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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

            JOSEPH OTONEL MANZANARES, JR., Appellant.

                             No. 1 CA-CR 15-0753
                               FILED 1-4-2017


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201400420
            The Honorable Billy K. Sipe, Judge Pro Tempore

                                  REVERSED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Law Office of Daniel De Rienzo PLLC, Prescott Valley
By Daniel J. DeRienzo
Counsel for Appellant
                         STATE v. MANZANARES
                           Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco (Retired) joined.


G O U L D, Judge:

¶1            Appellant Joseph Manzanares appeals the superior court’s
denial of his motion to suppress. For the reasons discussed below, we
reverse the court’s order denying the motion to suppress.

             FACTS AND PROCEDURAL BACKGROUND1

¶2            Officers were dispatched to an apartment in response to a
report that two male subjects, one of them armed with a gun, had entered
the apartment. The report stated the men had chased an individual from
the apartment; they were still armed and pursuing the individual in the
area.

¶3            Officers arrived at the apartment at approximately 4:00 a.m.;
Manzanares and Jiana Chambers were sitting outside. Manzanares told the
officers he was spending the night at the apartment and had been sleeping
in a back bedroom when he heard a knock at the front door. In response to
the knock Christopher Bowen, who lived at the apartment, answered the
door. After hearing a scuffle, Manzanares got up and saw Bowen running
past him being chased by two men. One of the men pointed a gun at
Manzanares and threatened to kill him.

¶4           Chambers stated that she was in the bathroom when two men
with guns kicked in the door. One of the men pointed a gun at her, told her
he was looking for Bowen, and stated he was going to kill Bowen.

¶5           Both Manzanares and Chambers told the officers that Bowen
had fled from the apartment by jumping off the rear balcony, and that the
gunmen had run out the front door chasing him.



1      “In reviewing a trial court’s denial of a motion to suppress, we view
the facts in the light most favorable to upholding its ruling.” State v. Moreno,
236 Ariz. 347, 349, ¶ 2 (App. 2014) (citation omitted).


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                        STATE v. MANZANARES
                          Decision of the Court

¶6           The officers performed a protective sweep of the apartment to
determine if Bowen or the gunmen were still inside; the apartment,
however, was empty. While several officers started canvassing the area
looking for Bowen and the gunmen, three officers began searching the
apartment; the officers were looking for “any form of evidence to link us to
the gunmen or just anything; any form of evidence what-so-ever (sic) to
find out who these people were.”

¶7            The officers searched the apartment for approximately forty-
five minutes to an hour. Manzanares and Chambers were not allowed
inside the apartment during the search.

¶8            While the officers were conducting their search, they heard a
cell phone vibrating on the floor behind the front door. One of the officers
asked Manzanares to call Bowen’s cell number to determine whether the
phone belonged to Bowen. However, when Manzanares called Bowen’s
number, the phone did not ring.

¶9            During the search, the officers found a cell phone box on the
floor under the kitchen table; the box appeared to be for the same make and
model cell phone as the cell phone they found behind the door. Searching
for identifying information regarding the cell phone, one of the officers
opened the box.2       When he looked inside, he observed heroin,
methamphetamine, and several items of drug paraphernalia.3

¶10          The search of the apartment ended when Bowen called
dispatch, advising the police he was safe. The officers then obtained a
search warrant for the apartment; they based their probable cause for the
warrant solely on the illegal drugs found in the cell phone box. During this
subsequent warrant search, officers found illegal drugs and drug
paraphernalia in a laptop case in a bedroom. Based on the contents of the
laptop case, Manzanares was charged with four counts of possession of
narcotic drugs for sale, one count of possession of dangerous drugs for sale,


2      The officer testified that while he was in the apartment, he
determined the phone on the floor belonged to Bowen. He made this
determination when Manzanares called Bowen’s number a second time,
and the phone rang. However, the officer could not recall if this occurred
before or after he opened the cell phone box.

3      At trial, Bowen testified that the cell phone box and its contents were
his.



                                      3
                        STATE v. MANZANARES
                          Decision of the Court

and one count of possession of drug paraphernalia. Bowen was charged as
a co-defendant on four of the counts.

¶11           Manzanares filed a motion to suppress the cell phone box, its
contents, and the items seized from the laptop during the execution of the
search warrant, arguing these items were obtained pursuant to an illegal
search. The superior court denied the motion on the grounds (1)
Manzanares lacked a legitimate expectation of privacy in the cell phone
box, and (2) exigent circumstances justified the search of the apartment and
cell phone box.4

¶12           Following a jury trial, Manzanares was convicted of
possession of narcotic drugs for sale, possession of dangerous drugs for
sale, possession of drug paraphernalia, and three (lesser-included) counts
of possession of narcotic drugs. Manzanares timely appeals.

                               DISCUSSION

¶13            Manzanares argues the superior court erred in denying his
motion to suppress because (1) as an overnight guest he had a legitimate
expectation of privacy in the apartment, which extended to the cell phone
box, and (2) the officers’ search of the apartment, including the box, was not
justified on the grounds of exigent circumstances. Moreover, Manzanares
contends that regardless of his lack of possessory interest in the box and its
contents, the items obtained pursuant to the search warrant should be
suppressed because they are “fruit of the poisonous tree.”

¶14            We review a trial court’s ruling on a motion to suppress for
an abuse of discretion. State v. Peterson, 228 Ariz. 405, 408, ¶ 6 (App. 2011)
(citations omitted). We consider only the evidence before the court at the
suppression hearing, and defer to the court’s factual findings that are
supported by the record and are not clearly erroneous. State v. Estrada, 209
Ariz. 287, 288, ¶ 2 (App. 2004). However, we review the trial court’s legal
conclusions de novo, including whether there was a Fourth Amendment
violation. Id.




4      The superior court noted, in passing, that by calling 9-1-1,
Manzanares and Chambers impliedly consented to a search of the
apartment. However, the State did not argue that the search was justified
based on implied consent, and it has not raised this issue on appeal. We
therefore do not reach this issue.


                                      4
                          STATE v. MANZANARES
                            Decision of the Court

I.     Expectation of Privacy

¶15            The Fourth Amendment protection against unreasonable
searches is personal, and can be invoked only by a defendant with a
“legitimate expectation of privacy in the invaded place.” State v. Peoples,
240 Ariz. 245, 248, ¶ 8 (2016) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978));
see also U.S. Const. amend. IV. In Minnesota v. Olson, 495 U.S. 91 (1990), the
United States Supreme Court held that “an overnight guest has a legitimate
expectation of privacy in his host’s home,” and that a defendant’s “status
as an overnight guest is alone enough to show that he had an expectation
of privacy.” Id. at 96-98; see Peoples, 240 Ariz. at 250, ¶ 18 (holding that an
overnight guest has a legitimate expectation of privacy in the host’s home).

¶16            The State concedes that Manzanares was an overnight guest.
The record also shows that Manzanares was an overnight guest. Officers
located Manzanares at Bowen’s apartment at 4:00 a.m., and Manzanares
told the officers that he was spending the night in a back bedroom.

¶17           Therefore, based on his status as an overnight guest,
Manzanares had a legitimate expectation of privacy in the apartment. The
State argues, however, that even as an overnight guest, Manzanares had no
legitimate expectation of privacy in the cell phone box.

¶18           We conclude the superior court erred in focusing on
Manzanares’ expectation of privacy in the box, as opposed to the
apartment. Here, the dispositive issue is whether the officers were lawfully
present in the apartment to conduct a search. If the officers did not have
the right to be in the apartment, they did not have the right to search the
box—or any other place or container in the apartment. Accordingly,
Manzanares had a legitimate expectation of privacy to challenge the
search.5



5      Although it is not the dispositive issue in this case, we note that
Manzanares did not possess a privacy interest in every box and container
in the apartment based solely on his status as an overnight guest. Indeed,
an overnight guest’s expectation of privacy generally extends only to those
areas over which he has control. Cf. State v. Apelt, 176 Ariz. 349, 363-64
(1993) (stating that although the defendant, who stayed at the victim’s
apartment, had a privacy interest in the apartment as a whole, he had no
standing to challenge the search of a third party’s bag and camera inside
the apartment); see also United States v. Davis, 332 F.3d 1163, 1169-70 (9th Cir.



                                         5
                         STATE v. MANZANARES
                           Decision of the Court

II.    Exigent Circumstances

¶19            Manzanares concedes that the officers’ initial entry and
protective sweep of the apartment was justified. However, Manzanares
argues that the officers’ search of the apartment after the protective sweep
was finished was not “strictly circumscribed” to the exigent circumstance
justifying their entry into the apartment. See Mincey v. Arizona, 437 U.S. 385,
393 (1978). We agree.

¶20           A warrantless search of a home is presumptively
unreasonable. Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (citation
omitted). However, a warrantless entry is permissible based on exigent
circumstances. See Kentucky v. King, 563 U.S. 452, 459-60 (2011) (citations
omitted); State v. Aguilar, 228 Ariz. 401, 403, ¶ 16 (App. 2011) (citation
omitted) (stating warrantless entry into a dwelling is permissible based on
probable cause and exigent circumstances).

¶21             “Arizona courts have explicitly enumerated the following
circumstances as exigent within the spirit of the Fourth Amendment: (1)
response to an emergency, (2) hot pursuit, (3) probability of destruction of
evidence, (4) possibility of violence, or (5) knowledge that a suspect is
fleeing or attempting to flee.” Aguilar, 228 Ariz. at 404, ¶ 16; see King, 563
U.S. at 460 (stating that exigent circumstances justifying a warrantless
search of a home include rendering emergency assistance to an injured
occupant or to protect an occupant from imminent physical injury, hot
pursuit of a fleeing suspect, and preventing the imminent destruction of
evidence) (citations omitted). Police may seize any evidence that is in plain
view during the course of the emergency entry. Mincey, 437 U.S. at 393; see
State v. Hicks, 146 Ariz. 533, 534 (App. 1985) (stating officers entering home
for exigent circumstances may only seize items in plain view).




2003) (stating that apartment tenant lacked actual or apparent authority to
consent to a search of an overnight guest’s gym bag located under the bed
in the bedroom where the guest was staying); United States v. Haqq, 278 F.
3d 44, 49-50 (2nd Cir. 2002) (holding that defendant, who was staying at his
girlfriend’s apartment with four other people, had no expectation of
privacy in a suitcase discovered during a protective sweep, where the
bedroom was used by another person and the suitcase belonged to third
party); United States v. Wilson, 536 F.2d 883, 885 (9th Cir. 1976) (holding that
a defendant, who was an overnight guest, lacked standing to challenge
search of another person’s suitcase in the apartment).


                                       6
                         STATE v. MANZANARES
                           Decision of the Court

¶22           When officers enter a dwelling in response to exigent
circumstances, the search must be “strictly circumscribed by the exigencies
which justify its initiation.” Mincey, 437 U.S. at 393 (citation omitted)
(holding warrantless search of defendant’s apartment where officer was
shot was not justified because all of the occupants in the apartment at the
time of the shooting had been located and, as a result, there was no longer
an emergency); see also Murdock v. Stout, 54 F.3d 1437, 1442 (9th Cir. 1995)
(abrogated on other grounds) (holding officers did not exceed scope of the
exigency when they entered a house to check on possible unresponsive
occupants; court held the search was justified because the police
“conducted a brief search . . . to locate any occupant” who might have been
in danger, and “immediately left the premises” when they identified the
occupant); State v. Fisher, 141 Ariz. 227, 239 (1984) (abrogated on other
grounds) (holding police actions were properly limited to the exigency
when responding to possible homicide because they walked through the
rooms of the house for no more than two minutes to make sure there was
not another body, and then left).

¶23           Here, the exigent circumstances justifying the initial entry had
dissipated by the time the drugs in the cell phone were located. Specifically,
after the officers conducted the protective sweep and determined that
neither Bowen nor the gunmen were in the apartment, they continued to
search the apartment for 45 minutes to an hour. It was during this extended
search that the officers located the box and the drugs. This extended search
was not “strictly circumscribed” to the exigent circumstance justifying the
officers’ entry into the apartment. Mincey, 437 U.S. at 393; see State v.
Siqueiros, 121 Ariz. 465, 467 (App. 1978) (holding officer was justified in
entering apartment to render aid, but warrantless search of apartment to
investigate possible homicide was not strictly circumscribed to the exigency
because there was no longer an emergency in the apartment).

¶24           As a result, the superior court erred in determining the search
was justified by exigent circumstances.

¶25            Additionally, the search warrant obtained by the officers did
not remove the taint of the illegal search. Generally, “evidence derived
from an illegal search or seizure is ‘fruit of the poisonous tree’ and should
be suppressed.” State v. Richcreek, 187 Ariz. 501, 506 (1997) (citing Wong Sun
v. United States, 371 U.S. 471 (1963)). Here, the information used to establish
probable cause for the warrant was based solely on the contents of the cell
phone box that were obtained during the illegal search. As a result, the
evidence obtained pursuant to the warrant must also be suppressed. See
State v. Gulbrandson, 184 Ariz. 46, 58 (1995) (citation omitted) (stating when


                                      7
                        STATE v. MANZANARES
                          Decision of the Court

there is an illegal entry into a home followed by a search pursuant to a valid
search warrant, evidence obtained by the search warrant “may be admitted
at trial, provided the warrant was based on information legally obtained.”).

                               CONCLUSION

¶26           Because Manzanares had a legitimate expectation of privacy
in the apartment, and the officers’ search of the apartment was not justified
by exigent circumstances, we reverse the superior court’s order denying his
motion to suppress.




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




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