IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO

THE STATE OF ARIZONA, Appellant,

v. ALEXANDER JOEL HUERTA , Appellee. ) ) ) ) ) ) ) ) ) ) 2 CA

- CR 2009

- 0078

DEPARTMENT A
O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR

- 20081516
Honorable Deborah Bernini , Judge

REVERSED
Barbara LaWall, Pima County Attorney By Jacob R. Lines and Amy S. Ruskin
David Alan Darby Tucson Attorneys for Appellant

Tucson Attorney for Appellee
E S P I N O S A, Presiding Judge. ¶1 After the trial court granted Alexander Huerta‟s motion to suppress all
evidence related to a sheriff‟s deputy ‟s discovery of cocaine in an unclaimed duffle bag , 

### FILED BY CLERK

COURT OF APPEALS DIVISION TWO 

### FEB 10 20102

the stat e dismissed all pending charges against Huerta and now appeals the trial court‟s suppression ruling. Finding no illegal search occurred, we reverse. Factual and Procedural History ¶2 We review the facts in the light most favorable to upholding a trial court‟s ruling on a motion to suppress. State v. Teagle , 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App. 2007). The following fact s are undisputed. In April 2008, Huerta and his son were outside their home loading items into Huerta‟s pickup truck wh en two men in a sport

utility vehicle ( SUV ) approached and beg an shouting and firing guns at them. Huerta produc ed his own weapon, returned fire, and the SUV sped away . Not seeing his son and fearing he had been kidnapped, Huerta chased the SUV in his truck, spilling items from
the bed of the truck onto the roadway. ¶3 A Pima County s heriff‟s d eputy responding to reports of gunfire ar rived at a location near Huerta‟s home and found people a ttempting to clea r the road

. He direct ed them to stop a nd then picked up several items lying in the street

. After the deputy had
moved the items to the sidewalk , Huerta ret urned to the scene and de scribed what had happened. He appeared nervous and initially declined to identify any of the property , indicat ing he was too worried about his son to think about it

. A fter learn ing his son was at a neighbor‟s house , Huerta was again asked about the property and he claimed everything except a duffle bag

. When Huerta was specifically asked about the bag, he3

n either admit ted n or denied owning it. 1 The deputy subsequently unzipped the bag and
discovered several wrapped “blocks” of cocaine

. Huerta was arrested and officers
obtained a search warrant for his home and vehicle

. Following a pretrial hearing, the trial court granted Huerta‟s motion to suppress all evidence acquir ed as a result of the deputy‟s opening t he duff le bag and the state voluntarily dismissed the charges to seek appellate review of that ruling. We have jurisdiction over the state‟s appeal pursuant to A.R.S. § 13

- 4032(6).
Discussion ¶4 The state contends the trial court erred in suppressing the evidence obtained

as a result of the search of the duffle bag, arguing it had been abandoned and Huerta retained no privacy interest in its contents. N either the state nor Huerta has cited any controlling authority relating to the specific circumstances presented here , and we have
found none. Accordingly, we find this a matte r of first impre ssion in Arizona

. In reviewing a trial court‟s ruling on a motion to suppress evidence, we evaluate discretionary issues for an abuse of discretion but review legal and const itutional issues
de novo. State v. Allen , 216 Ariz. 320, ¶ 11, 166 P.3d 111, 114 (App. 2007)

. Whether a defendant has abandoned property is a factual determination, see State v. Rogers , 186 Ariz. 508, 511, 924 P.2d 1027, 1030 (1996), that we review for c lear and manifest error,

1 At the hearing on Huerta‟s motion to suppress, the arresting officer initially testified that when asked, Huerta indicated the duffle bag was not his. On cross - examination, he clarified that Huerta “was silent abo ut” the bag and did not affirmatively say whether it was or was not his.4

see State v. Dean , 206 Ariz. 158, ¶ 9, 76 P.3d 429 , 432 (2003). Whether a particular expectation of privacy is recognized under constitutional law is reviewed de novo

. Allen
21 6 Ariz. 320 ¶ 15, 166 P.3d at 115. ¶5 Both the United States and Arizona C onstitutions forbid unreasonable searches and seizures, U.S. Const. amend s . IV and XIV; Ariz. Const. art. II, § 8, and warrantless searches are “per se unreasonable , ” Katz v. United States , 389 U.S. 347, 357 (1967); see also State v. DeWitt , 184 Ariz. 464, 468 , 910 P.2d 9, 13 (1996). A person retains no privacy interest , however, in abandoned property and may not invoke the
exclusion ary rule for evidence un covered as the result o f its search

. See State v. Huffman , 169 A riz. 465 , 466

- 67, 820 P.2d 329, 330

- 31 (App. 1991 ). A court will find that pro perty has been abandoned only when “„the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the
time of the search.‟” State v. Walker , 119 Ariz. 121, 126, 579 P.2d 1091, 1096 (1978), quoting United States v. Colbert , 474 F.2d 174, 176 (5th Cir. 1973)

. An intent to abandon property “„ is determined by objective factors, not the defendant‟s subjective intent.‟” People v. Pereira , 58 Cal. Rptr. 3d 847, 852 (Cal. Ct. App. 2007), quoting People v. Daggs , 34 Cal. Rptr. 3d 649, 652 (Cal. Ct. App. 2005). And “[t]he appropriate test is whether defendant‟s words or actions would cause a reasonable person in the
searchi ng officer‟s position to believe that the property was abandoned.” Id . at 852

- 53.5

¶6 The state argues that cases from other jurisdictions on which the trial court
relied are read ily distinguishable from this one and urges us to reverse its ruling. In
respon se, Huerta highlights aspects of these cases that he contends support the court‟ s finding. Although the authorities he cites share some factual elements with the present
case, we agree with the state that they are distinguishable and that the distinctions are important. ¶7 Huerta relie s on Commonwealth v. Holloway , 384 S.E.2d 99, 103

- 04 (Va.
Ct. App. 1989), in which th e Virginia Court of Appeals hel d a defendant‟s failure to claim luggage “need not be interpreted as abandonment

. ” There, drug enforcement agents boarded a train , told the defendant‟s companion they were investigating illegal drugs on the train, and asked the defendant and his companion if they owned two particular pieces of luggage , which were searched and found to contain drugs after
neithe r the defendant nor any other passenger claimed them

. Id . at 101. The state argued
the search was proper because the defendant had abandoned the luggage by not claimin g it when asked

. Id

. In u pholding the trial court‟s suppression ruling, the court not ed the luggage had been in a proper p lace for storage on the train , and the owner could have
chosen not to answer or have been unavailable when the agents were questioning other
passengers. Id . at 103

- 04. ¶8 Huerta argues that, as in Holloway , a failure to respond does not e stablish
abandonment

. A s the state points out , however, the court expressly noted that the defendant was aware of the drug inv estigation and could exercise his right to remain6

silent rather than claiming the luggage and i ncriminating himself. Holloway , 384 S.E. 2d
at 104

. B ut see United States v. Trimble , 986 F.2d 394 , 399 (10th Cir. 1993) (police investigation or pursuit does not render abandonment involuntary)

. The Holloway court also emphasized that the luggage was proper ly store d on the train

. 384 S.E.2d at 104. Accordingly, the owner reasonably could expect the luggage to remain on the train if he or she did not claim it while the agents were onboard seeking information. ¶9 Here, th e deputy responded to a report of shots fired a nd had no reason to suspect the duff

le bag contained drugs . Therefore, claiming the bag, whose cont ents law
enforcement had neither suspicion about nor the right to inspect, would not have
incriminate d Huerta at all. Cf. Holloway , 384 S.E.2d at 100, 104 (officers boarded train specifically to investigate defendant‟s possible drug possession and announced intention to seek drugs). Additionally, unlike the bag in Holloway , this duff le bag was not stored in an appropriate place , but was found lying in a roadway. Moreover , Huerta claimed all the other items except the duffle bag. Accordingly, we find Holloway inapposite. ¶10 In State v. Joyner , 669 P.2d 152 (Haw. 1983), also cited by Huerta, the
defenda nt was found not to have abandoned a bag by remain ing silent when police questioned him

. There, officers executing a search warrant for evid ence of gambling at a
bathhouse smelled marijuana in the sauna ; they arrested another man , who had marijuana on his person, and then asked the others present who owned a bag lying near the
defendant

. Id

. at 153

. Although the defendant did not claim it, the trial court found he had exhibited “indicia of ownership” by placing t he bag , at most, two feet from him self7

in the sauna. Id . at 154. The Hawaii Supreme Court upheld the suppression of evidence in the bag, expressly refusing to equate “passive failure to claim potentially incriminating evidence” with abandonment of property. Id . at 153. ¶11 Huerta relies on Joyner for the proposition that passive silence is not
tantamount to abandonment. But , his conduct cannot be deemed “passive” when he had affirmatively claimed each and every other item that had been found in the street

. Moreover, as we noted in our discussion of Holloway , Huerta would not have
incri minated himself by claiming the duffle bag because the deputy had no reason to suspect it contained contraband , unlike the officers in both Holloway and Joyner

. O ther
courts have held that a person must claim an item when given the opp ortunity to do so to avoid a finding of abandonment. See United States v. Hernandez , 7 F.3d 944, 947 (10th Cir. 1993) (defendant aba ndoned backpack by failing to claim it after border patrol agent
on bus repeatedly asked who owned it ); People v. Henry , 73 0 N.W.2d 248, 248 (Mich. 2007) (defendant‟s failure to object or assert ownership when police looked inside bag
reflected intent to dis avow connection with bag); see also State v. Farinich , 430 A.2d 233, 236 (N

. J

. Super

. Ct. App. Div. 1981) (failure to deny ownership not constru ed as claim of privacy interest for purposes of abandonment). ¶12 Huerta also contends Joyner s upports his additional argument that , because “the duffle bag was located in close proximity to [him]” a nd nobody else approached to claim it, the deputy should have inferred that he owned it. This argument is without merit

as it ignores the fact that Huerta‟ s proximity to the bag was wholly fortuitous. Before8

Huerta returned to the scene, the deputy had c le ared the road, piling the items from the

street on to the side walk. Huerta‟s position in relation to the items was no more significant than it would have been had the deputy im mediately loaded the m into a
vehicle and sent them to the sheriff‟s department as lost property or evidence. ¶13 The third case Huerta cites , State v. May , 608 A.2d 772 (Me. 1992) , is similarly inapplicable. In May , a police officer opened a Velcro

- fastened wallet inadvertently left in his patrol car by a man who had been arrested and released. Id . at 774

- 75. The officer knew the owner‟s identity and had no reason to open the wallet in
order to return it

. Id . at 776 n.3. The court ruled the wallet had not been abandoned and the officer‟s opening it could not be justified as a se arch of abandoned property. Id . at
776. ¶14 Although Huerta likens the duff le bag to the lost wallet in May , a finding of
abandonment here need not rest on the bag‟s loss from Huerta‟s truck. 2 In May , the
defendant had no opportunity to claim his wallet before it was searched. Id . at 773.

2 The state argues that, contrary to May ‟s holding, Huerta‟s initial loss of items from his truck constituted abandonment. Although some authority supports this contention, see Unit ed States v. Arias

- Villanueva , 998 F.2d 1491, 1501

- 02 (9th Cir. 1993) (key abandoned when unwittingly left in police car), overruled on other grounds by United States v. Jimenez

- Ortega , 472 F.3d 1102 (9th Cir. 2007), resolving the issue is un necessary to o ur resolution of this case, and we decline to decide whether the inadvertent loss of an item can constitute abandonment. See State v. Bernini , 220 Ariz. 536, ¶ 10, 207 P.3d 789, 792 (App. 2009) (appellate court should only decide questions required to dis pose of appeal under consideration).9

Here , however, the deputy could n ot be certain who owned the duffle as it and other items were lying on a public street wh en he arrived and a number of people were handling the property

. And Huerta, unlike the defendant in May , had ample opportunity to claim the bag yet failed to do so during the approximately two hours he spent on the
side of the road with the deputy and despite being specifically asked if it was his. ¶15 We conclude that none of the cases on whic h the trial court relied would require the suppression of this evidence , even were they controlling authority in Arizona. Rather, we agree with the state that the appropriate test here is one that considers the totality of the circumstances. See U nited S tates v. Liu , 180 F.3d 957, 961 (8th Cir. 1999) (court must consider all objective facts to determine if property abandoned); United
S tate s v. N

ordlin g , 804 F.2d 146 6, 1469 (9th Cir. 1986) (whether property abandoned determined in light of totality of circ umstances ; important factors include denial of ownership and physical relinquishment of property ) ; see also Pereira , 58 Cal. Rptr. 3d at
852

- 53 (appropriate test includes reasonable perception of officer)

. As the state correctly

note s, the conte xt here is all

- important. ¶16 When asked about the property that had fallen in the street, Huerta
express ly claimed ev ery item except the duffle bag. It is difficult to see how the deputy should have interpreted Huerta‟ s silence regarding this bag as indica tin g he intended to

r etain a privacy interest in it when he had unequivocal l y asserted ownership of the ot her
item s. Nor did Huerta face a constitutional dilemma of choosing between his privacy interests and his right against self

- incrimination ; as noted earlier, the deputy had no10

reason to suspect the bag contained contraband and would have had no reason to open it
had Huerta claimed it. Cf

. Joyner, 669 P.2d at 153 (no abandonment when defendant
forced to choose between expectation of privacy and right a gainst self

- incrimination); Holloway , 384 S.E.2d at 103

- 04 ( same )

. In fact, the officer testified that had Huerta claimed the bag, he would not have opened it. ¶17 Finally , this is not a situation in which the stat us quo could h ave been
maintained. A ny rea sonable person would anticipat e that the police would not have left
the unclaimed bag on the side of the street, but would have taken custody of it and routinely opened and inspect ed it for indications of ownership a s well as safety
considerations

. 3 By not claiming the duffle bag in these circumstances, Huerta effectively elected the latter option. See Nordling , 804 F.2d at 1470 (bag abandoned when “it was virtually certain” it would be opened, inspected, and given to authorities
before defendant c ould re assert control)

. From the totality of the circumstances here , we can only con clude Huerta intentionally abandoned the bag and thereby sacrificed any privacy interest he had in it. That being so, the depu ty‟s search of the bag did not violate
Huert a‟s constitution al rights , and the trial court erred in suppressing the evidence. See

3 The state alternatively argues that the contents of the duffle bag would have been admissible under the “inevitable discovery” doctrine which would justify an otherwise illegal warrantless search. See State v. Rojers , 215 Ariz. 555, ¶ 18, 169 P.3d 651, 655 (App. 2007). But we need not reach that issue because , here, that the bag would have been opened by authorities in any event is part of the totality of the circumstances to consider in determining the thresho ld question of whether Huerta had a reasonable privacy interest in it.11

Walker , 119 Ariz. at 126

- 27 , 579 P.2d at 1096

- 97 (no standing to challenge search of abandoned property)

. ¶18 Huerta requests that , if we find he had no reasonable expectation of privacy under the federal constitution, we separately consider the propriety of the search under the Arizona Constitution. Article II, § 8 of our constitution has, on occasion, been interpreted apart from the federal constitution and found to afford a defendant greater privacy protections. See, e.g. , State v. Ault , 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986); State v. Bolt , 142 Ariz. 260, 264

- 65, 689 P.2d 519, 523

- 24 (1984 ) . The
circumstances under which Ar izona courts analyze article II, § 8 in this manner, however, are exceedingly narrow. Except when the privacy of a person‟s home has been invaded, this provision does not confer any additional protection not contained in our federal
constitution. See Bol t , 142 Ariz. at 264

- 65, 689 P.2d at 523

- 24 (Arizona‟s constitutional provisions “specific in preserving the sanctity of homes”); State v. Juarez , 203 Ariz. 441, ¶ 15, 55 P.3d 784, 788 (App. 2002) (except in home search context, protections of article II, § 8 concomitant with federal constitution)

. This case does not involve the warrantless search of a home and, accordingly, we decline Huerta‟s invitation to analyze this issue separately under our state constitution.12 Disposition ¶19 Because we have found Huert a abandoned the duff le bag and its search was
there fore lawful, we remand this matter to the trial court for further proceedings
consistent with this decision.

PHILIP G. ESPINOSA, Presiding Judge
CONCURRING:

JOSEPH W. HOWARD, Chief Judge

VIRGIN I A C. KELLY, Judge.