                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                   FELICIANO ONTIVEROS-LOYA,
                           Appellant.

                      No. 2 CA-CR 2014-0159
                       Filed June 30, 2015

         Appeal from the Superior Court in Pima County
                      No. CR20132226001
            The Honorable Deborah Bernini, Judge

            VACATED IN PART AND REMANDED


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
                   STATE v. ONTIVEROS-LOYA
                      Opinion of the Court



                                OPINION

Presiding Judge Miller authored the opinion of the Court, in which
Chief Judge Eckerstrom and Judge Espinosa concurred.

M I L L E R, Presiding Judge:

¶1           Following a jury trial, Feliciano Ontiveros-Loya was
convicted of possession of a deadly weapon by a prohibited
possessor. The trial court sentenced him to an eight-year prison
term. On appeal, Ontiveros-Loya argues the court abused its
discretion by failing to suppress evidence obtained during a search
of his motel room because his consent to search the room was
neither knowing nor voluntary. He also contends the search of his
cell phone incident to his arrest was unlawful and the violation was
not cured by the search warrant police later obtained. Ontiveros-
Loya additionally asserts that the court improperly admitted the
photographs found on his cell phone and abused its discretion by
failing to give a related limiting instruction and by giving a
constructive possession instruction. Finally, he maintains his
conviction must be overturned because the jury verdict might not
have been unanimous and he was convicted of an offense not
presented to the grand jury. For the following reasons, we vacate
the court’s suppression ruling and remand for a determination on
the issue of whether Ontiveros-Loya consented to a search of his cell
phone.

                Factual and Procedural Background

¶2           We view the facts in the light most favorable to
sustaining Ontiveros-Loya’s conviction and sentence. See State v.
Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). On an
evening in May 2013, Ontiveros-Loya approached S.R. outside a
motel in Tucson and told her if she did not go back to his motel
room with him, he would shoot her. S.R. saw a gun tucked into
Ontiveros-Loya’s pants. He grabbed her arm, but she pushed away
and fled.


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                       Opinion of the Court


¶3            A detective with the Pima County Sheriff’s Department
responded to a market near the motel after S.R. called 9-1-1.
Detectives later found Ontiveros-Loya in his motel room. He
initially identified himself as Oscar Lopez, but at some unspecified
later time he provided his true name. The detectives asked for
consent to search the room, which they testified Ontiveros-Loya
gave. The detectives found a firearm magazine and a cell phone in
the room. The cell phone included photographs of a silver handgun.

¶4           Ontiveros-Loya was charged with one count of
possession of a weapon by a prohibited possessor, one count of
attempted kidnapping, and one count of aggravated assault. 1 He
filed several suppression motions, including a motion to suppress
the evidence found on the cell phone, which the trial court denied.
The jury found him guilty of the prohibited possessor charge, and
the court sentenced him as described above. Ontiveros-Loya timely
appealed.       We have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1) and 13-4033(A)(1).

                              Discussion

¶5            Ontiveros-Loya argues the trial court abused its
discretion by denying his motion to suppress the photographs found
on his cell phone. We review the denial of a motion to suppress for
an abuse of discretion. State v. Jacot, 235 Ariz. 224, ¶ 9, 330 P.3d 981,
984 (App. 2014). We consider only the evidence presented at the
suppression hearing, and we view that evidence in the light most
favorable to sustaining the court’s rulings. State v. Kinney, 225 Ariz.
550, ¶ 2, 241 P.3d 914, 917 (App. 2010).

¶6          In his motion, Ontiveros-Loya argued that, because he
had no access to the cell phone at the time of his arrest, the “search
incident to arrest” exception to the warrant requirement did not
apply. He further contended that the search “exceeded the scope of

      1 Ontiveros-Loyamoved to sever the prohibited possessor
charge from the remaining charges, and the trial court granted the
motion. The court later granted the state’s motion to dismiss the
attempted kidnapping and aggravated assault charges.

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                      Opinion of the Court


any reasonable search incident to arrest.” The state argued that
officers were permitted to search Ontiveros-Loya’s cell phone
incident to his arrest because “[i]t is more than reasonable that
deputies believed that [the] cell phone could contain evidence of the
incident involving [S.R.].”2 The state also contended that Ontiveros-
Loya knowingly and voluntarily consented to a search of his motel
room, where the phone was found, so its search “was permissibly
within the scope of the search of [the] motel room.”

¶7           The trial court denied the motion to suppress, stating
“the search incident to arrest in large part could be justified in the
fact that [Ontiveros-Loya] gave conflicting information regarding his
ID” and “one of the reasons given eventually for the search of the
cellphone data in the warrant was for identification purposes.” The
court concluded, “[T]hat was a legitimate use of the phone as a
search incident to arrest where having access to the phone would
have assisted [detectives] in getting correct information to verify
who [Ontiveros-Loya] was.” The court also found “it was inevitable
that [detectives] would discover the photographs” of the gun.

¶8           After the trial court denied his motion to suppress,
Ontiveros-Loya interviewed Detectives Garrick Carey and Rogelio
Moreno. In his interview, Moreno stated the detectives only had
consent to search for a gun, and Carey confirmed they were
“[l]ooking for a firearm.” Moreno also stated Ontiveros-Loya was
not under arrest when they searched the cell phone, but he was
seated in the back of a patrol car, and Carey stated the decision to
arrest him was made at the end of the investigation. Moreno stated
the detectives were looking for “anything that . . . was pertinent to
the investigation,” such as “[p]ictures of a female, pictures of the
gun that was in question, pictures of . . . [Ontiveros-Loya] holding
the gun,” and Carey stated the detectives were looking for evidence
that would otherwise possibly be lost or destroyed if they did not
keep the phone.


      2Thestate also suggested the detectives could search the cell
phone because it was in plain view but did not pursue that
argument at the suppression hearing and has not raised it on appeal.

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                    STATE v. ONTIVEROS-LOYA
                       Opinion of the Court


¶9          Based on the interviews, Ontiveros-Loya filed a motion
for reconsideration of the trial court’s denial of his motion to
suppress. He argued “the search of the cell phone was not incident
to or contemporaneous with an actual arrest.” Ontiveros-Loya also
asserted the detectives were not looking for information about his
identity and instead were “trying to figure out whether they could
find additional evidence of the crimes alleged.” The court denied
the motion.

¶10          The Fourth Amendment of the United States
Constitution and Article II, § 8, of the Arizona Constitution protect
against unreasonable searches and seizures. Warrantless searches of
homes are presumptively invalid, Jacot, 235 Ariz. 224, ¶ 10, 330 P.3d
at 984, and motel rooms have been afforded the same protections as
homes, see, e.g., State v. Davolt, 207 Ariz. 191, ¶ 23, 84 P.3d 456, 467
(2004) (“Hotel guests are entitled to full constitutional protection
against unreasonable searches and seizures.”). The state carries the
burden of proving that a warrantless search is constitutionally valid
under an exception to the warrant requirement. See State v. Olm, 223
Ariz. 429, ¶ 5, 224 P.3d 245, 247 (App. 2010). In its ruling on the
motion to suppress, the trial court concluded that the warrantless
search of Ontiveros-Loya’s cell phone was justified as a search
incident to arrest.

¶11           In Chimel v. California, the United States Supreme Court
considered “the permissible scope under the Fourth Amendment of
a search incident to a lawful arrest.” 395 U.S. 752, 753 (1969). There,
officers executing an arrest warrant searched the defendant’s entire
house incident to his arrest. Id. at 753-54. The Court offered two
justifications for permitting searches of an arrestee’s person incident
to arrest—officer safety and the prevention of concealment or
destruction of evidence. Id. at 763. The Court reasoned that “[w]hen
an arrest is made, it is reasonable for the arresting officer to search
the person arrested in order to remove any weapons that the latter
might seek to use in order to resist arrest or effect his escape.” Id. at
762-63. In addition, “the area into which an arrestee might reach in
order to grab a weapon or evidentiary items must, of course, be
governed by a like rule” because a weapon within the reach of an


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                       Opinion of the Court


arrestee “can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested.” Id. at 763. Thus,
the Court concluded, officers may search “the arrestee’s person and
the area ‘within his immediate control’—construing that phrase to
mean the area from within which he might gain possession of a
weapon or destructible evidence.” Id.

¶12          The Court declined, however, to extend the exception to
searches of an entire house. Id. The Court explained, “There is no
comparable justification . . . for routinely searching any room other
than that in which an arrest occurs—or, for that matter, for searching
through all the desk drawers or other closed or concealed areas in
that room itself.” Id. Such searches must be made pursuant to a
warrant, unless another exception applies. Id.

¶13          In Riley v. California,3 the Court considered “whether the
police may, without a warrant, search digital information on a cell
phone seized from an individual who has been arrested.” ___ U.S.
___, ___, 134 S. Ct. 2473, 2480 (2014). There, officers searched each
arrestee’s person incident to arrest and found cell phones, which the
officers also searched. Id. at ___, 134 S. Ct. at 2480-81. The Court
observed that the two risks identified in Chimel—harm to officers
and destruction of evidence—do not exist when the search is of
digital data. Id. at ___, 134 S. Ct. at 2484-85. The Court also reasoned
that “[a] search of the information on a cell phone bears little
resemblance to [a] brief physical search” because “[c]ell phones . . .
place vast quantities of personal information literally in the hands of
individuals.” Id. at ___, 134 S. Ct. at 2485. Thus, the Court held that


      3 Ontiveros-Loya     was sentenced before Riley was decided.
However, “newly announced rules of constitutional criminal
procedure must apply ‘retroactively to all cases, state or federal,
pending on direct review or not yet final, with no exception.’” Davis
v. United States, ___ U.S. ___, ___, 131 S. Ct. 2419, 2430 (2011), quoting
Griffith v. Kentucky, 479 U.S. 314, 328 (1987); see also United States v.
Spears, 31 F. Supp. 3d 869, 874 (N.D. Tex. 2014) (treating Riley as new
rule of constitutional criminal procedure); State v. Henderson, 854
N.W.2d 616, 630 (Neb. 2014) (same).

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                    STATE v. ONTIVEROS-LOYA
                       Opinion of the Court


“officers must generally secure a warrant before conducting” a
search of a phone found on the person of an arrestee. Id.

¶14           The Court further observed that “[d]igital data stored
on a cell phone cannot itself be used as a weapon to harm an
arresting officer or to effectuate the arrestee’s escape.” Id. Officers
may seize and secure cell phones to prevent destruction of evidence
while they seek a warrant, but “once law enforcement officers have
secured a cell phone, there is no longer any risk that the arrestee
himself will be able to delete incriminating data from the phone.”
Id. at ___, 134 S. Ct. at 2486. The Court rejected the argument that
concerns about “remote wiping and data encryption” justified
searches of cell phones incident to arrest, stating, “[T]hese broader
concerns about the loss of evidence are distinct from Chimel’s focus
on a defendant who responds to arrest by trying to conceal or
destroy evidence within his reach.” Id.

¶15          In response to the argument that an arrestee’s reduced
privacy interests justify the search of a cell phone incident to arrest,
the Court stated, “The fact that an arrestee has diminished privacy
interests does not mean that the Fourth Amendment falls out of the
picture entirely.” Id. at ___, 134 S. Ct. at 2488. Rather, the Court
observed that “[m]odern cell phones, as a category, implicate
privacy concerns far beyond those implicated by the search of a
cigarette pack, a wallet, or a purse.” Id. at ___, 134 S. Ct. at 2488-89.
Thus, the Court’s “answer to the question of what police must do
before searching a cell phone seized incident to an arrest is
accordingly simple—get a warrant.” Id. at ___, 134 S. Ct. at 2495.

¶16           We have found no Arizona case that applies Riley to the
warrantless search of a cell phone located in the room where a
person has been arrested, but not within the arrestee’s reach. We
conclude Chimel and Riley prohibit such a search. First, neither of
the justifications identified in Chimel applies here. The cell phone
was not within Ontiveros-Loya’s reach because he was seated in the
back of a patrol car during the search of the motel room, so he could
not have used it to endanger the officers or destroy evidence. In
addition, the detectives searched Ontiveros-Loya’s photographs,
implicating the privacy interests described by the Court in Riley. As

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                     STATE v. ONTIVEROS-LOYA
                        Opinion of the Court


the Court observed, “The sum of an individual’s private life can be
reconstructed through a thousand photographs labeled with dates,
locations, and descriptions; the same cannot be said of a photograph
or two of loved ones tucked into a wallet.” Id. at ___, 134 S. Ct. at
2489. Thus, we conclude the warrantless search of the cell phone
was invalid under Chimel and Riley.

¶17          The trial court also found the warrantless search
justified because Ontiveros-Loya had given “conflicting
information” regarding his identity. The state cites no authority,4
and we have found none, that permits a search of a cell phone
incident to arrest for the purpose of verifying the arrestee’s identity.
Even if such a search came within an exception to the warrant
requirement, the evidence produced at the suppression hearing
established only that Ontiveros-Loya initially gave a false name and
at some unspecified time later provided his true name. There is no
indication from the testimony presented at the hearing that the
detectives had any reason to doubt Ontiveros-Loya’s identity before
they searched the cell phone. Thus, we conclude its search was not
incident to his arrest and the court abused its discretion in denying
the motion to suppress on that basis.

¶18          The trial court also found the detectives inevitably
would have discovered the photographs on Ontiveros-Loya’s cell
phone. Pursuant to the inevitable discovery doctrine, illegally
obtained evidence is admissible if “‘the prosecution can establish by
a preponderance of the evidence that the illegally seized items or
information would have inevitably been seized by lawful means.’”
State v. Rojers, 216 Ariz. 555, ¶ 18, 169 P.3d 651, 655 (App. 2007),
quoting State v. Jones, 185 Ariz. 471, 481, 917 P.2d 200, 210 (1996).

¶19         The detectives eventually obtained a warrant to search
the cell phone.5 But Ontiveros-Loya argues the application for the

      4Indeed,   the state does not argue the trial court’s rationale was
correct.
       5The warrant permitted the officers to search Ontiveros-Loya’s

cell phone for digital photographs, text messages, emails, telephone
numbers and contacts, and owner identification.

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                    STATE v. ONTIVEROS-LOYA
                       Opinion of the Court


warrant was based on the photographs found during the initial
search of the cell phone. He states “it appears that the evidence
found during the unlawful search is what prompted the officers to
subsequently seek the warrant.” The state responds, “[T]here is
nothing in the record demonstrating that information was used to
later obtain the search warrant” and Ontiveros-Loya “fails to
overcome the presumption that the search warrant was valid.” But
it was the state’s burden at the suppression hearing to prove
inevitable discovery applied, see id., so it was the state’s
responsibility to produce the affidavit to demonstrate it was not
based on the photographs found during the initial search.

¶20           Because the affidavit supporting the search warrant was
not proffered at the suppression hearing, the trial court could not
determine on what basis the police sought the warrant or whether it
was supported by probable cause after omitting any unlawfully
obtained information. There was no testimony that would allow the
court to conclude the officers could have obtained the warrant to
search the cell phone without the photographs found during the
initial search. See Davolt, 207 Ariz. 191, ¶ 36, 84 P.3d at 469 (refusing
to apply inevitable discovery doctrine where “no information was
adduced that the evidence discovered . . . might ever have been
obtained lawfully”). Thus, we conclude the court abused its
discretion in denying Ontiveros-Loya’s motion to suppress based on
the inevitable discovery doctrine.

¶21          Although the trial court erred by denying Ontiveros-
Loya’s motion to suppress, we will not reverse a conviction if the
error was harmless. Id. ¶ 39. “Error is harmless if we can conclude
beyond a reasonable doubt that it did not contribute to or affect the
verdict.” State v. Towery, 186 Ariz. 168, 185, 920 P.2d 290, 307 (1996).
Under that standard, the question “‘is not whether, in a trial that
occurred without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered in this
trial was surely unattributable to the error.’” State v. Valverde, 220
Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009), quoting State v. Anthony, 218
Ariz. 439, ¶ 39, 189 P.3d 366, 373 (2008). “We can find error
harmless when the evidence against a defendant is so overwhelming


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                    STATE v. ONTIVEROS-LOYA
                       Opinion of the Court


that any reasonable jury could only have reached one conclusion.”
Anthony, 218 Ariz. 439, ¶ 41, 189 P.3d at 373.

¶22           The strongest evidence produced at trial that Ontiveros-
Loya had possessed a deadly weapon was the photographs of him
holding a gun. The only other such evidence was S.R.’s testimony
that she saw a gun in Ontiveros-Loya’s waistband and the magazine
found in the motel room. Despite an “extensive” search of the motel
room and the surrounding area, police never found a gun. In
addition, another person had rented the motel room, and the jury
could have believed that the magazine belonged to that individual.
S.R. testified that the incident took place late at night in an area that
was not well-lit. She also had difficulty remembering the sequence
of events, stating she could not remember at what point Ontiveros-
Loya told her he would shoot her if she did not come back to his
room with him. S.R. also testified that the incident happened “really
fast” and that Ontiveros-Loya never pulled out the gun, showed it to
her, pointed it at her, or “made any indication . . . of using the gun or
having the gun.” We cannot eliminate the possibility that the error
contributed to the guilty verdict or conclude the other evidence was
so overwhelming that any reasonable jury was bound to reach one
conclusion. Id. ¶¶ 39, 41. Thus, the error was not harmless.

¶23          Although the trial court did not rely on Ontiveros-
Loya’s purported consent to search the motel room in denying his
motion to suppress the evidence found on the cell phone, the state
raised the consent question in its response to the motion to suppress,
and both parties addressed consent at the suppression hearing. 6


      6The  state argues Ontiveros-Loya waived all but fundamental
error review of the question of his consent to search the cell phone
because he did not argue in his suppression motion that the search
exceeded the scope of his consent to search the motel room. But the
state argued at the hearing that Ontiveros-Loya consented to the
search of the cell phone, and Ontiveros-Loya responded to the
argument. The trial court therefore was given the opportunity to
rule on the issue. See State v. Deschamps, 105 Ariz. 530, 533, 468 P.2d
383, 386 (1970). We conclude the issue is preserved for our review.

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Specifically, the state argued that Ontiveros-Loya gave the
detectives his consent to search the motel room, and that consent
also allowed them to search the cell phone, which was located in the
room. Ontiveros-Loya responded that “the idea that his consent to
search a hotel room means that he also consented to search
everything that was on a phone that happened to be in the hotel
room . . . goes way too far.”

¶24           Consent is another “long recognized exception to the
warrant requirement.” State v. Guillen, 223 Ariz. 314, ¶ 11, 223 P.3d
658, 661 (2010). It was the state’s burden to show Ontiveros-Loya
consented to the search of the motel room, State v. Lucero, 143 Ariz.
108, 110, 692 P.2d 287, 289 (1984), and that the search was conducted
within the scope of consent, State v. Ahumada, 225 Ariz. 544, ¶ 14, 241
P.3d 908, 912 (App. 2010). The scope of consent “is a question of fact
to be determined from the totality of the circumstances,” State v.
Swanson, 172 Ariz. 579, 583, 838 P.2d 1340, 1344 (App. 1992), based
on an objective standard of what a reasonable person would
understand from the exchange between the officer and the suspect,
Florida v. Jimeno, 500 U.S. 248, 251 (1991). “[T]he scope of a
consensual search is defined by the scope of the consent given,”
State v. Flores, 195 Ariz. 199, ¶ 26, 986 P.2d 232, 238 (App. 1999), and
“is limited by the items about which the officer inquired as a
predicate to the search.” Swanson, 172 Ariz. at 583, 838 P.2d at 1344.

¶25          The testimony at the suppression hearing did not
establish which items the detectives inquired about as a predicate to
the search. In addition, there was no evidence that Ontiveros-Loya’s
consent to search the motel room extended to a search of the
contents of his cell phone. The consent form he signed was not
admitted into evidence at the suppression hearing. Because the
parties raised this issue below, but the trial court did not rule on it
and the record is insufficient for us to rule on the issue as a matter of
law, we remand this matter to the court for the limited purpose of
considering the issue of consent to search the cell phone. “Taking
into consideration ‘the goals of timely administering justice and
searching for the truth,’ we believe a remand for limited proceedings
most efficiently resolves the issues at hand and preserves


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                       Opinion of the Court


[Ontiveros-Loya’s] right to seek relief from the court’s ruling on
remand.” State v. Peterson, 228 Ariz. 405, ¶ 19, 267 P.3d 1197, 1203
(App. 2011) (citation omitted).

                             Disposition

¶26          For the foregoing reasons, the trial court’s ruling
denying Ontiveros-Loya’s motion to suppress is vacated, the matter
is remanded for the limited purpose of allowing the court to rule on
the issue of consent to search the cell phone, and the remainder of
the appeal is stayed. 7 If the trial court rules Ontiveros-Loya
consented to the search of the cell phone, it will cause a certified
copy of its minute entry to be transmitted to the clerk of this court.
If no objection to that ruling is presented to this court within fifteen
days of the ruling, the stay will be lifted, and we will consider the
remaining issues on appeal. If the court finds Ontiveros-Loya did
not consent to the search of the cell phone, it is directed to enter an
order granting Ontiveros-Loya a new trial at which the evidence
obtained from the phone will be suppressed and the stayed portion
of this appeal will be dismissed as moot.




      7We  recognize that the trial court did not have the benefit of
the Riley decision when it ruled on Ontiveros-Loya’s motion to
suppress, which might account for the omission on the consent
issue. See State v. Caraveo, 222 Ariz. 228, ¶ 23, 213 P.3d 377, 382
(App. 2009) (remand proper where trial court failed to address
argument that defendant consented to search).


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