                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    STATE OF ARIZONA, Appellant,

                                    v.

                BRANDON DUANE HOLLINS, Appellee.

                          No. 1 CA-CR 15-0222
                           FILED 5-17-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2014-121522-001
              The Honorable Pamela H. Svoboda, Judge

              AFFIRMED IN PART, REVERSED IN PART


                               COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellee



                     MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Lawrence F. Winthrop joined.
                           STATE v. HOLLINS
                           Decision of the Court

K E S S L E R, Judge:

¶1             The State of Arizona (“State”) appeals from the superior
court’s order granting defendant Brandon Duane Hollins’s (“Hollins”)
motion to suppress his statements and physical evidence allegedly obtained
as a result of a police interrogation in violation of Miranda v. Arizona, 384
U.S. 436 (1966). For the reasons that follow, we affirm the order suppressing
Hollins’s statements to police about his ownership of a backpack, but
reverse the order suppressing the contents of the backpack.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Two Phoenix police officers arrived at an extended-stay hotel.
When the officers got to the property, they saw Hollins around the hotel
office. The officers then saw Hollins and a woman hurriedly walk up
exterior hotel stairs and enter a hotel room. An officer noticed Hollins was
carrying a black backpack with white trim. The officers learned from hotel
management that a large number of unregistered guests occupied the room
where Hollins entered, and the police subsequently helped hotel security
serve a notice of trespass on that room.

¶3             When the officers arrived at the room, there were four people
present, but none of them were registered guests. They asked Hollins for
identification. When they discovered he had an outstanding warrant for
his arrest, they arrested him and two other unregistered occupants who also
had outstanding warrants. They handcuffed Hollins with his arms behind
his back. The officers saw two backpacks in the room and, without giving
any Miranda warnings, questioned the occupants to determine what
property belonged to whom to decide what property would stay in the
room and what would be removed.1 The black backpack with white trim
was directly in front of Hollins and about a foot away from him. The officer
asked Hollins, two or three times, who the black backpack with white trim
belonged to, and each time Hollins denied ownership of the backpack.
Hollins eventually admitted the backpack belonged to him after the officer
said he had seen Hollins walk up the stairs with the bag. The outside pocket
of the backpack was open and upon shining a flashlight into the opening,
the police saw what they thought was a pipe with methamphetamine




1An officer testified that the hotel management asked law enforcement to
remove all property from the room not belonging to the registered hotel
occupant.


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                           STATE v. HOLLINS
                           Decision of the Court

residue. Given that fact, the police did not agree to Hollins’s request that
they give the backpack to one of the occupants who was not being arrested.

¶4             The police took the backpack into the patrol car and searched
it, finding index cards with victims’ financial information, a checkbook and
IDs (none of which were in Hollins’s name nor in the name of anyone else
in the room), and the pipe they thought was drug paraphernalia. The State
charged Hollins with one count of Aggravated Taking Identity of Another,
a class three felony (three or more persons or entities). Ariz. Rev. Stat.
(“A.R.S.”) §§ 13-2009 (2014), -2001 (2015), -702 (2009), -801 (2015).2

¶5             Hollins moved to suppress (1) the statements he made to law
enforcement pursuant to the Fifth Amendment of the United States
Constitution and Article 2, Section 4, of the Arizona Constitution; and (2)
the physical evidence found in his backpack pursuant to the Fourth
Amendment of the United States Constitution, and Article 2, Section 8, of
the Arizona Constitution. Hollins contended his statements to law
enforcement were taken while in custody without a Miranda warning.
Hollins further argued that because law enforcement discovered the items
in his backpack solely as a result of un-Mirandized statements, the physical
evidence was illegally seized and had to be suppressed. The State argued
that because there was no interrogation there was no Miranda violation and
that in any event, the search of the backpack was valid as a search incident
to arrest or an inventory search.

¶6             The superior court granted Hollins’s motion as to both the
statements and the documents in the backpack. The court held that
although the officer’s singular question to Hollins about the ownership of
the backpack on its own was not an interrogation, the repeated questioning
was the “functional equivalent of interrogation” under Rhode Island v. Innis,
466 U.S. 291, 301 (1980). Because Hollins was also in custody, the court held
the interrogation was in violation of Miranda. The court further held that
because the police discovered the backpack was Hollins’s because of the
statements obtained in violation of Miranda and searched it as part of an
inventory search, the evidence from the backpack must also be suppressed.
The court also held the search would not be valid under the inevitable




2We cite to the current version of the relevant statutes unless revisions
material to this decision have occurred.



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                            STATE v. HOLLINS
                            Decision of the Court

discovery doctrine because the search was only tied to Hollins based on the
statements in violation of Miranda.3

¶7             The State unsuccessfully moved for reconsideration, arguing
in part that the search was valid because the meth pipe was in plain view
and that possession of the backpack was sufficient to justify an inventory
search. The court then granted the State’s motion to dismiss the case
without prejudice pursuant to Rule 16.6 of the Arizona Rules of Criminal
Procedure. The State timely appealed the suppression order. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
A.R.S. §§ 12-120.21(A)(1) (2016), 13-4031, -4033(A)(1) (2015).

                         STANDARD OF REVIEW

¶8             In reviewing orders on motions to suppress evidence, we
consider only evidence presented during the suppression hearing, State v.
Brown, 233 Ariz. 153, 156, ¶ 4 (App. 2013), and view the facts in the light
most favorable to the trial court’s ruling, State v. Gerlaugh, 134 Ariz. 164, 167
(1982). We defer to the trial court’s factual findings unless they are clearly
erroneous. State v. Rosengren, 199 Ariz. 112, 116, ¶ 9 (App. 2000). We review
the court’s legal conclusions de novo. State v. Moody, 208 Ariz. 424, 445, ¶62
(2004).

                                DISCUSSION

¶9            The State argues the superior court erred because: (1)
Hollins’s post-arrest statements of ownership did not violate Miranda; and
(2) the search of the backpack complied with the Fourth Amendment
because there was no connection between Hollins’s post-arrest statements
and the search.

    I.     The court did not err in suppressing Hollins’s post-arrest
           statements.

¶10           Statements stemming from a custodial interrogation cannot
be used against a defendant absent procedural safeguards securing the
privilege of self-incrimination. Miranda, 384 U.S. at 444. Interrogation
under Miranda refers to both express questioning and the “functional
equivalent” of questioning. Innis, 466 U.S. at 301. The focus of inquiry as




3The superior court characterized the search of the backpack as “part of an
inventory search,” but did not state whether the inventory search was valid.


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                            STATE v. HOLLINS
                            Decision of the Court

to whether a suspect was subject to interrogation is on the perceptions of
the suspect, and not the intent of the police. Id.

¶11           The State contends there was no Miranda violation because,
even though Hollins was in custody when he made the statement about
ownership of the backpack, the statement was not a result of a custodial
interrogation. As we understand the State’s position, despite the police
repeatedly asking Hollins if he owned the backpack, this was not an
interrogation because the police already knew Hollins owned the backpack,
needed to confirm that to clear the room, and the police cannot be expected
to know that Hollins would make incriminating statements in response to
a request of ownership of the backpack.

¶12            We disagree with the State. First, it is undisputed that Hollins
was in custody when he was questioned and that the police did not give
Hollins his Miranda warnings. Generally, police may ask a question of a
person in custody as to ownership of property to ensure that the property
is safeguarded. Miranda, 384 U.S. at 477 (excluding general on-the-scene
questioning from the definition of custodial interrogation); Innis, 466 U.S.
at 301 (stating that words or conduct by the police “normally attendant to
arrest and custody” do not fall within the purview of interrogation).
However, repeatedly asking a person whether he owned property over his
denials amounts to an interrogation under the “functional equivalent”
definition of questioning under Innis. Innis, 466 U.S. at 301. While the State
contends that the police already knew the backpack belonged to Hollins,
we need not decide whether questioning to confirm that knowledge is
subject to Miranda because the State’s position is contradicted by the fact
that the police repeatedly asked Hollins if it was his until he admitted
ownership. If the police knew Hollins owned the backpack, there was no
need for them to repeatedly question him. Thus, viewing the evidence in
the light most favorable to affirm the superior court, the superior court did
not believe that the police already knew the ownership of the backpack. We
defer to the trial court for witness credibility determinations. State v.
Estrada, 209 Ariz. 287, 288, ¶ 2 (App. 2004).

¶13            We also reject the State’s contention that we should not apply
Miranda if the police questioning did not intend to obtain incriminating
information. Innis explicitly rejected an interrogation analysis based on
officer intent. Innis, 466 U.S. at 301 (opining that Miranda safeguards were
designed to protect a suspect in custody against coercive police practices
without regard to the underlying intent of police). Miranda was intended
to establish black letter law: if the defendant is in custody, any statements
he makes in response to interrogation are inadmissible, unless he agrees to


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                             STATE v. HOLLINS
                             Decision of the Court

answer questions after being read his Miranda rights. Miranda, 384 U.S. at
492. That clear rule would be impractical to enforce if Miranda did not apply
simply because the police said they were not intending to obtain
incriminating evidence from the person in custody being interrogated.
Under this line of reasoning, officers could adopt a habit of posing
seemingly innocuous questions under the pretense of innocent intentions
that produce incriminating responses, and defendants would lose their
constitutional protection under Miranda. Such an outcome is antithetical to
the prophylactic measures embodied in Miranda warnings that protect the
constitutional right against self-incrimination.4

    II.    The trial court erred in suppressing the physical evidence in the
           backpack.

¶14           The State contends that the backpack search was
constitutional because it was either a search incident to arrest or a valid
inventory search. As we understand the State’s argument, it contends that
the Miranda violation did not result in the backpack search because the
contents of the closed backpack would have been discovered regardless of
the statement as to ownership. We need not reach the issue of whether this
was a valid search incident to arrest because we agree with the State that
the documents found in the backpack would have been inevitably
discovered as part of an inventory search.

¶15            Warrantless searches and seizures are per se unreasonable
under the Fourth Amendment, subject to a few well-delineated exceptions.
State v. Davolt, 207 Ariz. 191, 203, ¶ 29 (2004) (citing Katz v. United States, 389
U.S. 347, 357 (1967)). An inventory search does not constitute an illegal
search and seizure if the search is to safeguard the property of the person
in custody, subject to police policy, and not to obtain evidence. Illinois v.
Lafayette, 462 U.S. 460, 463–64 (1983) (holding that an inventory search is an
incidental administrative step between arrest and incarceration, and the
justification for an inventory search is not predicated on probable cause).
The constitutional validity of a warrantless search is dependent on the
factual context of each case. Sibron v. State, 392 U.S. 40, 59 (1968). The
results of an invalid warrantless search are not subject to the exclusionary
rule if the evidence lawfully would have been found in any event. Davolt,



4 Of course, spontaneous, voluntary admissions made to police without
Miranda warnings are not excludable. See State v. Carter, 145 Ariz. 101, 106
(1985). The State could not successfully argue that Hollins spontaneously
admitted ownership after repeated questions if he owned the backpack.


                                        6
                             STATE v. HOLLINS
                             Decision of the Court

207 Ariz. at 204, ¶ 35 (citing Nix v. Williams, 467 U.S. 431, 444 (1984); State v.
Lamb, 116 Ariz. 134, 138 (1977)).

¶16             Valid inventory searches fall within the inevitable discovery
doctrine because they are routine administrative searches where police
discretion is limited by standardized criteria on the basis of something other
than suspicion of evidence of criminal activity. See Colorado v. Bertine, 479
U.S. 367, 375-76 (1987). The reasonableness of an inventory search is
predicated on two conditions: (1) the arrestee had possession of the
searched item, and (2) the search was in line with standardized
administrative police procedures. State v. Stukes, 151 Ariz. 216, 217-18 (App.
1986) (citing Lafayette, 462 U.S. at 643-44, 646-47).

¶17            The record is undisputed that Hollins was in possession of the
backpack both before and when he was arrested. Prior to the arrest, officers
saw him carrying the backpack to the motel room. On his arrest, the
backpack was one foot in front of him. Supra, ¶ 2; see State v. Ottar, 232 Ariz.
97, 99-100, ¶¶ 5-7, 9 (2013) (holding that possession under the criminal code
means to exercise dominion or control over the property and control in its
ordinary sense means to have power over something) (citations omitted).
Clearly, Hollins had possession of the backpack when he climbed the stairs
to the room. He also had sufficient control in the motel room. See State v.
Villavicencio, 108 Ariz. 518, 520 (1972) (holding that defendant had
constructive possession of narcotics found in a box on the open back porch
of his apartment even though it was accessible to others). Indeed, the
superior court found that Hollins was in possession of the backpack at least
when he was climbing the stairs to the room.

¶18            However, the court erred in holding that to have a valid
inventory search, the State had to prove the defendant owned the backpack.
Specifically, the court stated that the backpack’s contents had to be
suppressed because the police learned the backpack was Hollins’s based on
Hollins’s statement that he owned it. The rule, however, is that an
inventory search may be valid if the defendant possessed the backpack.
Stukes, 151 Ariz. at 217-18 (citing Lafayette, 462 U.S. at 643-44, 646-47).5

¶19         The second prerequisite for a valid inventory search is that it
was   undertaken pursuant to standardized administrative police


5 This confusion may have been a result of the arguments of counsel in the
superior court which also focused on ownership rather than possession.
The State only raised the issue of possession being sufficient for an
inventory search in the motion for reconsideration.


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                            STATE v. HOLLINS
                            Decision of the Court

procedures. Id. While the record only provides a conclusory statement
about the police normally impounding property of an arrestee especially if
contraband is found, we may take judicial notice of such formal inventory
policies. State v. Rojers, 216 Ariz. 555, 560-61, ¶¶ 25-26 (App. 2007). Phoenix
Police Department Operations Order 4.11.10 provides that “[u]pon the full
custody arrest of a subject, officers shall inventory all personal effects in the
person’s possession prior to booking.” It further provides that “[a]s part of
the inventory, officers shall look inside all containers, locked or unlocked.”
(https://www.phoenix.gov/policesite/Documents/operations_orders.pd
f (last visited April 29, 2016)).

¶20            Since the contents of the backpack were found subject to a
valid inventory search, the court erred in suppressing those contents.
Given our holding today, we need not decide whether we should follow
United States v. Patane, 532 U.S. 630 (2004), in which a plurality of the Court
held that evidence found as a result of statements made after a Miranda
violation was not subject to the exclusionary rule if the statements
themselves are not admitted.6 But cf. Davolt, 207 Ariz. at 204 (holding that
if evidence is discovered as a result of a Miranda violation and the evidence
would not have been inevitably lawfully discovered, the physical evidence
must be excluded).

                               CONCLUSION

¶21          For the reasons stated above, we affirm the superior court’s
order suppressing Hollins’s statement to the police that he owned the
backpack, but reverse the order suppressing the evidence the police found
in the backpack.




                                    :ama




6See Marks v. United States, 430 U.S. 188, 193 (1977) (holding that when a
Court decision is the result of a plurality vote, we are to take the narrowest
possible reading of the decision in light of the concurrences).


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