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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              WILLIAM VINCENT THOMPSON, Appellant.

                             No. 1 CA-CR 19-0329
                               FILED 7-30-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-145079-001
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                           STATE v. THOMPSON
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.


W I N T H R O P, Judge:

¶1           William Vincent Thompson (“Thompson”) appeals the
superior court’s denial of his motion to suppress evidence recovered by
police during a search of his home. Thompson argues the search was
unlawful because it was authorized by a warrant premised on information
gained in an unlawful protective sweep. For the foregoing reasons, we
affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2           On October 1, 2017, Tempe police officers responded to an
incident where a neighborhood resident, Thompson, threatened and
pointed a gun at several individuals on his street after an argument about
parking. When officers arrived at the scene, Thompson was inside his
house. Officers set up a perimeter around the house, contacted Thompson
by phone, and detained Thompson after he exited his residence. Thompson
did not have on him the gun used in the incident.

¶3          After detaining Thompson, officers conducted a protective
sweep of Thompson’s residence to assure no one else was inside the house.
During the sweep, officers observed three jars of marijuana in a bedroom
closet.

¶4           Officers applied for a search warrant to find the gun used in
the incident and to seize the marijuana observed during the protective
sweep. The court issued the warrant, authorizing officers to search


1       “In reviewing a motion to suppress, we review only the facts
presented to the superior court at the suppression hearing” and view those
facts in the light most favorable to sustaining the superior court’s decision.
State v. Mendoza-Ruiz, 225 Ariz. 473, 474, ¶ 2 n.1 (App. 2010); accord State v.
Goudeau, 239 Ariz. 421, 439, ¶ 26 (2016) (citing State v. Manuel, 229 Ariz. 1,
4, ¶ 11 (2011)).


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                          STATE v. THOMPSON
                           Decision of the Court

Thompson’s residence and the vehicle in his driveway for the gun, firearm-
related paraphernalia, or items to establish Thompson’s ownership of the
gun, as well as the marijuana and any drug paraphernalia. As relevant
here, in executing the warrant officers found and seized a .22-caliber
handgun, three magazines of ammunition, nine unspent rounds of
ammunition, and the previously-observed jars of marijuana.

¶5           Thompson filed a motion to suppress the evidence seized
during the search, arguing the initial protective sweep was unlawful
because there were no specific and articulable facts to suggest that anyone
else was in Thompson’s residence. Thompson contended that because the
sweep was unlawful, the eventual search was also unlawful because it was
based on a warrant containing information gained during the unlawful
sweep.

¶6             First, the state contended that the sweep was lawful based on
the officers’ general safety concerns, and so the resulting warrant was valid.
Second, the state argued that even if the sweep was unlawful and
information related to it was excised from the warrant, there was still
adequate evidence to establish probable cause, and the warrant was valid.
Finally, the state argued that even if there was not probable cause, the
evidence should not be excluded because the officers acted in good faith
reliance on the warrant.

¶7             The court denied the motion to suppress, finding first that the
protective sweep was unlawful because there were no specific and
articulable facts to suggest someone else was in the home and second, that
even without the information gained during the protective sweep, there
was still probable cause supporting the issuance of a search warrant for
Thompson’s residence and vehicle.

¶8            Thompson was eventually found guilty of three counts of
aggravated assault and pled guilty to one count of possession of narcotic
drugs. He was sentenced to 6.5 years in prison. This timely appeal
followed. We have jurisdiction under Article 6, Section 9, of the Arizona
Constitution, and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and -4033(A).

                                ANALYSIS

       I.     Standard of Review

¶9            We review a denial of a motion to suppress for an abuse of
discretion; however, we review de novo the superior court’s determination


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                            STATE v. THOMPSON
                             Decision of the Court

as to the existence of probable cause. Goudeau, 239 Ariz. at 439, ¶ 26. “A
trial court abuses its discretion if it misapplies the law or exercises its
discretion based on incorrect legal principles.” State v. Slover, 220 Ariz. 239,
242, ¶ 4 (App. 2009). We recognize that the superior court’s task was to
“determine whether the totality of the circumstances indicates a substantial
basis for the magistrate’s decision” to issue the warrant, and we also grant
deference to the magistrate’s decision. State v. Crowley, 202 Ariz. 80, 83, ¶ 7
(App. 2002) (quoting State v. Hyde, 186 Ariz. 252, 272 (1996)). We “must
presume a search warrant is valid” and will affirm the superior court’s
denial of a motion to suppress if it is legally correct for any reason
supported by the record. Id. (citing Greehling v. State, 136 Ariz. 175, 176
(1983)); see State v. Dugan, 113 Ariz. 354, 356 (1976); State v. Claxton, 122 Ariz.
246, 249 (App. 1979).

       II.     Probable Cause

¶10           Thompson argues that without the information gained from
the unlawful sweep, there was not sufficient probable cause to issue the
warrant to search Thompson’s residence. Specifically, Thompson contends
nothing in the remainder of the supporting affidavit or warrant suggested
evidence of the assault would be found in the house; rather, the only
information officers received regarding the location of the gun was a
victim’s statement that Thompson had placed the gun in his truck in the
driveway after the altercation ended. In other words, without the discovery
of marijuana inside the house, officers would have only had cause to search
the truck and not the residence.

¶11          In response, the state argues the warrant clearly set forth
probable cause because removing information related to the sweep from
the warrant would only eliminate information about the marijuana and
would have no effect on the affidavit as to the gun, related paraphernalia,
or evidence proving ownership of the gun.2 The state also asserts there was
probable cause because common sense dictates that Thompson would not

2      The state’s primary argument is that the search warrant was valid
because the supporting affidavit did not contain any deliberate or reckless
falsehoods or omissions. While falsity is one basis to exclude information
from a warrant, it is not the only basis. Excision is also proper where
information from an unlawful underlying search is included in the affidavit
and warrant. See United States v. Karo, 468 U.S. 705, 719 (1984) (citing Franks
v. Delaware, 438 U.S. 154, 172 (1978)). As the latter is the purported basis for
excision in this case, we do not address whether deliberate or reckless
falsehoods or omissions were contained in the affidavit.


                                        4
                           STATE v. THOMPSON
                            Decision of the Court

leave the gun outside, unattended, and in plain view in his truck while he
returned inside his home.

¶12           A valid search warrant requires probable cause, supported by
an affidavit. U.S. Const. amend. IV; A.R.S. § 13-3913. Probable cause exists
when, given all the circumstances set forth in the affidavit, “there is a fair
probability that contraband or evidence of a crime will be found in a
particular place” at the time when the search is conducted. United States v.
Grubbs, 547 U.S. 90, 95 (2006) (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)) (internal quotation marks omitted); accord Crowley, 202 Ariz. at 85,
¶ 12 (citing Gates, 462 U.S. at 238). “Probable cause cannot be established
by mere suspicion that a search will reveal items connected to criminal
activity.” Frimmel v. Sanders, 236 Ariz. 232, 241, ¶ 40 (App. 2014).

¶13              “[A]ffidavits are to be interpreted in a common sense and
realistic manner.” State v. Summerlin, 138 Ariz. 426, 431 (1983) (quoting
United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970)). If unlawfully
obtained information is included in a warrant affidavit, the court must
excise such information from the affidavit and determine if the remaining
untainted information is sufficient to establish probable cause. See Karo, 468
U.S. at 719 (citing Franks, 438 U.S. at 172); State v. Gulbrandson, 184 Ariz. 46,
58 (1995) (“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.”). “Close cases should be resolved by giving
preference to the validity of warrants.” Hyde, 186 Ariz. at 272 (citing Gates,
462 U.S. at 236).

¶14           Here, the affidavit established that, after an argument in front
of his home about neighborhood parking, Thompson went into his
residence and then brought outside a black handgun. Thompson pointed
the gun at multiple victims and “pulled the slide of the gun back with his
left hand to chamber a round,” at one point holding the gun a mere twelve
inches from a victim’s chest. As the situation deescalated, one of the three
victims reported seeing Thompson place the gun in his truck in the
driveway before walking inside his home, where he remained until police
arrived.

¶15           Considering the totality of the circumstances, we conclude
that the trial court correctly denied the motion to suppress because, as
excised, the affidavit still supported the court’s finding of probable cause.
On the facts above, there was a fair probability that evidence of the assault
would be found in either the truck or the residence, or both, as these were


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                         STATE v. THOMPSON
                          Decision of the Court

locations Thompson accessed over the course of the argument and assault.
Moreover, the affidavit reflected that Thompson chambered at least one
round during the assault, which could lead a reasonable person to conclude
additional ammunition, receipts of purchase, related paraphernalia, or
proof of ownership of the weapon were likely inside the residence where
Thompson had retrieved the gun and ammunition.3

                             CONCLUSION

¶16          For the foregoing reasons, we affirm the superior court’s
denial of Thompson’s motion to suppress.




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




3      Because we affirm on the issue of probable cause, we need not
address the state’s argument concerning application of the “good faith”
exception to the exclusionary rule.


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