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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JARROD ROBERT WHATLEY, Appellant.

                              No. 1 CA-CR 17-0279
                                FILED 5-22-2018


            Appeal from the Superior Court in Maricopa County
                       No. CR2016-118654-001 DT
            The Honorable Lauren R. Guyton, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Saldivar & Associates, P.L.L.C., Phoenix
By Jose A. Saldivar
Counsel for Appellant


                        MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James P. Beene joined.
                            STATE v. WHATLEY
                            Decision of the Court

C R U Z, Presiding Judge:

¶1            Jarrod Robert Whatley challenges the court’s denial of his
pretrial motion to suppress evidence. For the following reasons, we affirm
the court’s order.

              FACTUAL AND PROCUDERAL HISTORY

¶2            In April 2016, Herb B., the owner of an auto body shop,
parked a family friend’s Nissan 350Z in the shop’s parking lot, hoping to
help the friend sell the vehicle. Herb kept the insurance card and
registration inside the vehicle, and placed a for sale sign in the window.
The keys to the vehicle were on a key rack behind the auto body shop’s
front desk.

¶3             On April 18, Whatley visited the shop in a white Ford F250
truck, to discuss repairs on a car he had dropped off the previous weekend.
Herb was in the back of the shop when Whatley entered. Security footage
from a nearby shop showed Whatley enter the auto body shop, leave the
shop and place something in his truck, and walk by the Nissan.

¶4            After several minutes, an employee of the shop told Herb that
Whatley was there. Herb noted that Whatley was acting strange. Later that
evening, Herb noticed the keys to the Nissan were missing from the rack.
That night, security video showed a white F250 pull up to the body shop,
an individual exit the truck, unlock the Nissan, and drive off with the F250
following behind.

¶5            The next morning, Herb contacted the police. After Herb
informed officers of Whatley’s behavior, officers ran Whatley’s information
from the vehicle still in the shop and discovered the location of his
residence. When officers arrived at Whatley’s residence, they discovered
both the Nissan and the F250. Officers watched Whatley’s residence,
observed Whatley and a female companion exit the residence, and
witnessed the female drive off in the Nissan, while Whatley drove off in the
F250. Officers used the truck’s license plate to identify the owner and
learned it was owned by a rental company. Officers attempted to follow
the vehicles, but lost them; the next day, officers located Whatley in the
same F250, stopped him, and placed him under arrest. Incident to his
arrest, and because the truck was a rental to be returned to the rental
company, officers searched the truck for items of evidentiary value and
discovered paperwork belonging to the Nissan. Whatley was charged with
theft of means of transportation, a Class 3 felony.



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                            STATE v. WHATLEY
                            Decision of the Court

¶6            Before trial, Whatley filed a motion to suppress the Nissan
paperwork found in the truck. Whatley argued the evidence was obtained
unlawfully; that it was obtained pursuant to an unreasonable inventory
search, there was no indication that officers reasonably believed evidence
of the theft would be found in the truck, and that it would not have been
inevitably discovered. After an evidentiary hearing, the court denied
Whatley’s motion.

¶7            After a four-day trial, the jury found Whatley guilty. Whatley
timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of
the Arizona Constitution, and Arizona Revised Statutes sections 12-
120.21(A)(1), 13-4031, and -4033(A).

                               DISCUSSION

¶8            We review the superior court’s ruling on a motion to suppress
evidence for an abuse of discretion. State v. Spears, 184 Ariz. 277, 284 (1996).
We review only the evidence presented at the suppression hearing, and
view the evidence in the light most favorable to upholding the court’s
ruling. State v. Caraveo, 222 Ariz. 228, 229 n.1 (App. 2009). We review the
court’s legal conclusions de novo. State v. Newell, 212 Ariz. 389, 397, ¶ 27
(2006).

¶9             The Fourth Amendment to the United States Constitution
protects persons from unreasonable searches and seizures. State v. Aguilar,
228 Ariz. 401, 403, ¶ 13 (App. 2011). Generally, in order to be reasonable, a
search or seizure must be made upon probable cause and pursuant to a
legally issued warrant. State v. Organ, 225 Ariz. 43, 46, ¶ 11 (App. 2010).
“However, because the ultimate touchstone of the Fourth Amendment is
reasonableness, those requirements are subject to certain exceptions.” Id.
(Internal quotations omitted.) Two such exceptions justifying a warrantless
search are searches incident to valid arrest and inventory searches. Arizona
v. Gant, 556 U.S. 332, 343-44 (2009) (search incident to arrest in vehicle
context); State v. Schutte, 117 Ariz. 482, 486 (App. 1977) (inventory search of
vehicle).

¶10           Whatley challenges the superior court’s denial of his motion
to suppress, arguing the state failed to meet its burden establishing that the
search was constitutional.         Whatley’s argument focuses on the
appropriateness of an inventory search and the inevitable discovery
doctrine, however, the court found the search was not justified as an
inventory search: “[w]ithout identifying the procedures required for an
inventory search, or that the actions taken by law enforcement were



                                       3
                            STATE v. WHATLEY
                            Decision of the Court

consistent with those procedures, the search cannot be supported as a valid
inventory search.” Whatley does not challenge the court’s actual finding:
“that the obtaining of the evidence from [Whatley’s] vehicle was properly
obtained incident to his arrest[,]” and thus has waived that argument. See
State v. Bolton, 182 Ariz. 290, 298 (1995) (providing that failure to argue a
claim on appeal constitutes waiver of that claim). While Whatley sought to
rectify his failure in his reply brief, a claim of error cannot be raised for the
first time in reply. See State v. Guytan, 192 Ariz. 514, 520, ¶ 15 (App. 1998).

¶11           As Whatley failed to contest the court’s denial of his motion
to suppress on the grounds identified by the court, we affirm the court’s
denial of his motion. See State v. Perez, 141 Ariz. 459, 464 (1984) (“We are
obliged to affirm the trial court’s ruling if the result was legally correct for
any reason.”).

¶12            We note that, even though waived, we would affirm the
court’s denial of Whatley’s motion on the basis the court did not err in
finding the evidence was obtained incident to his arrest. Searches and
seizures are to be examined under a standard of objective reasonableness,
in light of the facts and circumstances confronting the officer at the time.
State v. Jeney, 163 Ariz. 293, 295-96 (App. 1989). Given the information
available to the investigating officers as discussed supra ¶¶ 3-5, it was
reasonable to suspect evidence of the theft would be located within the
truck.

                               CONCLUSION

¶13         For the foregoing reasons, we affirm the court’s order denying
Whatley’s motion to suppress.




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




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