                                 IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                   KENRICK FONCETTE, Appellant.

                         No. 1 CA-CR 14-0030
                            FILED 8-11-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-008318-002
               The Honorable Teresa A. Sanders, Judge

                             AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By David Simpson
Counsel for Appellee

Blumberg & Associates, Phoenix
By Bruce E. Blumberg
Counsel for Appellant
                           STATE v. FONCETTE
                           Opinion of the Court



                                OPINION

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


C A T T A N I, Judge:

¶1            Kenrick Foncette appeals from his convictions of possession
of marijuana for sale and possession of drug paraphernalia and the
resulting sentences. Foncette argues the superior court erred by denying
his motions to suppress evidence discovered in his hotel room after what
he argues were illegal searches. Specifically, he claims police officers
violated his Fourth Amendment rights by using a drug-detection dog in the
hallway outside his hotel room and by manufacturing an exigency to justify
their subsequent warrantless entry into the hotel room. We conclude that
he has not shown a Fourth Amendment violation.

¶2            Foncette further asserts that, although the officers obtained a
search warrant after securing the room, the warrant impermissibly
authorized a late-night search without good cause in violation of Arizona’s
statutory restriction on nighttime searches, Arizona Revised Statutes
(“A.R.S.”) § 13-3917.1     Absent a constitutional violation, however,
suppression is not an authorized remedy for a purely statutory violation of
the nighttime search statute, see A.R.S. § 13-3925(A), and ample cause
supported nighttime service of the warrant in any event. For these reasons,
we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶3            One night in late October 2010, Foncette and another man
were driving a rental car in Tempe. Around 11:30 p.m., Officer Shearan of
the Tempe Police Department stopped the car for a traffic violation. During
the stop, Officer Shearan smelled fresh marijuana emanating from the car
and requested the assistance of a drug-detection dog.

¶4          Officer Ribotta and his police dog arrived at the traffic stop,
and the dog alerted to the exterior of the vehicle, then to the seam of the


1     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                     2
                           STATE v. FONCETTE
                           Opinion of the Court

backseat leading to the trunk, and then to the trunk. The officers searched
the car, but did not find marijuana. They did, however, smell an
overwhelming odor of fresh marijuana coming from the trunk.

¶5           After the stop, Foncette and his companion were allowed to
leave, and Officer Manchak, driving an unmarked vehicle, followed them
to a hotel. Hotel staff buzzed the officers into the lobby, where Officer
Manchak confirmed Foncette’s room number with the front desk clerk.
Officer Ribotta (without being informed of Foncette’s room number)
walked down a hallway with his dog, and the dog alerted to Foncette’s
room.

¶6             Officer Shearan knocked on the hotel room door several
times. Less than one minute after the first knock, Foncette opened the door
slightly, then, at the officers’ request, fully opened it. Officers Shearan and
Manchak smelled an odor of fresh marijuana as soon as Foncette opened
the door.

¶7            In light of the dog’s alert and the odor of marijuana, the
officers asked Foncette and his companion to step out of the room. Foncette
left the room, but his companion, who was lying on the bed, did not
respond. Officer Shearan and other officers entered the room to remove
Foncette’s companion; they all left as soon as Officer Shearan walked him
out of the room.

¶8            Foncette and his companion were detained in the hallway and
spoke briefly with the officers. The officers obtained a warrant for a
nighttime search of the hotel room, and they subsequently found plastic
wrap and foam sealant (often used to package marijuana) together with
over 20 pounds of marijuana. Foncette was arrested and charged with
possession of marijuana for sale and possession of drug paraphernalia.

¶9             Before trial, Foncette filed two motions to suppress the
evidence discovered in the hotel room. In the first motion, he argued that
the use of the police dog to investigate by sniffing in the hotel hallway was
an unreasonable search under the Fourth Amendment, and that the late-
night search pursuant to the warrant violated Arizona’s statutory
restriction on nighttime searches. In the second motion, Foncette asserted—
among other claims—that the officers’ warrantless entry into the room to




                                      3
                            STATE v. FONCETTE
                            Opinion of the Court

remove his companion violated the Fourth Amendment. As relevant here,
the superior court denied the motions.2

¶10          A jury found Foncette guilty as charged, and he timely
appealed after sentencing. We have jurisdiction under Article 6, Section 9,
of the Arizona Constitution and A.R.S. § 13-4033.

                                DISCUSSION

¶11            We review the superior court’s denial of a motion to suppress
for an abuse of discretion. State v. Davolt, 207 Ariz. 191, 202, ¶ 21, 84 P.3d
456, 467 (2004). We consider only the evidence presented at the suppression
hearing and view this evidence in the light most favorable to sustaining the
ruling. State v. Jacot, 235 Ariz. 224, 227, ¶ 9, 330 P.3d 981, 984 (App. 2014).
We defer to the superior court’s factual findings but review de novo issues
of law, including the court’s ultimate legal determination that the search
complied with the Fourth Amendment. Davolt, 207 Ariz. at 202, ¶ 21, 84
P.3d at 467; Jacot, 235 Ariz. at 227, ¶ 9, 330 P.3d at 984; State v. Blakley, 226
Ariz. 25, 27, ¶ 5, 243 P.3d 628, 630 (App. 2010).

I.     Investigation Using a Drug-Detection Dog.

¶12            The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV. A search occurs when law
enforcement officers acquire information by physically intruding into
constitutionally protected areas without license to do so. Florida v. Jardines,
133 S. Ct. 1409, 1414 (2013). The government’s invasion of an individual’s
reasonable expectation of privacy also constitutes a search under the Fourth
Amendment. United States v. Jacobsen, 466 U.S. 109, 113 (1984); Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

¶13          Foncette first argues that the use of the police dog to sniff for
drugs in the hotel hallway was an unreasonable search under the Fourth
Amendment. He claims both that he had a reasonable expectation of
privacy in the hallway outside his room and that the dog’s sniff
impermissibly detected private information from inside the room.



2     In the second motion, Foncette also sought suppression of
statements he made to police while detained in the hallway, alleging
untimely warnings under Miranda v. Arizona, 384 U.S. 436 (1966). The
superior court granted that portion of the motion.


                                       4
                           STATE v. FONCETTE
                           Opinion of the Court

¶14           Foncette relies on Jardines, in which the United States
Supreme Court held that police officers conducted an improper search by
entering onto the curtilage of a home with a drug-sniffing dog and having
the dog sniff the porch area. 133 S. Ct. at 1417–18. Critical to the majority
decision in Jardines was the officers’ physical intrusion onto a
constitutionally protected area (the curtilage of a home) without an express
or implied license to enter the area for their specific purpose (a drug-sniff
by a police dog). Id. at 1415–16.

¶15           Here, however, the officers did not impermissibly cross into a
constitutionally protected area to investigate with the dog. Although hotel
guests are entitled to constitutional protection against unreasonable
searches and seizures that infringe on their expectation of privacy within
the room, see Davolt, 207 Ariz. at 202, ¶¶ 23–24, 84 P.3d at 467, the hallway
outside Foncette’s hotel room was not a private area. Instead it was a public
access area within the hotel, open (even overnight) to hotel staff and
management as well as other hotel guests. See, e.g., State v. Kosman, 181
Ariz. 487, 490, 892 P.2d 207, 210 (App. 1995) (“Defendant had no reasonable
expectation of privacy in the area outside his door [in an apartment
complex] because the area is a public place where anyone, including the
police, had a right to be.”). Although close in proximity to a private area,
the public access hallway outside the door was not the type of area “to
which the activity of home life extends” so as to qualify as curtilage of the
hotel room. Oliver v. United States, 466 U.S. 170, 182 n.12 (1984); see also
United States v. Dunn, 480 U.S. 294, 300–01 (1987) (stating that the extent of
a home’s curtilage is determined by assessing “the proximity of the area
claimed to be curtilage to the home, whether the area is included within an
enclosure surrounding the home, the nature of the uses to which the area is
put, and the steps taken by the resident to protect the area from observation
by people passing by”).

¶16            Moreover, hotel personnel in this case permitted the officers
and the drug dog to enter the hallway, even though it was nighttime. This
authorization from hotel management—who had the right to control access
to the hallway—provided any required license for the officers to enter the
hallway. Compare Jardines, 133 S. Ct. at 1416 (“But introducing a trained
police dog to explore the area around the home in hopes of discovering
incriminating evidence is something else. There is no customary invitation
to do that.”).3 Under Jardines, law enforcement officers may not use a dog

3     Foncette also references the Arizona Constitution’s protection of
privacy in temporary residences and suggests that a hotel room should be



                                      5
                            STATE v. FONCETTE
                            Opinion of the Court

to sniff for drugs without license to do so when that investigation is
conducted from within a constitutionally protected area. 133 S. Ct. at 1415–
18. Here, however, the officers were legally present in the hallway from
which the dog sniffed for drugs, and Foncette accordingly is not entitled to
relief on this basis.

¶17            Foncette also claims that the officers’ use of the dog to sniff
for drugs invaded his reasonable expectation of privacy within the room
because the sniff detected information about items inside the private area.
But “any interest in possessing contraband cannot be deemed ‘legitimate,’”
and thus state actions that reveal only contraband do not compromise any
privacy interest that society accepts as reasonable. Illinois v. Caballes, 543
U.S. 405, 408 (2005). And, under Supreme Court precedent, using a well-
trained drug-detection dog to sniff for drugs “discloses only the presence
or absence of narcotics, a contraband item,” and thus generally does not
constitute an improper search. United States v. Place, 462 U.S. 696, 707
(1983); Caballes, 543 U.S. at 409; see also, e.g., United States v. Reed, 141 F.3d
644, 650 (6th Cir. 1998); United States v. Roby, 122 F.3d 1120, 1125 (8th Cir.
1997); United States v. Vasquez, 909 F.2d 235, 238 (7th Cir. 1990); United States
v. Colyer, 878 F.2d 469, 477 (D.C. Cir. 1989). But see United States v. Thomas,
757 F.2d 1359, 1366–67 (2d Cir. 1985) (concluding that a dog sniff at the door
of an apartment constituted a search because it detected the contents of a
private, enclosed space subject to the heightened expectation of privacy
within a dwelling). Accordingly, Foncette has not established a Fourth
Amendment violation.

II.    Initial Warrantless Entry.

¶18          Foncette next challenges the officers’ warrantless entry into
the hotel room. Specifically, he claims that the police created the risk of
destruction of evidence that the State cites to justify entry without a
warrant.

¶19           A search conducted without a warrant is presumptively
unreasonable under the Fourth Amendment. Kentucky v. King, 131 S. Ct.
1849, 1856 (2011); Katz, 389 U.S. at 357. Nevertheless, because the
cornerstone of Fourth Amendment protection is “reasonableness,” there are
certain exceptions to the warrant requirement. King, 131 S. Ct. at 1856. One


considered equivalent to a home. But Foncette fails to develop any specific
argument justifying this position under state law or to address the cases
that distinguish hotels from homes with regard to, for instance, the extent
of the surrounding curtilage area.


                                        6
                            STATE v. FONCETTE
                            Opinion of the Court

such exception applies in the case of exigent circumstances, including an
exigent “need ‘to prevent the imminent destruction of evidence.’” Id.
(citation omitted). Preventing destruction of evidence does not, however,
justify warrantless entry if the police themselves created the exigency “by
engaging or threatening to engage in conduct that violates the Fourth
Amendment.” Id. at 1858.

¶20           Here, the officers’ conduct comported with the Fourth
Amendment. As noted above, the officers were lawfully present in the
hallway with the authorization of hotel management. See supra ¶ 15. From
there, they could reasonably seek a consent-based encounter by knocking
on the hotel room door. See King, 131 S. Ct. at 1858; see also Jardines, 133 S.
Ct. at 1416 (“[A] police officer not armed with a warrant may approach a
home and knock, precisely because that is ‘no more than any private citizen
might do.’”) (citation omitted). Although the officers knocked on Foncette’s
door sometime after midnight, the late-night knock was not unreasonable
given the traffic stop a short time earlier, and Foncette in fact answered the
door less than one minute after the officers first knocked.

¶21           Once Foncette opened the door in response to the officers’
knock, the officers immediately smelled fresh marijuana. At that point, it
was not unreasonable to ask Foncette and his companion to leave the room
to preserve the status quo while waiting for a warrant, nor was it
unreasonable to make a limited entry to remove the companion—without
opening containers or otherwise searching for evidence—when the
companion refused to leave the room.

¶22             Foncette alleges that before knocking, the police had
improperly decided to enter the room. But the touchstone of the analysis is
the objective reasonableness of the officers’ conduct, not their alleged
subjective intent or whether they could have proceeded differently. See
King, 131 S. Ct. at 1859 (“Our cases have repeatedly rejected a subjective
approach, asking only whether the circumstances, viewed objectively,
justify the action.”) (citations and internal quotation marks omitted); see also
id. at 1859–60 (rejecting a test that would invalidate an exigency if it was
reasonably foreseeable the conduct would create the exigency); id. at 1860–
61 (rejecting a rule that would “fault law enforcement officers if, after
acquiring evidence that is sufficient to establish probable cause to search
particular premises, the officers do not seek a warrant but instead knock on
the door and seek either to speak with an occupant or to obtain consent to
search”). Here, the officers briefly entered the hotel room pursuant to a
valid exigent circumstance, and the superior court did not err by denying
Foncette’s motion to suppress on this ground.


                                       7
                            STATE v. FONCETTE
                            Opinion of the Court

III.   Nighttime Search.

¶23           Finally, Foncette argues that the evidence obtained from the
search pursuant to the warrant should have been suppressed because the
warrant improperly authorized a late-night search without good cause in
violation of Arizona’s statutory restriction on nighttime searches. We
review a finding of good cause for a nighttime search for an abuse of
discretion. State v. Adamson, 136 Ariz. 250, 259, 665 P.2d 972, 981 (1983).

¶24             Under A.R.S. § 13-3917, search warrants generally may not be
served overnight—between 10:00 p.m. and 6:30 a.m.—unless the magistrate
allows nighttime service on a showing of good cause. Good cause exists if
the reasons given in support of a nighttime search comport with common
sense and “as a whole reasonably support[] the inference that the interests
of justice are best served by the authorization of nighttime service.” State v.
Jackson, 117 Ariz. 120, 122, 571 P.2d 266, 268 (1977) (citation omitted).

¶25            Absent a constitutional violation, Arizona law does not
contemplate suppression of evidence to remedy a violation of the nighttime
search statute. A.R.S. § 13-3925(A) (“Any evidence that is seized pursuant
to a search warrant shall not be suppressed as a result of a violation of this
chapter except as required by the United States Constitution and the
constitution of this state.”). Here, Foncette alleges only a statutory
violation, and we have found no constitutional violation, so his request for
relief on this basis is unavailing.

¶26            Moreover, the circumstances existing when the warrant
issued provided ample cause for a nighttime search. Foncette relies on State
v. Rypkema, in which the state sought to justify a nighttime warrant on the
basis that the target was a drug trafficker who had allegedly just received a
large quantity of cocaine, and that drug sales often occur at night. 144 Ariz.
585, 588, 698 P.2d 1304, 1307 (App. 1985). This court held that good cause
for a nighttime search could not be based solely on the nature of the
contraband (drugs) and the generic allegation that drug sales often occur at
night, without any indication that the trafficker was aware of police
presence, much less that the contraband would actually be transferred or
destroyed under the circumstances presented. Id. at 589, 698 P.2d at 1309.

¶27           Here, in contrast, Foncette and his companion were alerted to
the police presence at least by the time Foncette opened the door after the
knock, and their awareness that the police were at their door raised a
concrete risk that the drugs might be destroyed, as distinct from the
inchoate risk alleged in Rypkema. See, e.g., King, 131 S. Ct. at 1857 (“[I]n the



                                       8
                          STATE v. FONCETTE
                          Opinion of the Court

vast majority of cases in which evidence is destroyed by persons who are
engaged in illegal conduct, the reason for the destruction is fear that the
evidence will fall into the hands of law enforcement.”). Under the
circumstances, the superior court did not err by finding good cause for the
nighttime search.

                             CONCLUSION

¶28          Foncette’s convictions and sentences are affirmed.




                                   :RT




                                    9
