State v. Reese

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHAWN MARTINEZ REESE, Appellant.

No. 1 CA-CR 22-0485
FILED 5-16-2023

Appeal from the Superior Court in Navajo County
No. S0900CR202000801
The Honorable Dale P. Nielson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Ashley Torkelson Levine
Counsel for Appellee

Zhivago Law, Phoenix
By Kerrie M. Droban Zhivago
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.
 STATE v. REESE
Decision of the Court

B A I L E Y, Judge:

¶1 Shawn Martinez Reese appeals his convictions for possession
of dangerous drugs and drug paraphernalia. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
defendant’s convictions. State v. Thompson, 252 Ariz. 279, 287, n. 3 (2022).

¶3 On March 5, 2020, Department of Child Safety (“DCS”)
Investigator Larsen arrived at Reese’s home in Lakeside, Arizona to
investigate a report that Reese and his girlfriend were abusing drugs while
children were present. Reese and his girlfriend allowed Investigator Larsen
to conduct a home walk-through to look for evidence of drug use. After
finding nothing in plain sight, Investigator Larsen recommended Reese and
his girlfriend seek emergency guardianship of the children in their care
because they did not have legal custody and were caring for them on an
emergency basis. She also arranged to return later in the afternoon when
the children got home from school.

¶4 When Investigator Larsen returned, Dereck1, a child living
with Reese, approached her outside the home. He told her that there were
drugs in the home and showed her a picture. Investigator Larsen told
Dereck she could not confirm that the picture showed drugs and because
her walk-through did not reveal evidence of drugs or drug use, she could
not take further action. Dereck then ran back into the home and returned
with a small baggie containing a white crystal substance, prompting
Investigator Larsen to call the Navajo County Sheriff’s Office.

¶5 Upon arrival, officers determined the substance in the baggie
was methamphetamine. Officers then obtained and executed a search
warrant for Reese’s home. In their search, officers discovered glass pipes
and baggies containing residue of a white substance. When questioned by
officers, Reese admitted to smoking methamphetamine multiple times a
week.

¶6 The State charged Reese with one count of possession of
dangerous drugs, a class four felony, one count of possession of drug
paraphernalia, a class six felony, and one count of child neglect, a class one
misdemeanor. Reese moved to suppress evidence of the drugs and

1 We use a pseudonym to protect the minor child’s identity. See Ariz. R.
Crim. P. 31.10(f).

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Decision of the Court

paraphernalia, arguing Dereck was acting as a government agent and
therefore the search violated the Fourth Amendment. The superior court
held a hearing on the motion, at which Investigator Larsen testified that she
did not direct Dereck to retrieve the drugs. The court also received a copy
of the responding officers’ reports, one of which contradicted Investigator
Larsen’s testimony, stating she had asked Dereck if he could provide her
evidence of drug use. At the end of the hearing, the court denied the
motion, finding Investigator Larsen did not ask Dereck to go into the home
to retrieve the drugs and that he acted independently of any state influence.

¶7 Following the superior court’s denial of his motion to
suppress, Reese waived his right to a jury trial and agreed to submit the
case to the court on a stipulated record. See Ariz. R. Crim. P. 17.7. After
reviewing the record and hearing the parties’ arguments, the court found
Reese guilty of possession of dangerous drugs and possession of drug
paraphernalia, but not guilty of child neglect. The court suspended the
imposition of sentence and placed Reese on probation for two years.

¶8 Reese timely appealed and we have jurisdiction under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031 and -4033(A).

DISCUSSION

¶9 On appeal Reese argues only that the superior court erred in
denying his motion to suppress. We review the superior court’s denial of a
motion to suppress for an abuse of discretion, but review issues of law de
novo. State v. Nissley, 241 Ariz. 327, 330, ¶ 9 (2017). “[W]e consider only
the evidence presented at the suppression hearing and view that evidence
in a light most favorable to upholding the court’s ruling.” State v. Lietzau, 248 Ariz. 576, 579, ¶ 8 (2020).

¶10 “[A] wrongful search or seizure performed by a private
citizen does not violate the Fourth Amendment unless the citizen is acting
as an agent of the state.” State v. Estrada, 209 Ariz. 287, 291, ¶ 16 (App. 2004).
To determine whether a private party has acted as a state agent, we look to
“(1) whether the government had knowledge of and acquiesced to the
party’s actions and (2) the intent of the party.” State v. Garcia-Navarro, 224
Ariz. 38, 40, ¶ 6 (App. 2010). If either element is not met “any fruit of the
citizen’s search or seizure may not be suppressed.” Id.

¶11 At the suppression hearing, Investigator Larsen testified that
she did not ask or direct Dereck to go into the house to retrieve evidence of
drugs. She testified that after she told Derick that she could not take any

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Decision of the Court

action based on what she observed during her walk-through, he ran into
the home and brought out the baggie containing methamphetamine. True,
one responding officer’s report states that Investigator Larsen “asked
[Dereck] if he could go inside the residence and provide her with evidence
of possible drug use.” But other officers’ reports supported Investigator
Larsen’s testimony and the court credited her testimony over the officer’s
contradictory statement. We will not revisit this credibility determination.
See State v. Alvarado, 158 Ariz. 89, 92 (App. 1988) (“It is for the [superior]
court to resolve conflicting testimony and to weigh the credibility of
witnesses.”). The superior court did not err in finding that Dereck acted
independently of state influence and that therefore no Fourth Amendment
violation occurred. See United States v. Walther, 652 F.2d 788, 792 (9th Cir.
1981) (noting the “presence of [government] officers who do not take an
active role in encouraging or assisting an otherwise private search” does
not convert the private search to state action).

¶12 The superior court also found Dereck had an independent
motive from assisting law enforcement—his own health and safety. The
record supports this finding. Dereck contacted DCS out of concern for his
safety after witnessing drug use and there is no indication that he intended
to assist law enforcement in prosecuting Reese. The superior court thus
properly found that Dereck’s actions did not implicate the Fourth
Amendment. See State v. Martinez, 221 Ariz. 383, 394, ¶ 33 (App. 2009)
(“Fourth Amendment rights are implicated only if [a private party] act[s]
on behalf of the state without ‘a legitimate independent motivation for
conducting the search.’” (quoting Walther, 652 F.2d at 792)). Given our
conclusion that the superior court properly found no Fourth Amendment
violation, we do not address the State’s alternative argument that the
inevitable discovery doctrine should apply.

CONCLUSION

¶13 We affirm.

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

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