NOTICE: NOT FOR PUBLICATION.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.

ANDREW JUSTIN SMITH, Appellant.

No. 1 CA-CR 13-0843, No. 1 CA-CR 13-0844, No. 1 CA-CR 13-0848

(Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR-2010-112510-001 DT, No. CR-2012-111752-001 DT, 

No. CR-2013-106190-001 DT

The Honorable David B. Gass, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jana Zinman 

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Thomas Baird

Counsel for Appellant
STATE v. SMITH

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.

W I N T H R O P, Judge:

¶1 Andrew Justin Smith (“Smith”) appeals his convictions for 

unlawful flight, driving with a suspended license, and forgery. In addition, 

because these convictions resulted in a revocation of probation imposed in 

a prior misdemeanor case, Smith appeals the revocation decision relating 

to that conviction. Smith challenges only one portion of the trial court’s 

rulings; he asserts that in denying his motion to suppress, the trial court 

erred when it found that the “hot pursuit” exigency exception justified a 

warrantless search. For the following reasons, we affirm the trial court’s 

denial of Smith’s motion to suppress and uphold his convictions and 

sentences.

FACTS AND PROCEDURAL HISTORY 

¶2 On February 29, 2012, Officer Kurtz of the Maricopa County 

Sheriff’s Office (“MCSO”) initiated a routine records check on a maroon 

Ford Explorer he observed while on patrol in Fountain Hills. Before the 

records check yielded any information, the Explorer veered down a side 

street, making it impossible for Officer Kurtz to safely follow. After the

records check revealed the owner of the Explorer was Brenda Sawyer, with 

a registered address on Pinto Drive, Officer Kurtz subsequently saw the 

vehicle being driven by a white male, paced the vehicle, and after

determining it was speeding, initiated a traffic stop. Officer Kurtz got out 

of his patrol car and approached the vehicle, but as he reached the rear 

bumper, the driver drove away at a high rate of speed. Officer Kurtz 

pursued the vehicle, but lost sight of it. Approximately three minutes later,

after a bystander told Officer Kurtz that the vehicle he was pursuing had 

turned onto Pinto Drive, the officer arrived at the vehicle owner’s registered 

address on that street.

¶3 MCSO Officer Cincotta arrived at the residence at the same 

time. There were no vehicles in the driveway, and the officers saw that the 

door to the garage attached to the home was “unsecured.” The officers 

lifted the door several feet and saw the maroon Ford Explorer inside, then 
STATE v. SMITH

Decision of the Court

3

closed the door. Officer Kurtz checked the front door to the residence, 

which was locked, and proceeded to “knock and announce” the officers’ 

presence. More officers arrived and surrounded the residence. Officer 

Kurtz then checked the county assessor’s website to verify who owned the 

home, and contacted the Maricopa County Probation Department

(“MCPD”) to determine if the homeowner was on probation.

¶4 The county assessor’s website revealed the registered owner 

of the home was Brenda Sawyer, and MCPD advised that Sawyer was on 

probation. While waiting for a probation officer to arrive, MCSO officers 

decided to re-open the garage door and again announced their presence at 

the front door.

¶5 A probation officer subsequently arrived at the residence and 

decided to conduct a welfare check on Sawyer. The probation officer, along 

with Officer Kurtz and a canine unit, entered the home, where they found 

Sawyer and Smith in a back bedroom. They were transported to police 

headquarters, where Sawyer gave conflicting statements regarding who 

had been driving her vehicle earlier that day. She first stated that a man 

named Michael Burns had been driving the vehicle, but she ultimately 

admitted it was Smith. Sawyer also stated Smith told her he had been 

pulled over by the police and had failed to stop.

¶6 On April 5, 2012, a grand jury issued an indictment charging 

Smith with unlawful flight from law enforcement, a class five felony, and 

driving with a suspended license, a class one misdemeanor.

¶7 Smith filed a motion to suppress, alleging that lifting of the 

garage door constituted a warrantless search in violation of his 

constitutional rights. The State opposed the motion, noting that the officers 

had searched Sawyer’s home as part of a valid probation check. The trial 

court held an evidentiary hearing on August 31 and September 4, 2012.

¶8 The trial court granted the motion to suppress in part. The 

court concluded that lifting the garage door constituted a warrantless 

search, but was justified by the “hot pursuit” exigent circumstance; thus, 

the information obtained by initially lifting the door would not be 

suppressed. The trial court then found that the police officers’ subsequent 

re-entry into the closed garage before the probation officer arrived was a 

warrantless search with no exigent circumstances; thus, any evidence 

obtained from this entry would be excluded. Finally, the trial court found

that the probation officer’s search of the home was valid and denied Smith’s 
STATE v. SMITH

Decision of the Court

4

motion to suppress evidence stemming from that search, including

Sawyer’s statements to police.

¶9 In January 2013, before Smith’s trial, the prosecutor received

a notarized letter allegedly signed by Michael Burns, who claimed to have 

been driving the vehicle at the time at issue. The State contacted the

designated notary, who indicated he had previously notarized a document 

for Brenda Sawyer, but not for Michael Burns. In addition, the notary stated 

that he did not work the day the letter was notarized. On February 13, 2013, 

a grand jury issued another indictment charging Smith with two counts of 

forgery, a class four felony.

¶10 The jury found Smith guilty on all four counts. At sentencing, 

the State alleged and proved two prior convictions. Smith was sentenced 

to three years’ imprisonment for unlawful flight with 268 days of 

presentence incarceration credit. He was sentenced to time served for 

driving on a suspended license, and to concurrent six years’ prison terms 

for forgery, to run consecutively to his prison term for unlawful flight.

Smith timely appealed. We have jurisdiction pursuant to Arizona Revised 

Statutes (“A.R.S.”) sections 12-120.21(A)(2), 13-4031, and 13-4033(A).

1

ANALYSIS

¶11 Smith appeals the trial court’s determination that the 

warrantless search of the garage was permissible under the hot pursuit 

exigency exception. We need not address this issue, however, because the

subsequent probation search was valid, and the evidence obtained therein 

was properly admitted against Smith.

2

¶12 “We will not disturb a trial court’s ruling on a motion to 

suppress absent clear and manifest error.” State v. Rodriguez, 186 Ariz. 240, 

245, 921 P.2d 643, 648 (1996) (internal citation omitted). This court will 

review only the evidence presented at the suppression hearing and will 

view the facts in the light most favorable to upholding the trial court’s 

ruling. State v. Moore, 183 Ariz. 183, 186, 901 P.2d 1213, 1216 (App. 1995).

 

1 We cite the current Westlaw version of the applicable statutes 

because no revisions material to this decision have since occurred.

2 Based on the record before this court, it appears that the officers’ 

lifting of the garage door would constitute a warrantless search excusable 

by the hot pursuit doctrine.
STATE v. SMITH

Decision of the Court

5

¶13 A person on probation has a diminished expectation of 

privacy, and a term of probation that compels advance consent to an 

unannounced entry of premises does not place an unconstitutional 

limitation upon the probationer’s Fourth Amendment rights. See State v. 

Montgomery, 115 Ariz. 583, 584, 566 P.2d 1329, 1330 (1977). Warrantless 

searches of probationers are thus reasonable under the Fourth Amendment 

if the search is authorized by a condition of probation and supported by 

reasonable suspicion. U.S. v. Knights, 534 U.S. 112, 122 (2001); see also U.S. 

v. Davis, 932 F.2d 752, 758 (9th Cir. 1991) (holding that “police must have 

reasonable suspicion, that an item to be searched is owned, controlled, or 

possessed by probationer, in order for the item to fall within the permissible

bounds of a probation search.”)

¶14 In the present case, the trial court took judicial notice that 

Sawyer’s terms of probation specifically authorized warrantless searches of 

her person and property by MCPD, and this court will do the same. See 

State v. McGuire, 124 Ariz. 64, 66, 601 P.2d 1348, 1349 (App. 1978) (stating 

“[a]n appellate court can take judicial notice of any matter of which the trial 

court may take judicial notice”). The vehicle that was used to flee from 

police was registered to Sawyer. Moreover, after a bystander advised 

police the vehicle had turned down Pinto Drive, officers had probable cause 

to believe that the vehicle would be returning to the registered owner’s 

address on that street. The county assessor’s website indicated that Sawyer 

owned the home at the address listed on the vehicle’s registration. Based 

on that information, the officers had, at minimum, reasonable suspicion to 

believe either that Sawyer was assisting someone who was fleeing from 

police, or, that Sawyer’s safety was in jeopardy.3 Under either scenario, 

MCSO and MCPD acted within their discretion to conduct a probation 

search. Because Sawyer’s terms of probation expressly allowed warrantless 

searches, and because the officers had confirmed Sawyer owned both the 

vehicle and house in question, the search constituted a valid probation 

search under the Fourth Amendment.

¶15 Because the search was valid, the evidence seized and 

statements obtained were properly used against Smith. See State v. Walker, 

215 Ariz. 91, 95, ¶¶ 21-22, 158 P.3d 220, 224 (App. 2007) (stating evidence 

lawfully seized during a probation search can be used against a nonprobationer who cohabited with the probationer at the time of the search).

 

3 The officers’ initial lifting of the garage and observation of the same 

vehicle that had fled from police inside that garage further substantiates the 

reasonable suspicion required prior to a probation officer conducting a 

probation search.
STATE v. SMITH

Decision of the Court

6

Evidence of Smith’s presence inside the residence, his appearance matching 

the general description of the suspect who had been driving the Explorer, 

and Sawyer’s subsequent statements incriminating Smith all resulted from 

the lawful search of Sawyer’s home. Accordingly, the trial court did not err 

when it denied Smith’s motion to suppress.

CONCLUSION

¶16 For the foregoing reasons, we affirm the trial court’s denial of 

Smith’s motion to suppress, and we affirm Smith’s convictions and 

sentences.