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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    NICK ALBERT THOMAS, Appellant.

                             No. 1 CA-CR 16-0069
                               FILED 2-9-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2014-137132-001 SE
                The Honorable Erin O’Brien Otis, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                           STATE v. THOMAS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            Nick Albert Thomas (“Appellant”) appeals his conviction for
production of marijuana. Appellant argues the trial court abused its
discretion by denying his motion to suppress. For the following reasons,
we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             In August 2014, the Mesa Fire Department dispatched
firefighters to Appellant’s residence in response to a fire. The Mesa Police
Department was also dispatched to the residence.

¶3           When Fire Captain Derek Williams arrived at the scene, he
saw that the residence contained two separate structures, a garage and a
manufactured home, within close proximity of each other.1 The home had
an attached awning that extended outward and hung over the garage.
Captain Williams observed heavy smoke and fire inside the garage. He also
saw “heavy, black, pressurized smoke” underneath the awning.

¶4            While other firefighters were attempting to contain the fire in
the garage, Captain Williams received an order to determine whether the
fire had spread to the home and to check the home for potential victims.

¶5           As Captain Williams walked toward the home, Appellant
approached him and stated that he was the homeowner and Captain
Williams did not have permission to enter. Captain Williams told
Appellant he had received an order to enter the home. Appellant again told
Captain Williams he did not have permission to enter and also informed
Captain Williams that he was a medical marijuana cardholder. When
Captain Williams reiterated that he was going to enter the home, Appellant
gave him the keys to enter.


1     Captain Williams testified at the suppression hearing that the garage
and home appeared to be separated by a distance of about six to ten feet.


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                            STATE v. THOMAS
                            Decision of the Court

¶6           As Captain Williams checked the home, he saw that part of
one of the rooms was sectioned off, essentially creating a room within a
room.2 When Captain Williams looked inside the sectioned-off area, he saw
what he believed were multiple marijuana plants growing in buckets.

¶7             After Captain Williams finished checking the home, he
notified the other firefighters that the home was clear of victims and the fire
had not spread. He then informed Detective Edward Farrugia of the Mesa
Police Department, who was at the scene conducting crowd control, that he
saw marijuana plants inside the home.

¶8            Upon receiving the information from Captain Williams,
Detective Farrugia contacted Appellant and asked Appellant if anything
illegal was in the home. Appellant stated that he was growing marijuana
in his home and that he had a medical marijuana card. Appellant showed
Detective Farrugia his medical marijuana card, which had “Not Authorized
to Cultivate” printed on the front of the card.

¶9             Detective Farrugia then asked Appellant for consent to search
the home and Appellant refused. A search warrant was subsequently
obtained based on Appellant’s admissions to Detective Farrugia and the
information received from Captain Williams. During the search of
Appellant’s home, Detective Farrugia found thirteen marijuana plants
inside the sectioned-off room, which was functioning as a “large grow box.”
Detective Farrugia also found a number of smaller marijuana plants in a
different room on the other end of the home.

¶10            Appellant was later indicted for production of marijuana, a
class five felony. Before trial, Appellant moved to suppress the evidence
against him, arguing that Captain Williams’ entry into his home violated
the Arizona Constitution and the Fourth Amendment to the United States
Constitution.

¶11            After an evidentiary hearing, the trial court denied
Appellant’s motion to suppress, finding that the exigent circumstances
exception to the warrant requirement applied because “there was a
potential for [the] fire to have spread from the garage to the [home].”




2      Captain Williams testified that he estimated the size of the sectioned-
off area was between sixty-four and one hundred square feet.


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                              STATE v. THOMAS
                              Decision of the Court

¶12           The case proceeded to trial, where a jury found Appellant
guilty as charged. The trial court suspended the imposition of sentence and
placed Appellant on probation for a term of eighteen months.

¶13           Appellant filed a timely notice of appeal.             We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031
(2010), and 13-4033(A) (2010).

                                  ANALYSIS

¶14           We review a trial court’s ruling on a motion to suppress for
an abuse of discretion if it involves a discretionary issue, but review de novo
constitutional and legal issues. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94
P.3d 1119, 1140 (2004). In this review, we “consider only the evidence
presented at the suppression hearing and view that evidence in the light
most favorable to sustaining the trial court’s ruling.” State v. Mitchell, 234
Ariz. 410, 413, ¶ 11, 323 P.3d 69, 72 (App. 2014). We defer to the trial court’s
credibility determinations because that court is in the best position to
observe the demeanor of the testifying witnesses. See State v. Olquin, 216
Ariz. 250, 252, ¶ 10, 165 P.3d 228, 230 (App. 2007).

       I.     Initial Entry

¶15           Appellant argues the trial court erred in finding that exigent
circumstances justified Captain Williams’ entry into his home. He contends
that, because his home “was not threatened by the fire from the detached
garage,” Captain Williams did not have authority to enter over Appellant’s
objection.

¶16            A warrantless search of a home is per se unlawful in the
absence of an established exception to the warrant requirement. Jones v.
United States, 357 U.S. 493, 499 (1958); State v. Ault, 150 Ariz. 459, 463, 724
P.2d 545, 549 (1986). For example, the emergency aid doctrine is one
exception that may justify a warrantless entry and serves “to ensure the
safety and well-being of the public . . . .” State v. Fisher, 141 Ariz. 227, 240,
686 P.2d 750, 763 (1984), abrogated on other grounds by State v. Wilson, 237
Ariz. 296, 350 P.3d 800 (2015). The emergency aid doctrine “is triggered
when the police enter a dwelling in the reasonable, good-faith belief that
there is someone within in need of immediate aid or assistance.” Id.

¶17          In contrast, the exigent circumstances exception generally
applies where “a substantial risk of harm to the persons involved or to the
law enforcement process would arise if the police were to delay until a


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                           STATE v. THOMAS
                           Decision of the Court

warrant could be obtained.” State v. Greene, 162 Ariz. 431, 433, 784 P.2d 257,
259 (1989). Although exigent circumstances typically apply where “the
delay necessary to obtain a warrant threatens the destruction of evidence,”
Fisher, 141 Ariz. at 240, 686 P.2d at 763, a fire in progress has been
recognized as an exigent circumstance that justifies a firefighter’s
warrantless entry. See Mazen v. Seidel, 189 Ariz. 195, 197, 940 P.2d 923, 925
(1997) (“Exigent circumstances are one exception to the warrant
requirement and include protective sweeps in response to a probable
burglary in progress, a fire or medical emergency, and the likelihood that
evidence will be destroyed.”); see also Michigan v. Tyler, 436 U.S. 499 (1978)
(stating “it would defy reason to suppose that firemen must secure a
warrant or consent before entering a burning structure to put out the
blaze”).

¶18            Appellant maintains that Captain Williams’ warrantless entry
into his home was unlawful because Captain Williams “never assessed” the
path of the fire to determine whether it extended to Appellant’s home. He
argues that, unlike Mazen, where the firefighters’ warrantless entry into a
storage unit was permissible because the firefighters had “determin[ed] the
fire’s path,” here, no such investigation of the premises was made.3

¶19           The record, however, demonstrates otherwise. Captain
Williams testified at the suppression hearing that, upon arriving at the
residence, he observed that the fire in Appellant’s garage was still in
progress, emitting “heavy, black smoke” and “hot gases.” He stated that
the awning between Appellant’s home and the garage was trapping the
smoke from the fire, which prevented the gases from escaping and
increased the potential for the fire to extend to the home. Additionally,
Captain Williams explained there was a possibility the fire had extended to
Appellant’s home “without exterior visible cues.” By going inside the
manufactured home and using a thermal imager, Captain Williams could
check for hot spots in the ceiling and walls to confirm whether the fire had
spread. Therefore, contrary to Appellant’s assertion, Captain Williams had


3      In Mazen, the owner of the storage unit conceded that the firefighters
“had a right to enter his unit” because it shared a common attic space with
another unit from which smoke was emanating. See Mazen, 189 Ariz. at 196,
940 P.2d at 924. Thus, the issue there was not whether the firefighters’ entry
was permissible, but whether the police officers’ subsequent warrantless
entry was lawful. Id.




                                      5
                            STATE v. THOMAS
                            Decision of the Court

sufficiently assessed the path or potential reach of the fire and had
reasonably determined that entering Appellant’s home was necessary.4

¶20             Appellant also attempts to distinguish Mazen on the basis
that, in Mazen, the storage unit was in fact on fire, whereas here, “the mobile
home was not on fire.” This argument, which Appellant offers in hindsight,
defies logic, however, because neither Captain Williams nor the other
firefighters at the scene knew with certainty whether Appellant’s home was
on fire or at risk of catching fire until after Captain Williams completed the
premises investigation. It was therefore necessary for Captain Williams to
enter the home to make that determination.

¶21          Accordingly, the record reasonably supports a conclusion
that Captain Williams’ warrantless entry into Appellant’s home was lawful
under the exigent circumstances exception to the warrant requirement.5 See
Mazen, 189 Ariz. at 197, 940 P.2d at 925.

       II.    Scope of the Search

¶22            Appellant also argues that, even if Captain Williams’ initial
entry into his home was lawful, Captain Williams exceeded the permissible
scope of the search by looking in the sectioned-off room that contained the
marijuana plants.

¶23          “[A] warrantless search must be ‘strictly circumscribed by the
exigencies which justify its initiation.’” Fisher, 141 Ariz. at 239, 686 P.2d at
762 (quoting Terry v. Ohio, 392 U.S. 1, 26 (1968)). Here, the objective of


4     Captain Williams also testified that because he was part of the
second fire engine company to arrive at Appellant’s residence, Mesa Fire
Department protocol required him to follow orders from the first fire
engine company that had already taken command of the scene.
Consequently, when the first fire engine company ordered Captain
Williams to check Appellant’s home, he was required to do so.

5      Captain Williams’ testimony that he did not “have any verifiable
means to make sure [Appellant] [was] the homeowner” and he “had no
knowledge of whether somebody was in [the home],” also supports an
argument that the emergency aid exception applies as well under these
facts. See Fisher, 141 Ariz. at 240, 686 P.2d at 763. Although the State does
not make this argument, “[w]e may affirm on any basis supported by the
record.” See State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).



                                       6
                          STATE v. THOMAS
                          Decision of the Court

Captain Williams’ search was to ascertain whether the fire had spread to
Appellant’s home and whether any potential victims were inside. As
Captain Williams systemically went through the home, he “rapidly
assess[ed]” spaces “that could occupy a human being.” Because the
sectioned-off room containing the marijuana plants was large enough to
accommodate a person, Captain Williams was justified in checking that
room. See cf. Maryland v. Buie, 494 U.S. 325, 335 (1990) (stating that a
protective sweep “may extend only to a cursory inspection of those spaces
where a person may be found”). Consequently, our review of the record
does not indicate Captain Williams’ search extended beyond the scope of
what the circumstances justified.

                             CONCLUSION

¶24          Appellant’s conviction is affirmed.




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




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