                                                                 FILED BY CLERK
                       IN THE COURT OF APPEALS
                           STATE OF ARIZONA                         NOV 16 2010
                             DIVISION TWO
                                                                     COURT OF APPEALS
                                                                       DIVISION TWO


THE STATE OF ARIZONA,            )
                                 )                 2 CA-CR 2009-0176
                      Appellee, )                  DEPARTMENT B
                                 )
         v.                      )                 OPINION
                                 )
BRIAN MANNIE BLAKLEY,            )
                                 )
                      Appellant. )
                                 )


        APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

                              Cause No. CR200800814

                        Honorable Wallace R. Hoggatt, Judge

                          VACATED AND REMANDED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Laura P. Chiasson                                    Tucson
                                                              Attorneys for Appellee

Gail Gianasi Natale                                                 Phoenix
                                                      Attorney for Appellant
_______________________________________________________________________

V Á S Q U E Z, Presiding Judge.
¶1            After a jury trial, appellant Brian Blakley was convicted of one count of

possession of marijuana for sale, and the trial court sentenced him to a presumptive,

enhanced prison term of 15.75 years, ordering him to pay the maximum fine of

$150,000. On appeal, he contends the court abused its discretion in 1) denying his

motion to suppress evidence obtained by police after a warrantless entry onto his

property; 2) admitting documents in violation of his Confrontation Clause rights;

3) refusing to instruct the jury on the lesser-included offense of simple possession; and

4) failing to consider mitigating factors at sentencing and imposing a fine he contends is

excessive.   For the reasons stated below, we vacate and remand for proceedings

consistent with this opinion.

                            Factual and Procedural History

¶2            On appeal, we view the facts in the light most favorable to sustaining the

verdict. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008).

On November 4, 2008, Bisbee police officer William Silva received a telephone call

from the United States Border Patrol about a suspicious vehicle that was being driven in

an area that was a known pick-up point for traffickers of undocumented immigrants and

marijuana. Silva went to the location and saw a black Dodge Neon leaving the area.

Silva followed the vehicle until it eventually turned into the driveway of Blakley‟s

residence.1 He called for back-up, waited five to ten minutes, and then approached the

vehicle with two other officers.


       1
        At the suppression hearing, Silva testified he was not given a description of the
suspicious vehicle, its license plate number, nor told why it was deemed suspicious.
                                            2
¶3            When Silva reached the rear of the vehicle, Blakley approached him from

behind the residence. Silva asked him “if he was storing undocumented aliens or

marijuana,” and Blakley responded that he was storing marijuana. When Silva asked

how much, Blakley told him there were more than 100 pounds. Silva then asked if he

could search the garage, and Blakley consented. At the suppression hearing, Silva

testified that during their conversation, while standing behind the vehicle, he could smell

the odor of marijuana. In the garage, Silva found eight bales of marijuana weighing a

total of 170 pounds. Blakley was arrested and subsequently charged with and convicted

of one count of possession of marijuana for sale. This timely appeal followed.


                                        Discussion
I. Suppression of Evidence

     A. Warrantless Entry

¶4            Blakley first contends “[t]he trial court erred as a matter of law by refusing

to suppress the evidence obtained as a result of the illegal warrantless search” of the

garage. He maintains that, although he consented to the search, his consent was tainted

by Silva‟s illegal entry into Blakley‟s yard without a warrant in violation of the United




Thus, there was no information from which he could have determined that the vehicle he
had followed was the same suspicious vehicle referred to in the phone call. Nor did
Silva witness the driver of the vehicle commit any traffic violations during the drive to
Blakley‟s residence. However, he did observe the driver making numerous u-turns,
stopping for no reason, going in “no set direction,” and “in [his] experience . . . try[ing]
to lose any type of surveillance or . . . trailing vehicles.”

                                             3
States and Arizona Constitutions.2 He therefore contends “any evidence obtained as a

result of Silva‟s conversation with [him] following the policeman‟s illegal, warrantless

entry was fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471

(1963).

¶5            When reviewing a trial court‟s denial of a motion to suppress, we consider

only the evidence presented at the suppression hearing, State v. Blackmore, 186 Ariz.

630, 631, 925 P.2d 1347, 1348 (1996), and view it in the light most favorable to

upholding the court‟s ruling, State v. Gerlaugh, 134 Ariz. 164, 167, 654 P.2d 800, 803

(1982). “We review the . . . court‟s ruling . . . for abuse of discretion if it involves a

discretionary issue, but review constitutional issues and purely legal issues de novo.”

State v. Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App. 2006).

¶6            The Fourth Amendment guarantees “[t]he right of the people to be secure

in their persons, houses, papers and effects, against unreasonable search and seizures.”

U.S. Const. amend. IV. “Unlawful entry of homes was the chief evil which the Fourth

Amendment was designed to prevent.” State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545,

549 (1986).    “That protection extends in general to „[“]the curtilage,” the land

immediately surrounding and associated with the home.‟” State v. Olm, 223 Ariz. 429,

¶ 5, 224 P.3d 245, 247 (App. 2010), quoting Oliver v. United States, 466 U.S. 170, 180

(1986). Thus, as a general rule, a warrant is required when the suspect has a reasonable


      2
        Blakley argues the officer‟s search of the garage without a warrant violated his
rights under the Arizona Constitution. Ariz. Const. art. 2, § 8. However, he “makes no
separate argument based on the state constitutional provision; therefore, we do not
separately discuss it.” State v. Nunez, 167 Ariz. 272, n.2, 806 P.2d 861, 863 n.2 (1991).
                                            4
expectation of privacy in the place or the item searched. United States v. Jacobsen, 466

U.S. 109, 113 (1984). In determining whether a suspect‟s objective expectation of

privacy is reasonable, a court considers the totality of the circumstances.      State v.

Adams, 197 Ariz. 569, ¶ 20, 5 P.3d 903, 907 (App. 2000). And, “„[s]ubject only to a few

specifically established and well-delineated exceptions,‟ a search is presumed to be

unreasonable under the Fourth Amendment if it is not . . . conducted pursuant to a valid

search warrant.” State v. Gant, 216 Ariz. 1, ¶ 8, 162 P.3d 640, 642 (2007), quoting Katz

v. United States, 389 U.S. 347, 357 (1967).

¶7             The state does not dispute that the vehicle was parked in the curtilage of

Blakley‟s house. And, as noted above, curtilage generally falls “under the home‟s

[„]umbrella‟ of Fourth Amendment protection.” Olm, 223 Ariz. 429, ¶ 12, 224 P.3d at

249, quoting United States v. Dunn, 480 U.S. 294, 301 (1987). However, this does not

end our inquiry. The vehicle was parked in the driveway, an area generally considered

“semiprivate.” See State v. Cobb, 115 Ariz. 484, 489, 566 P.2d 285, 290 (1977). Thus,

we must determine initially whether Blakley had a reasonable expectation of privacy in

the area of the driveway where the vehicle was located. If he did, the same Fourth

Amendment protection applicable to curtilage applies to that area, and we then must

determine whether the state met its burden of establishing that the search following

Silva‟s entry into that area was constitutionally sound. Olm, 223 Ariz. 429, ¶ 5, 224

P.3d at 247.

¶8             Relying on Olm, Blakley claims that Silva made a “fatal mistake” when he

approached the vehicle instead of the front door of the residence. He contends that by

                                              5
continuing down the driveway, Silva had crossed into “warrant-with-search-territory.”

Although Blakley asserts that Olm is dispositive in this case, we find it factually

distinguishable and, thus, not controlling.

¶9            In Olm, a Tucson police officer, acting on a request from a detective,

entered Olm‟s property without a warrant and looked through the windshield of his

vehicle to obtain the vehicle identification number (VIN). 223 Ariz. 49, ¶¶ 2-3, 224

P.3d at 247. The vehicle “was parked in the residence‟s yard, to the left of a concrete

walkway leading to the front door of the house from a public sidewalk adjacent to a

public street,” and it was facing the residence with its front end about five to six feet

from the house. Id. ¶ 2. In order to inspect the vehicle, the officer first had to step off

the walkway leading to the front door. Id. The officer looked through the windshield

and noticed that the vehicle‟s VIN plate was slightly bent. Id. ¶ 3. He then went to the

front door of the house, where he unsuccessfully tried to contact the residents. Id.

¶10           On appeal, following Olm‟s conviction for theft by control of a vehicle

and conducting a “chop shop,” id. ¶ 4, this court concluded that the vehicle had been

parked on the residence‟s curtilage and that the officer was not lawfully present when he

looked through the windshield and saw the VIN plate. Id. ¶ 17. In determining that Olm

had a protected privacy interest in the yard where the vehicle had been parked, we

focused on the fact that the officer had to leave the walkway and physically enter the

yard in order to look inside the vehicle to see the VIN plate. We concluded that “no

reasonable member of the public would believe he or she had permission to enter the

yard to peer into the vehicle,” and, therefore, the officer had violated Olm‟s reasonable

                                              6
expectation of privacy in his front yard. Olm, 223 Ariz. 429, ¶ 15, 224 P.3d at 250.

Here, as in Olm, before investigating the vehicle, Silva made no attempt to contact the

occupants of the residence using the pathway that led directly from the driveway along

the front of the residence to the front door. But he also never left Blakley‟s driveway,

which, unlike the yard in Olm, is a “semiprivate area.” See id. ¶ 15.

¶11           Relying on the semiprivate nature of the driveway, the state argued below

that Silva was entitled to “waltz right down it” because he could “see the whole length

of the driveway and see what [he was] after.” However, in Olm, we recognized that

“driveways are considered semiprivate areas not because members of the public

reasonably could enter them without explicit permission, but because the activities and

items in a driveway generally are more readily observable.” Id.

¶12           Neither of the cases the state relies upon supports its position that an

officer has unfettered access to the entire driveway merely because its entire length is

readily observable.3 In United States. v. Cisneros-Gutierrez, 598 F.3d 997, 1005 (8th


       3
         At oral argument, the state cited two cases for the proposition that an officer can
enter any part of a driveway to conduct an investigation. But both cases are factually
distinguishable from the case here. In State v. Girdler, 138 Ariz. 482, 484-85, 675 P.2d
1301, 1303-04 (1983), the defendant set fire to his mobile home, with his wife and
children inside, and was convicted of arson of an occupied structure and felony murder.
An officer and prosecutor went to the residence without a warrant and measured the time
it took “to go from the back door of the burned-out mobile home to the defendant‟s car.”
Id. at 486, 675 P.2d at 1305. The court concluded the defendant did not have a
reasonable expectation of privacy in that area because, “[f]rom a photograph of the
premises, it is obvious that the area was open to the public.” Id. at 487, 675 P.2d at
1306. And in United States v. Humphries, 636 F.2d 1172, 1178 (9th Cir. 1980), an
officer, acting with probable cause that a vehicle parked in defendant‟s driveway had
been involved in a crime, drove onto the driveway to confirm the license plate number,
which he could not see from the street. The court found no violation of the defendant‟s
                                             7
Cir. 2010), officers went to the residence to make an arrest, and, as they were standing at

the front door, they saw the suspects attempting to dispose of evidence. Therefore, the

court concluded that, even assuming the officers had entered the curtilage

impermissibly, “suppression is not required, because the officers at the front of the house

independently observed the apparent destruction of evidence and entered the home under

exigent circumstances.” Id. And in United States v. Pineda-Moreno, 591 F.3d 1212,

1213 (9th Cir. 2010), the officer went onto the driveway of the residence to place a

tracking device under the suspect‟s car. However, the court there reasoned that the

officer had restricted his movement to an area visitors would have used to approach the

front door of the house.4 Id. at 1215 (investigating agent testified driveway necessary

path to approach house). In both cases, the officers were in an area where the public

reasonably would be expected to enter to contact the occupants of the residence. But

Silva went beyond the area of the driveway that visitors would have used to directly

approach the front door. He did so to investigate the vehicle, not to make contact with




reasonable expectation of privacy, in part because the very purpose of a license plate is
to allow law enforcement to identify the vehicle. Id. at 1179, 1179 n.12. Thus the court
held the defendant had no reasonable expectation of privacy in the license plate of his
vehicle. Id. Therefore, neither case squarely resolves the issue here.
       4
        The state also cites to State v. Dugan, 113 Ariz. 354, 356 n.1, 555 P.2d 108, 110
n.1 (1976), and Baker v. Clover, 177 Ariz. 37, 39, 864 P.2d 1069, 1071 (App. 1993), in
support of its argument. However, neither of these cases actually reaches the issue
raised here; Dugan turned on the issue of consent, and Baker does not reach the issue
before us because the arrest in that case had occurred in the garage, not on the driveway.
Therefore, these cases are inapposite.

                                            8
one of the occupants of the residence. Thus, neither of these cases addresses the issue

presented here.5

¶13           And, we have found no Arizona cases addressing whether there is a greater

expectation of privacy in semiprivate areas that the public is not expected to access

freely so that they are afforded the same Fourth Amendment protections applicable to

the curtilage generally. In reviewing the case law from other jurisdictions, we found two

distinct categories of cases involving driveways in which the courts found no Fourth

Amendment violation. In the first category, the officer entered the curtilage intending to

approach an occupant of the property.6 In the second category, the officer, intending to

conduct an investigation rather than contact the occupants, nevertheless restricted his

movements to areas of the driveway and walkway that the public would reasonably be

expected to use to make contact with occupants of the residence.7


       5
        The state also relies on Pineda-Moreno for the proposition that, in order to
establish an expectation of privacy, Blakley was required to “„support that [heightened]
expectation by detailing the special features of the driveway itself (i.e., enclosures,
barriers, lack of visibility from the street) or the nature of activities performed upon it.‟”
See Pineda-Moreno, 591 F.3d at 1215 (citation omitted). But in Pineda-Moreno, the
defendant was claiming an expectation of privacy in an area of the driveway that
ordinarily would be used by the public. Pineda-Moreno thus stands for the proposition
that a person seeking a greater level of privacy than ordinarily would be expected must
show facts supporting this heightened expectation.
       6
        See, e.g., United States v. Reyes, 283 F.3d 446, 465 (2d Cir. 2002); United States
v. Magana, 512 F.2d 1169 (9th Cir. 1975); State v. Cobb, 115 Ariz. 484, 566 P.2d 285
(1977); State v. Johnston, 839 A.2d 830 (N.H. 2004); State v. Johnson, 793 A.2d 619
(N.J. 2002); State v. Lodermeier, 481 N.W.2d 614 (S.D. 1992); State v. Ryea, 571 A.2d
674 (Vt. 1990); State v. Daugherty, 591 P.2d 801 (Wash. App. 1979); McCutcheon v.
State, 604 P.2d 537 (Wyo. 1979).
       7
       See, e.g., Pineda-Moreno, 591 F.3d 1212, 1215 (investigating agent testified
person attempting to make delivery to house would have to go through driveway to get
                                              9
¶14              In those cases in which the courts found the officers‟ actions reasonable

under the Fourth Amendment, the officers had entered an area of the driveway that led

directly to the front door for the purpose of contacting an occupant of the home, or had

limited their investigation to those areas ordinarily accessed by visitors. Indeed, in the

only two cases we have found in which the officers went beyond the area normally used

to access the front door directly in order to conduct an investigation, the courts found the

officers had violated the defendants‟ Fourth Amendment rights.8

¶15              We find instructive the analysis of the Ninth Circuit Court of Appeals in

United States v. Magana, 512 F.2d 1169 (9th Cir. 1975). In Magana, two officers drove

into Magana‟s driveway to provide back-up to an undercover officer who was buying

drugs from an occupant of the house. 512 F.2d at 1170. Magana, who was standing in

the open garage, was arrested after one of the officers saw him throw something to the

ground.    Id.     The other officer then entered the garage and found two condoms

to house); McVickers v. State, 551 So. 2d 1130, 1134 (Ala. Crim. App. 1989) (no Fourth
Amendment violation when officers restricted movements to places visitors could
reasonably be expected to walk); People v. Bradley, 81 Cal. Rptr. 457, 459 (1969) (no
violation where marijuana was only about twenty feet from defendant‟s door where
delivery person would go); Com. v. A Juvenile (No. 2), 580 N.E.2d 1014, 1016 (Mass.
1991) (no violation where vehicle parked on area of driveway within normal route for
approaching front door of residence); State v. Pike, 465 A.2d 1348, 1351 (Vt. 1983) (no
violation when officers restrict their movements to driveways visitors could be expected
to use).
       8
        See Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968) (Fourth
Amendment violated when officers entered property to search stockpile of Christmas
trees located within residence‟s curtilage for illegally cut trees; because officers had to
move legally cut trees to see contraband, suspect‟s reasonable expectation of privacy
violated); People v. Quattrachi, 63 A.D.2d 655 (N.Y. App. Div. 1978) (Fourth
Amendment violation when officers, acting only on vague suspicions, entered fenced-in
backyard to determine whether boxes being loaded onto truck contained contraband).
                                             10
containing heroin. Id. The district court denied Magana‟s motion to suppress the heroin

found in the garage, and the Ninth Circuit affirmed. Id. at 1169, 1171.

¶16           In determining whether Magana had a reasonable expectation of privacy

that precluded the officers from entering the driveway and approaching him in the

garage without a warrant, the Ninth Circuit stated the issue was whether the officers‟

purpose for being there was reasonable: “[t]he test . . . should be that of reasonableness,

both of the possessor‟s expectation of privacy and of the officers‟ reasons for being on

the driveway.” Id. at 1171. In applying this test, the court focused on the fact that the

officers were present to provide back-up to their fellow officer, who was “known to be

effecting the arrest of a narcotics dealer engaged in business in the residence of which

the driveway formed a part.” Id. The court thus concluded that “[t]he act of . . . turning

into the driveway at the time and under the circumstances of this case was reasonable,”

and “Magana‟s privacy was not unreasonably invaded when the officers entered his

driveway and then saw him throw something away.” Id. It thus held the officers‟

actions passed the two-part reasonableness test and their presence in the driveway

therefore was lawful. Id.

¶17           Here, instead of approaching the front door to make contact with any

occupants of the residence, Silva walked past the pathway that led directly to the front

door and continued walking down the driveway into an area ordinarily not used by

visitors. And at the suppression hearing, Silva acknowledged that his original intent

when he entered the property was to “knock and talk” to an occupant of the residence,

but instead, he decided to investigate the vehicle. Applying Magana‟s reasonableness

                                            11
test to the facts of this case, we conclude that in exceeding the boundaries of the area

commonly accessed by visitors, with no intent to locate an occupant but, rather, for the

purpose of conducting an investigation, Silva‟s actions in approaching the vehicle

violated Blakley‟s reasonable expectation of privacy in that area of his property. Silva‟s

presence near the vehicle on Blakley‟s driveway therefore was unlawful. And, in the

absence of a warrant, or an exception to that requirement, the search of the garage that

followed also was unlawful.

   B. Consent

¶18           “One long recognized exception to the warrant requirement is consent.”

State v. Guillen, 223 Ariz. 314, ¶ 11, 223 P.3d 658, 661 (2010). But,

              [w]hen a consensual search is preceded by a Fourth
              Amendment violation, . . . the government must prove not
              only the voluntariness of the consent under the totality of the
              circumstances, but . . . must also “establish a break in the
              causal connection between the illegality and the evidence
              thereby obtained.”

United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994) (citation

omitted), quoting United States v. Recalde, 761 F.2d 1448, 1458 (10th Cir. 1985); see

also Guillen, 223 Ariz. 314, ¶¶ 11-13, 223 P.3d at 661 (addressing whether defendant‟s

wife‟s consent to search voluntary before analyzing whether consent tainted by prior

constitutional violation).    Thus, because Silva was not lawfully present when he

obtained Blakley‟s consent, the evidence obtained without a search warrant must be

suppressed unless Blakley‟s consent to the search was voluntary and had not been

tainted by Silva‟s unlawful presence.


                                           12
¶19           Blakley does not contend that his consent was involuntary. Nor does the

record suggest the encounter between Silva and Blakley involved the type of overt

conduct traditionally viewed as coercive. Neither Silva nor the other officers displayed

weapons, forcibly entered the property, or threatened or used force against Blakley; he

was not handcuffed; and Silva made no threats that he would obtain a warrant if Blakley

refused consent. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 8.2(b) (4th ed. 2004) (describing factors typically supporting a finding of

coercion).

¶20           Nevertheless, a finding of voluntary consent is merely a threshold inquiry,

and the evidence still must be suppressed unless the consent was purged of the taint of

Silva‟s illegal entry. See Guillen, 223 Ariz. 314, ¶ 13, 223 P.3d at 661 (“Evidence

seized following consent to a search must be suppressed if the consent is tainted by a

prior constitutional violation.”); State v. Kempton, 166 Ariz. 392, 398, 803 P.2d 113, 119

(App. 1990) (“[T]he unconstitutional acts of an officer taint a consensual search unless

there are sufficient intervening circumstances between the unlawful conduct and the

consent to” dissipate the taint of the illegal conduct.). In determining whether the

consent is purged of the taint,

             [w]e need not hold that all evidence is “fruit of the poisonous
             tree” simply because it would not have come to light but for
             the illegal actions of the police. Rather, the more apt question
             in such a case is “whether, granting establishment of the
             primary illegality, the evidence to which instant objection
             [has been] made has been come at by exploitation of that
             illegality or instead by means sufficiently distinguishable to
             be purged of the primary taint.”


                                            13
Wong Sun v. United States, 371 U.S. 471, 488 (1963), quoting Maguire, Evidence of

Guilt 221 (1959). And, in determining whether consent is “purged of the primary taint”

created by an officer‟s illegal conduct, we consider the temporal proximity of the

consent to the illegal search, the presence of intervening circumstances, and the purpose

and flagrancy of the officer‟s misconduct. Brown v. Illinois, 422 U.S. 590, 603-04

(1975).

¶21           Applying the Brown factors in this case, we first address the temporal

proximity of the unconstitutional conduct and the consent. Blakley consented to the

search simultaneously with Silva‟s illegal presence. This factor thus favors Blakley.

See, e.g., United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1300 (9th Cir. 1988)

(citing cases holding consent insufficient to dissipate taint when given between minutes

and hours after illegal conduct). And, because the police misconduct and consent were

simultaneous, there were no intervening circumstances. See State v. Monge, 173 Ariz.

279, 281, 842 P.2d 1292, 1294 (1992) (“Consent is of little significance when there are

no intervening circumstances between the illegal arrest and the consent.”). See also

United States v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000) (“Lack of knowledge of a

prior search is an intervening factor which dissipates the coercion inherent in a request

for consent made after . . . unconstitutional [act].”), overruled in part on other grounds

by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001); Guillen, 223 Ariz. 314, ¶ 17,

223 P.3d at 662 (noting resident‟s lack of knowledge of constitutional violation

“constitutes a major break in the causal chain”).



                                            14
¶22           Considering Brown‟s third factor, the purpose and flagrancy of the official

misconduct, there was no evidence that Silva‟s intrusion into a constitutionally protected

area of the property was for a legitimate purpose. Silva testified at the suppression

hearing that his specific intent in entering that area was to investigate the vehicle and not

to make contact with any person. Indeed, he testified that he had not “see[n] anybody at

all” on the property before walking into that area.

¶23           And, far from showing that the drug evidence was acquired by means

distinguishable from the illegal entry and search, the record before us demonstrates that

Blakley‟s admission and consent were secured by the illegal act itself. Silva testified

that he could smell the odor of raw marijuana when he was standing by the vehicle

during his conversation with Blakley. Nothing in the record suggests Silva could smell

the marijuana prior to walking into the area where the vehicle was parked. The record

thus suggests that information acquired after the illegal intrusion, at minimum, had some

influence on the nature of the exchange between Silva and Blakley.

¶24           Although Blakley apparently concedes his consent was voluntary, we are

mindful that he was not obligated to talk to Silva at all. Arguably, by intruding in an

area not ordinarily accessed by visitors, an area in close proximity to the place where the

marijuana was stored, Silva caused an encounter that would not necessarily have

occurred had Silva attempted to make contact with Blakley by knocking on his front

door. See United States v. Spotted Elk, 548 F.3d 641, 655 (8th Cir. 2008) (defendant not

required to answer door in absence of warrant). To this extent, Silva exploited his illegal

intrusion through the encounter that led to Blakley‟s confession and consent to search.

                                             15
¶25             We also observe that Silva did not give Miranda9 warnings to Blakley

either before or after Blakley had confessed to storing marijuana in his garage. In

Guillen, our supreme court noted:

                In analyzing whether a confession was obtained by
                exploitation of an illegal arrest, the Court in Brown also
                considered whether the police gave Miranda warnings to be
                “an important factor.” “Although Brown dealt with the
                exclusion of a defendant‟s statements, [the reasoning in
                Brown] applies equally to contraband revealed by [a] consent
                search.”

223 Ariz. 314, n.2, 223 P.3d at 663 n.2 (citation omitted), quoting Kempton, 166 Ariz. at

398, 803 P.2d at 119 (alterations in Guillen). At the suppression hearing, Silva testified

that after Blakley‟s confession, he was not free to leave; indeed, no reasonable person

would have believed otherwise.        See Florida v. Royer, 460 U.S. 491, 501 (1983)

(defendant “effectively seized for purposes of the Fourth Amendment” when

“„reasonable person would have believed that he was not free to leave‟”), quoting United

States v. Mendenhall, 446 U.S. 544, 554 (1980). Thus, Miranda warnings were required

before additional questioning. See State v. Kennedy, 116 Ariz. 566, 568-69, 570 P.2d

508, 510-11 (App. 1977). And given Blakley‟s immediate confession, he reasonably

might have believed it was fruitless to refuse consent to search the garage. See Furrow,

229 F.3d at 814 (when officer seeks consent to second search of residence after prior

illegal search, defendant “might reasonably think that refusing to consent . . . when he

knows that the police have, in fact, already conducted a search of his home, would be a

bit like closing the barn door after the horse is out”).

       9
           Miranda v. Arizona, 384 U.S. 436 (1966).
                                              16
¶26           We therefore conclude that Silva exploited his unlawful presence by

obtaining Blakley‟s consent. For this reason, the trial court erred in failing to suppress

the marijuana.   And, as the marijuana constituted the key evidence to support his

conviction, Blakley‟s conviction must be vacated. See State v. Bible, 175 Ariz. 549,

588, 858 P.2d 1152, 1191 (1993) (where error contributed to verdict, it cannot be

deemed harmless).

                                       Disposition

¶27           For the reasons above, we vacate Blakley‟s conviction and sentence and

remand this matter for further proceedings consistent with this opinion.10


                                             /s/ Garye L. Vásquez
                                             GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge


/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge




       10
        In light of our resolution of this issue, we need not consider the remaining
issues Blakley raises.
                                           17
