                           IN THE COURT OF APPEALS
                               STATE OF ARIZONA
                                 DIVISION TWO


THE STATE OF ARIZONA,                       )
                                            )        2 CA-CR 2003-0254
                              Appellee,     )        DEPARTMENT B
                                            )
                   v.                       )        O P I N IO N
                                            )
TONY DEWAYNE SMITH,                         )
                                            )
                              Appellan t.   )
                                            )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR-20031152

                           Honorable John E. Davis, Judge

                                    REMANDED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and David Wood                                         Phoenix
                                                             Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
 By Stephan J. Mc Caffery                                                   Tucson
                                                            Attorneys for Appellant


E C K E R S T R O M, Judge.
¶1             After a bench trial, the trial court found appellant Tony Dew ayne Smith guilty

of possessing a deadly weapon as a prohibited possessor in violation of A.R.S. § 13-3102 and

sentenced him to a presumptive term of 4.5 years in prison. On appeal, Smith contends the

trial court erred in denying his m otion to sup press the ha ndgun, as serting that law

enforcement officers unlawfully entered his home and conducted a search. We conclude the

trial court failed to apply the correct standard in determining whether the officers had

lawfully entered Smith’s residence, and we remand the case to permit a redetermination of

the issue under the proper standard.

                                       BACKGROUND

¶2             We view the evidence presented at the suppression hearing an d the reason able

inferences therefrom in the light most fa vorabl e to uph olding the rulin g. State v. Rodriguez,

205 Ariz. 392, ¶ 34, 71 P.3d 919, 929 (App. 2003). At that hearing, the parties stipulated that

Pima Cou nty Sh eriff ’s Depar tmen t off icers , Sergean t Mu rphy a nd Deputy Heath, had

possessed a valid warrant to arrest Smith when they approached his residence, a trailer

located on rugged, isolated, desert terrain near Arivaca. Because they knew Smith had

evaded arrest in the past, the officers watched the trailer for approximately fifteen minutes

from a nearby hillside to assure that he was present. When they saw Smith carrying groc ery

bags into the trailer, the officers approached the trailer in two separate squad cars from

different directio ns. As soon as Smith sa w one o f the office rs, he fled fro m the trailer into

the desert, leaving “drag marks” in the soil so Deputy Heath was able to follow his path.



                                                2
¶3            While Heath pursued Smith, Murphy handcuffed and interviewed three people

who were standing in the area of Smith’s trailer. 1 Sergeant Murphy then joined the search

for Smith. The officers pursued Smith on foot separately for about forty-five minutes,

leaving their patrol cars at his trailer. Deputy Heath testified that he had followed footprints

in a sandy w ash tha t began in the sa me loc ation w here the drag m arks en ded. He followed

the footprints for about one hundred fifty yards before losing them after the tracks circled

back toward the area of the trailer. Unable to locate Smith in the desert, the officers returned

to his trailer, knocked on the door, and announced their presence. When they received no

response, they entered the trailer and found the prohibited weapon and other contraband.

¶4            According to Heath, the general direction of the last visible footprints, coupled

with the fact that Murphy had not been watching the trailer the entire time, had caused the

officers to enter the traile r to “make sure Smith had not re-entered” it. According to M urph y,

the officers had entered the trailer because they had believed Smith “may have circled back”

and, therefore, had “reaso n to believe he may hav e” returned to the trailer.

¶5             Smith moved to suppress the evidence, arguing that the officers could not

lawfully enter his residence, even though they possessed an arrest w arrant, witho ut probab le

cause to believe he was within the trailer. Smith asserted they had lacked such cause. In a


       1
       The officers disagreed whether those people were released before or after Sergeant
Murphy joined H eath’s chas e of Sm ith. Accord ing to Dep uty Heath, they w ere still in
handcuffs when he returned to the trailer after pursuing Smith. Sergeant Murphy testified,
however, that he had released them bef ore he had joined He ath in the un successfu l pursuit
of Smith.

                                               3
terse ruling, the trial judge denied Smith’s motion, stating: “The deputies had a valid arrest

warrant for the Defendant and they believed he may have returned to his trailer home.

Therefore, their ent ry was law ful.” The court did not provide any further factual findings or

conclusions of law. Smith now challenges that ruling.

                                         DISCUSSION

¶6             In reviewing the denial of a motion to suppress evidence , we defe r to the trial

court’s factual determinations, but the ultimate ruling is a conclusion of law we review de

novo. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). The

United States Supreme Court has “consistently held that the entry into a home to c onduct a

search or make an arrest is unreasonable . . . unless done pursuant to a warrant” or exigent

circumstances are pres ent. Steagald v. United States, 451 U.S. 204, 211-12, 101 S. Ct. 1642,

1647, 68 L. Ed . 2d 38, 45 (1981).

¶7             Here, the officers had a valid warrant to a rrest Smith b ut not to searc h his

home. However, “an arrest warrant founded on probable cause implicitly carries with it the

limited authority to enter a dwelling in which the suspect lives when the re is reason to

believe the suspect is within.” Payto n v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371,

1388, 63 L. Ed. 2d 639, 661 (19 80) (emphasis add ed). 2 Smith contends this stand ard


       2
         In Steagald , 451 U.S. at 213, 101 S. Ct. at 1648, 68 L. Ed . 2d at 51, the C ourt held
that a search w arrant is required w hen offic ers seek to enter the home of a third party to arrest
someone else pursuant to a warran t. This case involved Sm ith’s own residence, ho wever,
so Payton, not Steagald , applies. In this case, Smith does not argue that the trailer was not
his residence or that the officers n eeded a search w arrant. But see United States v.

                                                 4
prohibits officers from entering a private residence to execute an arrest warrant unless they

have probable cause, based on an objective assessment of the totality of the circumstances,

to believe the suspect is within. Smith asserts the trial court erred because: (1 ) it implicitly

upheld the search of his residence based on the mere possibility that he might be found

therein, and (2) becaus e it anchore d its analysis on the subjective views of the officers rather

than on an objective assessment of whether the officers had possessed adeq uate cause to

enter his home, given the totality of the circumstances.3

¶8             The state counters that, once in possessio n of an arrest warrant, the officers

needed only a reason to believe that Smith “might be hiding inside” to law fully enter his

trailer. (Emphasis added.) In so doing, the state endorses the trial court’s implied conclusion

that the mere po ssibility of officers finding a suspect within his or her residence should be

adequate to autho rize the o fficers ’ entry wh en they p ossess a n arrest w arrant. See The Oxford




Underwood, 717 F.2d 482, 484 (9th Cir. 1983) (for purpo ses of dete rmining w hether rights
were violated, no distinction be tween third-party home an d suspect’s own re sidence).
       3
        Smith was on probation at the time the officers entered his home. Moreover, the
arrest warrant the officers sought to execute by entering Smith’s home apparently arose from
his alleged violations of probation and was issued at the request of his probation officer. We
note that probationary status may reduce a defendant’s expectation of privacy and freedom
from police s earche s. See Un ited States v. K nights, 534 U.S. 112, 119-20, 122 S. Ct. 587,
591-92, 151 L. E d. 2d 497 (2001); Portillo v. United States District Court, 15 F.3d 819, 823
(9th Cir. 1994) ; State v. Turner, 142 Ariz. 138, 142, 688 P.2d 1030, 1034 (App. 1984).
Because the effect of Smith’s probationary status on the appropriate standard for lawful entry
was not raised by the state below or on appeal, because it was not addres sed by the trial co urt,
and because we do not possess an a dequate record of Smith’s probation, we do not address
that issue.

                                                 5
Dictionary and Thesaurus 946 (Am. ed. 1996) (defining “might” or “may” as “expressing

possibility”).

¶9               Although numerous state and federal appellate courts have addressed what

level of cause officers must have to satisfy the reason-to-believe standard set forth in Payton,

the United S tates Supre me Cou rt has not am plified its analysis of the que stion. See 3 Wayne

R. LaFa ve, Search and Seizure § 6.1(a), at 226 (3d ed. 1996) (“Just what [the reason-to-

believe standard] m eans con tinues to be a matter of co nsiderable u ncertainty.”); see also

United States v. Mag luta, 44 F.3d 1530, 1534 (11th Cir. 1995) (noting that the Supreme

Court has failed to furthe r define the reasonable-b elief standard set forth in Payton). Only

one Arizona court has addressed the issue in a case that predated Payton by four years and

that rested its analysis on an Arizona statute.4 State v. Hiralez, 27 Ariz. App. 393, 395, 555

P.2d 362, 364 (1976). There, Division One applied the same reason-to-believe standard that

the Court would eventually adopt in Payton, but, as in Payton, did not define it further.

Hiralez, 27 Ariz. App. at 395, 555 P.2d at 364.

¶10              Thus, neither the United States Supreme Court nor any Arizona court has

squarely addressed the p rima ry question presented by the trial court’s order in this case:

whether officers possess a reason to believe that a suspect is within his or her residence when

circumstances suggest that the suspect “may” be found there, or whether that belief must be


       4
        See forme r A.R.S. § 13-1411, now A.R.S. § 13-3891. 1977 A riz. Sess. Laws,
ch. 142, § 134. The statute, of course, must comply and be interpreted consistently with
federal and state constitutional principles.

                                               6
based instead on circumstances that demonstrate that the suspect is “probably” within the

premises. We conclude that the explicit commands of the United States and Arizona

Constitutions, the language of the Payton standard, and the weight of relevant cas e authority

all compel the conclusion that the reason-to-believe standard re quires a leve l of reason able

belief similar to that required to support probable cause.

¶11           Prelimin arily, we observe that the stan dard the trial court ap plied in evaluating

the lawfulne ss of the sea rch departs from the w ording of the standard set forth in Payton.

As noted, Payton authorizes officers who possess a valid arrest warrant to enter a residence

in which the suspect lives “when there is reason to believe the suspect is within.” 445 U.S.

at 603, 100 S. Ct. at 1389, 63 L. Ed. 2d at 661. By contrast, the trial court found the officers’

entry into Smith’s residence lawful because “they believed he may have returned to his trailer

home .” (Emphasis add ed.) In support of that ruling, the state similarly argues that the

reason-to-believe standard was met under the facts of this case because the officers had

believed Smith “might be” hiding inside his trailer. 5 (Emphasis added.) But the Payton

standard contains no such conditional language. Rather, it requires that officers possess a

reasonab le belief that a s uspect “is” within the residence before they enter. Id. at 603, 100

S. Ct. at 1388, 63 L. Ed. 2d at 661.




       5
         During oral argument, the state retreated from this position and conceded that the trial
court’s use of the conditional tense does not track the language of the Payton standard. The
state argued, however, that the evidence presented at the suppression hearing would have
justified the o ffic ers’ e ntry even if the court had use d the standard requ ired by Payton.

                                               7
¶12           Although the Court did not use the term “probable cause” in describing the

condition p recedent to entry of a suspect’s residence, an d although it clarified that officers

need not acquire a separate m agisterial findin g that a susp ect is likely within the residence,

its reason-to-b elieve stand ard bears a striking paralle l to the Court’s own previous

articulation of the pro bable-c ause sta ndard. Payton, 445 U.S. at 603, 100 S. Ct. at 1389, 63

L. Ed. 2d at 661. In United Sta tes v. Watson, 423 U.S. 411, 422, 96 S. Ct. 820, 827, 46

L. Ed. 2d 59 8, 608 (19 76), a case sp ecifically referred to in Payton, the Court defined

probable cause to arrest as “reasonable cause to believe that the person to be arrested has

committed a felony.” (Em phasis add ed.) Our sta te suprem e court has d escribed pr obable

cause in essen tially the sam e fashio n. State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062,

1069 (1996) (“‘T he police h ave prob able cause to arrest when reasonably trustworthy

information and circumstances would lead a person of reasonable caution to believe an

offense has been committed by the suspect.’”) (emph asis add ed), quoting S tate v. Moorman,

154 Ariz. 578, 582, 744 P.2d 679, 683 (1987). Thus, the Payton reason-to-believe standard

echoed the pro bable-c ause sta ndard i n use at that time , Watson, and parallels the probable-

cause s tandard used in Arizon a today. Spears.

¶13           Federal and state appellate courts that have addressed the reason-to-believe

standard set forth in Payton have disag reed wh ether that stan dard shou ld be explicitly

characterized as equivale nt to the prob able-cause standard.       Compare United States v.

Gorman, 314 F.3d 1105, 1111-15 (9th Cir. 2002) (concluding reasonable-belief standard of



                                               8
Payton embodies the same standard of reasonableness inherent in probab le cause ), and State

v. Blanco, 614 N.W.2d 512, 516 (Wis. Ct. App. 2000) (explicitly requiring probable cause

to believe suspec t is hom e), with Valdez v. McPheters, 172 F.3d 1220, 12 24-25 (10th Cir.

1999) (criticizing Ninth Circuit authority that had required sh owing o f probab le cause to

believe defendant resided a t location where arrest warra nt executed ); United States v. Route,

104 F.3d 59, 62 (5th Cir. 1997) (distinguish ing reasonable belief an d probable cause);

Comm onwea lth v. Silva, 802 N.E.2d 53 5, 540 n.6 (Ma ss. 2004) (same); and Green v. State,

78 S.W.3d 60 4, 612 (Tex. Ct. A pp. 2002) (same).

¶14           But the dispute has been more anc hored in semantics than substance. Those

courts that have distinguished reasonable belief from probable cause have done so not

because those stand ards require differing le vels of certainty necessary to justify a police

action. Rather, they ha ve done s o becaus e “probab le cause” has beco me a term of art and has

traditionally engendered a need for an additional magisterial finding to authorize police

action. E.g., Route , 104 F.3d at 62; Maglu ta, 44 F.3d at 1534-3 5; Green, 78 S.W.3d at 612.

In the same breath that they distinguish r eason to b elieve from probable cause, those courts

concede that the reason-to-believe standard requires that the officers reasonab ly believe that

“‘“the suspect is probably within ”’” the p remise s. Route, 104 F.3d at 62 (emphasis added ),

quoting United States v. Woods, 560 F.2d 660, 665 (5th Ci r. 1977 ), quoting United States v.

Cravero, 545 F.2d 406, 421 (5th Cir. 197 6); accord Magluta, 44 F.3d at 1 535; see also

Green, 78 S.W .3d at 612; Valdez, 172 F.3d at 1224-25, 1228 (distinguishing reason-to-



                                               9
believe standard from probable-cause standard but finding that officers had possessed

reasonable belief beca use they had concluded suspect “would likely be pres ent inside”).

¶15            Thus, the case authority does not uniformly equate the reason-to-believe

standard with the probable-cause standard. But the weight of that authority supports the crux

of Smith’s contention—that officers must have an objectively reasonable belief that a suspect

is probably home before they may en ter it to ex ecute a n arrest w arrant. The state has cited

no case that authorizes entry into a home to execu te an arrest warrant based o n the mere

suspicion o r mere pos sibility that a suspec t “might” b e present.

¶16            As Smith points out, the distinction is far from acad emic.             The state’s

interpretation of the reason-to-believe standard, with its use o f condition al languag e, parallels

the reasonable-suspicion standard of Terry v. O hio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20

L. Ed. 2d 889, 9 11 (1968 ), which the Suprem e Court ad opted for a n entirely differe nt, limited

purpose. In Terry, the Court h eld that

               where a police officer observes unusual conduct which leads
               him reasonably to conclude in light of his experience that
               crim inal a ctivi ty may be afoot and that the persons with whom
               he is dealing may be armed and presently dangerous, whe re in
               the course of investigating this behavior he identifies himself as
               a policeman and makes reasonable inquiries, and where nothing
               in the initial stages of the encounter serves to dispel his
               reasonab le fear for his own or others’ safety, he is entitled for
               the protection o f himself a nd others in the area to cond uct a
               carefully limited search of the oute r clothing of such perso ns in
               an attempt to dis cover w eapons w hich migh t be used to a ssault
               him.




                                                10
Id. at 30-31, 88 S. Ct. at 1884-85, 20 L. Ed. 2d at 911 (emphasis added). The Court adopted

the Terry standard as a specific exception to probable cause largely to ensure the safety of

law enforcement officers; the exception only justifies a limited public encounter with, and

intrusion upon, a suspec t. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26,

75 L. Ed. 2d 229, 238 (“An investigative detention must be temporary and last no longer than

is necessary to effectuate the purpose of the stop [and] . . . the investigative methods

employed should be the least intrusive m eans reasonably available to dispel the o fficer’s

suspicion in a short pe riod of time .”); State v. Winegar, 147 Ariz. 440, 447, 711 P.2d 579,

586 (1985) (“Terry stops are tolerated as an exception to the probable cause requirement of

the Fourth Amen dment be cause they are brief and a s narrow ly circumscribed as poss ible.”).

¶17           By contrast, the reason-to-believe standard set forth in Payton guards against

unwarranted intrusions into a suspect’s home. As the Court observed in th at case, “the

‘physical entry of the home is the chief evil against which the wording of the Fourth

Amendment is directed.’” Payton, 445 U.S. at 585-86, 100 S. Ct. at 1379-80, 63 L. Ed. 2d

at 650, quoting United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125,

2134, 32 L. Ed. 2d 752, 764 (1972). The Court continued:

              The Fourth Amendment protects the individual’s privacy in a
              variety of settings. In none is the zone of p rivacy more c learly
              defined than when bounded by the unambiguous physical
              dimensions of an individual’s home—a zone that finds its roo ts
              in clear and sp ecific cons titutional terms: “The right of the
              people to be secure in their . . . houses . . . shall not be viola ted.”
              That language unequivocally establishes the proposition that
              “[a]t the very core [of the Fourth Amendment] stands the right
              of a man to retreat into his own home and there be free from
              unreas onable govern menta l intrusio n.”

                                                11
Id. at 589-90, 100 S. Ct. at 1381-82, 63 L. Ed. 2d at 653 (alterations in Payton), quoting

Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 683, 5 L. Ed. 2d 734, 739

(1961). Our own constitution contains a similarly specific prohibition against unwarranted

governmental invasio ns into a person ’s hom e, Ariz. C onst. art. I I, § 8 (“No person shall be

disturbed in his private affairs, or his home invaded, without authority of law.”), and our

supreme court has vigilant ly enforc ed that p rohibitio n. State v. Bolt, 142 Ariz. 260, 265, 689

P.2d 519, 52 4 (198 4), approved as modified, 142 Ariz. 260, 269, 689 P.2d 519, 528 (1984)

(finding home entry without warrant and without exigent circumstances unlawful under “our

own constitutional prov ision”).

¶18            Thus, when w e apply the pro tections of th e Fourth Amendment as interpreted

by the United States Supreme Court and the protections of our state constitution, we cannot

equate the officers’ intrusion into the sanctity of Smith’s residence to the limited

investigative intru sion s authorized b y Terry and its progeny. Therefore, we reject the state’s

suggestion that we interpret the rea son-to-believ e standard s et forth in Payton as authorizing

entry into Smith’s home based merely on the officers ’ reasonab le suspicion that he “m ight”

be found within.

¶19            For all the above reasons, we conclude that the trial court erred when it found

the officers’ en try into Smith’s traile r lawful m erely because the officers believed he might

have returne d there. A mere p ossibility is n ot enou gh. Cf. State v. Piller, 129 Ariz. 93, 96,

628 P.2d 976, 979 (App. 1981) (to avoid “knock and announce” requirement before entering



                                               12
residence pursuant to arrest warrant based on firearms in the premises, officers must

“reasonab ly believe” w eapon w ill be used ag ainst them, “a nd this belief must be based on

specific facts and n ot on broa d, unsupp orted presu mptions”).            T o comply with the

requireme nts of the Fourth Amendment a s set forth in Payton, officers may not enter a

suspect’s home to execute an arrest warrant unless they possess a reasonable belief that the

suspect is probably home.

¶20            Given our conc lusion that the trial court app lied an inap propriate stan dard in

determining the lawfulness of the officers’ entry into Smith’s home, we need not address

whether the court’s terse ruling inappropriately anchored its factual conclusions on the

subjective beliefs of the officers. The trial court found that the officers had “believ ed” Smith

might be in the trailer. In so doing, the court neglected to state whether it had found those

beliefs to be objectively reasonable based on the totality of the circumstances. On remand,

it should do so. See Valdez, 172 F.3d at 1225-26. (“[E]ntry into a residence pursuant to an

arrest warrant is permitted when ‘the facts and circumstances within the knowledge of the

law enforcement agents, when viewed in the[ir] totality, must warrant a reasonab le belief .

. . that the s uspect is within the resid ence a t the time of entry.’” ) (emph asis add ed), quoting

Maglu ta, 44 F.3d a t 1535; see also State v. Spears, 184 Ariz. at 284 (requiring similar

reasonableness finding to support probable ca use to search).

¶21            Because Smith challenged the credibility of the officers’ testimony based on

their behavior once they entered the trailer, because it is not our function to evaluate the



                                                 13
demeanor of witnes ses, and be cause the re cord befo re us does n ot contain pertinent facts

bearing on whether the officers had a reasonable belief that Smith was within the trailer, we

remand the case to the trial court for a hearing to e valuate the e vidence u nder the ap propriate

standards. See State v. Barber, 823 P.2d 1068, 1076 (Wash. 1992) (remanding case for

further factual findings when those gleaned from suppression hearing insufficient for

appellate review of stop ’s lawfulness).




                                                 ______________________________________
                                                 PETER J. ECKERST ROM, Judge

CONCURRING:




____________________________________
PHILIP G. ESPINOSA, Chief Judge




____________________________________
JOHN PELA NDER, Presiding Judge




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