State v. Bearden

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DUANE EDWARD BEARDEN, Appellant.

No. 1 CA-CR 21-0464
FILED 11-22-2022

Appeal from the Superior Court in Maricopa County
No. CR2017-112750-001
The Honorable Eartha K. Washington, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
 STATE v. BEARDEN
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M c M U R D I E, Judge:

¶1 Duane Edward Bearden appeals from his conviction and
sentence for producing marijuana. He argues that the superior court abused
its discretion by denying his motion to suppress evidence obtained during
a warrantless search. Because the emergency aid exception to the warrant
requirement applied, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Around 2:30 a.m., police received a 9-1-1 call from an
unknown caller. The caller sounded distressed and said, “Help, help, help,”
before the call suddenly ended. The dispatcher traced the call to a specific
address in Peoria and sent two police deputies for a welfare check.

¶3 When the deputies arrived, they found a large property
enclosed by a seven-foot-tall block fence with a padlocked, corrugated steel
gate. The deputies did not see or hear anyone needing help, so they peered
over the wall but saw no one. Considering the 9-1-1 call, the officers
concluded that there still may be an ongoing emergency and decided to
climb the wall to continue their search for the distressed caller.

¶4 The deputies walked outside a residential building and the
attached garage, looking through windows and open doors for anyone who
needed aid. As they neared one window, a deputy smelled unburnt
marijuana. Through another window, the deputy saw a closed interior door
with a bright light emanating from beneath it. The odor of fresh marijuana
had also grown stronger.

¶5 At this point, the deputies believed marijuana was growing
on the property. And with the 9-1-1 call in mind, they felt this was a
potentially dangerous situation. They returned to their car and retrieved
rifles before heading toward a large, open, detached garage. Inside the
garage, they smelled a strong odor of marijuana and noticed a marijuana

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Decision of the Court

grow tent. Deeper into the garage, they saw a man lying on a cot and a rifle1
hanging on a nail nearby. The man appeared asleep, uninjured, and not in
distress. The deputies believed the man might be guarding the marijuana
and opted not to wake him.

¶6 They left the property and remained outside the wall until
they obtained a search warrant. Before the search, a SWAT team secured
the property and found Bearden. When police searched the home, they
found growing marijuana plants and drug paraphernalia.

¶7 The State charged Bearden with five drug-related counts and
three counts of misconduct involving weapons. Before the trial, Bearden
moved to suppress the evidence found during the search, arguing that no
exigent circumstances existed to justify a warrantless search. The court
conducted an evidentiary hearing, at which Bearden argued that the
deputies “didn’t have enough cause . . . to enter and to go over the wall.”
The superior court disagreed and allowed the evidence, ruling that exigent
circumstances existed because the deputies believed someone at that
address had called for help and then gone silent.

¶8 The case proceeded to trial, and the jury found Bearden guilty
of producing marijuana, a Class 4 felony under A.R.S. § 13-3405.2 The jury
could not reach a verdict on the remaining counts. Instead of retrial,
Bearden pled guilty to attempted possession of heroin for sale, a Class 3
felony, and one count of misconduct involving weapons, a Class 4 felony.
The remaining counts were dismissed. The court sentenced Bearden to
concurrent prison terms of five years for attempted possession of heroin for
sale, five-and-a-half years for producing marijuana, and three years for
weapons misconduct.

¶9 Bearden appealed his conviction and sentence for producing
marijuana, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A).

1 The rifle was later found to be a paintball or pellet gun.

2 In the time since Bearden’s conviction, Arizona legalized the
production of marijuana in some cases. See A.R.S. §§ 13-3405(A),
36-2852(A).

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DISCUSSION

¶10 “We review the denial of a motion to suppress for an abuse of
discretion” and consider only the evidence presented at the suppression
hearing, viewing it in the light most favorable to sustaining the court’s
ruling. State v. Manuel, 229 Ariz. 1, 4, ¶ 11 (2011). In doing so, we review de
novo the court’s ultimate legal conclusion that the search complied with the
Fourth Amendment. State v. Jean, 243 Ariz. 331, 334, ¶ 9 (2018).

¶11 Bearden contends the court erred by denying his motion to
suppress, arguing that the emergency aid exception to the warrant
requirement does not apply. The Fourth Amendment to the United States
Constitution and Article 2, Section 8 of the Arizona Constitution protect
against unreasonable searches and seizures. Warrantless searches and
seizures inside a home are presumptively unreasonable. Brigham City v.
Stuart, 547 U.S. 398, 403 (2006). But under exigent circumstances, a
warrantless search may be justified. Mincey v. Arizona, 437 U.S. 385, 393–94
(1978). The emergency aid exception allows for a warrantless search if
“(1) police have reasonable grounds to believe that there is an emergency
that requires their immediate assistance to protect life or property and
(2) there is a reasonable basis to associate the emergency with the place to
be searched.” State v. Inzunza, 234 Ariz. 78, 82, ¶ 12 (App. 2014).

¶12 Bearden argues that the first element is not met here because
an anonymous 9-1-1 call “with no other evidence” does not provide police
with reasonable grounds to believe there is an ongoing emergency. But in a
similar case, State v. Bennett, 237 Ariz. 356 (App. 2015), we held that the
emergency aid exception applied.

¶13 In Bennett, police received a 9-1-1 “hang up” call traced to a
specific address. 237 Ariz. at 357, ¶ 2. When the deputies arrived, they
knocked on the front door, but no one responded. Id. at 357–58, ¶ 3. The
deputies proceeded past an unlocked gate and eventually noticed
marijuana plants inside a window and in the yard. Id. at 358, ¶ 3. The court
denied the defendant’s motion to suppress the evidence. We affirmed
because there was “more than only a 911 hang-up call” linked to the
address to justify a reasonable belief that there was an emergency. Id. at
358–59, ¶¶ 6, 11. We noted that the deputies knocked but heard no answer,
leaving them “unable to verify that either there had never been an
emergency or the emergency had passed.” Id. at 359, ¶ 11.

¶14 Bearden first argues that Bennett should not control because it
was wrongly decided. He contends that Bennett permits officers to conduct

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warrantless searches until they verify that no emergency exists. And he
asserts this contradicts the rule that police “must gather evidence” to
support their belief that there is an ongoing emergency because “[t]he
absence of proof that no one is in danger is not the same as positive proof
that someone is at risk of serious harm.” To support this assertion, Bearden
cites cases in which the emergency aid exception was based on more than
just a 9-1-1 call. But he ultimately cites no case that requires officers to
“gather evidence.”

¶15 Police only need “reasonable grounds” to support the belief
that an emergency exists. Inzunza, 234 Ariz. at 82, ¶ 12. The original 9-1-1
call from the address with someone crying for help gave the deputies
reasonable grounds to believe there was an ongoing emergency at the
location. See Bennett, 237 Ariz. at 359, ¶ 11.

¶16 Bearden also argues that Bennett is distinguishable. He relies
only on the fact that the deputies in Bennett knocked on the front door
before proceeding, unlike the deputies here. But Bennett does not require
police to knock before investigating a 9-1-1 hang-up call. The knocking
“gave the deputies additional objective information that the emergency that
had first brought them to the address had not abated.” Bennett, 237 Ariz. at
359, ¶ 11. Here, the deputies were informed that a 9-1-1 call came from the
address and that the caller had said, “Help, help, help.” They saw no one
out front or over the wall when they arrived. As in Bennett, the 9-1-1 call
gave the deputies reason to believe there was an emergency at the specific
location. And like the deputies in Bennett who knocked but heard no
answer, the deputies here looked for someone needing help but were still
“unable to verify that either there had never been an emergency or the
emergency had passed.” See id. The deputies were justified in entering the
property without a warrant because they reasonably believed that someone
inside needed emergency aid.

CONCLUSION

¶17 We affirm.

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

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