                          NOTICE: NOT FOR PUBLICATION.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.

                   DONALD DEAN ELLIS, III, Appellant.

                             No. 1 CA-CR 13-0357
                              FILED 07-10-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-115834-001
                 The Honorable Bruce R. Cohen, Judge

               AFFIRMED IN PART, VACATED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew Reilly
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
                             STATE v. ELLIS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1            Appellant Donald Dean Ellis, III (Ellis) appeals his
conviction and sentence, arguing that the trial court erred in denying his
motion to suppress evidence. Ellis argues that he was wrongfully
detained while the Phoenix Police Department (Phoenix P.D.) executed a
search warrant at an apartment near where he was sitting in his truck an
the apartment parking lot. For the following reasons, we affirm the trial
court’s order denying the motion to suppress, as well as Ellis’s conviction
and sentence. But we vacate the trial court’s requirement that Ellis pay for
DNA testing.

                FACTS AND PROCEDURAL HISTORY

¶2           Phoenix P.D. arrested Ellis after executing a search warrant
on a Phoenix apartment (Apartment 12) suspected of being a drop house
for drug sales. The day before serving the search warrant, Phoenix P.D.,
led by Detective K. of the Drug Enforcement Bureau, conducted a
controlled buy of narcotics from occupants of Apartment 12. Detective K.
sent a confidential informant (the CI) into Apartment 12 to purchase
methamphetamine. After buying the narcotics, the CI reported to
Detective K. that he purchased the drugs from a man named Chris, an
African-American male, and that inside Apartment 12, there was also a
Caucasian male with facial piercings just below his eyes, acting as an
armed security guard throughout the buy.

¶3            Detective K. briefed the Phoenix P.D. special assignments
officers (SWAT team) on the parties that participated in the controlled buy
before the search warrant was executed. The SWAT team was serving the
warrant in this case because there was potential for violence and the CI
reported that there were people with guns inside Apartment 12.

¶4           As the SWAT team was approaching Apartment 12 to serve
the warrant, the team noticed a small white Nissan truck (the Truck)
parked in the complex parking lot about ten yards in front of Apartment



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                              STATE v. ELLIS
                            Decision of the Court

12’s door, where Ellis was sitting in the driver’s seat. Before entering
Apartment 12, officers noted that [Ellis] had piercings under his eyes.
Based on the description by the CI, a SWAT team member asked Ellis to
step out of the Truck, detained and handcuffed him. Detective K. stated
that Ellis had piercings on both of his upper cheeks below his eyes, similar
to the ones the CI described on the white male acting as security in
Apartment 12 the day before. While the SWAT team served the search
warrant, Detective K. took the hand-cuffed Ellis and moved him away
from the Truck and Apartment 12.

¶5              While detained, Ellis told Detective K. that he was not at the
complex for Apartment 12, and he was there to visit somebody else in a
different apartment. Detective K. patted Ellis down and determined that
Ellis did not have any weapons or drugs on his person. Nonetheless,
Detective K. continued to detain Ellis for approximately twenty minutes
because the SWAT team was conducting the search of Apartment 12 and
Ellis fit the description of a person who had been inside Apartment 12 the
day before.

¶6            After the SWAT team finished clearing Apartment 12,
Detective K. moved Ellis back to the front of the apartment where
Detective K. took Ellis’s personal information and asked Ellis if he had
anything illegal in the Truck. Ellis told Detective K. that he did not have
anything illegal inside the Truck and gave Detective K. permission to
search the Truck. Detective K. searched the Truck, discovered the glove
box was locked. He took the key from the ignition, used the key to open
the glove box, and found $651 in cash, a digital scale, a box of open
sandwich baggies, and a baggie containing a white powder substance,
which was later determined to be 5.6 grams of cocaine.

¶7            Detective K. arrested Ellis after searching the Truck. After
making the arrest, Detective K. questioned Ellis, and Ellis indicated that
he was involved with selling drugs associated with Apartment 12. Ellis
told Detective K. that he had sold drugs, “to make ends meet.”

¶8             The State subsequently indicted Ellis on: (1) possession of
narcotic drugs for sale in violation of Arizona Revised Statutes (A.R.S.)
section 13-3408.A.2, a class 2 felony; and (2) possession of drug
paraphernalia in violation of A.R.S. § 13-3415.A, .E, and .F, a class 6 felony.
Before trial, the State amended Ellis’s charge to only Count 1, possession
of narcotic drugs for sale, a class 2 felony.




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                              STATE v. ELLIS
                            Decision of the Court

¶9             Ellis filed a motion to suppress the evidence found in the
Truck, arguing that he was wrongfully detained. Ellis asserted that he
was detained without reasonable suspicion, and therefore his arrest was
without probable cause. The trial court held a hearing to consider
evidence on Ellis’s motion to suppress. The State presented evidence that
Ellis was originally detained for the SWAT team’s safety while executing
the search warrant because Ellis was a white male with the same facial
piercings that the CI had described as the person who was in the drug
house and could have been armed. Detective K. also testified that he
conducted a search of the Truck after receiving Ellis’s permission to search
the Truck. Detective K. testified that Ellis was present throughout the
entire search and never withdrew his consent. At the conclusion of the
hearing, the trial court denied Ellis’s motion, holding that Ellis was
“properly detained and . . . there was valid consent for the search of
[Ellis’s] vehicle.”

¶10           The jury found Ellis guilty as charged. The trial court
sentenced Ellis to a mitigated sentence of twelve years’ imprisonment, to
be served concurrently with another sentence to which Ellis had reached a
plea agreement with the State for another crime. The trial court also
ordered Ellis to pay various fines and fees. Finally, the trial court ordered
Ellis to submit his DNA for analysis and to pay for the cost of that test.

¶11           Ellis’s request for a delayed appeal was granted. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and A.R.S. §§ 12-120.21.A.1 (2003), 13-4031 (2010), and -4033 (2010).

                               DISCUSSION

I.     Motion to Suppress — Detention of Ellis

¶12            The sole issue on appeal is that the trial court erred by
denying Ellis’s motion to suppress the evidence found in his truck, after
he was illegally detained. “We will not disturb the trial court’s ruling on a
motion to suppress absent a clear abuse of discretion.” State v. Spears, 184
Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). We review only the evidence
presented at the hearing on the motion to suppress when reviewing a trial
court’s denial of a motion to suppress. Id. We defer to the trial court’s
factual findings if they are supported by the record and are not clearly
erroneous. State v. Estrada, 209 Ariz. 287, 288, ¶ 2, 100 P.3d 452, 453 (App.
2004). We view the evidence in the light most favorable to sustaining the
trial court’s ruling. State v. Rosengren, 199 Ariz. 112, 115, ¶ 2, 14 P.3d 303,




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                              STATE v. ELLIS
                            Decision of the Court

306 (App. 2000). We review purely legal or constitutional issues de novo.
State v. Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App. 2006).

¶13            Ellis contends that Phoenix P.D. did not have probable cause
to detain him, therefore the evidence should have been suppressed under
the “fruit of the poisonous tree” doctrine. See Wong Sun v. United States,
371 U.S. 471, 487-88 (1963).

¶14            “[W]henever a police officer accosts an individual and
restrains his freedom to walk away, he has ‘seized’ that person.” Terry v.
Ohio, 392 U.S. 1, 16 (1968). The Fourth Amendment governs just such
seizures. Id. However, the United States Supreme Court has recognized
that some seizures are significantly less intrusive than an arrest and may
be “reasonable” and withstand scrutiny under the Fourth Amendment
without probable cause. Michigan v. Summers, 452 U.S. 692, 696 (1981). In
executing a search warrant for narcotics or another “kind of transaction
that may give rise to sudden violence or frantic efforts to conceal or
destroy evidence,” police officers minimize the risk of harm to themselves
or the occupants “if the officers routinely exercise unquestioned command
of the situation.” Id. at 702-03. Police have a recognized limited authority
to conduct a reasonable detention if that the detention served the
following law enforcement interests: (1) furthered officer safety, (2)
facilitated completion of the search, and (3) prevented the detained person
from fleeing the scene. Id. at 702-03; see also State v. Montoya, 164 Ariz. 459,
461, 793 P.2d 1126, 1128 (App. 1990).

¶15           While probable cause is generally required for a seizure to
be reasonable under the Fourth Amendment, Dunaway v. New York, 442
U.S. 200, 213 (1979), “[p]robable cause is something less than the proof
needed to convict and something more than suspicions.” State v. Aleman,
210 Ariz. 232, 237, ¶ 15, 109 P.3d 571, 576 (App. 2005). Probable cause
exists if the collective knowledge of the officers establishes they had
reasonably trustworthy information sufficient to lead a reasonable person
to believe an offense has been committed and the person to be arrested
committed it. Id.

¶16           Even though Ellis was not physically inside Apartment 12 at
the moment the SWAT team was preparing to execute the search warrant,
Ellis was inside the apartment complex, thirty feet away from Apartment
12’s front door, at the exact moment the SWAT team was entering the
apartment. A man, matching Ellis’s description, (white male with facial
piercings below his eyes) had been inside the apartment the day before
participating in the sale of drugs. The man matching Ellis’s description


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                             STATE v. ELLIS
                           Decision of the Court

was suspected of having a gun in the apartment and was suspected of
acting as security for the drug transaction. Therefore, the collective
knowledge of Phoenix P.D. established that they had reasonably
trustworthy information sufficient to lead a reasonable person to believe
that Ellis had committed a criminal offense for which he could be arrested.
See Aleman, 210 Ariz. at 237, ¶ 15, 109 P.3d at 576. Simply stated, Phoenix
P.D. had probable cause to arrest Ellis for his involvement with
Apartment 12 from the CI’s report the previous day, before Detective K.
discovered the contraband in the Truck.

¶17           Moreover, in this case, Phoenix P.D.’s detention of Ellis was
permissible because it served the special government interests outlined in
Summers. Being present at the time of the search, Ellis could have assisted
Phoenix P.D. with the search, or could have been a danger to the SWAT
team as they entered Apartment 12. Additionally, Ellis could have been
acting as security outside of Apartment 12 and alerted occupants inside to
the raid, so that they may flee with incriminating evidence. Given all of
these facts linking Ellis to Apartment 12’s potential criminal activities,
Phoenix P.D. had sufficient articulable suspicion that justified detaining
Ellis to minimize a possible risk of harm to them or to the execution of
their search warrant.

¶18            “The Fourth Amendment requires that a seizure be
‘reasonable.’ As with other categories of police action subject to Fourth
Amendment constraints, the reasonableness of such seizures depends on a
balance between the public interest and the individual’s right to personal
security free from arbitrary interference by law officers.” State v. Carrazco,
147 Ariz. 558, 560, 711 P.2d 1231, 1233 (App. 1985). While we are mindful
that “a visitor to the scene of a lawful search is not subject to a search
warrant,” State v. Lewis, 115 Ariz. 530, 532, 566 P.2d 678, 680 (1977), under
this set of facts, there is evidence to demonstrate that Ellis’s detention was
not arbitrary interference by Phoenix P.D., and the officers had reason to
believe that Ellis was not simply an innocent bystander who just
happened upon the scene. Therefore, under the circumstances presented
here, detention of Ellis during the execution of the warrant was reasonable
under the Fourth Amendment and Terry, and the trial court properly
denied the motion to suppress based on Ellis’s pre-arrest detention.

¶19         Ellis argues this court found that mere presence in a home
for which police have a search warrant does not constitute grounds to
detain a non-occupant in State v. Carrasco, 147 Ariz. 558, 711 P.2d 1231
(App. 1985). In Carrasco, however, the defendant was a visitor at the
house when the officers arrived to execute the warrant, and there was no


                                      6
                             STATE v. ELLIS
                           Decision of the Court

reasonable basis to suspect that he was involved in any of the criminal
activity. Id. at 559-60, 711 P.2d at 1232-33. By contrast, in this case,
Phoenix P.D. had a description of Ellis and information that he was
providing security for the drug transaction.

¶20           Ellis also argues this court held a generalized fear based on
experience was not enough to allow officers the right to stop and frisk a
nearby vehicle in the execution of a search warrant of a home in State v.
Montoya, 164 Ariz. 459, 793 P.2d 1126 (App. 1990). Yet, in Montoya, the
officers had no information linking the defendant to the house they were
searching and thus no probable cause to arrest the defendant. Id. at 461-
62, 793 P.2d at 1128-29. Again, here, Phoenix P.D. had a detailed
description of Ellis and information linking him to the criminal activities
of Apartment 12’s occupants.

¶21            Therefore, these two cases do not support Ellis’s position,
and Phoenix P.D.’s detention of Ellis was reasonable. Accordingly, the
trial court did not err by denying Ellis’s motion to suppress.

II.    DNA Testing

¶22            Finally, the trial court ordered Ellis to submit to DNA testing
and pay the cost of the testing pursuant to A.R.S. § 13-610 (2010). While
A.R.S. § 13-610.A authorizes the department of corrections to “secure a
sufficient sample of blood or other bodily substances for [DNA] testing,”
the statute does not identify who should incur the costs of testing. See,
e.g., State v. Reyes, 232 Ariz. 468, 471, ¶ 9, 307 P.3d 35, 38 (App. 2013)
(internal quotation marks omitted). Although Ellis could be fined as part
of his sentence, the trial court’s order that Ellis pay the DNA testing fee
was not a fine under A.R.S. § 13-801.A for the commission of felonies. See
id. at 472, ¶ 13, 307 P.3d at 39. Because § 13-610 does not require Ellis to
incur the cost of the DNA testing, there is no basis for the cost to be
imposed. See id. at ¶ 14. Accordingly, we vacate the portion of the
sentencing order requiring Ellis to pay for DNA testing.




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                            STATE v. ELLIS
                          Decision of the Court

                            CONCLUSION

¶23          For the above reasons, we affirm the order of the trial court
denying Ellis’s motion to suppress. We further affirm Ellis’s convictions
and sentences and vacate the portion of the sentence which requires Ellis
to pay for DNA testing.




                              :gsh




                                     8
