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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          ISMAEL RAMOS, Appellant.

                              No. 1 CA-CR 16-0261
                                FILED 1-26-2017


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201401412
                 The Honorable Steven F. Conn, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By William Scott Simon
Counsel for Appellee

Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant


                        MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
                             STATE v. RAMOS
                            Decision of the Court

W I N T H R O P, Judge:

¶1           Ismael Ramos (“Appellant”) appeals his conviction for money
laundering in the second degree. Appellant argues that the driver of the
vehicle in which Appellant was a passenger lacked the authority to give
police consent to search all contents of the vehicle, and fundamental error
occurred when the trial court failed to sua sponte preclude evidence
discovered pursuant to that search; namely, Appellant’s duffel bag
containing approximately $12,000 in currency. Finding no error, much less
fundamental error, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2             On October 20, 2014, Sergeant Karim of the Mohave County
Sheriff’s Office was on patrol on Interstate 40 when he observed a black
Chrysler 200 traveling westbound and following another vehicle at an
unreasonably close distance. Sergeant Karim activated his overhead lights,
and the Chrysler 200 began to pull over, but suddenly pulled back out onto
the road and continued driving, passing the vehicle it had been following.
Sergeant Karim activated his vehicle’s siren, and the Chrysler 200 veered
onto the shoulder of the road, where it continued to travel for another one-
half mile before eventually stopping. During that time, Sergeant Karim
observed what appeared to be small pieces of tissue paper being thrown
out of the passenger side of the vehicle.

¶3             Sergeant Karim parked approximately fifteen to twenty feet
behind the Chrysler 200, and as he approached, he smelled the odor of
burnt marijuana emanating from it. He asked the driver, Donte Hardaway,
to gather his “paperwork”—including his driver’s license, registration, and
insurance—and to come back to the patrol car to speak with him.

¶4             When questioned about where he and his companions were
going, Donte stated that he, his brother (Dwight Hardaway, who was
sitting in the front passenger seat), and Appellant (who was sitting in the
rear seat) were traveling from San Antonio to Las Vegas for a wedding.
They had passed the turnoff for Las Vegas, however, and when questioned
further, Donte did not know whose wedding he was attending or where the
wedding was being held, and although he initially stated he planned to stay
with friends while in Las Vegas, he later stated he planned to stay at a hotel,


1     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).


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                            STATE v. RAMOS
                           Decision of the Court

but did not know the name of the hotel. Additionally, although he claimed
the group had stopped in New Mexico to sleep the night before, Donte
could not recall the name of the friend with whom they had stayed.

¶5            Included in Donte’s paperwork was a one-week car rental
agreement, which indicated the Chrysler 200 had been rented by a third
party not present in the car. Sergeant Karim decided to check the vehicle
identification number (“VIN”) on the vehicle to ensure it matched the VIN
on the paperwork. As he approached the Chrysler 200 to check its VIN, the
sergeant again noticed the odor of burnt marijuana emanating from the
vehicle. While checking the VIN, he spoke with Dwight, who stated the
group had driven straight through and had not stopped in New Mexico.

¶6            Sergeant Karim then requested and received Donte’s consent
to search the vehicle. Before he began the search, Sergeant Karim ordered
Dwight and Appellant to get out and stand with Donte near his patrol car,
where they were watched by Deputy Apfel, who had arrived on the scene.
Neither Dwight nor Appellant objected to the search, either when Donte
gave consent or at any time thereafter.

¶7             During the search, Sergeant Karim discovered three bags in
the trunk, each containing similarly folded and banded currency. He
placed Donte, Dwight, and Appellant in handcuffs, advised them of their
rights,2 and requested and received permission to speak with each of them.

¶8            In speaking with the detained men, Sergeant Karim learned
that each individual bag belonged to one of the vehicle’s occupants.
Donte’s bag and Dwight’s bag each contained approximately $11,000, and
Appellant’s bag contained approximately $12,000. When asked to explain
the currency found in their bags, each man stated the money was to “party”
in Las Vegas. Donte further explained he earned money by working at
McDonald’s, Dwight stated he earned approximately $500 per week “under
the table” resurfacing kitchen counters, and Appellant stated he was
unemployed and had not worked since the previous April, but had been
saving money for several years. Both Dwight and Appellant made further
statements inconsistent with those previously made by Donte.

¶9            Sergeant Karim called detectives, who arrived and took over
the investigation. The investigating officers found no quantifiable drugs or
drug paraphernalia in the car; however, Appellant’s cell phone contained
photographs of marijuana and currency bundled in a way similar to the


2     See Miranda v. Arizona, 384 U.S. 436 (1966).


                                     3
                             STATE v. RAMOS
                            Decision of the Court

currency found in the Chrysler 200, as well as copious text messages from
the days, weeks, and months before October 20, 2014, detailing numerous
drug sale transactions and discussions indicating that, despite his
contention to the contrary, Appellant was a drug dealer traveling to
California to purchase marijuana.3

¶10           A grand jury indicted all three men, charging each with one
count of money laundering in the second degree, a class 3 felony. See Ariz.
Rev. Stat. (“A.R.S.”) § 13-2317(B)(1) (Supp. 2016).4 Appellant and his co-
defendants were tried together, and the jury found all three defendants
guilty as charged. As to Appellant, the trial court suspended sentence and
imposed a term of three years’ probation.

¶11           We have jurisdiction over Appellant’s timely appeal. See
Ariz. Const. art. 6, § 9; A.R.S. §§ 12–120.21(A)(1) (2016), 13–4031 (2010), 13–
4033(A) (2010).

                                  ANALYSIS

¶12           Appellant argues that, although Donte had common
authority to consent to a search of the vehicle, Donte lacked authority over
Appellant’s personal property within the vehicle; namely, Appellant’s
duffel bag and its contents. Appellant maintains that, because he did not
personally consent to the search of his bag found within the trunk, the
search was illegal and any fruits of the search should have been suppressed.

¶13            The record makes clear, and Appellant concedes, he did not
raise this argument before the trial court.5 Because Appellant did not raise


3      Donte’s phone also contained numerous text messages referring to
drug transactions. Dwight’s phone, which was in his immediate possession
during the stop and until it was seized, contained nothing of evidentiary
value.

4     We cite the current version of the statute because no revisions
material to our analysis have occurred since the date of the crime.

5      Appellant’s original counsel affirmatively certified to the court that
he knew “of no problems concerning the securing of evidence, including
statements of confessions of [Appellant], identifications of [Appellant], and
results of a search and seizure, electronic surveillance, or arrest, or any other
constitutional issues raisable by any of the motions specified[, including a



                                       4
                            STATE v. RAMOS
                           Decision of the Court

this argument below, we review only for fundamental error.6 To prevail
under fundamental error review, Appellant must prove that the trial court
erred, the error was fundamental, and the error caused him prejudice. See
State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-26, 115 P.3d 601, 607-08
(2005); State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991)
(recognizing that before a reviewing court engages in fundamental error
review, it must first conclude the trial court committed some error).

¶14          The Fourth Amendment guarantees individuals freedom
from unreasonable searches and seizures by the government. U.S. Const.
amend. IV; see also U.S. Const. amend. XIV, § 1. Generally, a warrant must
be obtained to search an area in which an individual has a reasonable
expectation of privacy. See State v. Myers, 117 Ariz. 79, 89, 570 P.2d 1252,
1262 (1977). Nonetheless, “[a] warrantless search is valid if conducted after

motion to suppress evidence based on unlawfulness of a search or
seizure].” Before trial, Appellant obtained new counsel, who requested a
voluntariness hearing. Counsel did not, however, request a suppression
hearing related to the vehicle’s search or expressly disavow the previous
certification of Appellant’s original counsel. At the conclusion of the
voluntariness hearing, the trial court found that no law enforcement officer
had made any promises or threats to the defendants and that each
defendant had received and acknowledged Miranda warnings before
agreeing to speak with officers. Appellant’s new counsel also joined in a
motion to preclude evidence of the text messages taken from Appellant’s
cell phone, a motion the court also denied.

6       Generally, we review a trial court’s ruling on a motion to suppress
for an abuse of discretion, and consider only the evidence presented at the
suppression hearing. See State v. Mitchell, 234 Ariz. 410, 413, ¶ 11, 323 P.3d
69, 72 (App. 2014). In this case, because Appellant did not move to suppress
the contents of the vehicle’s trunk or Appellant’s duffel bag, no related
evidentiary hearing was held. The State therefore suggests we should
decline to review the issue. See State v. Brita, 158 Ariz. 121, 124, 761 P.2d
1025, 1028 (1988) (“It is highly undesirable to attempt to resolve issues for
the first time on appeal, particularly when the record below was made with
no thought in mind of the legal issue to be decided.”). In this case, however,
the record was sufficiently developed at trial to allow this court to review
for fundamental error. See State v. Newell, 212 Ariz. 389, 398, ¶ 34, 132 P.3d
833, 842 (2006) (stating that, although the failure to assert an argument in
the trial court normally precludes appellate review of the claim, this court
may review a suppression argument raised for the first time on appeal for
fundamental error).


                                      5
                              STATE v. RAMOS
                             Decision of the Court

voluntary consent is given.” State v. Paredes, 167 Ariz. 609, 612, 810 P.2d
607, 610 (App. 1991) (citation omitted). Consent may be given by a third
party if that individual has “common authority over or other sufficient
relationship to the premises or effects sought to be inspected.” United States
v. Matlock, 415 U.S. 164, 171 (1974).

¶15            The test for determining common authority focuses on
apparent rather than actual authority, such that, if it reasonably appears a
third party has common authority, the consent to search is generally valid.
See State v. Castaneda, 150 Ariz. 382, 389, 724 P.2d 1, 8 (1986) (citing State v.
Girdler, 138 Ariz. 482, 486, 675 P.2d 1301, 1305 (1983)); see also State v. Flores,
195 Ariz. 199, 204, ¶¶ 14-15, 986 P.2d 232, 237 (App. 1999) (finding
persuasive the “significant number of cases” holding that a driver of a
vehicle may consent to its search even if the owner is present, and further
recognizing that a driver may consent to the search of a rented vehicle, even
where the lessee is a passenger).

¶16           “Determining the validity of a law enforcement officer’s
search based on consent generally involves two factors: (1) whether the
consent was voluntarily given and (2) whether the search was within the
scope of the consent.” State v. Becerra, 239 Ariz. 90, 92, ¶ 8, 366 P.3d 567, 569
(App. 2016) (citing Paredes, 167 Ariz. at 612–13, 810 P.2d at 610–11). “The
standard for measuring the scope of a suspect’s consent under the Fourth
Amendment is that of ‘objective’ reasonableness—what would the typical
reasonable person have understood by the exchange between the officer
and the suspect?” United States v. Cannon, 29 F.3d 472, 477 (9th Cir. 1994)
(quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)). In the context of vehicle
searches, the standard is satisfied when the driver of a vehicle consents to
the search of the vehicle, and the authority generally extends to all items
found within the car. See Flores, 195 Ariz. at 204, ¶ 16, 986 P.2d at 237.

¶17            On this record, Appellant cannot demonstrate error, much
less fundamental, prejudicial error. No dispute exists that Donte had
control over the Chrysler 200 and its trunk because he was the driver and
had the trunk’s key. Thus, Donte had common authority to consent to the
vehicle’s search, including the trunk and its contents. See Matlock, 415 U.S.
at 171 & n.7; Flores, 195 Ariz. at 204, ¶¶ 14-17, 986 P.2d at 237; see also United
States v. Anderson, 859 F.2d 1171, 1176-77 (3d Cir. 1988) (“Neither Taylor nor
Anderson owned the vehicle; thus, Anderson as the driver had at least
common authority over the trunk of the car and could validly consent to
the search thereof.”).




                                        6
                              STATE v. RAMOS
                             Decision of the Court

¶18           Further, the record makes clear that Donte’s consent was
voluntarily given. Donte did not allege, and Appellant does not argue, that
Donte was threatened or coerced in any manner. Nor does Appellant argue
that Sergeant Karim‘s search of the vehicle exceeded the scope of Donte’s
consent. Donte did not limit his consent in any way, and once Sergeant
Karim opened the trunk, no one, including Appellant, objected to the search
or attempted to clarify that some of the bags in the trunk did not belong to
Donte and argue that he therefore lacked the authority to consent to their
search.

¶19            Moreover, the record belies Appellant’s claim that he had no
opportunity to limit or object to the search. Deputy Apfel testified that,
while Sergeant Karim conducted the search, Donte, Dwight, and Appellant
stood approximately fifteen to twenty feet away, watched the search, and
joked and talked about sports with the deputy, until Sergeant Karim began
to search the trunk, at which time the conversation stopped, and the men
became very quiet and attentive to the search. Despite the opportunity to
do so, at no time did the men voice any objection. Appellant remained
silent, did not contest the search, and did not identify any of the bags as his
own during the search. Thus, individual ownership of the bags in the trunk
was not made apparent to Sergeant Karim, and by virtue of Donte’s
consent, the sergeant was authorized to search the vehicle and all of the
contents contained therein.7        Accordingly, there was no basis for


7       See, e.g., State v. Walton, 565 So. 2d 381, 383 (Fla. Dist. Ct. App. 1990)
(“If police officers have probable cause to search a car, they can search the
entire vehicle, including all of its compartments and containers, and they
can open closed containers to investigate their contents. The same scope of
search should apply if based on the driver’s consent to search the car and
its contents, where a different ownership is not apparent or made apparent
to the officers conducting the search.” (internal citation and footnote
omitted)); see also Anderson, 859 F.2d at 1177 (“[I]t is uncontroverted that
while the car was being searched, Taylor stood by and watched without
objection. Such behavior is completely inconsistent with the contention that
Taylor retained an expectation of privacy. It was therefore proper for the
fruits of the search to be admitted against Taylor.”); but see State v. Bentlage,
192 Ariz. 117, 118-19, ¶ 6, 961 P.2d 1065, 1066-67 (App. 1998) (concluding
that the owner of the stopped vehicle did not have apparent authority to
consent to a search of the zippered case found in the car because the officer
conducting the search was aware the case belonged to the defendant).




                                        7
                          STATE v. RAMOS
                         Decision of the Court

suppression, and the trial court did not err in not precluding evidence
obtained from the search of Appellant’s duffel bag.8

                            CONCLUSION

¶20          Appellant’s conviction and placement on probation are
affirmed.




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




8      Because we affirm on the foregoing grounds, we do not address the
State’s argument that, regardless of consent, the search was authorized
under the automobile exception to the Fourth Amendment’s warrant
requirement.


                                      8
