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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                          In re the Matter of:
     $151,645.00 U.S. CURRENCY PLUS ANY ACCRUED INTEREST.

                   STATE OF ARIZONA, Plaintiff/Appellee,

                                         v.

                  NICHOLAS CIFUNO, Claimant/Appellant.

                              No. 1 CA-CV 14-0715
                                FILED 2-25-2016


            Appeal from the Superior Court in Coconino County
                          No. S0300CV201000456
                 The Honorable Jacqueline Hatch, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of Lee Phillips, P.C., Flagstaff
By Lee Phillips
Counsel for Claimant/Appellant

Coconino County Attorney’s Office, Flagstaff
By David Rozema, Richard Vihel
Counsel for Appellee
                             STATE v. CIFUNO
                            Decision of the Court


                      MEMORANDUM DECISION

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


W I N T H R O P, Judge:

¶1           Nicholas Cifuno appeals the trial court’s order denying his
motion for summary judgment and granting the State’s motion for
summary judgment to forfeit cash in the amount of $151,645.00 (“the
Cash”). For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In 2010, Officer Craft with the Arizona Department of Public
Safety pulled Cifuno over on Interstate 40 for following too closely behind
another vehicle and for suspicion of impairment. When asked for
paperwork, Cifuno produced an out-of-state driver’s license and an Avis
car rental agreement; as directed, Cifuno then followed Officer Craft to the
patrol car. The rental car agreement was in the name of Christian Laux;
Cifuno was not listed in the agreement as a permissive driver. The
agreement expressly provided that “no additional operators are authorized
or permitted without Avis’ prior written approval . . . .” Cifuno explained
Laux had rented the car because he did not have good enough credit to rent
it. After issuing a warning for the traffic violation and allowing Cifuno to
return to the rental car, Officer Craft called Cifuno back and asked him
more questions. In the meantime, more officers arrived at the scene. When
Officer Craft asked Cifuno if he had any large amounts of money in the car,
Cifuno replied no; Cifuno also refused to provide a consent to a search of
the car or to allow Craft’s drug detection dog to perform a sniff of the car.
Officer Craft nevertheless searched Cifuno and walked the drug detection
dog around the rental car. The dog positively alerted to the rear of the car.
Officer Craft proceeded to search the car and inside found a duffel bag
containing the Cash. Cifuno was arrested and the vehicle and its contents
were seized.1



1       Cifuno was later indicted for money laundering; however, following
the filing of a defense motion to suppress, the State filed a motion to dismiss
the criminal charges, which was granted by the court.



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                             STATE v. CIFUNO
                            Decision of the Court

¶3             The State initiated this forfeiture action, seeking an order
forfeiting the Cash to the State; Cifuno filed a claim to assert his interest in
the Cash. Later Cifuno filed motions to suppress evidence obtained by the
State from the police search and seizure, alleging the search of the rental car
and seizure of his person violated his Fourth-Amendment rights against
unreasonable search and seizure. The court denied the motions, sua sponte
finding Cifuno lacked standing to challenge the search of the car because
he had presented no evidence that he had permission from Laux to use the
car. After Cifuno was deposed, both parties filed motions for summary
judgment;2 the court denied Cifuno’s motion but granted the State’s motion
on the grounds that Cifuno lacked standing to challenge the search and
seizure as previously determined, and that Cifuno had failed to identify a
genuine issue of fact concerning his ownership interest in the Cash. Finding
that the State had otherwise proven the other necessary elements, the trial
court entered summary judgment for the State in a signed minute-entry
order.

¶4           Cifuno timely appealed. We have appellate jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9; and Arizona
Revised Statutes (“A.R.S.”) sections 12–120.21(A)(1), 12-2101(A)(1).3

                                 ANALYSIS

¶5            On appeal, Cifuno contends the trial court erred in denying
his motions to suppress and his motion for summary judgment, and in
granting the State’s motion for summary judgment. We address these
issues in order.

       I.     Motions to Suppress

¶6            In the proceedings below, Cifuno moved to suppress any
evidence obtained by the State as a result of the police search and seizure,
asserting the search of the rental car violated his Fourth-Amendment rights
against unreasonable search and seizure. In reviewing the trial court’s
decision on a motion to suppress evidence based on an alleged Fourth-
Amendment violation, we defer to the trial court’s factual findings, but


2     Cifuno’s motion for summary judgment is not in the record on
appeal.

3     We cite the current version of all applicable statutes unless revisions
material to this decision have occurred since the relevant events.



                                       3
                             STATE v. CIFUNO
                            Decision of the Court

review de novo mixed questions of law and fact and the trial court’s legal
conclusions. State v. Teagle, 217 Ariz. 17, 22, ¶ 19, 170 P.3d 266, 271 (App.
2007). Whether a defendant has standing to challenge a search or seizure is
a mixed question of law and fact, and thus is reviewed de novo. United States
v. Sarkisian, 197 F.3d 966, 986 (9th Cir. 1999).

¶7            Under the Fourth Amendment, no person shall be subjected
to unreasonable searches or seizures. U.S. Const. Amend. IV. A person
may challenge a search or seizure if the person has a reasonable expectation
of privacy over the property that was searched or seized. Raskas v. Illinois,
439 U.S. 128, 144, 148 (1978).

              A.     Standing to Challenge the Search of the Rental Car

¶8           On appeal, Cifuno argues the trial court erred in denying his
motions to suppress because he had standing to challenge the search of the
rental car. We disagree.

¶9              United States v. Thomas, 447 F.3d 1191 (9th Cir. 2006), is
illustrative in analyzing the very issue before us whether a driver of a rental
car who is not listed on the rental agreement has standing to challenge a
police search of the car. Id. at 1193. In Thomas, the Washington state police
were informed that a rental car would be used to transport illegal
substances from California to Washington. Id. at 1193–94. The police
installed a tracking device on the car and stopped it when it entered
Washington; the police arrested the driver for an outstanding warrant,
searched the car, and found controlled substances and $1200. Id. at 1194–
95. The driver contended he had standing to challenge the search of the
rental car although he was not formally authorized to drive the car as his
name was not listed on the rental agreement. Id. at 1196. Under the Ninth
Circuit’s precedents, a person has standing to challenge a search if the
person has a reasonable expectation of privacy concerning the property
searched; the person has such expectation if the person has a possessory or
ownership interest in the property. Id. at 1197. The Ninth Circuit held that,
although in violation of the rental agreement, an unauthorized driver may
have standing to challenge the search of the rental car, but only if the driver
can show he received permission to use the rental car from the authorized
renter, and thus had a recognizable possessory interest and a reasonable
expectation of privacy in the car. Id. at 1198–99.

¶10            Applying the analysis in Thomas, we hold the trial court did
not err in finding Cifuno failed to prove that he received permission from
Laux to drive the car. At the hearing on the motion to suppress, the only



                                      4
                              STATE v. CIFUNO
                             Decision of the Court

evidence Cifuno proffered was his statement to Officer Craft that Laux had
rented the car for him because his credit history was not sufficient to allow
him to rent the vehicle directly from Avis. We agree with the trial court this
statement was not enough to show he had permission from Laux to use the
rental car. Therefore, the trial court did not err in finding Cifuno lacked
standing to challenge the search of the car. See also State v. Mitchell, 234 Ariz.
410, 415, ¶ 17, 323 P.3d 69, 74 (App. 2014) (finding the defendant has
standing to challenge search of a vehicle if he has lawful possession of it).

¶11           On appeal, Cifuno contends the lack of proof of permissive
use was cured in the form of an affidavit from Laux, attached to a
subsequent motion to reconsider, indicating that she had given Cifuno
permission to use the rental vehicle. The trial court expressly declined to
consider the newly-proffered affidavit, and denied the motion. The trial
court was well within its discretion in that regard, and on appeal, we do not
consider any such evidence not evaluated or relied upon by the trial court
in ruling on the motion to suppress or the motion to reconsider. See
Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 57 n.1, ¶ 16, 156 P.3d 1157,
1162, n.1 (App. 2007) (stating we only consider evidence before the trial
court when it was considering its initial ruling); Cella Barr Assocs., Inc. v.
Cohen, 177 Ariz. 480, 487 n.1, 868 P.2d 1063, 1070 n.1 (App. 1994) (stating we
only consider evidence presented to the trial court); GM Dev. Corp. v. Cmty.
Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990) (stating the
appellate review is limited to the record before the trial court).

              B.      Standing to Challenge the Seizure of the Cash

¶12           On appeal, Cifuno also contends he nevertheless has standing
to challenge the seizure of the Cash found in the rental car despite the court
finding a lack of standing to challenge the search of the rental car. Cifuno
never raised the issue below that the seizure of the Cash violated his Fourth-
Amendment rights against unreasonable search and seizure, and thus his
arguments on this issue raised for the first time on appeal are deemed
waived. See In re MH 2007-001264, 218 Ariz. 538, 540, ¶ 16, 189 P.3d 1111,
1113 (App. 2008) (holding argument not raised to the trial court is deemed
waived).

       II.    Motions for Summary Judgment

¶13           A ruling granting summary judgment is generally
appealable, but the denial of summary judgment—except for purely legal
issues—is generally not appealable. John C. Lincoln Hosp. & Health Corp. v.
Maricopa Cty., 208 Ariz. 532, 539, ¶ 19, 96 P.3d 530, 537 (App. 2004). Because



                                        5
                              STATE v. CIFUNO
                             Decision of the Court

Cifuno does not assert his motion for summary judgment contains only
purely-legal issues, we decline to address the denial of his motion for
summary judgment.

¶14            We review a trial court’s grant of summary judgment on the
basis of the record made in the trial court, but determine de novo whether
the entry of summary judgment was proper. Modular Mining Sys., Inc. v.
Jigsaw Techs., Inc., 221 Ariz. 515, 518, ¶ 9, 212 P.3d 853, 856 (App. 2009). In
determining whether the entry was proper, we apply the same standard the
trial court uses in ruling on a summary judgment motion. Id.

              A.       Standing to Contest in a Forfeiture Action

¶15           On appeal, Cifuno contends he has standing to contest in this
forfeiture action. Under A.R.S. § 13-4310(D), a person has standing to
contest forfeiture proceedings if the person can establish by a
preponderance of evidence that he is an owner or interest holder of the
property that is subject to the forfeiture action:

              In any judicial forfeiture hearing, determination or
       other proceeding pursuant to this chapter [on forfeiture], the
       applicant, petitioner or claimant must establish by a
       preponderance of the evidence that he is an owner of or
       interest holder in the property seized for forfeiture before
       other evidence is taken. The burden of proving the standing
       of the claimant and the existence of the exemption is on the
       claimant or party raising the claim, and it is not necessary to
       negate the standing of any claimant or the existence of any
       exemption in any notice, application, complaint, information
       or indictment.

A.R.S. § 13-4310(D).

¶16           The standing to contest in a forfeiture action is different from
that required to challenge a search or seizure under the Fourth
Amendment. A person who lacks standing to challenge the search of a car
may still have standing to challenge the seizure of the property found in the
car if the person has a reasonable expectation of privacy over the seized
property. Raskas, 439 U.S. at 148. Reasonable expectation of privacy can be
shown by reference to property rights and societal understandings, but is
not equivalent to property rights. Minnesota v. Carter, 525 U.S. 83, 88–89
(1998). Thus, the trial court erred in granting summary judgment for the
State on the ground that Cifuno lacked standing to challenge the entire



                                        6
                             STATE v. CIFUNO
                            Decision of the Court

forfeiture matter just because it had found Cifuno lacked standing to
challenge the police search of the rental car.

              B.     Granting Summary Judgment

¶17             The court also granted the State’s motion for summary
judgment on an alternative ground, i.e., that Cifuno failed to meet his
burden proving he was the owner or interest holder of the Cash and the
State had proven other elements of the forfeiture action. We agree with the
trial court in this regard.

¶18             “The court shall grant summary judgment if the moving party
shows that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.
56(a); accord Orme School v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004
(1990). The trial court may evaluate the evidence to some extent in ruling
on a motion for summary judgment. Orme School, 166 Ariz. at 309, 802 P.2d
at 1008. Summary judgment is proper, even if the opposing party has raised
a scintilla of evidence or a slight doubt, when the evidence before the court
was such that, if produced at trial, the trial judge would have been required
to direct a verdict in favor of the moving party. Id. at 311, 802 P.2d at 1010.
For example, “affidavits that contain inadmissible evidence, that are
internally inconsistent, that tend to contradict the affiant's sworn testimony
at deposition, and similar items of evidence may provide a ‘scintilla’ or
create the ‘slightest doubt’ and still be insufficient to withstand a motion for
summary judgment.” Id. at 309, 802 P.2d at 1008.

¶19            In the present case, it is undisputed that the State had proven
other elements of the forfeiture action. As it relates to Cifuno’s burden to
prove his ownership in the Cash, Cifuno did not proffer any evidence to
demonstrate he was the owner or interest holder of the Cash, besides his
own statement that he had “saved” the Cash from his net income over many
years.4 That assertion was inconsistent with the evidence in the record and
his other statements during the traffic stop and his deposition. During the
traffic stop, Cifuno denied transporting large amounts of money when
asked by Officer Craft whether he had such; after the officer found the Cash


4       Cifuno contends the State had admitted his ownership in the Cash
by stating in the complaint of this forfeiture action that Cifuno is a person
“known to claim an interest in the Defendant Property [the Cash].” We
disagree. This allegation only shows the State acknowledged Cifuno had
filed a claim to the Cash, not an admission or concession that Cifuno owned
the Cash.

                                       7
                              STATE v. CIFUNO
                             Decision of the Court

and asked Cifuno about it, Cifuno evaded that question. Also, Cifuno did
not know the amount of money seized. At one point, Cifuno told the police
the Cash was not his and he only wanted his own money—approximately
$300 found on him—back. Lastly, based on his claimed income, saving up
this much money would have been impossible. Therefore, while Cifuno’s
statements that he saved up the Cash may have raised a scintilla of doubt
as to whether or not he owns any interest in the Cash, such scintilla of doubt
does not rise to the level of a genuine issue of fact sufficient to defeat the
State’s motion. Based on the evidence on this record, no reasonable juror
could conclude by a preponderance of the evidence that Cifuno is the owner
or interest holder of the Cash. Therefore, the trial court properly found
Cifuno failed to meet his burden and entered summary judgment for the
State.

       III.   Attorneys’ Fees and Investigation Costs

¶20           The State requests—and Cifuno does not oppose—an award
of attorneys’ fees for the proceedings below and for this appeal, plus the
costs and expenses of the investigation of Cifuno and the circumstances that
resulted in this forfeiture action. Because the State is the prevailing party
below and on appeal, and based upon the provisions of A.R.S. § 13-4314,
we grant those requests, subject to compliance with ARCAP Rule 21. See
A.R.S. § 13-4314(F) (requiring the court to order a claimant to pay the state
costs and expenses of the investigation and prosecution of the forfeiture
matter, including attorneys’ fees, if the claimant fails to establish his interest
is exempt from forfeiture); Broemmer v. Abortion Servs. of Phoenix, Ltd., 173
Ariz. 148, 153, 840 P.2d 1013, 1018 (1992) (allowing the trial court to award
the prevailing party attorneys’ fees incurred at the trial court and appellate
level).

                                CONCLUSION

¶21            The trial court’s ruling granting summary judgment for the
State is affirmed.




                                     :ama



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