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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   CESAR ALEJO CORDOVA, Appellant.

                             No. 1 CA-CR 16-0048
                               FILED 12-15-2016


            Appeal from the Superior Court in Apache County
                         No. S0100CR201300191
            The Honorable Michael P. Roca, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Emily L. Danies, Tucson
Counsel for Appellant



                       MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.
                          STATE v. CORDOVA
                          Decision of the Court

H O W E, Judge:

¶1            Cesar Alejo Cordova appeals his convictions and sentences
for one count of possession of methamphetamine and one count of
possession of drug paraphernalia. He argues that the trial court erred by
denying his motion to suppress evidence found during a search of his home
because the authorizing search warrant lacked sufficient probable cause.
For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In the summer of 2013, the Apache County Sheriff’s Office
investigated a murder. When deputies arrested the murder suspects, they
seized a gun that they later learned was one of two that had been stolen
during a home burglary a few months earlier. After a series of interviews
with witnesses and suspects in that case, deputies learned that one of the
murder suspects had traded the second stolen gun in a black plastic
carrying case with Cordova in exchange for two grams of
methamphetamine. Deputies also learned, however, that Cordova in turn
had traded the gun with another man. In a follow-up interview with the
man to whom Cordova had allegedly traded the gun, the man admitted
that he had the gun and told deputies that he received it from Cordova as
partial payment for a 1964 Chevrolet pickup truck that he had sold to
Cordova. After their interview, the man gave the deputies the gun, which
matched the description and serial number of the second stolen gun.

¶3             Later that day, one of the deputies applied for a search
warrant for Cordova’s house, stating generally that he believed the house
contained evidence of trafficking in stolen property and possession of drugs
for sale. The supporting six-page affidavit detailed the investigation into
the murder and burglary, including the many witnesses and suspects the
deputies interviewed and the recovery of both stolen guns. The affiant
deputy specifically avowed that in addition to the two guns and the black
plastic case, several gun cartridges and extra magazines were also reported
stolen. Further, the affiant avowed that one of the murder suspects traded
one of the stolen guns and a black plastic carrying case with Cordova for
drugs, and that Cordova gave the gun as a partial payment on a 1964
Chevrolet truck. This transaction allegedly occurred at Cordova’s house.
According to the affidavit, when the deputies recovered the gun from the
man to whom Cordova traded it, they received only the gun. The man told
deputies that he had received the gun without any extra magazines and that
Cordova had told him that was the condition he received it in as well. The
magistrate issued a search warrant that same day.


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                           STATE v. CORDOVA
                           Decision of the Court

¶4             The deputies then executed the search warrant at Cordova’s
house. In doing so, deputies found the 1964 Chevrolet pickup truck and the
truck’s title. Deputies also found methamphetamine, a digital scale, and
two smoking pipes with marijuana residue. The State charged Cordova
with possession of a dangerous drug (methamphetamine) and possession
of drug paraphernalia.1

¶5             Before trial, Cordova moved to suppress the evidence found
in his house. He argued that the affidavit supporting the search warrant did
not establish probable cause and was deficient for three reasons. Cordova
argued first that the information that the affiant deputy relied on in seeking
the warrant came from unreliable sources because they were criminals who
had motives to lie. He argued second, that the information contained in the
affidavit was stale because most of the events mentioned in it were at least
four months old. Cordova argued finally that the warrant did not specify
what “ongoing criminal activity” the deputy expected to find at the house.

¶6            The State opposed the motion, arguing that the information
in the affidavit was reliable because it came from named sources and was
verified as the investigation progressed. The State also argued that the
information was not stale because the deputies followed up with the
information as soon as it became available to them, and to the extent that
the warrant was invalid, the trial court should deny the motion to suppress
under the good faith exception. After hearing oral arguments and taking
testimony from the affiant deputy, the trial court denied the motion. It
stated that the affidavit supporting the search warrant “on its face
establishes probable cause” to search the house.

¶7            A jury ultimately convicted Cordova of one count of
possession of a dangerous drug (methamphetamine) and one count of
possession of drug paraphernalia. The trial court suspended sentencing and
ordered that Cordova serve concurrent terms of 4 years’ and 3 years’
probation, respectively, for each charge. Cordova timely appealed.

                               DISCUSSION

¶8           Cordova argues that the trial court erred by denying his
motion to suppress the evidence found in his home because probable cause
did not support the warrant and was therefore invalid. We review the trial


1       The State also charged Cordova with two counts relating to
trafficking of stolen goods, but those charges proceeded under a different
case number and are not at issue in this appeal.


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                            STATE v. CORDOVA
                            Decision of the Court

court’s denial of a motion to suppress for an abuse of discretion. State v.
Payne, 233 Ariz. 484, 502 ¶ 42, 314 P.3d 1239, 1257 (2013). In doing so, we
only consider the evidence presented at the suppression hearing and view
the facts in the light most favorable to upholding the trial court’s ruling.
State v. Yonkman, 233 Ariz. 369, 371 ¶ 4, 312 P.3d 1135, 1137 (App. 2013). An
abuse of discretion is “an exercise of discretion which is manifestly
unreasonable, exercised on untenable grounds or for untenable reasons.”
State v. Woody, 173 Ariz. 561, 563, 845 P.2d 487, 489 (App. 1992). We review
de novo, however, whether a warrant complied with the requirements of
the Fourth Amendment to the United States Constitution. State v. Davolt,
207 Ariz. 191, 202 ¶ 21, 84 P.3d 456, 467 (2004). Because the search warrant
and the affidavit contained information establishing probable cause, the
trial court did not err by denying Cordova’s motion to suppress the
evidence found in his house.

¶9             The United States and Arizona Constitutions require that a
search warrant may only be issued when supported by probable cause. U.S.
Const. amend. IV; Ariz. Const. art. 2, § 8. The Fourth Amendment prohibits
the issuance of a general warrant and instead requires that a warrant be
based on a showing of “probable cause, supported by Oath . . . particularly
describing the place to be searched, and the persons or things to be seized.”
U.S. Const. amend. IV; see also A.R.S. § 13–3913. In determining whether the
requisite probable cause exists, the issuing magistrate must “make a
practical common-sense decision whether, given all the circumstances set
forth in the affidavit . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Illinois v. Gates, 462
U.S. 213, 238 (1983). A reviewing court’s duty is to ensure that the
magistrate had a substantial basis to conclude that probable cause existed.
Id. at 238–39. When police conduct a search pursuant to a search warrant,
the search is presumed lawful and the defendant bears the burden of
invalidating it. Ariz. R. Crim. P. 16.2(b).

¶10           Here, probable cause supported the authorizing search
warrant because, given all of the circumstances, a fair probability existed
that contraband or evidence would be found there. At the time that the
affiant deputy applied for the search warrant, he knew that two guns had
been stolen, one of which had been recovered when they stopped and
arrested the murder suspects. The deputy knew that the second gun had
been traded in its black plastic carrying case to Cordova in exchange for
two grams of methamphetamine. However, when they recovered the gun
from the man with whom Cordova subsequently traded it for the pickup
truck, they recovered only the gun. Nothing in the affidavit states that the
deputies also recovered the black plastic case from the man. When he gave


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                           STATE v. CORDOVA
                           Decision of the Court

the gun to the deputies, the man told them that he did not receive any extra
magazines with the gun and that Cordova had told him that was the
condition in which he received the gun. The man also told deputies that the
transaction occurred at Cordova’s house. Because deputies had information
that Cordova received the gun from the murder suspect with the black case,
however, a fair probability existed that Cordova still had the stolen case in
his possession and at his house. The black plastic case is evidence of the
trafficking of stolen property. See A.R.S. § 13–2307(A) (stating that “[a]
person who recklessly traffics in the property of another that has been
stolen is guilty of trafficking in stolen property in the second degree.”).
Additionally, although the deputies did not have any specific information
that the other stolen items—namely the cartridges and magazines—were at
Cordova’s house, deputies knew that the items were still missing and that
Cordova had engaged in a transaction with the suspected thief for at least
two stolen goods. Accordingly, given the totality of these circumstances,
the trial court had substantial basis to conclude that probable cause existed.2

¶11            Further, because probable cause supported the search
warrant, the evidence obtained during its execution was not seized illegally.
Arizona law permits an officer to “seize any property discovered in the
course of the execution of the warrant, even if the warrant does not
enumerate that property, under certain circumstances.” A.R.S.
§ 13–3916(C). One of those circumstances is when the property consists of
any item or evidence which “tends to show that a particular public offense
has been committed.” A.R.S. § 13–3912(4). During the execution of the valid
warrant on Cordova’s home here, the deputies found methamphetamine, a
digital scale, and pipes with drug residue. These items tend to show that
particular public offenses, possession of a dangerous drug and
paraphernalia, has been committed. Thus, the deputies rightfully seized
those items regardless whether the warrant specifically enumerated them.
Accordingly, the trial court did not err in denying Cordova’s motion to
suppress that evidence.




2     Because probable cause supports the search warrant, we need not
address Cordova’s argument on whether the good faith exception applies.


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                  STATE v. CORDOVA
                  Decision of the Court

                     CONCLUSION

¶12   For the foregoing reasons, we affirm.




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




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