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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JORDAN KAY PETERMAN, Appellant.

                             No. 1 CA-CR 15-0710
                               FILED 12-20-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201301480
               The Honorable Lee Frank Jantzen, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David Simpson
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                           STATE v. PETERMAN
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1            Jordan Kay Peterman appeals her convictions and sentences
for conspiracy to possess, sell, transport and transfer marijuana and
possession of marijuana for sale. For the reasons that follow, we affirm.

                             BACKGROUND1

¶2            On August 15, 2013, several local, state, and federal agencies
participated in a “roundup” of subjects who had been indicted as part of an
investigation by the Bureau of Alcohol, Tobacco and Firearms (A.T.F.). Led
by A.T.F. Special Agent T. M., a team of eight to ten officers was tasked with
locating and arresting Joshua Gunter, who was charged with buying and
selling stolen firearms. Detective S. conducted a database search through
the Mohave County Sheriff’s Office and learned Gunter’s last known
address, an address Gunter had provided to a police officer during a March
2013 field interview. The team then drove to that address (the residence)
and the officers spread out to “set up a perimeter.”

¶3           From his vantage point in the unfenced yard of a neighboring
house that was situated “a little higher” than the residence, Detective B.
could see over the wall enclosing the residence’s backyard. While scanning
the yard, Detective B. saw a large marijuana plant, and relayed that
information to the officers positioned at the front door of the residence.

¶4             With the officers all in place, Detective S. then knocked at the
front door. After waiting for a brief period with no response at the door,
Detective S. knocked “loudly” and shouted “police.” Again, no one
answered the door. Detective S. then began looking through windows and
spotted a “bong,” commonly used for smoking marijuana, on the coffee
table in the living room. Another officer noticed an “empty holster” in the


1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).



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                           STATE v. PETERMAN
                            Decision of the Court

back of a vehicle located in front of the residence. That officer also observed
that the car’s keys were in the ignition and the windows were rolled down.

¶5            After several minutes of knocking and shouting, Detective S.
concluded that there were occupants in the home who were attempting to
avoid the police. Although Detective S. did not believe the bong and plant
were in danger of immediate destruction, he became “concern[ed]” that the
occupants may be attempting to destroy other evidence. At that point,
Detective S. “check[ed] the door,” found it unlocked, and the officers, with
guns drawn, went inside.

¶6           Upon entry, the officers conducted a protective sweep of the
residence and located and handcuffed two men (John Monteiro and Joshua
Lee) and two women (Candice Wirth and Peterman). The officers also
collected two firearms, a bag containing marijuana, other drug
paraphernalia, and what appeared to be grenades located in an open purse.

¶7             Within “the first five or ten minutes” of entry, the officers
learned that Joshua Gunter did not live at the residence and none of the
occupants knew him. The occupants also informed the officers that their
marijuana was legal under the Arizona Medical Marijuana Act (AMMA).
Arizona Revised Statutes (A.R.S.) sections 36-2801 to -2819 (2010). Indeed,
Lee and Peterman produced patient AMMA cards and Monteiro provided
the officers with both patient and caregiver AMMA cards. Agent M. then
asked for consent to search the house and Monteiro refused, so Detective S.
left to obtain a search warrant.

¶8            Meanwhile, other officers removed Peterman’s handcuffs and
told her she was free to leave but could not return to the residence until a
search was conducted. Peterman did not leave, however, and was then
instructed not to move about without permission. Although no officer
informed Peterman of her Miranda2 rights, Agent M. inquired about her
drug use. In response to Agent M.’s questions, Peterman admitted that she
obtained marijuana from Monteiro, but claimed her use was legal under the
AMMA. Indeed, she told Agent M. that she had previously been subjected
to a vehicle stop and was released, notwithstanding her possession of
marijuana, because the amount was in compliance with the AMMA and she
held a valid AMMA card. Peterman also admitted distributing marijuana
to other cardholders for Monteiro, but likewise claimed her conduct was
legal under the AMMA.



2      See Miranda v. Arizona, 384 U.S. 436 (1966).


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                          STATE v. PETERMAN
                           Decision of the Court

¶9             When Detective S. returned with the search warrant, officers
seized six marijuana plants, bagged marijuana, business cards that read
“Medical Marijuana Serving Mohave County,” pipes, bongs, scales and
unused baggies. The officers also seized cellular phones containing text
messages, in which Monteiro and Peterman arranged transfers of
marijuana to other AMMA card holders. Two of Peterman’s text messages
specifically stated that such transfers would be for profit.

¶10           The State charged Peterman and Monteiro with one count of
conspiracy to possess, sell, transport and transfer marijuana (Count 1), one
count of possession of marijuana for sale (Count 2), one count of production
of marijuana (Count 3), one count of possession of drug paraphernalia
(Count 4), and one count of misconduct involving weapons (Count 5). At
trial, Monteiro and Peterman asserted an affirmative defense of immunity
from prosecution under the AMMA. Peterman did not take the stand, but
Monteiro testified that he never distributed marijuana for profit. The jury
found Peterman guilty of Counts 1 and 2, not guilty of the remaining
counts, and Monteiro not guilty of all charges. The trial court sentenced
Peterman to an eighteen-month term of probation. Peterman timely
appealed. We have jurisdiction pursuant to A.R.S §§ 12-120.21(A)(1) (2003),
13-4031, and -4033(A)(1) (2010).

                              DISCUSSION

¶11            Before trial, Peterman filed a motion to suppress both the
physical evidence seized from her home and her statements to police
officers. Peterman argued the officers’ warrantless entry into her home was
illegal because: (1) the officers did not have probable cause to believe that
the subject of the federal arrest warrant, Joshua Gunter, resided at her home
or was presently at that address, and (2) no exigent circumstances otherwise
justified a warrantless entry. She also argued that she was subjected to
custodial interrogation without being advised of her Miranda rights.

¶12           After holding a two-day evidentiary hearing and taking the
matter under advisement, the trial court issued a detailed ruling on the
motion. The court found that Peterman’s residence was one of four possible
addresses known to law enforcement for Joshua Gunter and the officers
failed to verify the validity of that address through reasonably available
measures, such as surveillance, consulting with local utility companies, or
cross-checking other government databases. Because there was no reason
to believe an attempt to substantiate the address would have been unduly
burdensome, the court found that law enforcement officers “demonstrated
a reckless disregard for the accuracy of the information underlying the


                                     4
                          STATE v. PETERMAN
                           Decision of the Court

arrest warrant” and “did not reasonably believe the subject of the arrest
warrant was in [Peterman’s] home.” The trial court also found there was
no evidence of hot pursuit or any other exigent circumstance to justify a
warrantless entry, noting the marijuana plant and bong were not vulnerable
to immediate destruction and there was “no indication of any activity by
the occupants inside or outside of the home.” Accordingly, the trial court
found that law enforcement officials’ entry into Peterman’s home “was
unlawful.”

¶13           Nonetheless, the trial court denied the motion to suppress,
concluding the search warrant was supported by probable cause and the
subsequent search was therefore lawful. In making this finding, the court
excised the factors supporting probable cause for the search warrant that
were based on the officers’ observations after they illegally entered
Peterman’s home, and determined sufficient probable cause remained to
support the search warrant, namely, the marijuana plant and bong that
were observed before entry.3 The court further found that law enforcement
acted in good faith and without delay in obtaining and executing the search
warrant. Finally, the court found that Peterman, who had been told she
could leave the premises, was not in custody when questioned and
therefore her statements were voluntary and “Miranda warnings were not
required.”

¶14           “We review the denial of a motion to suppress for an abuse of
discretion, considering only the evidence presented at the suppression
hearing and viewing the facts in the light most favorable to sustaining the
ruling.” State v. Manuel, 229 Ariz. 1, 4, ¶ 11 (2011) (internal citations
omitted). We review de novo, however, mixed questions of law and fact
that implicate constitutional rights. State v. Soto, 195 Ariz. 429, 430, ¶ 7
(App. 1999).

¶15          Both the Fourth Amendment to the United States
Constitution and Article 2, Section 8, of the Arizona Constitution “proscribe
unreasonable search and seizure by the state.” State v. Ault, 150 Ariz. 459,
463 (1986); U.S. Const. amend. IV; Ariz. Const. art. 2, § 8. The unlawful
entry of homes was the “chief evil” these constitutional provisions were
“designed to prevent.” Ault, 150 Ariz. at 463. The Arizona Constitution
provides even greater protections for the sanctity of the home “than its


3             Although the trial court’s ruling references six marijuana
plants that “were readily observed by officers,” Detective B. testified to
seeing a single marijuana plant before the officers entered the residence.



                                     5
                           STATE v. PETERMAN
                            Decision of the Court

federal counterpart,” and, “[a]s a matter of Arizona law, officers may not
make a warrantless entry into a home in the absence of exigent
circumstances or other necessity.” Id. at 463, 466.

¶16           The trial court held, and the parties agree, that the initial
warrantless entry into Peterman’s home was unlawful. Contrary to the
court’s further finding, however, Peterman contends that the subsequent
search pursuant to a warrant violated her rights against unreasonable
search and seizure.

¶17            “The exclusionary rule suppresses or excludes the
introduction at trial of illegally obtained evidence[.]” Ault, 150 Ariz. at 465.
That is, evidence “seized during, or obtained as a result of, a warrantless
entry [into a] defendant’s home without the excuse of exigent
circumstances” must be “suppressed as the fruit of the illegal entry.” State
v. Bolt, 142 Ariz. 260, 263 (1984).

¶18            An exception to this rule is the independent source doctrine,
which permits the admission of evidence “seized as a result of knowledge
attributed to an independent source[.]” Id. Stated differently, evidence
seized during the execution of a search warrant is not tainted by an initial
warrantless entry if “the warrant was based on information legally
obtained.” State v. Martin, 139 Ariz. 466, 477 (1984). “The basic premise of
the independent source doctrine is that the police should not be placed in a
worse position than they would have been in, absent the illegal conduct.”
State v. Gulbrandson, 184 Ariz. 46, 58 (1995). When “a later, lawful seizure
is genuinely independent of an earlier, tainted one,” there is “no reason
why the independent source doctrine should not apply.” Murray v. United
States, 487 U.S. 533, 542-43 (1988).

¶19             Moreover, when the probable cause supporting a search
warrant included information “learned during an initial unlawful entry,”
as well as other information from independent sources, exclusion of the
seized evidence is not necessarily required. Gulbrandson, 184 Ariz. at 58.
Instead, the “proper method for determining the validity of the search . . .
is to excise the illegally obtained information from the affidavit and then
determine whether the remaining information is sufficient to establish
probable cause.” Id. “In addition, the state must show that information
gained from the illegal entry did not affect the officer’s decision to seek the
warrant or the magistrate’s decision to grant it.” Id.

¶20          Here, the trial court properly excluded the information
supporting the search warrant that was learned during the initial unlawful



                                       6
                            STATE v. PETERMAN
                             Decision of the Court

entry, and found the remaining portions of the affidavit provided sufficient
information to support a determination of probable cause. “Probable cause
exists when the facts known to a police officer would warrant a person of
reasonable caution in the belief that contraband or evidence of a crime is
present.” State v. Sisco, 239 Ariz. 532, 535, ¶ 8 (2016) (internal quotation
omitted). Although the AMMA has legalized the use of marijuana “for
medicinal purposes under the terms and conditions set forth in that Act,”
and marijuana possession “no longer necessarily reflects criminal activity
under Arizona law,” the presence of marijuana, nonetheless, warrants the
reasonable belief that “there is a fair probability that contraband or
evidence of a crime is present.” Id. at 536, ¶¶ 14-16. Accordingly, because
knowingly possessing, using, or producing marijuana is contrary to
Arizona law absent authorization under the AMMA, see A.R.S. § 13-3405(A)
(2010), the marijuana plant and bong observed in plain view before the
officers’ initial entry provided a reasonable basis to believe a crime was
occurring.

¶21           This is not the end of the inquiry, however. The State must
also demonstrate that the officers’ intent to seek a search warrant was
independent of their illegal entry into Peterman’s home. Gulbrandson, 184
Ariz. at 59. The trial court did not make an express finding on this issue.
As the State notes, however, Detective S. testified that, in a typical situation,
he would have followed up on an observation of a marijuana plant with a
search warrant. This testimony was uncontroverted. Therefore, because
the record supports a finding that the officers would have sought a search
warrant independent of the information they learned after their unlawful
entry, we cannot say the trial court erred by finding the search warrant was
supported by probable cause.

¶22           In the alternative, Peterman also contends that the seized
evidence should have been suppressed because the officers were dilatory
in obtaining the search warrant. Specifically, Peterman argues the passage
of four and one-half hours between the officers’ illegal entry into her home
(8:35 a.m.) and Detective S.’s subsequent return with a signed search
warrant (12:56 p.m.) was unreasonable.

¶23           Police may lawfully secure premises without violating a
property owner’s constitutional rights “[s]o long as there is no
unreasonable delay in seeking and procuring a search warrant[.]” State v.
Broadfoot, 115 Ariz. 537, 539 (1977). In this case, there is no evidence of
unreasonable delay. After the officers entered the residence, conducted a
protective sweep, spoke with the occupants regarding Gunter, and
requested consent for a search, Detective S. left the residence and drove


                                       7
                            STATE v. PETERMAN
                             Decision of the Court

directly to the Mohave County Sheriff’s Office to draft a search warrant and
affidavit. Detective S. testified that he worked as quickly and diligently as
possible to secure the warrant, even foregoing his lunch. Because the
investigation was the result of a “federal, multi-agency team effort,”
Detective S. consulted the county attorney as well as various law
enforcement officers from numerous agencies while drafting the search
warrant. Consistent with the trial court’s finding, nothing in the record
suggests that the officers engaged in any dilatory tactics. To the contrary,
the uncontroverted evidence reflects that Detective S. diligently worked on
preparing and securing the search warrant without delay. Therefore, the
trial court did not abuse its discretion by denying the motion to suppress
on this basis.

¶24            Peterman also argues that her statements to officers following
their illegal entry were inadmissible, because they were “tainted” by the
officers’ unlawful conduct.

¶25             Statements “obtained through custodial interrogation after an
illegal arrest should be excluded unless intervening events break the causal
connection between the illegal arrest and the confession so that the
confession is sufficiently an act of free will to purge the primary taint.”
Oregon v. Elstad, 470 U.S. 298, 306 (1985) (internal quotations omitted). “[T]o
determine whether the taint of [] illegal conduct is sufficiently attenuated
from evidence subsequently obtained by voluntary consent,” we 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.’” State
v. Guillien, 223 Ariz. 314, 317, ¶ 14 (2010) (quoting Brown v. Illinois, 422 U.S.
590, 603-04 (1975)).

¶26           In this case, Peterman was awakened, in a state of partial
undress, by eight to ten armed officers entering her home. She was then
forced to the ground and handcuffed. After the officers’ initial questioning
regarding Gunter, the handcuffs were removed and Peterman was
permitted to dress. Thirty to forty minutes after their entry, officers
informed Peterman that she was free to leave but could not return to the
residence until after their search was completed.4 Agent M. testified that

4      At the suppression hearing, Peterman testified that she was never
told she could leave, in contravention of Agent M.’s direct testimony. The
trial court resolved this conflict in the evidence in favor of the State,
expressly finding that Peterman “was advised that she was free to go[.] ”We



                                       8
                           STATE v. PETERMAN
                            Decision of the Court

he only questioned Peterman about her use of medical marijuana and
marijuana transfers during the last two hours of the search, necessarily after
Detective S. returned with the search warrant, but he acknowledged that he
engaged Peterman “in ongoing discussions” throughout the day. Peterman
also recalled that officers asked her questions throughout the day, and
specifically testified that she was questioned about her use of marijuana
before Monteiro left the residence, which was at 11:30 a.m., more than an
hour before Detective S. returned with a search warrant. Because the trial
court did not make a specific finding regarding this conflict in the evidence,
on this record, it is not clear whether the officers obtained Peterman’s
potentially incriminating statements before or after they secured a search
warrant.

¶27            Nonetheless, applying the relevant factors, “the totality of the
circumstances militate against suppressing the evidence.”             State v.
Hummons, 227 Ariz. 78, 82, ¶ 15 (2011). First, although it is unclear how
much time elapsed between the officers’ illegal entry and Peterman’s
admissions, the temporal proximity was not immediate and may have been
hours. Second, the police removed Peterman’s handcuffs and informed her
that she was free to leave. See State v. Miller, 186 Ariz. 314, 320-21 (1996)
(identifying an officer’s statement that the defendant was free to leave as an
intervening event). Third, there is no evidence in the record to suggest the
officers engaged in flagrant misconduct. As found by the trial court, the
officers unlawfully entered the residence, but the record does not reflect
that the officers intentionally entered the home without a search warrant
for the purpose of discovering evidence of wrongdoing. See Hummons, 227
Ariz. at 82, ¶ 14 (explaining an officer’s “regular practices and routines”
and reason for initiating the encounter are important considerations for
evaluating the flagrancy of misconduct). Instead, the record reflects that
the officers were attempting to effectuate an arrest pursuant to a valid
warrant and, acting on unverified, dated information, unlawfully entered
Peterman’s home. Considering these factors, the trial court did not abuse
its discretion by finding Peterman’s statements to officers were untainted.

¶28           Finally, Peterman alternatively contends that she was
subjected to custodial interrogation without being advised of her Miranda
rights, and her statements were therefore inadmissible.




defer to the trial court’s determination of witness credibility and resolution
of conflicts in the evidence. State v. Thomas, 196 Ariz. 312, 313, ¶ 3 (App.
1999).


                                      9
                           STATE v. PETERMAN
                            Decision of the Court

¶29            Although police officers are free to ask questions of a person
who is not in custody without providing Miranda warnings, when a person
is in custody, the police must advise the individual of certain constitutional
rights; otherwise, statements made in response to questioning will be
inadmissible at trial. See Miranda, 384 U.S. at 444; State v. Zamora, 220 Ariz.
63, 67, ¶ 9 (App. 2009). “[W]hether a person is in custody for Miranda
purposes ultimately depends on whether there is a formal arrest or restraint
on freedom of movement of the degree associated with a formal arrest.”
State v. Maciel, 240 Ariz. 46, 49, ¶ 11 (2016) (internal quotation omitted). “A
person’s freedom of movement has been significantly curtailed if a
reasonable person would have felt he or she was not at liberty to terminate
the interrogation and leave.” Id. at 50, ¶ 14.

¶30         As applied to these facts, Peterman was not in custody when
questioned. After the officers determined the subject of the arrest warrant
was not present and removed Peterman’s handcuffs, Agent M. explicitly
told Peterman that she was free to leave. Thus, Peterman’s freedom of
movement was not significantly curtailed and she could have ended her
subsequent conversations with Agent M. at any time and simply walked
away. Therefore, the trial court did not abuse its discretion by finding that
Peterman was not in custody when questioned and denying her motion to
suppress.

                               CONCLUSION

¶31           Peterman’s convictions and sentences are affirmed.




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




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