                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    ANDREW JUSTIN SMITH, Appellant.

    No. 1 CA-CR 13-0843, No. 1 CA-CR 13-0844, No. 1 CA-CR 13-0848
                            (Consolidated)
                            FILED 3-17-2015

          Appeal from the Superior Court in Maricopa County
        No. CR-2010-112510-001 DT, No. CR-2012-111752-001 DT,
                     No. CR-2013-106190-001 DT
                 The Honorable David B. Gass, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Thomas Baird
Counsel for Appellant
                            STATE v. SMITH
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.


W I N T H R O P, Judge:

¶1            Andrew Justin Smith (“Smith”) appeals his convictions for
unlawful flight, driving with a suspended license, and forgery. In addition,
because these convictions resulted in a revocation of probation imposed in
a prior misdemeanor case, Smith appeals the revocation decision relating
to that conviction. Smith challenges only one portion of the trial court’s
rulings; he asserts that in denying his motion to suppress, the trial court
erred when it found that the “hot pursuit” exigency exception justified a
warrantless search. For the following reasons, we affirm the trial court’s
denial of Smith’s motion to suppress and uphold his convictions and
sentences.

                 FACTS AND PROCEDURAL HISTORY

¶2             On February 29, 2012, Officer Kurtz of the Maricopa County
Sheriff’s Office (“MCSO”) initiated a routine records check on a maroon
Ford Explorer he observed while on patrol in Fountain Hills. Before the
records check yielded any information, the Explorer veered down a side
street, making it impossible for Officer Kurtz to safely follow. After the
records check revealed the owner of the Explorer was Brenda Sawyer, with
a registered address on Pinto Drive, Officer Kurtz subsequently saw the
vehicle being driven by a white male, paced the vehicle, and after
determining it was speeding, initiated a traffic stop. Officer Kurtz got out
of his patrol car and approached the vehicle, but as he reached the rear
bumper, the driver drove away at a high rate of speed. Officer Kurtz
pursued the vehicle, but lost sight of it. Approximately three minutes later,
after a bystander told Officer Kurtz that the vehicle he was pursuing had
turned onto Pinto Drive, the officer arrived at the vehicle owner’s registered
address on that street.

¶3            MCSO Officer Cincotta arrived at the residence at the same
time. There were no vehicles in the driveway, and the officers saw that the
door to the garage attached to the home was “unsecured.” The officers
lifted the door several feet and saw the maroon Ford Explorer inside, then


                                      2
                            STATE v. SMITH
                           Decision of the Court

closed the door. Officer Kurtz checked the front door to the residence,
which was locked, and proceeded to “knock and announce” the officers’
presence. More officers arrived and surrounded the residence. Officer
Kurtz then checked the county assessor’s website to verify who owned the
home, and contacted the Maricopa County Probation Department
(“MCPD”) to determine if the homeowner was on probation.

¶4            The county assessor’s website revealed the registered owner
of the home was Brenda Sawyer, and MCPD advised that Sawyer was on
probation. While waiting for a probation officer to arrive, MCSO officers
decided to re-open the garage door and again announced their presence at
the front door.

¶5           A probation officer subsequently arrived at the residence and
decided to conduct a welfare check on Sawyer. The probation officer, along
with Officer Kurtz and a canine unit, entered the home, where they found
Sawyer and Smith in a back bedroom. They were transported to police
headquarters, where Sawyer gave conflicting statements regarding who
had been driving her vehicle earlier that day. She first stated that a man
named Michael Burns had been driving the vehicle, but she ultimately
admitted it was Smith. Sawyer also stated Smith told her he had been
pulled over by the police and had failed to stop.

¶6           On April 5, 2012, a grand jury issued an indictment charging
Smith with unlawful flight from law enforcement, a class five felony, and
driving with a suspended license, a class one misdemeanor.

¶7             Smith filed a motion to suppress, alleging that lifting of the
garage door constituted a warrantless search in violation of his
constitutional rights. The State opposed the motion, noting that the officers
had searched Sawyer’s home as part of a valid probation check. The trial
court held an evidentiary hearing on August 31 and September 4, 2012.

¶8            The trial court granted the motion to suppress in part. The
court concluded that lifting the garage door constituted a warrantless
search, but was justified by the “hot pursuit” exigent circumstance; thus,
the information obtained by initially lifting the door would not be
suppressed. The trial court then found that the police officers’ subsequent
re-entry into the closed garage before the probation officer arrived was a
warrantless search with no exigent circumstances; thus, any evidence
obtained from this entry would be excluded. Finally, the trial court found
that the probation officer’s search of the home was valid and denied Smith’s




                                     3
                            STATE v. SMITH
                           Decision of the Court

motion to suppress evidence stemming from that search, including
Sawyer’s statements to police.

¶9             In January 2013, before Smith’s trial, the prosecutor received
a notarized letter allegedly signed by Michael Burns, who claimed to have
been driving the vehicle at the time at issue. The State contacted the
designated notary, who indicated he had previously notarized a document
for Brenda Sawyer, but not for Michael Burns. In addition, the notary stated
that he did not work the day the letter was notarized. On February 13, 2013,
a grand jury issued another indictment charging Smith with two counts of
forgery, a class four felony.

¶10            The jury found Smith guilty on all four counts. At sentencing,
the State alleged and proved two prior convictions. Smith was sentenced
to three years’ imprisonment for unlawful flight with 268 days of
presentence incarceration credit. He was sentenced to time served for
driving on a suspended license, and to concurrent six years’ prison terms
for forgery, to run consecutively to his prison term for unlawful flight.
Smith timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(2), 13-4031, and 13-4033(A).1

                                ANALYSIS

¶11          Smith appeals the trial court’s determination that the
warrantless search of the garage was permissible under the hot pursuit
exigency exception. We need not address this issue, however, because the
subsequent probation search was valid, and the evidence obtained therein
was properly admitted against Smith.2

¶12           “We will not disturb a trial court’s ruling on a motion to
suppress absent clear and manifest error.” State v. Rodriguez, 186 Ariz. 240,
245, 921 P.2d 643, 648 (1996) (internal citation omitted). This court will
review only the evidence presented at the suppression hearing and will
view the facts in the light most favorable to upholding the trial court’s
ruling. State v. Moore, 183 Ariz. 183, 186, 901 P.2d 1213, 1216 (App. 1995).



1     We cite the current Westlaw version of the applicable statutes
because no revisions material to this decision have since occurred.

2       Based on the record before this court, it appears that the officers’
lifting of the garage door would constitute a warrantless search excusable
by the hot pursuit doctrine.


                                     4
                             STATE v. SMITH
                            Decision of the Court

¶13           A person on probation has a diminished expectation of
privacy, and a term of probation that compels advance consent to an
unannounced entry of premises does not place an unconstitutional
limitation upon the probationer’s Fourth Amendment rights. See State v.
Montgomery, 115 Ariz. 583, 584, 566 P.2d 1329, 1330 (1977). Warrantless
searches of probationers are thus reasonable under the Fourth Amendment
if the search is authorized by a condition of probation and supported by
reasonable suspicion. U.S. v. Knights, 534 U.S. 112, 122 (2001); see also U.S.
v. Davis, 932 F.2d 752, 758 (9th Cir. 1991) (holding that “police must have
reasonable suspicion, that an item to be searched is owned, controlled, or
possessed by probationer, in order for the item to fall within the permissible
bounds of a probation search.”)

¶14           In the present case, the trial court took judicial notice that
Sawyer’s terms of probation specifically authorized warrantless searches of
her person and property by MCPD, and this court will do the same. See
State v. McGuire, 124 Ariz. 64, 66, 601 P.2d 1348, 1349 (App. 1978) (stating
“[a]n appellate court can take judicial notice of any matter of which the trial
court may take judicial notice”). The vehicle that was used to flee from
police was registered to Sawyer. Moreover, after a bystander advised
police the vehicle had turned down Pinto Drive, officers had probable cause
to believe that the vehicle would be returning to the registered owner’s
address on that street. The county assessor’s website indicated that Sawyer
owned the home at the address listed on the vehicle’s registration. Based
on that information, the officers had, at minimum, reasonable suspicion to
believe either that Sawyer was assisting someone who was fleeing from
police, or, that Sawyer’s safety was in jeopardy.3 Under either scenario,
MCSO and MCPD acted within their discretion to conduct a probation
search. Because Sawyer’s terms of probation expressly allowed warrantless
searches, and because the officers had confirmed Sawyer owned both the
vehicle and house in question, the search constituted a valid probation
search under the Fourth Amendment.

¶15           Because the search was valid, the evidence seized and
statements obtained were properly used against Smith. See State v. Walker,
215 Ariz. 91, 95, ¶¶ 21-22, 158 P.3d 220, 224 (App. 2007) (stating evidence
lawfully seized during a probation search can be used against a non-
probationer who cohabited with the probationer at the time of the search).

3      The officers’ initial lifting of the garage and observation of the same
vehicle that had fled from police inside that garage further substantiates the
reasonable suspicion required prior to a probation officer conducting a
probation search.


                                      5
                            STATE v. SMITH
                           Decision of the Court

Evidence of Smith’s presence inside the residence, his appearance matching
the general description of the suspect who had been driving the Explorer,
and Sawyer’s subsequent statements incriminating Smith all resulted from
the lawful search of Sawyer’s home. Accordingly, the trial court did not err
when it denied Smith’s motion to suppress.

                             CONCLUSION

¶16         For the foregoing reasons, we affirm the trial court’s denial of
Smith’s motion to suppress, and we affirm Smith’s convictions and
sentences.




                                 :ama




                                        6
