                                                                FILED BY CLERK
                                                                    JUN 27 2008
                           IN THE COURT OF APPEALS                  COURT OF APPEALS
                               STATE OF ARIZONA                       DIVISION TWO
                                 DIVISION TWO


THE STATE OF ARIZONA,                       )
                                            )       2 CA-CR 2007-0192
                                Appellee,   )       DEPARTMENT A
                                            )
                   v.                       )       OPINION
                                            )
ROGER DALE TARKINGTON,                      )
                                            )
                             Appellant.     )
                                            )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20063867

                          Honorable John E. Davis, Judge
                    Honorable Frank Dawley, Judge Pro Tempore

                                     AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Amy M. Thorson                                    Tucson
                                                           Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By John F. Palumbo                                                        Tucson
                                                           Attorneys for Appellant


H O W A R D, Presiding Judge.
¶1            After a jury trial, appellant Roger Tarkington was convicted of one count of

possession of a narcotic drug, cocaine base (crack cocaine). The trial court sentenced him

to a presumptive, enhanced prison term of 4.5 years. On appeal, Tarkington argues the trial

court erred in denying his motion to suppress evidence of the crack cocaine and his

statements to police. Finding no error, we affirm.

¶2            We view the facts in the light most favorable to sustaining the trial court’s

ruling, considering only the evidence presented at the suppression hearing. State v. Teagle,

217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App. 2007). Tucson police officers Morales and

Peterson responded to a call regarding narcotics activity at an apartment complex. Although

they heard nothing suspicious in the apartment they had been asked to investigate, they did

hear a voice in the adjacent apartment use a term they understood as a reference to crack

cocaine. Morales and Peterson then stood in front of that apartment and, when the door

suddenly opened, ordered everyone inside to put up their hands. All complied except

Tarkington, who raised his right hand but kept his left hand near the kitchen sink. After

throwing or dropping something into the sink, Tarkington put up his left hand.

¶3            Morales and Peterson ordered everyone out of the apartment and asked the

woman who rented it if there was anyone else inside. She said there was not, but that they

could “look if [they] want[ed].” Peterson then performed a protective sweep of the

apartment and, although he found no other persons, he saw what appeared to be crack

cocaine in the kitchen sink. Peterson left the apartment to tell Morales what he had seen,


                                             2
and Morales returned to seize the cocaine and other evidence. Tarkington later admitted the

cocaine was his.

¶4            After Tarkington was charged with possessing the cocaine, he moved to

suppress any evidence concerning it, along with his statements, on the ground that the

officers’ entry had been unreasonable and the subsequent search and seizure therefore

improper. Following an evidentiary hearing, the trial court concluded Tarkington could not

challenge the sweep of the apartment because he had no expectation of privacy in the

premises and that even if he could challenge the sweep, it was valid based on the renter’s

consent.

¶5            Tarkington argues the trial court erred by denying his motion to suppress

because neither the protective sweep nor the consent exception to the warrant requirement

applies here.1 He expressly disclaims any argument that he had an expectation of privacy

in the apartment, but argues he should have been allowed to challenge the search and

seizure because he had a protected property interest in the crack cocaine.

¶6            Tarkington did not base his argument in the trial court on his property interest

in the crack cocaine. Because he failed to raise this theory below, we review solely for

fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005);


       1
       Although Tarkington also contends his statements to police should have been
suppressed because they were the fruit of the allegedly illegal police conduct, he has failed
to adequately develop this argument, and it is therefore waived. See Ariz. R. Crim. P.
31.13(c)(1)(vi); State v. Burdick, 211 Ariz. 583, n.4, 125 P.3d 1039, 1042 n.4 (App. 2005).


                                              3
see also State v. Rojers, 216 Ariz. 555, ¶ 13, 169 P.3d 651, 654 (App. 2007) (argument not

raised in suppression motion or at suppression hearing forfeited absent fundamental error).

Fundamental error is “‘error going to the foundation of the case, error that takes from the

defendant a right essential to his defense, and error of such magnitude that the defendant

could not possibly have received a fair trial.’” Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d

at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). To succeed

in a fundamental error analysis, Tarkington must show that error occurred, that it was

fundamental, and that it prejudiced him. See id. ¶¶ 20, 23-24.

¶7            Although Tarkington purports to challenge the warrantless seizure of the crack

cocaine, his arguments are based on the search of the residence leading to the seizure, or the

reentry to seize the cocaine, not the seizure itself.2 In order to challenge a search, a person

must first show he had a legitimate expectation of privacy in the area searched. See Rakas

v. Illinois, 439 U.S. 128, 140, 143 (1978); see also Rawlings v. Kentucky, 448 U.S. 98, 104

(1980). Although a property interest in the item seized is a factor in determining whether

there is a legitimate expectation of privacy, it is not alone sufficient to permit a Fourth

Amendment challenge to a search. See United States v. Salvucci, 448 U.S. 83, 91-92

(1980) (possessory interest in property alone insufficient to permit challenge to search); see

also Rawlings, 448 U.S. at 105-06 (defendant could not challenge search of another



       2
        Tarkington does not challenge on appeal the officers’ initial order that the occupants
raise their hands and leave the apartment.

                                              4
person’s purse based solely on claimed property interest in drugs found in purse).3 Because

Tarkington has properly conceded he had no legitimate expectation of privacy in the

apartment, he cannot raise any claims concerning the search of the apartment.

¶8            Tarkington nevertheless contends Soldal v. Cook County, 506 U.S. 56 (1992),

supports his argument. The Court in Soldal held that a party may challenge a seizure based

on an interest in the seized property even if there is no reasonable expectation of privacy

associated with the property interest. See id. at 61-62. The Court clarified that the Fourth

Amendment’s prohibition of unreasonable searches protects the expectation of privacy,

whereas the prohibition of unreasonable seizures protects the expectation against meaningful

interference with property interests. Id. at 63. It did not suggest, however, that a property

interest alone would permit a party to challenge the circumstances of a search and did not

purport to alter the holdings of prior cases expressly rejecting that view. See Rawlings, 448

U.S. at 105-06; Salvucci, 448 U.S. at 91-92.

¶9            Tarkington quotes extensively from Soldal’s discussion of the plain-view

doctrine. See Soldal, 506 U.S. at 65-66. But when examined in context, this discussion

actually illustrates that the Supreme Court considers the privacy and property interests



       3
        This court has suggested that a defendant could challenge a search based on “an
interest in seized property.” State v. Berryman, 178 Ariz. 617, 623, 875 P.2d 850, 856
(App. 1994). But we cited United States v. Jeffers, 342 U.S. 48, 52-54 (1951), for that
proposition, and the Supreme Court has made clear that the defendant in Jeffers could
challenge the search because he had a “possessory interest in both the premises searched and
the property seized.” Rakas, 439 U.S. at 136; see also Salvucci, 448 U.S. at 90 n.5.

                                             5
separately, as we do here. See also Horton v. California, 496 U.S. 128, 133 (1990);

Arizona v. Hicks, 480 U.S. 321, 328 (1987).

¶10           Tarkington also cites several cases from other jurisdictions for the proposition

that police who see contraband while lawfully present on a premises may not leave the

premises and then return to seize the contraband. But, in each of these cases, the defendant

had a legitimate expectation of privacy in the premises and therefore could properly

challenge the search. See People v. Keener, 195 Cal. Rptr. 733, 734 (Ct. App. 1983)

(defendant’s apartment); People v. Bradley, 183 Cal. Rptr. 434, 438 (Ct. App. 1982)

(same); State v. Prewitt, 38 P.3d 126, 128 (Idaho Ct. App. 2001) (defendant’s home);

Middleton v. State, 714 N.E.2d 1099, 1100 (Ind. 1999) (defendant’s bedroom). Because

Tarkington had no expectation of privacy in the premises searched, he cannot challenge the

search or the reentry to seize the crack cocaine. See Rawlings, 448 U.S. at 104; Rakas, 439

U.S. at 140, 143. Therefore, even were we to agree with the results in those cases, they do

not affect our analysis here.

¶11           Consequently, Tarkington could not challenge the search here. See Salvucci,

448 U.S. at 91-92; see also Rawlings, 448 U.S. at 105-06. And he does not challenge the

validity of the seizure independent of the search, nor could he, because an officer who sees

what he believes to be crack cocaine in plain view and can access it without a further search

may seize it without a warrant. See Horton, 496 U.S. at 136-37; Hicks, 480 U.S. at 326;

see also Mazen v. Seidel, 189 Ariz. 195, 197, 940 P.2d 923, 925 (1997). Thus, seizure of


                                              6
the crack cocaine did not violate Tarkington’s Fourth Amendment rights.4 Accordingly, we

find no error, fundamental or otherwise, in the trial court’s ruling denying his motion to

suppress.

¶12          For the foregoing reasons, Tarkington’s conviction and sentence are affirmed.



                                            ____________________________________
                                            JOSEPH W. HOWARD, Presiding Judge



CONCURRING:



____________________________________
JOHN PELANDER, Chief Judge



____________________________________
J. WILLIAM BRAMMER, JR., Judge




      4
       We therefore need not address Tarkington’s argument that the protective sweep was
unlawful and outside the scope of the renter’s consent.

                                            7
