IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO
THE STATE OF ARIZONA, ) ) 2 CA-CR 2003-0254 Appellee, ) DEPARTMENT B ) v. ) O P I N IO N ) TONY DEWAYNE SMITH, ) ) Appellan t. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20031152
Honorable John E. Davis, Judge
REMANDED
Terry Goddard, Arizona Attorney General By Randall M. Howe and David Wood Phoenix Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender By Stephan J. Mc Caffery Tucson Attorneys for Appellant
E C K E R S T R O M, Judge. ¶1 After a bench trial, the trial court found appellant Tony Dew ayne Smith guilty
of possessing a deadly weapon as a prohibited possessor in violation of A.R.S. § 13-3102 and
sentenced him to a presumptive term of 4.5 years in prison. On appeal, Smith contends the
trial court erred in denying his m otion to sup press the ha ndgun, as serting that law
enforcement officers unlawfully entered his home and conducted a search. We conclude the
trial court failed to apply the correct standard in determining whether the officers had
lawfully entered Smith’s residence, and we remand the case to permit a redetermination of
the issue under the proper standard.
BACKGROUND
¶2 We view the evidence presented at the suppression hearing an d the reason able
inferences therefrom in the light most fa vorabl e to uph olding the rulin g. State v. Rodriguez,
205 Ariz. 392, ¶ 34, 71 P.3d 919, 929 (App. 2003). At that hearing, the parties stipulated that
Pima Cou nty Sh eriff ’s Depar tmen t off icers , Sergean t Mu rphy a nd Deputy Heath, had
possessed a valid warrant to arrest Smith when they approached his residence, a trailer
located on rugged, isolated, desert terrain near Arivaca. Because they knew Smith had
evaded arrest in the past, the officers watched the trailer for approximately fifteen minutes
from a nearby hillside to assure that he was present. When they saw Smith carrying groc ery
bags into the trailer, the officers approached the trailer in two separate squad cars from
different directio ns. As soon as Smith sa w one o f the office rs, he fled fro m the trailer into
the desert, leaving “drag marks” in the soil so Deputy Heath was able to follow his path.
2 ¶3 While Heath pursued Smith, Murphy handcuffed and interviewed three people
who were standing in the area of Smith’s trailer. 1 Sergeant Murphy then joined the search
for Smith. The officers pursued Smith on foot separately for about forty-five minutes,
leaving their patrol cars at his trailer. Deputy Heath testified that he had followed footprints
in a sandy w ash tha t began in the sa me loc ation w here the drag m arks en ded. He followed
the footprints for about one hundred fifty yards before losing them after the tracks circled
back toward the area of the trailer. Unable to locate Smith in the desert, the officers returned
to his trailer, knocked on the door, and announced their presence. When they received no
response, they entered the trailer and found the prohibited weapon and other contraband.
¶4 According to Heath, the general direction of the last visible footprints, coupled
with the fact that Murphy had not been watching the trailer the entire time, had caused the
officers to enter the traile r to “make sure Smith had not re-entered” it. According to M urph y,
the officers had entered the trailer because they had believed Smith “may have circled back”
and, therefore, had “reaso n to believe he may hav e” returned to the trailer.
¶5 Smith moved to suppress the evidence, arguing that the officers could not
lawfully enter his residence, even though they possessed an arrest w arrant, witho ut probab le
cause to believe he was within the trailer. Smith asserted they had lacked such cause. In a
1 The officers disagreed whether those people were released before or after Sergeant Murphy joined H eath’s chas e of Sm ith. Accord ing to Dep uty Heath, they w ere still in handcuffs when he returned to the trailer after pursuing Smith. Sergeant Murphy testified, however, that he had released them bef ore he had joined He ath in the un successfu l pursuit of Smith.
3 terse ruling, the trial judge denied Smith’s motion, stating: “The deputies had a valid arrest
warrant for the Defendant and they believed he may have returned to his trailer home.
Therefore, their ent ry was law ful.” The court did not provide any further factual findings or
conclusions of law. Smith now challenges that ruling.
DISCUSSION
¶6 In reviewing the denial of a motion to suppress evidence , we defe r to the trial
court’s factual determinations, but the ultimate ruling is a conclusion of law we review de
novo. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). The
United States Supreme Court has “consistently held that the entry into a home to c onduct a
search or make an arrest is unreasonable . . . unless done pursuant to a warrant” or exigent
circumstances are pres ent. Steagald v. United States, 451 U.S. 204, 211-12, 101 S. Ct. 1642,
1647, 68 L. Ed . 2d 38, 45 (1981).
¶7 Here, the officers had a valid warrant to a rrest Smith b ut not to searc h his
home. However, “an arrest warrant founded on probable cause implicitly carries with it the
limited authority to enter a dwelling in which the suspect lives when the re is reason to
believe the suspect is within.” Payto n v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371,
1388, 63 L. Ed. 2d 639, 661 (19 80) (emphasis add ed). 2 Smith contends this stand ard
2 In Steagald , 451 U.S. at 213, 101 S. Ct. at 1648, 68 L. Ed . 2d at 51, the C ourt held that a search w arrant is required w hen offic ers seek to enter the home of a third party to arrest someone else pursuant to a warran t. This case involved Sm ith’s own residence, ho wever, so Payton, not Steagald , applies. In this case, Smith does not argue that the trailer was not his residence or that the officers n eeded a search w arrant. But see United States v.
4 prohibits officers from entering a private residence to execute an arrest warrant unless they
have probable cause, based on an objective assessment of the totality of the circumstances,
to believe the suspect is within. Smith asserts the trial court erred because: (1 ) it implicitly
upheld the search of his residence based on the mere possibility that he might be found
therein, and (2) becaus e it anchore d its analysis on the subjective views of the officers rather
than on an objective assessment of whether the officers had possessed adeq uate cause to
enter his home, given the totality of the circumstances.3
¶8 The state counters that, once in possessio n of an arrest warrant, the officers
needed only a reason to believe that Smith “might be hiding inside” to law fully enter his
trailer. (Emphasis added.) In so doing, the state endorses the trial court’s implied conclusion
that the mere po ssibility of officers finding a suspect within his or her residence should be
adequate to autho rize the o fficers ’ entry wh en they p ossess a n arrest w arrant. See The Oxford
Underwood, 717 F.2d 482, 484 (9th Cir. 1983) (for purpo ses of dete rmining w hether rights were violated, no distinction be tween third-party home an d suspect’s own re sidence). 3 Smith was on probation at the time the officers entered his home. Moreover, the arrest warrant the officers sought to execute by entering Smith’s home apparently arose from his alleged violations of probation and was issued at the request of his probation officer. We note that probationary status may reduce a defendant’s expectation of privacy and freedom from police s earche s. See Un ited States v. K nights, 534 U.S. 112, 119-20, 122 S. Ct. 587, 591-92, 151 L. E d. 2d 497 (2001); Portillo v. United States District Court, 15 F.3d 819, 823 (9th Cir. 1994) ; State v. Turner, 142 Ariz. 138, 142, 688 P.2d 1030, 1034 (App. 1984). Because the effect of Smith’s probationary status on the appropriate standard for lawful entry was not raised by the state below or on appeal, because it was not addres sed by the trial co urt, and because we do not possess an a dequate record of Smith’s probation, we do not address that issue.
5 Dictionary and Thesaurus 946 (Am. ed. 1996) (defining “might” or “may” as “expressing
possibility”).
¶9 Although numerous state and federal appellate courts have addressed what
level of cause officers must have to satisfy the reason-to-believe standard set forth in Payton,
the United S tates Supre me Cou rt has not am plified its analysis of the que stion. See 3 Wayne
R. LaFa ve, Search and Seizure § 6.1(a), at 226 (3d ed. 1996) (“Just what [the reason-to-
believe standard] m eans con tinues to be a matter of co nsiderable u ncertainty.”); see also
United States v. Mag luta, 44 F.3d 1530, 1534 (11th Cir. 1995) (noting that the Supreme
Court has failed to furthe r define the reasonable-b elief standard set forth in Payton). Only
one Arizona court has addressed the issue in a case that predated Payton by four years and
that rested its analysis on an Arizona statute.4 State v. Hiralez, 27 Ariz. App. 393, 395, 555
P.2d 362, 364 (1976). There, Division One applied the same reason-to-believe standard that
the Court would eventually adopt in Payton, but, as in Payton, did not define it further.
Hiralez, 27 Ariz. App. at 395, 555 P.2d at 364.
¶10 Thus, neither the United States Supreme Court nor any Arizona court has
squarely addressed the p rima ry question presented by the trial court’s order in this case:
whether officers possess a reason to believe that a suspect is within his or her residence when
circumstances suggest that the suspect “may” be found there, or whether that belief must be
4 See forme r A.R.S. § 13-1411, now A.R.S. § 13-3891. 1977 A riz. Sess. Laws, ch. 142, § 134. The statute, of course, must comply and be interpreted consistently with federal and state constitutional principles.
6 based instead on circumstances that demonstrate that the suspect is “probably” within the
premises. We conclude that the explicit commands of the United States and Arizona
Constitutions, the language of the Payton standard, and the weight of relevant cas e authority
all compel the conclusion that the reason-to-believe standard re quires a leve l of reason able
belief similar to that required to support probable cause.
¶11 Prelimin arily, we observe that the stan dard the trial court ap plied in evaluating
the lawfulne ss of the sea rch departs from the w ording of the standard set forth in Payton.
As noted, Payton authorizes officers who possess a valid arrest warrant to enter a residence
in which the suspect lives “when there is reason to believe the suspect is within.” 445 U.S.
at 603, 100 S. Ct. at 1389, 63 L. Ed. 2d at 661. By contrast, the trial court found the officers’
entry into Smith’s residence lawful because “they believed he may have returned to his trailer
home .” (Emphasis add ed.) In support of that ruling, the state similarly argues that the
reason-to-believe standard was met under the facts of this case because the officers had
believed Smith “might be” hiding inside his trailer. 5 (Emphasis added.) But the Payton
standard contains no such conditional language. Rather, it requires that officers possess a
reasonab le belief that a s uspect “is” within the residence before they enter. Id. at 603, 100
S. Ct. at 1388, 63 L. Ed. 2d at 661.
5 During oral argument, the state retreated from this position and conceded that the trial court’s use of the conditional tense does not track the language of the Payton standard. The state argued, however, that the evidence presented at the suppression hearing would have justified the o ffic ers’ e ntry even if the court had use d the standard requ ired by Payton.
7 ¶12 Although the Court did not use the term “probable cause” in describing the
condition p recedent to entry of a suspect’s residence, an d although it clarified that officers
need not acquire a separate m agisterial findin g that a susp ect is likely within the residence,
its reason-to-b elieve stand ard bears a striking paralle l to the Court’s own previous
articulation of the pro bable-c ause sta ndard. Payton, 445 U.S. at 603, 100 S. Ct. at 1389, 63
L. Ed. 2d at 661. In United Sta tes v. Watson, 423 U.S. 411, 422, 96 S. Ct. 820, 827, 46
L. Ed. 2d 59 8, 608 (19 76), a case sp ecifically referred to in Payton, the Court defined
probable cause to arrest as “reasonable cause to believe that the person to be arrested has
committed a felony.” (Em phasis add ed.) Our sta te suprem e court has d escribed pr obable
cause in essen tially the sam e fashio n. State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062,
1069 (1996) (“‘T he police h ave prob able cause to arrest when reasonably trustworthy
information and circumstances would lead a person of reasonable caution to believe an
offense has been committed by the suspect.’”) (emph asis add ed), quoting S tate v. Moorman,
154 Ariz. 578, 582, 744 P.2d 679, 683 (1987). Thus, the Payton reason-to-believe standard
echoed the pro bable-c ause sta ndard i n use at that time , Watson, and parallels the probable-
cause s tandard used in Arizon a today. Spears.
¶13 Federal and state appellate courts that have addressed the reason-to-believe
standard set forth in Payton have disag reed wh ether that stan dard shou ld be explicitly
characterized as equivale nt to the prob able-cause standard. Compare United States v.
Gorman, 314 F.3d 1105, 1111-15 (9th Cir. 2002) (concluding reasonable-belief standard of
8 Payton embodies the same standard of reasonableness inherent in probab le cause ), and State
v. Blanco, 614 N.W.2d 512, 516 (Wis. Ct. App. 2000) (explicitly requiring probable cause
to believe suspec t is hom e), with Valdez v. McPheters, 172 F.3d 1220, 12 24-25 (10th Cir.
1999) (criticizing Ninth Circuit authority that had required sh owing o f probab le cause to
believe defendant resided a t location where arrest warra nt executed ); United States v. Route,
104 F.3d 59, 62 (5th Cir. 1997) (distinguish ing reasonable belief an d probable cause);
Comm onwea lth v. Silva, 802 N.E.2d 53 5, 540 n.6 (Ma ss. 2004) (same); and Green v. State,
78 S.W.3d 60 4, 612 (Tex. Ct. A pp. 2002) (same).
¶14 But the dispute has been more anc hored in semantics than substance. Those
courts that have distinguished reasonable belief from probable cause have done so not
because those stand ards require differing le vels of certainty necessary to justify a police
action. Rather, they ha ve done s o becaus e “probab le cause” has beco me a term of art and has
traditionally engendered a need for an additional magisterial finding to authorize police
action. E.g., Route , 104 F.3d at 62; Maglu ta, 44 F.3d at 1534-3 5; Green, 78 S.W.3d at 612.
In the same breath that they distinguish r eason to b elieve from probable cause, those courts
concede that the reason-to-believe standard requires that the officers reasonab ly believe that
“‘“the suspect is probably within ”’” the p remise s. Route, 104 F.3d at 62 (emphasis added ),
quoting United States v. Woods, 560 F.2d 660, 665 (5th Ci r. 1977 ), quoting United States v.
Cravero, 545 F.2d 406, 421 (5th Cir. 197 6); accord Magluta, 44 F.3d at 1 535; see also
Green, 78 S.W .3d at 612; Valdez, 172 F.3d at 1224-25, 1228 (distinguishing reason-to-
9 believe standard from probable-cause standard but finding that officers had possessed
reasonable belief beca use they had concluded suspect “would likely be pres ent inside”).
¶15 Thus, the case authority does not uniformly equate the reason-to-believe
standard with the probable-cause standard. But the weight of that authority supports the crux
of Smith’s contention—that officers must have an objectively reasonable belief that a suspect
is probably home before they may en ter it to ex ecute a n arrest w arrant. The state has cited
no case that authorizes entry into a home to execu te an arrest warrant based o n the mere
suspicion o r mere pos sibility that a suspec t “might” b e present.
¶16 As Smith points out, the distinction is far from acad emic. The state’s
interpretation of the reason-to-believe standard, with its use o f condition al languag e, parallels
the reasonable-suspicion standard of Terry v. O hio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20
L. Ed. 2d 889, 9 11 (1968 ), which the Suprem e Court ad opted for a n entirely differe nt, limited
purpose. In Terry, the Court h eld that
where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that crim inal a ctivi ty may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, whe re in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonab le fear for his own or others’ safety, he is entitled for the protection o f himself a nd others in the area to cond uct a carefully limited search of the oute r clothing of such perso ns in an attempt to dis cover w eapons w hich migh t be used to a ssault him.
10 Id. at 30-31, 88 S. Ct. at 1884-85, 20 L. Ed. 2d at 911 (emphasis added). The Court adopted
the Terry standard as a specific exception to probable cause largely to ensure the safety of
law enforcement officers; the exception only justifies a limited public encounter with, and
intrusion upon, a suspec t. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26,
75 L. Ed. 2d 229, 238 (“An investigative detention must be temporary and last no longer than
is necessary to effectuate the purpose of the stop [and] . . . the investigative methods
employed should be the least intrusive m eans reasonably available to dispel the o fficer’s
suspicion in a short pe riod of time .”); State v. Winegar, 147 Ariz. 440, 447, 711 P.2d 579,
586 (1985) (“Terry stops are tolerated as an exception to the probable cause requirement of
the Fourth Amen dment be cause they are brief and a s narrow ly circumscribed as poss ible.”).
¶17 By contrast, the reason-to-believe standard set forth in Payton guards against
unwarranted intrusions into a suspect’s home. As the Court observed in th at case, “the
‘physical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed.’” Payton, 445 U.S. at 585-86, 100 S. Ct. at 1379-80, 63 L. Ed. 2d
at 650, quoting United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125,
2134, 32 L. Ed. 2d 752, 764 (1972). The Court continued:
The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of p rivacy more c learly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roo ts in clear and sp ecific cons titutional terms: “The right of the people to be secure in their . . . houses . . . shall not be viola ted.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreas onable govern menta l intrusio n.”
11 Id. at 589-90, 100 S. Ct. at 1381-82, 63 L. Ed. 2d at 653 (alterations in Payton), quoting
Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 683, 5 L. Ed. 2d 734, 739
(1961). Our own constitution contains a similarly specific prohibition against unwarranted
governmental invasio ns into a person ’s hom e, Ariz. C onst. art. I I, § 8 (“No person shall be
disturbed in his private affairs, or his home invaded, without authority of law.”), and our
supreme court has vigilant ly enforc ed that p rohibitio n. State v. Bolt, 142 Ariz. 260, 265, 689
P.2d 519, 52 4 (198 4), approved as modified, 142 Ariz. 260, 269, 689 P.2d 519, 528 (1984)
(finding home entry without warrant and without exigent circumstances unlawful under “our
own constitutional prov ision”).
¶18 Thus, when w e apply the pro tections of th e Fourth Amendment as interpreted
by the United States Supreme Court and the protections of our state constitution, we cannot
equate the officers’ intrusion into the sanctity of Smith’s residence to the limited
investigative intru sion s authorized b y Terry and its progeny. Therefore, we reject the state’s
suggestion that we interpret the rea son-to-believ e standard s et forth in Payton as authorizing
entry into Smith’s home based merely on the officers ’ reasonab le suspicion that he “m ight”
be found within.
¶19 For all the above reasons, we conclude that the trial court erred when it found
the officers’ en try into Smith’s traile r lawful m erely because the officers believed he might
have returne d there. A mere p ossibility is n ot enou gh. Cf. State v. Piller, 129 Ariz. 93, 96,
628 P.2d 976, 979 (App. 1981) (to avoid “knock and announce” requirement before entering
12 residence pursuant to arrest warrant based on firearms in the premises, officers must
“reasonab ly believe” w eapon w ill be used ag ainst them, “a nd this belief must be based on
specific facts and n ot on broa d, unsupp orted presu mptions”). T o comply with the
requireme nts of the Fourth Amendment a s set forth in Payton, officers may not enter a
suspect’s home to execute an arrest warrant unless they possess a reasonable belief that the
suspect is probably home.
¶20 Given our conc lusion that the trial court app lied an inap propriate stan dard in
determining the lawfulness of the officers’ entry into Smith’s home, we need not address
whether the court’s terse ruling inappropriately anchored its factual conclusions on the
subjective beliefs of the officers. The trial court found that the officers had “believ ed” Smith
might be in the trailer. In so doing, the court neglected to state whether it had found those
beliefs to be objectively reasonable based on the totality of the circumstances. On remand,
it should do so. See Valdez, 172 F.3d at 1225-26. (“[E]ntry into a residence pursuant to an
arrest warrant is permitted when ‘the facts and circumstances within the knowledge of the
law enforcement agents, when viewed in the[ir] totality, must warrant a reasonab le belief .
. . that the s uspect is within the resid ence a t the time of entry.’” ) (emph asis add ed), quoting
Maglu ta, 44 F.3d a t 1535; see also State v. Spears, 184 Ariz. at 284 (requiring similar
reasonableness finding to support probable ca use to search).
¶21 Because Smith challenged the credibility of the officers’ testimony based on
their behavior once they entered the trailer, because it is not our function to evaluate the
13 demeanor of witnes ses, and be cause the re cord befo re us does n ot contain pertinent facts
bearing on whether the officers had a reasonable belief that Smith was within the trailer, we
remand the case to the trial court for a hearing to e valuate the e vidence u nder the ap propriate
standards. See State v. Barber, 823 P.2d 1068, 1076 (Wash. 1992) (remanding case for
further factual findings when those gleaned from suppression hearing insufficient for
appellate review of stop ’s lawfulness).
______________________________________ PETER J. ECKERST ROM, Judge
CONCURRING:
____________________________________ PHILIP G. ESPINOSA, Chief Judge
____________________________________ JOHN PELA NDER, Presiding Judge