. at 536 ¶ 12.

¶7 The trial court did not err in finding all three requirements of
the plain-view doctrine met. First, Officer Lewis lawfully stood outside
Bowman’s car while arresting him. Second, the bag’s incriminating
character was immediately apparent to him based on his law enforcement
experience that the bulge in the folded and distinctly shaped baggie
contained methamphetamine. Id. at 536 ¶ 12. Last, because the automobile
exception permits police to lawfully enter a vehicle without a warrant if
probable cause exists to believe that the vehicle contains contraband, see,
e.g., State v. Reyna, 205 Ariz. 374, 375 ¶ 5 (App. 2003) (automobile exception
applying to vehicles in a parking lot); Cheatham, 240 Ariz. at 2 ¶ 7 (marijuana
odor sufficient for warrantless search under automobile exception), Officer
Lewis had a lawful right to enter Bowman’s car and seize the
methamphetamine bag that was in plain view, Sisco, 239 Ariz. at 536 ¶ 12.

¶8 Bowman argues, however, that Officer Lewis did not have
probable cause to believe that methamphetamine was inside the bag and
therefore could not search his car until after Officer Lewis had seized the
bag and felt the rock-like substance. Citing out-of-state authority, he claims
that because plastic bags have both lawful and unlawful purposes, see

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Commonwealth v. Rivera, 534 N.E.2d 24, 25 n.3 (Mass. App. 1989), possession
is not per se incriminating and does not support a probable cause finding,
State v. Hughes, 532 P.2d 818, 822 (Or. App. 1975). He analogizes this case to
Ex parte Tucker, in which the Alabama Supreme Court suppressed evidence
from a multi-use object’s search and seizure. 667 So.2d 1339 (Ala. 1995). But
Ex parte Tucker is substantively distinguishable from these facts and
unpersuasive. In Ex parte Tucker, the police seized a film cannister which
was found to contain marijuana. Id. at 1347. The film cannister was not
manipulated and retained the same form as it would have for its lawful use.
Id. Thus, the Alabama court found that although the film canister was often
used to house drugs and was found in a high drug-use area, such facts alone
did not provide a basis for probable cause. Id.

¶9 Unlike in Ex parte Tucker, however, Officer Lewis did not
merely identify an unmanipulated multi-purpose object often associated
with drug use. Rather, he looked at how the plastic bag had been
manipulated—i.e., how it was folded—and the bulge it contained to
conclude based on his law enforcement experience that the bag contained
an illicit substance. Reliance on how a multi-use object has been
manipulated has long been found to support a finding of probable cause.
In Texas v. Brown, the Supreme Court found that an individual’s
manipulation of an “opaque, green party balloon, knotted about one half
inch from the tip,” 460 U.S. 730, 733 (1983), provided probable cause to
believe the balloon contained an illicit substance due to the “distinctive
character of the balloon [. . .] particularly to the trained eye of the officer,”
id. at 742–43. In State v. Garcia, an officer found two small pieces of paper
on a defendant—one of them was crumpled up, “while the other paper was
neatly folded into the shape of a very small envelope.” 162 Ariz. 471, 472
(App. 1989). This court found that the officer’s training and experience
made it “apparent to the officer that the envelope contained drugs,” id. at
474, and although the officer could not have known for certain that the
envelope contained drugs, he did have probable cause to search the
envelope, id. Similarly, Officer Lewis’s training made it apparent to him that
because of how the bag was folded around a bulge that the bulge was
methamphetamine. He therefore had probable cause to search the bag. Id.;
Reyna, 205 Ariz. at 375 ¶ 5.

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CONCLUSION

¶10 For the reasons stated, we affirm.

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

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