State v. Booker

135 P.3d 57, 212 Ariz. 502, 478 Ariz. Adv. Rep. 3, 2006 Ariz. App. LEXIS 68

• Court: Court of Appeals of Arizona
• Decided: May 18, 2006
• Docket: 1 CA-CR 04-0530
• Status: Published

Opinions

OPINION

KESSLER, Presiding Judge.

¶ 1 Defendant Clifton Charles Booker (“Booker”) appeals his conviction and sentence for aggravated assault. Booker argues the trial court erred by failing to suppress evidence of a bong gained from an illegal search of his home that occurred the day before the alleged assault. We hold the exclusionary rule does not apply to the facts of this case.¹

FACTUAL AND PROCEDURAL HISTORY

¶2 This case arises out of an altercation between Booker and the victim. Booker met the victim in Illinois when Booker was working in the victim’s wife’s beauty salon. After the victim and his wife divorced, Booker moved to Arizona. The victim’s ex-wife followed Booker to Arizona, bringing the victim’s son with her. The victim later came to Arizona. He initiated contact with the Phoenix Police Department, and summoned the police to Booker’s apartment to see if his son was in Booker’s apartment. When the police arrived at Booker’s apartment and knocked on the door, they noticed Booker moving around in the apartment with clothing on. When Booker answered the door after a delay wearing only a towel, the police conducted a search of the apartment and seized a bong.² The victim’s son was not in the apartment. According to the victim, Booker was irate as a result of the police search of his apartment.

¶ 3 The victim later returned to Booker’s apartment complex. According to the victim, while in the parking lot Booker attempted to hit the victim, and then the victim hit Booker. The victim stated that Booker then went into his apartment and came back running at the victim with something behind Booker’s back. The victim stated he tackled Booker because he was afraid Booker had a gun, at which time Booker stabbed him in the back. According to Booker, when he approached the victim, the victim hit him. The victim then reached behind his back. Booker stated that, fearing the victim had a weapon, he tackled the victim and took him to the ground, causing the victim to fall upon the knife the victim was apparently holding behind his back.

¶4 The State charged Booker with one count of aggravated assault, alleging that he, “using a knife, a deadly weapon or dangerous instrument, intentionally, knowingly or recklessly caused physical injury” to the victim. The State further alleged that this was a dangerous felony either because it involved the discharge, use, or threatening exhibition of a knife, or because it involved the infliction of serious physical injury on the victim.

¶ 5 Prior to trial, Booker moved to suppress evidence, including his bong, seized as a result of the warrantless search of his apartment conducted prior to the assault. After the hearing on the motion to suppress, the court found that the police conducted an impermissible warrantless search of Booker’s home. However, the court found that suppression of the evidence resulting from the search would not serve the exclusionary rule’s deterrent purpose because he was charged with a crime independent of the fruits of the search.

¶ 6 Booker later moved to preclude evidence indicating Booker’s marijuana use and his efforts to conceal his bong when the police arrived at his apartment. After a hearing on the motion, the court precluded any evidence of Booker’s drug use or his attempts to conceal the bong.

¶ 7 At trial, Booker testified on his own behalf. During direct examination, Booker testified that when the police came to his apartment for the first time, he removed his bong from his table and placed it in his bedroom closet so that he would not be arrested. The State in turn cross-examined Booker about his actions to conceal the bong.

¶ 8 A jury found Booker guilty as charged. The court sentenced Booker to a presumptive term of seven and a half years imprisonment. Booker timely appealed. This Court has jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-4033 (2001).

DISCUSSION

¶ 9 Booker argues the superior court erred in refusing to suppress evidence related to his bong. The State offered testimony about the seizure of the bong both as evidence intrinsic to the victim’s version of the events and to establish Booker’s retaliatory motive to harm the victim. The superior court determined evidence related to Booker’s bong was the fruit of an unlawful search and seizure. However, the court declined to suppress that evidence because the aggravated assault was a separate and distinct offense from his possession of the bong, and therefore exclusion of the bong would not serve the exclusionary rule’s primary purpose of deterrence.

¶ 10 We review the superior court’s ruling on the motion to suppress for abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004). Neither Booker nor the State contests the court’s finding that the police officers who seized Booker’s bong had unlawfully invaded his privacy interests in violation of the Fourth Amendment. Accordingly, the sole issue with regards to the suppression ruling is whether Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and its progeny mandate exclusion of evidence related to the bong.

¶ 11 We hold the exclusionary rule should not be applied to the evidence related to the bong. Expansion of the exclusionary rule to this set of facts would not serve the deterrent purpose of the rule.³ In so holding, we adopt the rationale of various other courts that, when there is no cognitive nexus between the police misconduct and the crime for which the defendant is ultimately tried, the exclusionary rule’s primary deterrent purpose is not served.

¶ 12 A Fourth Amendment violation does not mandate reflexive exclusion of evidence. Arizona v. Evans, 514 U.S. 1, 14, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). See also Stone v. Powell, 428 U.S. 465, 491, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (disapproving of “indiscriminate” application); Terry v. Ohio, 392 U.S. 1, 15, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (disapproving of “rigid and unthinking application of the exclusionary rule”). Suppression under the exclusionary rule “is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any reparation comes too late.” Stone, 428 U.S. at 486, 96 S.Ct. 3037 (internal quotation omitted).

¶ 13 Rather, the exclusionary rule is a judicially created means of effectuating the Fourth Amendment. Stone, 428 U.S. at 482, 96 S.Ct. 3037. The primary purpose of the rule is to deter police conduct in violation of Fourth Amendment rights by removing the incentive for such conduct.⁴ United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). This does not mean, however, that any proposed application of the exclusionary rule that might deter police misconduct must be adopted. Id. at 350, 94 S.Ct. 613; Leon, 468 U.S. at 910, 104 S.Ct. 3405; Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Nor does the exclusionary rule proscribe the use of illegally seized evidence in all proceedings or against all persons. Calandra, 414 U.S. at 348, 94 S.Ct. 613. Rather, the rule has been applied only to circumstances in which its deterrent purpose is “most efficaciously served.” Id; Evans, 514 U.S. at 11, 115 S.Ct. 1185.⁵

¶ 14 The proper application of the exclusionary rule is determined by weighing the potential costs and benefits of excluding the evidence in a particular case. Calandra, 414 U.S. at 349, 94 S.Ct. 613; Leon, 468 U.S. at 906, 104 S.Ct. 3405. This pragmatic analysis has been employed to limit the exclusionary rule’s expansion to use in grand jury proceedings, for impeachment of defendants’ testimony, against persons without standing to assert a Fourth Amendment violation, and in federal habeas corpus proceedings. Stone, 428 U.S. at 487-490, 96 S.Ct. 3037.

¶ 15 We begin by examining the benefits of applying the exclusionary rule to the prosecutor’s use of the unlawfully obtained evidence in this case. There is no question evidence related to the unlawful seizure of Booker’s bong may not be used in proceedings involving possession of that bong or any drugs that may have been used in the bong. See Mapp, 367 U.S. at 657, 81 S.Ct. 1684. Suppression of evidence in those proceedings serves the exclusionary rule’s deterrent purpose; the law enforcement process directly related to seizing the bong is frustrated. See Janis, 428 U.S. at 448, 96 S.Ct. 3021. That primary deterrent effect is therefore accomplished.⁶

¶ 16 This case does not involve charges related to possession of drugs or drug paraphernalia. Booker urges the exclusionary rule nonetheless applies to the State’s introduction of the seizure of the bong to support aggravated assault charges. Such ancillary application of the exclusionary rule is an extension of the rule’s protections beyond its primary use as outlined above. Whether this extension is proper depends upon whether it creates a significant deterrent effect in addition to the primary deterrent effect of precluding its use in a trial directly related to Booker’s possession or use of the bong. See Janis, 428 U.S. at 453-54, 96 S.Ct. 3021; Stone, 428 U.S. at 493, 96 S.Ct. 3037; Alderman, 394 U.S. at 174-75, 89 S.Ct. 961.

¶ 17 Various courts have examined the deterrent benefits of extending the exclusionary rule to situations in which the criminal conduct charged is unrelated to the purposes of the unlawful search (“unrelated use”). See, e.g., United, States v. Hill, 60 F.3d 672, 680-81 (10th Cir.1995) (testimony on prior arrests involving drug possession to establish essential element in later drug possession charges); United States v. Lopez-Martinez, 725 F.2d 471, 476 (9th Cir.1984) (evidence of prior distribution to establish knowledge of substance for distribution charges); United States v. Turk, 526 F.2d 654, 667 (5th Cir.1976) (evidence of drug possession and distribution to contradict in-court statements for perjury charges); United States v. Knight, 185 F.Supp.2d 65, 66-67 (D.D.C.2002) (previous arrest involving sale of cocaine to show knowledge of substance and intent to sell); People v. Beuer, 77 Cal. App.4th 1433, 92 Cal.Rptr.2d 572, 576 (2000) (previous discovery of drugs in illegally parked vehicle to show knowledge of drugs and intent to sell); Taylor v. State, 92 Nev. 158, 547 P.2d 674, 676-77 (1976) (photograph of mattress taken after unrelated arrest to show defendant’s connection to murder). These courts have agreed that unrelated use of illegally obtained evidence serves an additional deterrent purpose only when there is a cognitive nexus between the officers’ unlawful conduct and the subsequent police investigation or trial. Hill, 60 F.3d at 677

(“[T]he exclusionary rule does apply where ... the alleged unlawfully obtained evidence is being used to prove an essential element of a charged offense — at least where there is some nexus between the initial search and seizure and the subsequent charged offense.”); Lopez-Martinez, 725 F.2d at 476 (no suggestion of bad faith or collusion by the law enforcement officers involved in the two arrests, and no evidence indicating the officers involved in the prior arrest foresaw the statements elicited would be useful in subsequent case); Turk, 526 F.2d at 667 (“For suppression of the tape at the perjury trial to have any significant deterrent effect, we would have to assume that the police could be so confident that an immunized search victim would prevaricate before a grand jury that they would be willing to seize evidence of a crime illegally, and thus forego the possibility of direct prosecution.”); Knight, 185 F.Supp.2d at 67-69 (adopting Lopez-Martinez and Hill, and finding “no evidence of collusion or bad faith between the groups of officers.”); Beuer, 92 Cal.Rptr.2d at 576 (no showing of connection or nexus when officers from different law enforcement agencies stopped or investigated defendant’s car for different reasons unrelated to charges at issue, and no showing that either agency was aware of one another’s interactions with defendant); Taylor, 547 P.2d at 676 (no perceptible deterrent effect when prior search directed at completely unrelated crime, and there is no suggestion that inadvertent violation of defendant’s Fourth Amendment rights was calculated to produce evidence that would be used in the future). The Ninth Circuit, the Tenth Circuit, and the California Court of Appeal have stated this nexus is established if the charged conduct was in the offending officers’ zone of primary interest at the time of the unlawful search or seizure. Lopez-Martinez, 725 F.2d at 476 (citing Janis, 428 U.S. at 458, 96 S.Ct. 3021); Hill, 60 F.3d at 679-80 (citing Janis, 428 U.S. at 458, 96 S.Ct. 3021); Beuer, 92 Cal.Rptr.2d at 575-76.

¶ 18 We find this reasoning persuasive. There is no evidence that the aggravated assault was in the offending officers’ zone of primary interest when they seized the bong. Accordingly, suppression of evidence related to the seizure of Booker’s bong in this case would not further effectuate the deterrent purpose of the exclusionary rule.

¶ 19 Booker asserts the State’s purpose in introducing testimony on the seizure of the bong — as intrinsic to the victim’s version of the events and to show retaliatory motive— constitutes a nexus between the unlawful seizure and the aggravated assault prosecution. However, as noted above, deterrent effect is not established by any logical connection between the unlawful search or seizure and the subsequent crime charged. Rather, there must be an appreciable cognitive nexus from the standpoint of the offending officers. This is because it is the offending officers’ conduct the exclusionary rule seeks to deter. See Evans, 514 U.S. at 14, 115 S.Ct. 1185; Leon, 468 U.S. at 916, 104 S.Ct. 3405; Janis, 428 U.S. at 448, 96 S.Ct. 3021. By locating the nexus in the prosecutor’s use of the evidence Booker misplaces the focus of our inquiry. By this logic, application of the exclusionary rule would merely deter prosecutors’ use of unlawfully obtained evidence.⁷

¶20 Furthermore, this is not a situation like Hill, in which conflating the prosecutor’s intended use of the unlawfully obtained evidence with law enforcement officers’ intent in seizing the evidence was appropriate. In Hill, the court carefully pointed out the offending officers conducted a drug investigation of the defendant and testified about that drug involvement to obtain a drug conviction after a later investigation. 60 F.3d at 680. It did so after noting:

[I]t is well known that drug investigations, in particular, can go on for a long time and involve many different transactions and even many police encounters before a subsequent drug charge is brought, and the prosecutors may find it useful to present a complete drug history to the jury relying on one or another of the rationales allowed in [Federal Rules of Evidence Rule] 404(b).

Id. at 679. Thus, awareness of a prosecutor’s later use of the unlawfully obtained evidence could be imputed to the officers because all parties were involved in an ongoing drug investigation.⁸

¶ 21 We do not find such an inherent connection between the charges, the officers, and the seized evidence in this ease. The record does not reflect, nor has Booker asserted, any overarching connection between drug offenses and aggravated assault, such that we could assume the offending officers were aware that their seizure of the bong would ultimately be used in a trial for an assault that had yet to occur. Nor are we aware of any phenomenon of prosecutors employing a defendant’s criminal history in order to establish the elements of aggravated assault. Hill therefore does not support the application of the exclusionary rule in this case.⁹

¶ 22 The record in fact indicates the use of the bong to support an aggravated assault charge was not within the offending officers’ zone of primary interest when they seized the bong. The officers went to the apartment on a child welfare check — a purpose not facially related to either a bong or an aggravated assault. The officers happened upon the presence of the bong in the course of searching for the victim’s child. The officer who testified at the suppression hearing stated repeatedly that, when he and the other officer entered Booker’s apartment and seized the bong, he was concerned Booker was hiding and possibly destroying the bong or any drugs associated with the bong. He did not testify to any other motivation in seizing the bong. Although one of the officers who seized the bong was present the following day when Booker was arrested for the later aggravated assault, he was responding to what he described as “emergency traffic” regarding “unknown trouble.” He arrived after the investigation had commenced, was confined to the outer perimeter of the investigation scene, and had no contact with either Booker or the victim. The record does not reflect this officer made any connection between the events of the two days. Accordingly, there is no evidence of bad faith or collusion between the officers involved in the two investigations. Nor does the record support a finding that the subsequent aggravated assault was within the offending officers’ zone of primary interests when they seized the bong. Therefore, based upon this record there is no nexus between the unlawful seizure and its use in this case such that extension of the exclusionary rule to that use would have a significant deterrent effect upon the officers’ unlawful conduct.¹⁰

¶23 We weigh the minimal deterrent effects of extending the exclusionary rule against the potential costs of excluding evidence upon the truth seeking function of the criminal trial process. See Stone, 428 U.S. at , 96 S.Ct. 3037 (“[Although the [exclusionary] rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice.”); Alderman, 394 U.S. at 174-75, 89 S.Ct. 961 (“[W]e are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.”); Terry, 392 U.S. at 15, 88 S.Ct. 1868 (‘Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime.”). The deterrent benefits of extending the exclusionary rule to a case such as this, in which the State indirectly uses unlawfully obtained evidence in a manner not within the offending officers’ zone of primary interest, do not outweigh the costs of suppressing the evidence. We therefore decline to extend the exclusionary rule to this context.¹¹ The superior court did not err by refusing to suppress evidence related to the seizure of the bong.

CONCLUSION

¶ 24 The record does not reflect that the use of the bong in the aggravated assault proceedings against Booker was in the zone of primary interest of the officers who conducted the illegal search and seizure. Thus, application of the exclusionary rule to the facts of this case would not serve the exclusionary rule’s deterrent purpose. Accordingly, we hold the superior court did not err when it denied Booker’s motion to suppress the bong.

CONCURRING: JAMES B. SULT, Judge.

1 . In a separate memorandum decision we vacate and remand Booker’s conviction and sentence based upon the denial of his requested self-defense instruction. See Ariz. R. Sup.Ct. 111(h).

2 . A bong is "a water pipe for marijuana” derived from the Thai, "baung,” meaning a "cylindrical wooden tube.” Online Elymology Dictionary, http://www.etymonline.com/index.php?term=bong (last visited Nov. 15, 2005).

3 . It is upon this fundamental point that we differ with the dissent. We do not create an exception to the exclusionary rule where none exists, as the dissent posits. Rather, we join other courts that have refused to expand the exclusionary rule's reach to a context in which its purposes are not efficaciously served. Nor can we adopt the dissent’s per se rule that, anytime police might illegally seize contraband, the seized property must always be suppressed absent a recognized exception to the exclusionary rule.

4 . The Supreme Court stated the exclusionary rule also served the purpose of securing judicial integrity in Terry, 392 U.S. at 12-13, 88 S.Ct. 1868. The Court has limited this idea in subsequent decisions, holding the imperative of judicial integrity in and of itself does not justify suppression of evidence. United States v. Leon, 468 U.S. 897, 921 n. 22, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); United States v. Janis, 428 U.S. 433, 458 n. 35, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) (focus for judicial integrity purposes must be on whether exclusion of the evidence would deter police misconduct); Stone, 428 U.S. at 485, 96 S.Ct. 3037; Michigan v. Tucker, 417 U.S. 433, 450 n. 25, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).

5 . The State relies in part upon State v. Windus, 207 Ariz. 328, 86 P.3d 384 (App.2004), for this proposition. That case discussed whether a new crime committed by the search victim purged the primary taint of the unlawful search or seizure. 207 Ariz. at 331, ¶ 15, 86 P.3d at 387 (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). As this case addresses whether the exclusionary rule is applicable in this context rather than whether the evidence is attenuated from the misconduct, Windus is not on point.

6 . It is irrelevant to this analysis that Booker was not in fact charged with possession or use of drug paraphernalia or unlawful substances. It is the certainty that the evidence would be suppressed if proffered for direct use that deters unlawful conduct, not the later fact of suppression.

7 . The dissent equates police misconduct in seizing contraband or evidence with prosecutorial decisions after the seizure to use the seized evidence to help prove an unrelated crime. There is no reason to apply the rule when, after an unlawful search and/or seizure, a prosecutor or other law enforcement personnel determine in an unrelated prosecution or investigation that the evidence may bear some use unrelated to the target of the unlawful search.

8 . For this reason, the dissent’s hypothetical situation about forged and stolen checks does not demonstrate unlawfully obtained evidence is inadmissible regardless of its use in prosecutions. Assuming the police officers suspected the checks were forged at the time they were seized, given the close relationship between forgery, theft, and fraud in the context of forged checks, it would be easier to establish the cognitive nexus between the seizure and the subsequent use in prosecution under the reasoning of Hill.

9 . The Tenth Circuit stressed that the evidence was proffered to establish an element of the crime. 60 F.3d at 677, 679, 680. Here, the evidence was merely presented to complete the witnesses' version of the events and to establish Booker’s motive to commit the later crime. Neither is an element of aggravated assault.

10 . The dissent notes the temporal and spatial closeness between the seizure of the bong and the subsequent altercation between Booker and the victim. The proximity of the two events is not relevant if there is nothing in the record to indicate the police appreciated it at the time of the seizure.

11 . The dissent hypothesizes this decision will invite police officers to engage in unlawful searches and seizures with the understanding they can “get away with it.” This decision does not abrogate the exclusionary rule, undermine its deterrent effect, or invite illegality. Use of evidence obtained in an unlawful search or seizure for the purposes which the offending officers unlawfully obtained it is still precluded under the exclusionary rule. In addition, this decision does not affect the availability of relief under 42 U.S.C. § 1983 and other civil causes of action against the police. Thus, this decision hardly encourages police misconduct.