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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         WILLIAM ESPY, Appellant.

                             No. 1 CA-CR 17-0530
                               FILED 10-11-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-122639-001
           The Honorable Lauren R. Guyton, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
                             STATE v. ESPY
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge Diane M. Johnsen joined.


C A M P B E L L, Judge:

¶1           William Espy appeals his conviction and sentence for
possession of marijuana for sale. Espy argues (1) the court’s admission of
statements he made during a settlement conference for impeachment
purposes was fundamental error, and (2) the court abused its discretion by
denying his motion to suppress evidence seized from his home. For the
following reasons, we affirm.

                             BACKGROUND1

¶2            Acting on a tip that Espy’s home might be a drug “stash
house,” Detectives Wheeler and Mendez staked out the property. Before
long, a black SUV arrived at the house and the driver got out of the car and
carried something inside. At that point, because they knew there was
someone in the house, the detectives decided to attempt to make contact by
conducting a “knock and talk.”

¶3            After donning police vests and requesting backup units to
monitor the perimeter of the property, the detectives approached the house
through a small courtyard next to the front door. As they entered the
courtyard, they noticed that the home’s exterior screen door was closed, but
the interior door was ajar. The officers detected a strong odor of marijuana
wafting through the screen door.

¶4           Hearing voices inside, the detectives knocked and Espy
appeared at the front door. After the detectives identified themselves as law
enforcement officials, they asked Espy to join them outside. Instead of
stepping outside, however, Espy closed the interior door and locked the
deadbolt.

¶5          Undeterred, the detectives continued knocking at the screen
door and announced they would not leave until everyone in the house came

1      We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                             STATE v. ESPY
                           Decision of the Court

outside. Another man, holding a young child, then opened the interior
door. The detectives told the man they were “investigating the odor of
marijuana,” and asked that everyone inside the house come outside.
Notwithstanding the detectives’ requests, no one came out of the house.
Instead, the second man shut the interior door. Detective Mendez explained
through the closed door that they were going to get a search warrant and
would not be leaving the property.

¶6            Awhile after the officers first knocked on the door of the
house, Espy opened the front door and said that the people inside would
come out if the officers could ensure that “nobody inside the house would
be charged with anything.” Espy advised Detective Wheeler that he was
responsible for the house and that the other people inside had no
“responsibility over this house,” indicating to Officer Wheeler that
anything found inside was his and that he alone would bear any associated
responsibility. Espy, accompanied by three young children, another man,
and a woman, then emerged from the house.

¶7            After Espy was outside, Detective Wheeler advised him of his
Miranda rights, and Espy repeatedly told the detective that neither the other
man in the house nor the woman, who was Espy’s fiancée, were “involved.”
Espy also repeated that he did not want the others to be arrested or to go to
jail. Meanwhile, other officers conducted a protective sweep of the house to
ensure that no one else was inside. When the officers finished their sweep,
they informed Detective Wheeler that several bales of marijuana were
located inside one of the bedrooms.

¶8            Armed with this information, Detective Wheeler asked Espy
how much marijuana was inside his home, and Espy responded “[100],
maybe, 200 pounds.” Espy also admitted that the marijuana had been
delivered three days earlier by somebody in an SUV. Later that evening,
officers obtained a warrant and searched the home, finding: (1) numerous
small stashes of marijuana throughout the house; (2) a ledger that recorded
the weights of the marijuana bales; (3) a large scale; and (4) 11 bales of
marijuana, weighing 273 pounds altogether.

¶9           The State charged Espy with one count of possession of
marijuana for sale. The State also alleged an aggravating factor.

¶10         At trial, a detective testified that marijuana sold in bulk
quantity—such as that found in Espy’s home—has a value of
approximately $450 per pound, and therefore the seized drugs were worth
more than $100,000. Given this street value, and the quantity seized from



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                             STATE v. ESPY
                           Decision of the Court

the home, the detective opined that Espy possessed the marijuana bales for
sale rather than personal use.

¶11          Taking the stand in his own defense, Espy explained that a
few weeks before the police searched his home, he rented out his spare
bedroom to a friend’s nephew. Claiming he never noticed an odor of
marijuana emanating from his tenant’s bedroom, Espy explained he
frequently used marijuana himself, as demonstrated by the small stashes
located throughout the house. Nonetheless, Espy admitted that before the
police searched his home, he thought “something [was] wrong” because
there were “big blocks” covered with plastic bags in the spare bedroom.
Espy assumed the tenant was storing “something illegal” in the room but
he did nothing to confirm his suspicions. He admitted he had gone into the
spare bedroom the previous week and saw blankets covering a large
quantity of what “could have been hay” or “something worse.”

¶12           Espy also testified that the morning of the day the police
staked out his home, an acquaintance informed him the bags in his tenant’s
bedroom contained marijuana. When asked about his statement to
detectives that he alone was responsible for whatever was found inside his
home, Espy stated that he simply took responsibility for renting the spare
bedroom, did not want his fiancée or the other man who was there at the
time to be charged, and denied that he meant to imply he owned or
possessed the marijuana bales. Likewise, Espy acknowledged that he told
detectives at least 100 pounds of marijuana was in his home, but claimed
he simply “completed the equation” after officers told him how many bales
they found and the average weight of a bale.

¶13          After a five-day trial, a jury convicted Espy as charged. The
superior court sentenced Espy to a term of four years’ imprisonment.

                              DISCUSSION

   I.     Admission of Plea Negotiation Statements

¶14          Espy argues the superior court improperly permitted the
State to impeach his testimony with a statement he made during a
settlement conference. Because Espy failed to object in the superior court,
we review only for fundamental error. See State v. Henderson, 210 Ariz. 561,
567 ¶¶ 19-20 (2005).




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                             STATE v. ESPY
                           Decision of the Court

¶15          The Arizona Supreme Court recently clarified review for
fundamental error in State v. Escalante, which provides the appropriate step-
by-step analysis:

       To summarize, the first step in fundamental error review is
       determining whether trial error exists. If it does, an appellate
       court must decide whether the error is fundamental. In doing
       so, the court should consider the totality of the circumstances.
       A defendant establishes fundamental error by showing that
       (1) the error went to the foundation of the case, (2) the error
       took from the defendant a right essential to his defense, or (3)
       the error was so egregious that he could not possibly have
       received a fair trial. If the defendant establishes fundamental
       error under prongs one or two, he must make a separate
       showing of prejudice, which also “involves a fact-intensive
       inquiry.” If the defendant establishes the third prong, he has
       shown both fundamental error and prejudice, and a new trial
       must be granted. The defendant bears the burden of
       persuasion at each step.

799 Ariz. Adv. Rep. 13, ¶ 21 (Sept. 14, 2018) (citations omitted). Given this
clarification, we proceed by first determining whether a trial error occurred.

¶16          On the second day of Espy’s cross-examination, the
prosecutor notified the court that she intended to use a statement Espy
made during a settlement conference to impeach his trial testimony that he
had no knowledge of the marijuana bales. Without objection, the prosecutor
then asked Espy whether he had admitted, “at a prior hearing,” that he
knew of the marijuana bales. Espy denied making such a statement,
explaining he had suspected “something was wrong in the house” but did
not know of the marijuana bales until after his arrest.

¶17            At that point, the jury exited the courtroom and the
prosecutor presented Espy, who remained on the stand, with a personal
video player and headphones. After the jury returned to the courtroom, the
prosecutor again asked Espy whether he had admitted at a “prior court
proceeding” that he knew marijuana was in the spare room. Espy testified
that he could not recall any specifics regarding the prior hearing, and the
prosecutor then “refresh[ed] his recollection” by having him privately
listen, using the headphones, to a brief video recording of a portion of the
February 2017 settlement conference. After Espy listened to the video, the
following exchange took place:




                                      5
                              STATE v. ESPY
                            Decision of the Court

       Q. And now remember, Mr. Espy, we’re just talking about
       4:00 PM on May 12th and not anything else. That is the only
       question. Is your recollection refreshed?

       A. Yes.

       Q. Mr. Espy, now that your recollection has been refreshed,
       isn’t it true that on February 27, 2017, you knew it was
       marijuana?

       A. Yes, I testified to that already.

       Q. And on February 27, 2017, you stated that around 4:00 PM
       on May 12th, you knew it was marijuana?

       A. Yes, I know.

¶18            Addressing this issue on redirect, defense counsel asked Espy
whether, in talking to officers outside his home, he “confess[ed]” that he
“knew and maintained possession of 11 bales of marijuana” in his spare
bedroom. Denying making such a statement, Espy explained that after the
sweep, Detective Wheeler asked him how much a bale weighs, and he
responded that he did not know. Then, according to Espy, the detective
provided him with a “ballpark figure” of a single bale’s weight. Given this
information, Espy testified he simply “did the math.” Detective Wheeler
testified Espy said that there were between 100 to 200 pounds of marijuana
in his house. Espy testified he did not admit to the detective that the garbage
bags in the room contained marijuana and did not admit he owned the
bales. When his counsel then asked, “Because even then, you didn’t know
what it was. Is that a fair statement,” Espy responded: “No. At that time, I
had an idea that it was marijuana.” To further rebut the State’s assertion
that Espy had said at a prior court hearing that he knew of the marijuana
bales before the protective sweep, defense counsel elicited testimony that
Espy had made a statement at a previous court appearance to “resolv[e]”
the case, but at no time intended to sell marijuana.

¶19          During closing argument, the prosecutor told the jurors that
Espy “had to admit” his knowledge of the marijuana at “the prior court
hearing.” Contrasting this prior admission with Espy’s denials at trial, the
prosecutor remarked, “He can’t keep the story straight.”

¶20            Pursuant to Arizona Rule of Evidence (“Rule”) 410,
statements made by a defendant during plea discussions are inadmissible.
See also Ariz. R. Crim. P. 17.4(f) (“Arizona Rule of Evidence 410 governs the


                                        6
                             STATE v. ESPY
                           Decision of the Court

admissibility of a plea, a plea discussion, and any related statement.”).
Unlike some other prophylactic rules governing the admissibility of
defendants’ statements, Rule 410 forecloses the use of plea negotiations for
both substantive and impeachment purposes. State v. Vargas, 127 Ariz. 59,
61 (1980). Like its federal counterpart, the rule “is designed to promote
candor” and encourage defendants “to enter into plea agreements by
assuring them [that] statements made while negotiating an agreement . . .
cannot be used . . . in the event no agreement is reached or the agreement is
rejected by the court or withdrawn.” State v. Campoy, 220 Ariz. 539, 547-48,
¶ 24 (App. 2009). Indeed, as explained by our supreme court, “[t]o permit
the use of plea discussions for impeachment would have a strong chilling
effect on plea negotiations.” Vargas, 127 Ariz. at 61.

¶21          As the State concedes, the superior court erred in violation of
Rule 410 by permitting the prosecutor to impeach Espy’s testimony with
the statement he made at a settlement conference. Proceeding with our
review under Escalante, the next step is to determine whether that trial error
was fundamental by considering the totality of the circumstances. 799 Ariz.
Adv. Rep. 13, ¶ 21.

¶22          The State concedes that the prosecutor’s improper use of the
statement from the settlement conference “arguably denied Espy a fair trial
and arguably took away a right essential to his defense” because his entire
defense—namely, that he did not know marijuana bales were concealed in
his spare room before the day he was arrested—hinged upon his credibility.
However, the State also contends the statement from the settlement
conference constituted only a minor exchange over the course of the five-
day trial.

¶23          Contrary to the State’s assertion, the prosecutor’s use during
cross-examination of the statement Espy made at the settlement conference
was not “minor.” Instead, the record reflects that the prosecutor’s questions
regarding this issue were of substantial duration and pertained directly to
Espy’s defense—that he had no prior knowledge of the large quantities of
marijuana found in his spare bedroom.

¶24          Likewise, notwithstanding the State’s contention, the
prosecutor did not “mitigate” the “damage” by referring to the settlement
conference as a “prior hearing” or by having Espy refresh his recollection
of his statement by watching a video of the settlement conference with
headphones. The harm was in the jury knowing that he had made the
admission, not that he made the admission during a settlement conference.
After Espy viewed the video, the prosecutor’s follow-up questions


                                      7
                               STATE v. ESPY
                             Decision of the Court

expressly referenced what Espy had said during plea negotiation, thereby
presenting that evidence to the jury.

¶25          We conclude the prosecutor’s improper use of Espy’s
statement from the settlement conference was a fundamental error that
went to the foundation of his case in accordance with the first prong
outlined by Escalante. See 799 Ariz. Adv. Rep. 13, ¶ 18 (an error goes to the
foundation of a case when it “directly impacts a key factual dispute”).
Whether Espy knew of the large quantity of marijuana in the extra bedroom
was the key factual dispute in his case, and the error was compounded
when the prosecutor referred to Espy’s prior statement during closing
arguments.

¶26            Because we conclude the error was fundamental under the
first prong of the Escalante analysis, we must next determine whether Espy
has made “a separate showing of prejudice” arising from the error. Id. at
¶ 21. A defendant establishes prejudice from fundamental error when he
demonstrates that, “without the error, a reasonable jury could have reached
a different result, even if substantial evidence of guilt exists.” Id. at ¶ 34. In
light of the other uncontroverted evidence presented at trial, Espy has failed
to demonstrate the requisite prejudice. As recounted above, before exiting
his home, Espy told detectives that no one else present was “involved,” no
one else should be “charged with anything,” and that everything in the
home was his. Significantly, by his own admission, days before the police
visited his home, Espy suspected that illegal contraband was stored inside
his spare bedroom, and even by his account, he learned for sure earlier that
same day that the bags contained marijuana.

¶27           Given the undisputed evidence that he had suspected for
days that there was illegal contraband in the spare bedroom, Espy has failed
to show that without the fundamentally erroneous admission of his
statement from the plea negotiation, “a reasonable jury could have
plausibly and intelligently returned a different verdict.” Id. at ¶ 31.

   II.     Denial of Motion to Suppress

¶28           Espy contends the superior court improperly denied his
motion to suppress the evidence seized from his home. Specifically, he
argues the protective sweep that precipitated the search of his residence
was illegal because no specific facts substantiated the need for a protective
sweep and law enforcement officers had no actual concern for their safety.




                                        8
                              STATE v. ESPY
                            Decision of the Court

In addition, he asserts the protective sweep was a pretext for a warrantless
search for evidence.2

¶29           Before trial, Espy moved to suppress all evidence seized from
his home. At an evidentiary hearing held on the motion, Detective Wheeler
testified that he and Detective Mendez surveilled Espy’s house after
receiving a tip that “bulk marijuana” had been delivered to the residence.
After the detectives initially contacted Espy and he shut and locked his
interior door, other officers monitoring the perimeter of the property
reported that “metal shutters . . . started going down,” covering all the
property’s windows. Given these circumstances, Detective Wheeler was
unable to determine how many people were inside. After Espy and the five
other individuals came out of the home, he therefore remained concerned
that someone may have stayed behind to “protect [the] drugs.”
Accordingly, the detective ordered a “quick safety check” to ensure that no
dangerous individuals remained inside.

¶30            After considering the evidence presented, the superior court
denied the motion to suppress, finding: (1) the officers were unable to
determine how many people were in the home because the occupants shut
the interior door and shuttered the windows after the detectives first
contacted Espy, (2) the occupants did not comply with the order to vacate
the property for a period of time, and (3) the detectives knew multiple
people were inside the residence. Based on these “articulable factors,” as
well as Detective Wheeler’s experience investigating drug “stash houses,”
the court concluded the detective reasonably believed a dangerous
individual may have remained inside the home, posing a potential threat to
the officers’ safety, and therefore the protective sweep was lawful.

¶31           We review the denial of a motion to suppress for an abuse of
discretion, considering only the evidence presented at the suppression
hearing and viewing those facts in the light most favorable to sustaining the


2       In his opening brief, Espy also argues the protective sweep was
unlawful because it was not incident to an arrest. He did not raise this claim
in the superior court, however, and abandoned the argument in his reply
brief. Therefore, we do not consider it. See State v. Foshay, 239 Ariz. 271, 273,
¶ 5 n.2 (App. 2016) (declining to consider an argument that the appellant
“abandoned” in his reply brief); State v. Lefevre, 193 Ariz. 385, 389, ¶ 15
(App. 1998) (“Normally, failure to raise a claim at trial waives appellate
review of that claim, even if the alleged error is of constitutional
dimension.”).



                                       9
                              STATE v. ESPY
                            Decision of the Court

superior court’s decision. State v. Mendoza-Ruiz, 225 Ariz. 473, 474, ¶ 2 n.1
(App. 2010). We review de novo, however, the superior court’s ultimate
legal conclusion that a search and seizure “complied with the dictates of the
Fourth Amendment.” State v. Valle, 196 Ariz. 324, 326, ¶ 6 (App. 2000). In
conducting our review, we defer to the superior court’s determination of
witnesses’ credibility, Mendoza-Ruiz, 225 Ariz. at 475, ¶ 6, and uphold the
court’s ruling if it is legally correct for any reason. State v. Huez, 240 Ariz.
406, 412, ¶ 19 (App. 2016).

¶32              The federal and state constitutions protect individuals against
unreasonable searches and seizures, U.S. Const. amend. IV.; Ariz. Const.
art. 2, § 8, and “any evidence collected in violation” of these provisions “is
generally inadmissible in a subsequent criminal trial.” State v. Valenzuela,
239 Ariz. 299, 302, ¶ 10 (2016). “A warrantless search is per se unreasonable
. . . unless an exception to the warrant requirement applies.” State v. Peoples,
240 Ariz. 244, 247, ¶ 9 (2016).

¶33             One such exception is the protective sweep, first recognized
by the United States Supreme Court in Maryland v. Buie, 494 U.S. 325 (1990).
State v. Fisher, 226 Ariz. 563, 565, ¶ 8 (2011). In Buie, the Supreme Court held
that law enforcement officers may conduct two types of protective sweeps
“incident to [an] arrest.” 494 U.S. at 334. First, “as a precautionary matter
and without probable cause or reasonable suspicion,” officers may “look in
closets and other spaces immediately adjoining the place of arrest from
which an attack could be immediately launched.” Id. Second, when
“articulable facts” support a reasonable belief “that the area to be swept
harbors an individual posing a danger to those on the arrest scene,” officers
may conduct a broader sweep of the premises. Id. Thus, under Buie, a
protective sweep of an entire house is lawful only when police officers have
a reasonable belief, predicated on articulable facts, that the home harbors
“an individual posing a danger.” Id. As such, mere speculation or ignorance
is insufficient to justify the privacy intrusion, and under the Buie
framework, the State bears the burden of proof to show that officers had an
articulable concern for their safety. Fisher, 226 Ariz. at 566-67, ¶¶ 13, 15
(“Officers cannot conduct protective sweeps based on mere speculation or
the general risk inherent in all police work.”).

¶34            At the evidentiary hearing, Detective Wheeler explained why
he feared that someone remained inside Espy’s house. First, the detective
had received a tip suggesting that Espy’s home was a drug “stash house.”
In the detective’s personal experience with drug investigations, stash
houses are usually occupied by multiple people who are armed with guns
to protect the drugs they are housing. Second, after detecting a strong odor


                                      10
                              STATE v. ESPY
                            Decision of the Court

of marijuana wafting from Espy’s house, which substantiated the tip, the
detective contacted Espy through a partially open door, and Espy
responded by closing and locking the door. Immediately thereafter, officers
monitoring the perimeter of the property observed metal shutters closing
at each window, and a man briefly exited the home and then reentered.
Third, despite the detectives’ persistent knocking, a significant amount of
time elapsed between his initial contact with Espy and the occupants’
eventual compliance with his order to vacate the property. On this record,
specific “articulable facts” supported the detective’s reasonable belief that
Espy’s home could harbor a dangerous individual. Therefore, the superior
court did not err by finding the protective sweep was justified.

¶35           Espy also contends the protective sweep was unlawful
because the State failed to prove, under a subjective standard, that the
officers were “actually concerned.” Stated differently, Espy asserts the
officers did not exhibit sufficient fear and anxiety to support the sweep.
Contrary to Espy’s contentions, however, the governing case law does not
require that officers manifest fear or worry before conducting a protective
sweep. Rather, the Fourth Amendment applies an objective standard of
review to officer conduct, and a protective sweep is lawful if the officers
had the requisite legal justification. See Brigham City v. Stuart, 547 U.S. 398,
404 (2006) (“An action is ‘reasonable’ under the Fourth Amendment,
regardless of the individual officer’s state of mind, ‘as long as the
circumstances, viewed objectively, justify [the] action.’”) (citation omitted).
Moreover, unlike the circumstances in Buie, 494 U.S. at 337-38 (Stevens, J.,
concurring) (noting officer expressly testified that “he was not worried
about any possible danger” before conducting a protective sweep), in this
case, Detective Wheeler did not deny that he had safety concerns before the
sweep. Instead, he repeatedly testified that he believed the sweep was
necessary to ensure the officers’ safety. Therefore, the record supports the
superior court’s finding that the detective reasonably believed a protective
sweep was imperative to protect against hidden dangers.

¶36           Next, Espy argues the protective sweep was in fact an illegal
search for evidence. As support for this claim, Espy cites: (1) photographs
demonstrating police officers (a) broke through the locked spare bedroom
door and (b) “ripped open plastic bags,” and (2) Detective Wheeler’s
testimony that officers found marijuana while conducting the protective
sweep.

¶37         At    the    evidentiary   hearing,     Detective     Wheeler
unambiguously testified that the photographs of opened plastic bags
containing marijuana bales were taken after the police officers obtained a


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                               STATE v. ESPY
                             Decision of the Court

search warrant. He also explained that the officers who conducted the
protective sweep searched only in locations “where a person could hide,”
and did not look for evidence of criminal wrongdoing. In response, defense
counsel presented no controverting evidence. Although it is undisputed
that the officers broke through the locked spare bedroom door as part of the
protective sweep, there is no reasonable dispute that a person could hide in
a locked bedroom. Finally, the record reflects that once the officers broke
through the locked spare bedroom door, they found several large black
trash bags in plain view. Given the overwhelming odor of marijuana, the
bags’ shape, and the laundry detergent sprinkled all over the spare room’s
floor, which is typically used as an attempt to mask the distinct odor of
marijuana, the officers reasonably concluded that the bags contained
marijuana. Therefore, Espy has failed to show that the officers conducted
an illegal search, and the superior court did not err by denying Espy’s
motion to suppress.3

                                CONCLUSION

¶38            For the foregoing reasons, we affirm the conviction and
sentence.




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




3      Citing State v. Ferrier, 136 Wash. 2d 103 (1998), Espy invites the court
to “adopt a prophylactic rule” requiring law enforcement officers to advise
homeowners that they may refuse consent to a search of their property. We
decline Espy’s invitation. See State ex rel. Romley v. Gaines, 205 Ariz. 138, 144,
¶ 19 (App. 2003) (noting public policy issues are “firmly in the province of
the legislature,” not the court of appeals). The record does not reflect that
Espy consented to a search of his home.


                                          12
