State v. Guillen

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0188-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 07-0365
JOSE SALVADOR GUILLEN, )
) Pima County
Appellant. ) Superior Court
) No. CR20064552
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Michael J. Cruikshank, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals Division Two
222 Ariz. 81, 213 P.3d 230 (2009)

VACATED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Joseph L. Parkhurst, Assistant Attorney General Tucson
Attorneys for State of Arizona

EMILY DANIES Tucson
Attorney for Jose Salvador Guillen
________________________________________________________________

R Y A N, Justice

¶1 The question presented is whether a resident’s consent

to search her home is invalid because it was preceded by an
allegedly illegal search of which the resident was unaware. We

hold that the consent to search is valid under the

circumstances.

I

¶2 In March 2006, police received information that Jose

Guillen was storing marijuana in his garage; no investigation

took place at that time. Eight months later, after confirming

that the house was unoccupied, police called a narcotics officer

with a drug-sniffing dog to the scene. The home was not

enclosed by a fence and no signs prohibited public access to the

front of the house. The garage was attached to the house and

accessible by a driveway. The narcotics officer and the dog

walked up the driveway to the garage door. After sniffing the

door’s bottom seam, the dog began barking and scratching,

indicating that he had detected the odor of marijuana.

¶3 One to two hours later, Guillen’s wife returned home.

Officers approached her in the driveway and asked if they could

continue talking inside. She agreed. Without mentioning the

dog sniff, the officers told her that they had information that

marijuana was being stored at the house and asked for permission

to search it. Mrs. Guillen granted permission and led the

officers to the garage, where they detected a “strong odor of

marijuana.” The narcotics officer then brought the dog into the

garage and the dog signaled at an unlocked freezer that he
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detected the odor of marijuana. Mrs. Guillen permitted the

officers to open that freezer, which was empty but smelled of

marijuana. After obtaining a telephonic search warrant, the

officers searched two locked freezers and found bales of

marijuana.

¶4 Before trial, Guillen moved to suppress evidence

discovered in his garage and his subsequent statements to the

police, arguing that the dog sniff violated his rights under the

Fourth Amendment of the United States Constitution and Article

2, Section 8 of the Arizona Constitution. The superior court

denied Guillen’s motion, concluding that whether the dog sniff

was an illegal search was irrelevant because Mrs. Guillen

voluntarily consented to the search.

¶5 A jury subsequently convicted Guillen of possession of

marijuana for sale and drug paraphernalia, and the trial court

sentenced him to prison.

II

¶6 A divided panel of the court of appeals reversed and

remanded. State v. Guillen, 222 Ariz. 81, __ ¶ 33, 213 P.3d

230, 240 (2009). The majority began by analyzing the dog sniff

under the Fourth Amendment and Article 2, Section 8 of the

Arizona Constitution. The majority concluded that “a dog sniff

reaching into a home does not rise to the level of a ‘cognizable

infringement’ under the Fourth Amendment to the United States
3
Constitution.” Id. at __ ¶ 17, 213 P.3d at 234 (quoting

Illinois v. Caballes, 543 U.S. 405, 409 (2005)). However,

citing State v. Ault, 150 Ariz. 459, 466, 724 P.2d 545, 552

(1986), and State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519,

523-24 (1984), which held that Article 2, Section 8 is more

specific than its federal counterpart in protecting the home,

the court of appeals concluded that “a canine sniff that occurs

at the threshold of a home, and collects information from

inside, intrudes upon an expectation of privacy that our society

has long recognized as reasonable.” Id. at __ ¶ 24, 213 P.3d at

237. But because Article 2, Section 8 “contains no language

comparable to that of its federal counterpart requiring a

warrant for all searches in the home,” id. at __ ¶ 30, 213 P.3d

at 239, the majority concluded that “officers need only a

reasonable suspicion that contraband may be found in a home

. . . to conduct a canine sniff search of the exterior of the

home.” Id. The court remanded the matter for a determination

of whether the officers had reasonable suspicion before

conducting the dog sniff. Id. at __ ¶ 30, 213 P.3d at 239-40.

¶7 Turning to the issue of Mrs. Guillen’s consent, the

court of appeals stated that if the trial court on remand found

that the officers did not have reasonable suspicion, it then

would have to “determine whether the officers used the

information acquired to trigger the next step in their
4
investigation – asking for consent to search the house – or

whether . . . they would have taken that step regardless of the

outcome of the dog sniff.” Id. at __ ¶ 32, 213 P.3d at 240.

¶8 Dissenting, Judge Espinosa was “unconvinced [that] the

trial court erred in concluding Mrs. Guillen’s consent obviated

the need to discuss the constitutionality of the dog sniff[,]”

id. at __ n.13 ¶ 34, 213 P.3d at 241 n.13, but primarily

challenged the majority’s conclusion that a dog sniff, conducted

from the officer’s lawful position outside the home, violates

the state constitution. Id. at __ ¶¶ 37-55, 213 P.3d at 243-48.

¶9 The State petitioned for review, arguing that the

court of appeals erred in interpreting the state constitution

and, in any event, Mrs. Guillen’s voluntary consent obviated the

need to reach the state constitutional question. Because this

case involves a matter of first impression, we granted review.

We have jurisdiction under Article 6, Section 5(3) of the

Arizona Constitution and Arizona Revised Statutes § 13-4032

(2001).

III

A

¶10 The Fourth Amendment provides in part that “[t]he

right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated.” Unlawful entry into a home is the
5
“chief evil” against which the provision protects. See, e.g.,

Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (quoting United

States v. United States District Court, 407 U.S. 297, 313

(1972)). It “applies to action by state officers under the Due

Process Clause of the Fourteenth Amendment.” State v. Davolt,

207 Ariz. 191, 202 ¶ 23, 84 P.3d 456, 467 (2004) (citing Mapp v.

Ohio, 367 U.S. 643, 655 (1961)). Arizona’s constitutional

counterpart to the Fourth Amendment, Article 2, Section 8,

provides that “[n]o person shall be disturbed in his private

affairs, or his home invaded, without authority of law.” See

Bolt, 142 Ariz. at 264-65, 689 P.2d at 523-24 (observing that

Arizona’s constitutional provision is “specific in preserving

the sanctity of homes and in creating a right of privacy”).

Thus, as a general rule police must obtain a warrant before

searching premises in which an individual has a reasonable

expectation of privacy. Katz v. United States, 389 U.S. 347,

356-57 (1967); State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200,

209 (1996); Bolt, 142 Ariz. at 265, 689 P.2d at 524.

¶11 One long recognized exception to the warrant

requirement is consent. Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d

at 468 (citing Katz, 389 U.S. at 357). To be valid, consent

must be voluntarily given, and whether the consent was voluntary

“is a question of fact to be determined from the totality of the

circumstances.” Id. (citing Schneckloth v. Bustamonte, 412 U.S.
6
218, 248-49 (1973)). Consent must “not be coerced, by explicit

or implicit means, by implied threat or covert force.”

Schneckloth, 412 U.S. at 228. The state bears the burden of

showing that consent to search was voluntary. See United States

v. Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th Cir. 1988);

State v. Monge, 173 Ariz. 279, 281, 842 P.2d 1292, 1294 (1992).

¶12 Here, defense counsel made clear at the suppression

hearing below that Guillen was not challenging the voluntariness

of Mrs. Guillen’s consent or her authority to consent to the

search. See, e.g., United States v. Matlock, 415 U.S. 164, 171

(1974) (holding that voluntary consent to search premises by

occupant who possesses common authority to the premises is valid

against absent co-occupant); State v. Lucero, 143 Ariz. 108,

109, 629 P.2d 287, 288 (1984) (recognizing exception to warrant

requirement where “person having authority to consent to a

warrantless search[] does so”). Rather, he argued that the

first dog sniff at the garage perimeter was illegal, and it

necessarily tainted Mrs. Guillen’s subsequent consent to search,

requiring exclusion of the evidence discovered in the garage.

B

¶13 Evidence seized following consent to a search must be

suppressed if the consent is tainted by a prior constitutional

violation. Brown v. Illinois, 422 U.S. 590, 602 (1975); United

States v. Taheri, 648 F.2d 598, 601 (9th Cir. 1981); Davolt, 207
7
Ariz. at 203 ¶ 29, 84 P.3d at 468. Exclusion deters police

misconduct “by removing the incentive for such conduct.” State

v. Booker, 212 Ariz. 502, 504 ¶ 13, 135 P.3d 57, 59 (App. 2006)

(citing United States v. Calandra, 414 U.S. 338, 347 (1974));

State v. Kempton, 166 Ariz. 392, 398, 803 P.2d 113, 119 (App.

1990).1 Suppression, however, is not required if the

unconstitutional conduct is sufficiently attenuated from the

subsequent seizure. See Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d

at 468; Monge, 173 Ariz. at 281, 842 P.2d at 1294. “[T]he

unconstitutional acts of an officer taint a consensual search

unless there are sufficient intervening circumstances between

the unlawful conduct and the consent to truly show that it was

voluntary.” Kempton, 166 Ariz. at 398, 803 P.2d at 119.

¶14 In Brown, the Supreme Court set forth a test to

determine whether the taint of the illegal conduct is

sufficiently attenuated from evidence subsequently obtained by

voluntary consent. 422 U.S. at 603-04. Under that test, courts

consider (1) the time elapsed between the illegality and the

acquisition of the evidence; (2) the presence of intervening

circumstances; and (3) “particularly, the purpose and flagrancy

of the official misconduct.” Id.; see also Davolt, 207 Ariz. at

1
This Court has held that for purposes of the Arizona
Constitution, the “exclusionary rule to be applied as a matter
of state law is no broader than the federal rule.” Bolt, 142
Ariz. at 269, 689 P.2d at 528.
8
203 ¶ 30, 84 P.3d at 468.2

C

¶15 Assuming, without deciding, that the dog sniff

violated Article 2, Section 8, we conclude that Mrs. Guillen’s

consent was valid because under Brown’s three-factor test,

intervening circumstances obviated any alleged taint and the

first dog sniff conducted from outside the garage was not

flagrant police misconduct.

¶16 Mrs. Guillen’s consent was obtained within a few hours

after the dog sniff took place. Although this fact favors

Guillen, see Delgadillo-Velasquez, 856 F.2d at 1300 (citing

cases in which courts have held invalid consent given between a

few minutes and a few hours after the illegal conduct), it does

not weigh heavily in our analysis because of the presence of

intervening circumstances. See State v. Reffitt, 145 Ariz. 452,

459, 702 P.2d 681, 688 (1985) (noting that the “factor of

temporal proximity is scarcely outcome determinative” and “is

often the least helpful of [Brown’s] three criteria”).

¶17 Mrs. Guillen’s lack of knowledge of the dog sniff

2
In analyzing whether a confession was obtained by
exploitation of an illegal arrest, the Court in Brown also
considered whether the police gave Miranda warnings to be “an
important factor.” 422 U.S. at 603. “Although Brown dealt with
the exclusion of a defendant’s statements, [the reasoning in
Brown] applies equally to contraband revealed by [a] consent
search.” Kempton, 166 Ariz. at 398, 803 P.2d at 119 (citing
Taheri, 648 F.2d at 601).
9
constitutes a major break in the causal chain. See, e.g.,

United States v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000)

(“Lack of knowledge of a prior search is an intervening factor

which dissipates the coercion inherent in a request for consent

made after an unconstitutional search.”), rev'd on other grounds

by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001);

United States v. Carson, 793 F.2d 1141, 1155 (10th Cir. 1986)

(holding that a defendant waived his Fourth Amendment rights

when he consented to search without knowledge of prior illegal

police search); cf. Moran v. Burbine, 475 U.S. 412, 422 (1986)

(“Events occurring outside of the presence of the suspect and

entirely unknown to him surely can have no bearing on the

capacity to comprehend and knowingly relinquish a constitutional

right.”).

¶18 It is uncontested that Mrs. Guillen was unaware of the

dog sniff when she consented to the search.3 Because Mrs.

Guillen knew nothing of the dog sniff, no link between the

alleged illegality and the consent was established. Furrow, 229

F.3d at 814. Thus, she was “in the same posture . . . as a

person not previously subject to an illegal entry.” Id.

3
At the suppression hearing, the State offered to admit a
recording of the conversation between the officers and Mrs.
Guillen. Defense counsel said that the court need not listen to
the recording because he was not challenging the voluntariness
of her consent.
10
¶19 Regarding Brown’s final factor, flagrancy of the

alleged violation, nothing suggests that the officers knowingly

violated Guillen’s rights by conducting the first dog sniff from

outside his garage. First, none of the traditional markers of

privacy appeared: no wall or fence obstructed entry onto

Guillen’s property, and no signs alerted the officers that such

entry was prohibited. The front entrance and garage were

publicly accessible. See United States v. Velazco-Durazo, 372

F. Supp. 2d 520, 524-25 (D. Ariz. 2005) (holding that generally

“there is no rule of private or public conduct which makes it

illegal per se, or a condemned invasion of privacy, . . . to

walk up the steps and knock on the front door of [a residence to

ask] questions of the occupant thereof”) (quoting Davis v.

United States, 327 F.2d 301, 303 (9th Cir. 1964)); Baker v.

Clover, 177 Ariz. 37, 39, 864 P.2d 1069, 1071 (App. 1993)

(concluding that walkways and driveways leading to the home are

“only semi-private” and recognizing a “reasonable expectation

that various members of society may use the walkway in the

course of attending to personal or business pursuits with

persons residing in the home, including police officers on

police business”) (quoting State v. Cloutier, 544 A.2d 1277,

1279-80 (Me. 1988)); State v. Lopez, 115 Ariz. 40, 42, 563 P.2d

295, 297 (App. 1977) (holding that an officer may approach

carport located in unfenced rear yard); see also Florida v.
11
Royer, 460 U.S. 491, 497 (1983) (“[L]aw enforcement officers do

not violate the Fourth Amendment by merely approaching an

individual on the street or in another public place, by asking

him if he is willing to answer some questions, by putting

questions to him if the person is willing to listen, or by

offering in evidence in a criminal prosecution his voluntary

answers to such questions.”).

¶20 Second, the case law on dog sniffs of the exterior of

a residence accessible to the public is far from clear. Dog

sniffs of cars and luggage or other containers in public places

plainly do not constitute searches under the Fourth Amendment.

See Caballes, 543 U.S. at 408-09 (holding that a canine sniff

performed on the exterior of a lawfully detained car

“compromises no legitimate privacy interest”) (quoting United

States v. Jacobsen, 466 U.S. 109, 123 (1984)); State v. Morrow,

128 Ariz. 309, 312-13, 625 P.2d 898, 901-02 (1981) (holding that

a dog sniff of luggage in a public place is not a search); State

v. Martinez, 26 Ariz. App. 210, 212, 547 P.2d 62, 64 (1976),

aff’d and adopted, 113 Ariz. 345, 554 P.2d 1272 (1976) (holding

that use of narcotics dog by police officers, who lawfully

stopped defendants’ vehicle to investigate possible presence of

marijuana, did not constitute a search).

¶21 Notwithstanding these cases, neither this Court nor

the United States Supreme Court has analyzed the
12
constitutionality of dog sniffs conducted at the exterior of a

residence under the Fourth Amendment or the Arizona

Constitution. Moreover, cases from other jurisdictions are

split on whether dog sniffs of the exterior of a residence

violate the Fourth Amendment or their respective state

constitutions. Compare Hoop v. State, 909 N.E.2d 463, 470 (Ind.

Ct. App. 2009) (holding that a dog sniff of a private residence

requires reasonable suspicion to prevent arbitrary searches),

and State v. Dearman, 962 P.2d 850, 853 (Wash. Ct. App. 1998)

(concluding that a dog sniff “expose[d] information that could

not have been obtained without the [use of the dog]” and

therefore use of a trained narcotics dog at a residence

constituted a search under the state constitution) (citation

omitted), with Stabler v. State, 990 So. 2d 1258, 1263 (Fla.

Dist. Ct. App. 2008) (holding dog sniff at front door of

apartment violated no legitimate expectation of privacy, and

therefore, was not a search), and People v. Jones, 755 N.W.2d

224, 229 (Mich. Ct. App. 2008) (holding that defendant had no

reasonable expectation of privacy at entrance of property that

is open to the public, and “[a]ny contraband sniffed by the

canine while on defendant’s front porch . . . fell within the

‘canine sniff’ rule”). Given these circumstances, we conclude

that any supposed “flagrancy of the official misconduct [was] de

minimis.” State v. Blackmore, 186 Ariz. 630, 635, 925 P.2d
13
1347, 1352 (1996); see also Reffitt, 145 Ariz. at 460, 702 P.2d

at 689 (even if police actions in illegally arresting defendant

were “erroneous and regrettable,” they “did not involve flagrant

or purposeful misconduct” so as to taint subsequent confession).

D

¶22 Mrs. Guillen’s consent was sufficiently attenuated

from any alleged prior illegality. Accordingly, the court of

appeals erred in ordering a remand for the trial court to

determine whether the officers’ request for her consent was

based in part on the positive dog sniff. Guillen, 222 Ariz. at

__ ¶ 32, 213 P.3d at 240. Such a determination would be

irrelevant to the question of whether Mrs. Guillen voluntarily

consented. See, e.g., Furrow, 229 F.3d at 814; see also United

States v. Liss, 103 F.3d 617, 621 (7th Cir. 1997) (stating that

“an officer's motivation . . . is irrelevant. . . . The fact

that an officer had actual suspicion, however obtained, cannot

render invalid a consent for which the officer did not need any

suspicion at all to request”) (citation omitted). Therefore,

the trial court did not err in ruling that the evidence seized

from the garage should not be suppressed.

IV

¶23 For the foregoing reasons, we vacate the opinion of

the court of appeals and affirm Guillen’s conviction.

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 _____________________________________
Michael D. Ryan, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

15