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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  MICHAEL J. STARKOVICH, Appellant.

                             No. 1 CA-CR 17-0004
                             No. 1 CA-CR 17-0011
                                 (Consolidated)
                               FILED 8-21-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-163536-001
                        No. CR2013-002144-004
               The Honorable George H. Foster Jr., Judge
            The Honorable John R. Ditsworth, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee

Stanley M. Slonaker Attorney at Law, Phoenix
By Stanley M. Slonaker
Counsel for Appellant
                          STATE v. STARKOVICH
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.


B R O W N, Judge:

¶1             Michael J. Starkovich appeals his convictions and sentences
for one count of possession of marijuana of four pounds or more and one
count of money laundering in the second degree. Starkovich argues the
trial court erred in refusing to suppress (1) evidence obtained pursuant to
what he deems an invalid search warrant; (2) evidence obtained in a search
initiated prior to issuance of a search warrant; and (3) statements elicited in
violation of his constitutional rights. For the following reasons, we affirm.

                              BACKGROUND

¶2            Police officers found large quantities of marijuana and cash in
Starkovich’s home consistent with drug trafficking. When questioned, he
admitted to selling marijuana. The State charged him with one count of
possession of marijuana for sale and one count of money laundering in the
second degree. A jury found him guilty of the lesser-included offense of
possession of marijuana of a weight of four pounds or more, but could not
reach a unanimous decision regarding money laundering. Starkovich
waived his right to a jury trial and stipulated to proceeding to a bench trial
on the remaining money laundering charge. Following the bench trial, the
court found him guilty of money laundering in the second degree. After
sentencing, he filed a timely notice of appeal.

                               DISCUSSION

  I.   Validity of Search Warrant

¶3            Prior to the jury trial, Starkovich moved to suppress all
evidence obtained pursuant to what he asserts was an invalid search
warrant. At the two-day suppression hearing, police officers testified they
received a tip that Starkovich trafficked marijuana out of his home. On
April 18, 2013, officers conducted “physical surveillance” at his home and
used a pole surveillance camera as an investigative aid. The camera
captured images of the front of his home but did not reveal the innermost
portion of the carport.


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                         STATE v. STARKOVICH
                           Decision of the Court

¶4            Officers saw multiple vehicles coming and going from
Starkovich’s home. As the officers started their physical surveillance, they
observed a Honda that was “backed up into the carport.” Shortly thereafter
they watched Starkovich, who was in a wheelchair, get into a van and drive
away at the same time E.K. was leaving in the Honda.

¶5            Starkovich and E.K. met up with a third person, B.F., driving
an Impala. E.K. and B.F. switched vehicles and, with Starkovich following
behind, E.K. drove the Impala back to Starkovich’s home. E.K. backed into
the carport for a short time and then returned the Impala to B.F. Officers
believed this to be a “blind delivery,” which allows the buyer to mask the
final location of the drugs from the seller. An officer stopped B.F. in the
Impala, but saw no indicia of drug activity in the vehicle.

¶6            After E.K. returned to Starkovich’s home, officers observed
D.W. and R.A. arrive in a Pontiac, carry a bag inside, and then leave with a
bag. Officers stopped the Pontiac and found a bag containing four pounds
of marijuana separated into two bags, additional bags of marijuana,
hashish, drug packaging and sales materials, drug paraphernalia, large
amounts of cash, and a handgun.

¶7           D.W. admitted to buying four pounds of marijuana to split
between himself and R.A. but would not say who sold him the marijuana.
Although he initially denied involvement, R.A. told officers that D.W.
bought marijuana from a man in a wheelchair and gave Starkovich’s street
name as the location of purchase. R.A. claimed he only acted as protection
for D.W. and was in another room when the exchange occurred. R.A.
claimed D.W. simply gave him the bag to carry and he did not buy any of
the marijuana.

¶8            Officers went to Starkovich’s home and contacted Starkovich
and E.K.1 Another individual, G.V., attempted to flee the scene, but was
later detained. Officers then conducted a protective sweep of the home.

¶9             The lead detective, or affiant, prepared the search warrant
affidavit. The affiant described the short-term traffic at Starkovich’s home,
the activity involving the Impala, the results of the search of the Pontiac, a
summary of the statements provided by R.A. and D.W., G.V.’s attempt to
flee the scene prior to the protective sweep, and the affiant’s training and
experience in drug enforcement.


1     The State charged Starkovich, R.A., D.W., and E.K. as co-defendants.
The record does not show the final disposition of the co-defendants’ cases.


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                         STATE v. STARKOVICH
                           Decision of the Court

¶10           The affidavit also stated Starkovich was “arrested in 2011 for
possession of marijuana for sale. He pled guilty and is currently on
probation for that offense.” At the hearing, the affiant testified he later
learned Starkovich pled guilty to a reduced offense of possession of
marijuana. The affidavit also indicated officers discovered the same bag in
the Pontiac that R.A. carried out of Starkovich’s home. The affiant testified
he believed this information to be accurate, and R.A. linked the marijuana
in the bag to Starkovich. The affiant explained that he watched R.A. leave
Starkovich’s house on his smartphone via pole camera surveillance and
testified the bag R.A. was carrying appeared to be black, but later
acknowledged the bag also had “white flowers” on it.

¶11            The affiant did not include the following: (1) officers did not
observe any criminal activity at Starkovich’s home prior to April 18, 2013;
(2) officers did not see any items placed in the Impala or Honda while
backed into the carport; (3) officers stopped the Impala and found no drug
evidence; (4) no vehicles, aside from the Impala and Pontiac, were stopped
after leaving the home; (5) officers discovered additional marijuana,
hashish, and large amounts of cash not directly linked to Starkovich in the
Pontiac; and (6) R.A. initially denied involvement in any criminal activity.
The affiant testified he believed the omitted information was either
irrelevant, unsubstantiated, or part of an ongoing investigation.

¶12            Officers gave conflicting testimony regarding the timing of
the search and the record is similarly unclear. On an audio recording from
the scene that day, officers stated the magistrate signed the search warrant
as early as 6:32 p.m.2 The timestamp from the fax machine indicated the
magistrate faxed the signed search warrant to the affiant at 6:47 p.m. The
affiant noted, however, he could not be positive regarding the accuracy of
the time on the fax machine where the warrant was sent. The affiant’s
police report stated that officers served the search warrant at 6:50 p.m. At
the suppression hearing, Starkovich called an expert in forensic
reconstruction who testified, based upon his review of the evidence, that he
believed the search started as early as 6:39 p.m. The expert acknowledged
a possible margin of error with this estimation.

¶13           Nonetheless, the affiant testified he faxed the affidavit to the
magistrate, received the signed search warrant, and then called officers at
Starkovich’s home to inform them the magistrate had signed the search

2     Although the parties refer to the judicial officer who signed the
search warrant as a “magistrate,” she was a Maricopa County Superior
Court commissioner.


                                      4
                           STATE v. STARKOVICH
                             Decision of the Court

warrant. Officers who were present at the home testified the search did not
occur until the magistrate signed the search warrant. In Starkovich’s home,
officers found six bags of marijuana, drug sales materials, and over $760,000
in cash. In the Honda, they discovered over 40 pounds of marijuana.

¶14           The trial court denied Starkovich’s request to suppress the
evidence obtained pursuant to the search warrant, finding the facts
supported authorization of the search warrant, and the search did not occur
prior to issuance of the search warrant.

       A.      Search Warrant Affidavit

¶15           Starkovich argues the search warrant affidavit omitted
material facts, contained false or misleading information, and the search
warrant would not be supported by probable cause without the false or
omitted information.

¶16           We review the trial court’s factual findings as to whether the
affiant deliberately included false statements or omitted material facts
under the clearly erroneous standard. State v. Buccini, 167 Ariz. 550, 554
(1991). We review the court’s legal conclusions as to whether an accurate
and complete affidavit would still be sufficient to establish probable cause
de novo. Id. at 555-56. We may only consider evidence presented at the
suppression hearing, and “we view it in the light most favorable to
sustaining the trial court’s ruling.” State v. Gay, 214 Ariz. 214, 217, ¶ 4 (App.
2007). Moreover, in cases where “two interpretations of an affidavit may
be equally reasonable, we will not hold as a matter of law that the court
below erred in finding the affidavit sufficient.” State v. Richardson, 22 Ariz.
App. 449, 452 (1974).

¶17           As established in Franks v. Delaware, 438 U.S. 154 (1978), a
defendant is entitled to challenge a search warrant affidavit if he makes a
substantial preliminary showing that (1) the affiant knowingly,
intentionally, or with reckless disregard for the truth included a false
statement in the search warrant affidavit; and (2) the excision of the false
statement or inclusion of the omitted facts renders the search warrant void
of probable cause. See State v. Carter, 145 Ariz. 101, 108-09 (1985) (adding
deliberately or recklessly omitted material facts with the intent to mislead
the magistrate to the Franks analysis); Frimmel v. Sanders, 236 Ariz. 232, 239,
¶ 27 (App. 2014). A defendant must prove the first prong of this test by a
preponderance of the evidence before the court moves to the second prong.
Buccini, 167 Ariz. at 554-56; see also Carter, 145 Ariz. at 109 (“Merely innocent
or negligent mistakes . . . will not satisfy the first prong of the Franks test.”).



                                        5
                           STATE v. STARKOVICH
                             Decision of the Court

¶18             If the first prong is met, the trial court “must redraft the
affidavit by deleting falsehoods and adding the omitted material facts”
before determining the existence of probable cause. Buccini, 167 Ariz. at
554-56. For this analysis, courts employ the flexible approach adopted in
Illinois v. Gates, 462 U.S. 213, 239 (1983). Probable cause exists if the facts in
the redrafted affidavit establish “a fair probability that contraband or
evidence of a crime will be found in a particular place.” Id. at 238. Facts
may include hearsay statements, State v. Poland, 132 Ariz. 269, 280 (1982), as
well as “the collective knowledge of all of the law enforcement agents
involved in the operation and may be viewed in light of an officer’s past
experiences which enable him to interpret the actions of the surveilled
person,” State v. Olson, 134 Ariz. 114, 117 (App. 1982) (citation omitted);
Richardson, 22 Ariz. App. at 450-52 (holding that the affidavit contained
sufficient probable cause where the affiant explained unusual activity was
indicative of drug trafficking based upon his experience). If the redrafted
affidavit lacks probable cause, the evidence seized as a direct result of the
search warrant must be excluded at trial. Poland, 132 Ariz. at 279.

¶19            In this case, the omitted fact that officers found no drug
evidence in the Impala after the “blind delivery” merely corroborated that
B.F. had transferred marijuana to Starkovich and E.K through their receipt
of the Impala. The affiant testified he did not include the information
regarding the stop of the Impala because of an ongoing investigation
related to B.F. Thus, the lack of drug evidence in the Impala was immaterial
and the affiant did not omit this fact with the intent to mislead the
magistrate.

¶20           The omitted fact that D.W. and R.A. possessed additional
items linking them to drug sales was immaterial. The record shows D.W.
and R.A. bought marijuana from Starkovich and any additional
information that they were personally involved in drug sales would be
superfluous and implied from the facts listed within the affidavit. In any
event, the affidavit mentioned that D.W. and R.A. possessed a handgun,
packaging materials, and sales ledgers, all of which indicated to the
magistrate that D.W. and R.A. were personally involved in drug sales.

¶21           Even though the affiant omitted that R.A. initially denied
involvement, the affidavit stated that R.A. denied purchasing marijuana,
contrary to what D.W. claimed. Moreover, nothing from the record
indicates that D.W. and R.A. acted as informants or received any benefit
from speaking with officers. See State v. Summerlin, 138 Ariz. 426, 431 (1983)
(discussing how most informants are individuals seeking favor with
officers by providing information). The affiant’s omission regarding R.A.’s


                                        6
                          STATE v. STARKOVICH
                            Decision of the Court

initial denial did not falsely bolster his statements, mask inconsistencies
between D.W.’s and R.A.’s narratives, or omit information regarding their
work as informants.

¶22           Similarly, omissions that officers did not stop every vehicle
leaving Starkovich’s home, did not see items placed within vehicles parked
directly under the carport, and did not observe criminal activity at his home
prior to April 18, 2013 were immaterial. This information can be drawn
from a common sense reading of the affidavit and did not paint a false
picture of Starkovich’s criminal activity.

¶23            The affiant admitted he did not know Starkovich had pleaded
guilty to a lesser offense at the time he drafted the affidavit. Although the
affidavit incorrectly implied Starkovich pleaded guilty to possession of
marijuana for sale, it accurately reflected his probation status and his prior
arrest for drug sales. This error was “innocent or negligent” at most and it
did not falsely characterize the nature of the arrest. Carter, 145 Ariz. at 109.

¶24           The affiant also testified the bag used by D.W. and R.A.
appeared to be black, and he believed the bag found in the Pontiac matched
the bag R.A. carried out of Starkovich’s home. The record does not clearly
indicate the affiant provided false information regarding the bag, and, in
any event, R.A. admitted the bag in the Pontiac contained marijuana linked
to Starkovich.

¶25           Under these circumstances, Starkovich cannot meet the first
prong of the Franks test, and the trial court did not clearly err in refusing to
suppress evidence obtained pursuant to the search warrant. The affiant did
not intend to create a misleading affidavit or falsely characterize
Starkovich’s role in the course of conduct described within the affidavit. See
Carter, 145 Ariz. at 109; Frimmel, 236 Ariz. at 239, ¶ 27.

¶26          Furthermore, Starkovich did not demonstrate that a redrafted
affidavit under the second prong of the Franks test would lack probable
cause. If we incorporate and correct any omitted or misstated facts, the
affidavit would still show the following:

       • Starkovich’s residence incurred short-term car traffic
       indicative of drug trafficking.

       • Numerous vehicles came to the Starkovich’s home, of
       which two were stopped, and one contained drug evidence.




                                       7
                          STATE v. STARKOVICH
                            Decision of the Court

       • Officers observed a “blind delivery” from the Impala to
       Starkovich’s home.

       • Starkovich’s associates, D.W. and R.A., possessed
       additional marijuana, hashish, and cash.

       • Although R.A. initially denied involvement, he provided
       statements linking Starkovich to marijuana found in the
       Pontiac.

       • No items were seen taken from or placed in the Impala,
       where the trunk was largely concealed by a carport.

       • Officers believed the bag R.A. used to carry marijuana from
       Starkovich’s home matched the bag found in the Pontiac,
       although they could not be certain of its color.

       • An individual attempted to flee from Starkovich’s home
       when officers arrived.

       • Starkovich had previously been arrested for possession of
       marijuana for sale, but ultimately pled guilty to possession of
       marijuana and was on probation for that offense.

The redrafted affidavit demonstrates a “fair probability” that Starkovich
trafficked marijuana out of his home. Gates, 462 U.S. at 239. Thus, the trial
court did not err in finding the affidavit contained sufficient facts to
authorize a search warrant.

       B.     Timing of Search

¶27           Starkovich argues the search of his home occurred prior to the
issuance of the search warrant. Relying heavily upon the search warrant’s
timestamps, he contends the search occurred approximately 30 minutes
before the magistrate faxed the signed search warrant to the affiant.

¶28            We will not disturb the trial court’s factual findings absent a
clear abuse of discretion. State v. Crowley, 202 Ariz. 80, 83, ¶ 7 (App. 2002).
“Accordingly, we will defer to the trial court’s assessment of witness
credibility because the trial court is in the best position to make that
determination.” State v. Olquin, 216 Ariz. 250, 252, ¶ 10 (App. 2007) (citing
State v. Estrada, 209 Ariz. 287, 292, ¶ 22 (App. 2004)).




                                      8
                          STATE v. STARKOVICH
                            Decision of the Court

¶29           Here, the trial court explained that officers approached the
house while a search warrant was being requested. The court found that
“[p]eople began running from the house” and officers “conducted a true
protective sweep throughout the house. They secured the home and all
officers returned outside.” Officers started to speak with Starkovich in his
driveway, but they moved to the rear patio to tape the interview. The court
concluded that the officers “did not begin to search the home until the
warrant was obtained.”

¶30             We defer to the trial court’s determinations regarding witness
credibility, see Olquin, 216 Ariz. at 252, ¶ 10, particularly as to the officers’
testimony regarding the timeline of the protective sweep and the
subsequent search. Officers testified they conducted a quick protective
sweep, exited the home, and waited to conduct the search until they
received a phone call advising them that a magistrate had signed the search
warrant. Although controverting evidence was also presented, supra
¶¶ 12-13, it is not our role to reweigh the evidence; therefore, we cannot say
the court abused its discretion in finding that the protective sweep and the
subsequent search were lawfully conducted.

 II.   Pre- and Post-Miranda Statements

¶31            Starkovich moved to suppress all statements elicited by police
officers, arguing they were obtained in violation of his constitutional rights.
At the suppression hearing, an assisting detective testified that during the
protective sweep, he stood next to Starkovich under the open carport and
they had a “casual” initial conversation. Starkovich was not handcuffed
and sat next to the detective in a wheelchair. The detective informed
Starkovich of the sweep and asked if any individuals or weapons were in
the home. Starkovich then told the detective, “there’s only a little weed,
about a pound of weed in the house.” During that initial conversation, the
detective told Starkovich he would try to help him if Starkovich remained
truthful, but the detective testified he did not make any promises regarding
an arrest or possible jail time. The detective explained that the initial
conversation was not meant to be an interview, he did not record the
conversation, and the focus was to keep Starkovich “comfortable” and
“updated as to the process.”

¶32           Starkovich asked the detective if they could speak in the
backyard for the formal interview. At approximately 6:19 p.m. the detective
read Starkovich Miranda warnings. See Miranda v. Arizona, 384 U.S. 436
(1966). Starkovich acknowledged he understood the warnings, but did not
immediately agree to speak with the detective. The detective noted he


                                       9
                         STATE v. STARKOVICH
                           Decision of the Court

could give Starkovich time to decide and asked for basic information,
including Starkovich’s name, address, and date of birth. After discussing
that information, Starkovich agreed to speak and admitted he had
marijuana and around $600,000 to $700,000 in his home. Starkovich
admitted he sold marijuana to dispensaries. Declining to suppress any of
Starkovich’s statements, the trial court found that officers provided proper
Miranda warnings and did not use threats or coercive behavior.

¶33           Starkovich argues the trial court erred in refusing to suppress
all statements made before and after officers provided Miranda warnings.
He argues he was in custody for purposes of Miranda when officers
contacted him in his carport, was unlawfully interrogated prior to receiving
his Miranda warnings, and, regardless of the reading of his Miranda
warnings, all subsequent questioning was similarly unlawful.

¶34             We review a trial court’s ruling upon the admissibility of a
defendant’s statements for abuse of discretion. Gay, 214 Ariz. at 223, ¶ 30.
We only consider evidence presented at the suppression hearing, and we
view the evidence in the light most favorable to sustaining the ruling. Id.
(citation omitted.) We review de novo the court’s legal conclusions. Id.
“We are required to affirm a trial court’s ruling if legally correct for any
reason . . ..” State v. Boteo-Flores, 230 Ariz. 551, 553, ¶ 7 (App. 2012).

¶35           “[L]aw enforcement officers must provide the well-known
Miranda warnings before interrogating a person in custody.” State v. Maciel,
240 Ariz. 46, 49, ¶ 10 (2016) (citing Miranda, 384 U.S. at 478-79). Even
assuming Starkovich was in custody prior to being given Miranda
warnings, Starkovich’s response to the detective’s question regarding
weapons is admissible nonetheless if it fits within the “public safety
exception.” See New York v. Quarles, 467 U.S. 649, 655–59 (1984). That
exception allows into evidence a statement made by an un-Mirandized
suspect when answering “questions necessary to secure the[] [officers’]
own safety or the safety of the public.” Id. at 658-59. Whether questioning
falls within the public safety exception turns on “whether there was an
objectively reasonable need to protect the police or the public from any
immediate danger.” State v. Ramirez, 178 Ariz. 116, 124 (1994) (quoting
United States v. Brady, 819 F.2d 884, 888 n.3 (9th Cir. 1987)).

¶36            The initial conversation between Starkovich and the detective
falls within the public safety exception. Before asking Starkovich whether
any individuals or weapons were in the home, it was suspected “there was
a large quantity of drugs involved, and any time there is a large quantity of
drugs involved, it’s usually protected by handguns.” Additionally, officers


                                     10
                           STATE v. STARKOVICH
                             Decision of the Court

had already encountered “a handgun in the traffic stop,” and one
individual had fled the residence. The detective who asked Starkovich the
question testified he did it “for officer safety” because the “house had not
been searched yet” and he “fear[ed] . . . being in front of a suspected drug
house where individuals were just seen running from . . . and want[ed] to
protect [him]self.” Accordingly, the question asked fits squarely within the
public safety exception because its purpose was to secure the officers from
any immediate danger.

¶37            Because the initial statements did not violate Miranda,
Starkovich’s post-Miranda statements need not be suppressed based upon
Missouri v. Seibert, 542 U.S. 600, 604, (2004).3 See Maciel, 240 Ariz. at 52, ¶ 29
(finding that because the earlier questioning did not violate Miranda, it was
unnecessary to address defendant’s “argument that, because his earlier
statements violated Miranda, his post-arrest statements should also have
been suppressed based on Missouri v. Seibert”). The record shows
Starkovich was properly Mirandized, understood the warnings, and
voluntarily spoke with the detective. Accordingly, the court did not err in
refusing to suppress Starkovich’s pre- and post-Miranda statements.

                                CONCLUSION

¶38          For the foregoing reasons, we affirm Starkovich’s convictions
and sentences.




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




3      In Seibert, the court held that a “two-step” interrogation technique
designed to elicit a pre-Miranda confession gave the “impression that the
further questioning was a mere continuation of the earlier questions” and
both pre- and post-Miranda statements were inadmissible. Id. at 616-17.


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