SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-09-0188-PR 

 Appellee, ) 

 ) Court of Appeals 

 v. ) Division Two 

 ) No. 2 CA-CR 07-0365 

JOSE SALVADOR GUILLEN, ) 

 ) Pima County 

 Appellant. ) Superior Court 

 ) No. CR20064552 

 ) 

 ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Pima County 

The Honorable Michael J. Cruikshank, Judge 

AFFIRMED 

________________________________________________________________ 

Opinion of the Court of Appeals Division Two 

222 Ariz. 81, 213 P.3d 230 (2009) 

VACATED 

________________________________________________________________ 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix 

 By Kent E. Cattani, Chief Counsel 

 Criminal Appeals/Capital Litigation Section 

 Joseph L. Parkhurst, Assistant Attorney General Tucson 

Attorneys for State of Arizona 

EMILY DANIES Tucson 

Attorney for Jose Salvador Guillen 

________________________________________________________________ 

R Y A N, Justice 

¶1 The question presented is whether a resident’s consent 

to search her home is invalid because it was preceded by an 
2 

allegedly illegal search of which the resident was unaware. We 

hold that the consent to search is valid under the 

circumstances.

I 

¶2 In March 2006, police received information that Jose 

Guillen was storing marijuana in his garage; no investigation 

took place at that time. Eight months later, after confirming 

that the house was unoccupied, police called a narcotics officer 

with a drug-sniffing dog to the scene. The home was not 

enclosed by a fence and no signs prohibited public access to the 

front of the house. The garage was attached to the house and 

accessible by a driveway. The narcotics officer and the dog 

walked up the driveway to the garage door. After sniffing the 

door’s bottom seam, the dog began barking and scratching, 

indicating that he had detected the odor of marijuana. 

¶3 One to two hours later, Guillen’s wife returned home. 

Officers approached her in the driveway and asked if they could 

continue talking inside. She agreed. Without mentioning the 

dog sniff, the officers told her that they had information that 

marijuana was being stored at the house and asked for permission 

to search it. Mrs. Guillen granted permission and led the 

officers to the garage, where they detected a “strong odor of 

marijuana.” The narcotics officer then brought the dog into the 

garage and the dog signaled at an unlocked freezer that he 
3 

detected the odor of marijuana. Mrs. Guillen permitted the 

officers to open that freezer, which was empty but smelled of 

marijuana. After obtaining a telephonic search warrant, the 

officers searched two locked freezers and found bales of 

marijuana. 

¶4 Before trial, Guillen moved to suppress evidence 

discovered in his garage and his subsequent statements to the 

police, arguing that the dog sniff violated his rights under the 

Fourth Amendment of the United States Constitution and Article 

2, Section 8 of the Arizona Constitution. The superior court 

denied Guillen’s motion, concluding that whether the dog sniff 

was an illegal search was irrelevant because Mrs. Guillen 

voluntarily consented to the search. 

¶5 A jury subsequently convicted Guillen of possession of 

marijuana for sale and drug paraphernalia, and the trial court 

sentenced him to prison. 

II 

¶6 A divided panel of the court of appeals reversed and 

remanded. State v. Guillen, 222 Ariz. 81, __ ¶ 33, 213 P.3d 

230, 240 (2009). The majority began by analyzing the dog sniff 

under the Fourth Amendment and Article 2, Section 8 of the 

Arizona Constitution. The majority concluded that “a dog sniff 

reaching into a home does not rise to the level of a ‘cognizable 

infringement’ under the Fourth Amendment to the United States 
4 

Constitution.” Id. at __ ¶ 17, 213 P.3d at 234 (quoting 

Illinois v. Caballes, 543 U.S. 405, 409 (2005)). However, 

citing State v. Ault, 150 Ariz. 459, 466, 724 P.2d 545, 552 

(1986), and State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 

523-24 (1984), which held that Article 2, Section 8 is more 

specific than its federal counterpart in protecting the home, 

the court of appeals concluded that “a canine sniff that occurs 

at the threshold of a home, and collects information from 

inside, intrudes upon an expectation of privacy that our society 

has long recognized as reasonable.” Id. at __ ¶ 24, 213 P.3d at 

237. But because Article 2, Section 8 “contains no language 

comparable to that of its federal counterpart requiring a 

warrant for all searches in the home,” id. at __ ¶ 30, 213 P.3d 

at 239, the majority concluded that “officers need only a 

reasonable suspicion that contraband may be found in a home 

. . . to conduct a canine sniff search of the exterior of the 

home.” Id. The court remanded the matter for a determination 

of whether the officers had reasonable suspicion before 

conducting the dog sniff. Id. at __ ¶ 30, 213 P.3d at 239-40. 

¶7 Turning to the issue of Mrs. Guillen’s consent, the 

court of appeals stated that if the trial court on remand found 

that the officers did not have reasonable suspicion, it then 

would have to “determine whether the officers used the 

information acquired to trigger the next step in their 
5 

investigation – asking for consent to search the house – or 

whether . . . they would have taken that step regardless of the 

outcome of the dog sniff.” Id. at __ ¶ 32, 213 P.3d at 240. 

¶8 Dissenting, Judge Espinosa was “unconvinced [that] the 

trial court erred in concluding Mrs. Guillen’s consent obviated 

the need to discuss the constitutionality of the dog sniff[,]” 

id. at __ n.13 ¶ 34, 213 P.3d at 241 n.13, but primarily 

challenged the majority’s conclusion that a dog sniff, conducted 

from the officer’s lawful position outside the home, violates 

the state constitution. Id. at __ ¶¶ 37-55, 213 P.3d at 243-48. 

¶9 The State petitioned for review, arguing that the 

court of appeals erred in interpreting the state constitution 

and, in any event, Mrs. Guillen’s voluntary consent obviated the 

need to reach the state constitutional question. Because this 

case involves a matter of first impression, we granted review. 

We have jurisdiction under Article 6, Section 5(3) of the 

Arizona Constitution and Arizona Revised Statutes § 13-4032 

(2001). 

III 

A 

¶10 The Fourth Amendment provides in part that “[t]he 

right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated.” Unlawful entry into a home is the 
6 

“chief evil” against which the provision protects. See, e.g., 

Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (quoting United 

States v. United States District Court, 407 U.S. 297, 313 

(1972)). It “applies to action by state officers under the Due 

Process Clause of the Fourteenth Amendment.” State v. Davolt, 

207 Ariz. 191, 202 ¶ 23, 84 P.3d 456, 467 (2004) (citing Mapp v. 

Ohio, 367 U.S. 643, 655 (1961)). Arizona’s constitutional 

counterpart to the Fourth Amendment, Article 2, Section 8, 

provides that “[n]o person shall be disturbed in his private 

affairs, or his home invaded, without authority of law.” See 

Bolt, 142 Ariz. at 264-65, 689 P.2d at 523-24 (observing that 

Arizona’s constitutional provision is “specific in preserving 

the sanctity of homes and in creating a right of privacy”). 

Thus, as a general rule police must obtain a warrant before 

searching premises in which an individual has a reasonable 

expectation of privacy. Katz v. United States, 389 U.S. 347, 

356-57 (1967); State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200, 

209 (1996); Bolt, 142 Ariz. at 265, 689 P.2d at 524. 

¶11 One long recognized exception to the warrant 

requirement is consent. Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d 

at 468 (citing Katz, 389 U.S. at 357). To be valid, consent 

must be voluntarily given, and whether the consent was voluntary 

“is a question of fact to be determined from the totality of the 

circumstances.” Id. (citing Schneckloth v. Bustamonte, 412 U.S. 
7 

218, 248-49 (1973)). Consent must “not be coerced, by explicit 

or implicit means, by implied threat or covert force.” 

Schneckloth, 412 U.S. at 228. The state bears the burden of 

showing that consent to search was voluntary. See United States 

v. Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th Cir. 1988); 

State v. Monge, 173 Ariz. 279, 281, 842 P.2d 1292, 1294 (1992). 

¶12 Here, defense counsel made clear at the suppression 

hearing below that Guillen was not challenging the voluntariness 

of Mrs. Guillen’s consent or her authority to consent to the 

search. See, e.g., United States v. Matlock, 415 U.S. 164, 171 

(1974) (holding that voluntary consent to search premises by 

occupant who possesses common authority to the premises is valid 

against absent co-occupant); State v. Lucero, 143 Ariz. 108, 

109, 629 P.2d 287, 288 (1984) (recognizing exception to warrant 

requirement where “person having authority to consent to a 

warrantless search[] does so”). Rather, he argued that the 

first dog sniff at the garage perimeter was illegal, and it 

necessarily tainted Mrs. Guillen’s subsequent consent to search, 

requiring exclusion of the evidence discovered in the garage.

B 

¶13 Evidence seized following consent to a search must be 

suppressed if the consent is tainted by a prior constitutional 

violation. Brown v. Illinois, 422 U.S. 590, 602 (1975); United 

States v. Taheri, 648 F.2d 598, 601 (9th Cir. 1981); Davolt, 207 
8 

Ariz. at 203 ¶ 29, 84 P.3d at 468. Exclusion deters police 

misconduct “by removing the incentive for such conduct.” State 

v. Booker, 212 Ariz. 502, 504 ¶ 13, 135 P.3d 57, 59 (App. 2006) 

(citing United States v. Calandra, 414 U.S. 338, 347 (1974));

State v. Kempton, 166 Ariz. 392, 398, 803 P.2d 113, 119 (App. 

1990).1 Suppression, however, is not required if the 

unconstitutional conduct is sufficiently attenuated from the 

subsequent seizure. See Davolt, 207 Ariz. at 203 ¶ 29, 84 P.3d 

at 468; Monge, 173 Ariz. at 281, 842 P.2d at 1294. “[T]he 

unconstitutional acts of an officer taint a consensual search 

unless there are sufficient intervening circumstances between 

the unlawful conduct and the consent to truly show that it was 

voluntary.” Kempton, 166 Ariz. at 398, 803 P.2d at 119. 

¶14 In Brown, the Supreme Court set forth a test to 

determine whether the taint of the illegal conduct is 

sufficiently attenuated from evidence subsequently obtained by 

voluntary consent. 422 U.S. at 603-04. Under that test, courts 

consider (1) the time elapsed between the illegality and the 

acquisition of the evidence; (2) the presence of intervening 

circumstances; and (3) “particularly, the purpose and flagrancy 

of the official misconduct.” Id.; see also Davolt, 207 Ariz. at 

                                                           

1 This Court has held that for purposes of the Arizona 

Constitution, the “exclusionary rule to be applied as a matter 

of state law is no broader than the federal rule.” Bolt, 142 

Ariz. at 269, 689 P.2d at 528. 
9 

203 ¶ 30, 84 P.3d at 468.2

C 

¶15 Assuming, without deciding, that the dog sniff 

violated Article 2, Section 8, we conclude that Mrs. Guillen’s 

consent was valid because under Brown’s three-factor test, 

intervening circumstances obviated any alleged taint and the 

first dog sniff conducted from outside the garage was not 

flagrant police misconduct. 

¶16 Mrs. Guillen’s consent was obtained within a few hours 

after the dog sniff took place. Although this fact favors 

Guillen, see Delgadillo-Velasquez, 856 F.2d at 1300 (citing 

cases in which courts have held invalid consent given between a 

few minutes and a few hours after the illegal conduct), it does 

not weigh heavily in our analysis because of the presence of 

intervening circumstances. See State v. Reffitt, 145 Ariz. 452, 

459, 702 P.2d 681, 688 (1985) (noting that the “factor of 

temporal proximity is scarcely outcome determinative” and “is 

often the least helpful of [Brown’s] three criteria”). 

¶17 Mrs. Guillen’s lack of knowledge of the dog sniff 

                                                           

2

 In analyzing whether a confession was obtained by 

exploitation of an illegal arrest, the Court in Brown also 

considered whether the police gave Miranda warnings to be “an 

important factor.” 422 U.S. at 603. “Although Brown dealt with 

the exclusion of a defendant’s statements, [the reasoning in 

Brown] applies equally to contraband revealed by [a] consent 

search.” Kempton, 166 Ariz. at 398, 803 P.2d at 119 (citing 

Taheri, 648 F.2d at 601). 
10 

constitutes a major break in the causal chain. See, e.g.,

United States v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000) 

(“Lack of knowledge of a prior search is an intervening factor 

which dissipates the coercion inherent in a request for consent 

made after an unconstitutional search.”), rev'd on other grounds 

by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001); 

United States v. Carson, 793 F.2d 1141, 1155 (10th Cir. 1986) 

(holding that a defendant waived his Fourth Amendment rights 

when he consented to search without knowledge of prior illegal 

police search); cf. Moran v. Burbine, 475 U.S. 412, 422 (1986) 

(“Events occurring outside of the presence of the suspect and 

entirely unknown to him surely can have no bearing on the 

capacity to comprehend and knowingly relinquish a constitutional 

right.”). 

¶18 It is uncontested that Mrs. Guillen was unaware of the 

dog sniff when she consented to the search.3

 Because Mrs. 

Guillen knew nothing of the dog sniff, no link between the 

alleged illegality and the consent was established. Furrow, 229 

F.3d at 814. Thus, she was “in the same posture . . . as a 

person not previously subject to an illegal entry.” Id. 

                                                           

3

 At the suppression hearing, the State offered to admit a 

recording of the conversation between the officers and Mrs. 

Guillen. Defense counsel said that the court need not listen to 

the recording because he was not challenging the voluntariness 

of her consent.
11 

¶19 Regarding Brown’s final factor, flagrancy of the 

alleged violation, nothing suggests that the officers knowingly 

violated Guillen’s rights by conducting the first dog sniff from 

outside his garage. First, none of the traditional markers of 

privacy appeared: no wall or fence obstructed entry onto 

Guillen’s property, and no signs alerted the officers that such 

entry was prohibited. The front entrance and garage were 

publicly accessible. See United States v. Velazco-Durazo, 372 

F. Supp. 2d 520, 524-25 (D. Ariz. 2005) (holding that generally 

“there is no rule of private or public conduct which makes it 

illegal per se, or a condemned invasion of privacy, . . . to 

walk up the steps and knock on the front door of [a residence to 

ask] questions of the occupant thereof”) (quoting Davis v. 

United States, 327 F.2d 301, 303 (9th Cir. 1964)); Baker v. 

Clover, 177 Ariz. 37, 39, 864 P.2d 1069, 1071 (App. 1993) 

(concluding that walkways and driveways leading to the home are 

“only semi-private” and recognizing a “reasonable expectation 

that various members of society may use the walkway in the 

course of attending to personal or business pursuits with 

persons residing in the home, including police officers on 

police business”) (quoting State v. Cloutier, 544 A.2d 1277, 

1279-80 (Me. 1988)); State v. Lopez, 115 Ariz. 40, 42, 563 P.2d 

295, 297 (App. 1977) (holding that an officer may approach 

carport located in unfenced rear yard); see also Florida v. 
12 

Royer, 460 U.S. 491, 497 (1983) (“[L]aw enforcement officers do 

not violate the Fourth Amendment by merely approaching an 

individual on the street or in another public place, by asking 

him if he is willing to answer some questions, by putting 

questions to him if the person is willing to listen, or by 

offering in evidence in a criminal prosecution his voluntary 

answers to such questions.”). 

¶20 Second, the case law on dog sniffs of the exterior of 

a residence accessible to the public is far from clear. Dog 

sniffs of cars and luggage or other containers in public places 

plainly do not constitute searches under the Fourth Amendment. 

See Caballes, 543 U.S. at 408-09 (holding that a canine sniff 

performed on the exterior of a lawfully detained car 

“compromises no legitimate privacy interest”) (quoting United 

States v. Jacobsen, 466 U.S. 109, 123 (1984)); State v. Morrow, 

128 Ariz. 309, 312-13, 625 P.2d 898, 901-02 (1981) (holding that 

a dog sniff of luggage in a public place is not a search); State 

v. Martinez, 26 Ariz. App. 210, 212, 547 P.2d 62, 64 (1976), 

aff’d and adopted, 113 Ariz. 345, 554 P.2d 1272 (1976) (holding 

that use of narcotics dog by police officers, who lawfully 

stopped defendants’ vehicle to investigate possible presence of 

marijuana, did not constitute a search). 

¶21 Notwithstanding these cases, neither this Court nor 

the United States Supreme Court has analyzed the 
13 

constitutionality of dog sniffs conducted at the exterior of a 

residence under the Fourth Amendment or the Arizona 

Constitution. Moreover, cases from other jurisdictions are 

split on whether dog sniffs of the exterior of a residence 

violate the Fourth Amendment or their respective state 

constitutions. Compare Hoop v. State, 909 N.E.2d 463, 470 (Ind. 

Ct. App. 2009) (holding that a dog sniff of a private residence 

requires reasonable suspicion to prevent arbitrary searches), 

and State v. Dearman, 962 P.2d 850, 853 (Wash. Ct. App. 1998) 

(concluding that a dog sniff “expose[d] information that could 

not have been obtained without the [use of the dog]” and 

therefore use of a trained narcotics dog at a residence 

constituted a search under the state constitution) (citation 

omitted), with Stabler v. State, 990 So. 2d 1258, 1263 (Fla. 

Dist. Ct. App. 2008) (holding dog sniff at front door of 

apartment violated no legitimate expectation of privacy, and 

therefore, was not a search), and People v. Jones, 755 N.W.2d 

224, 229 (Mich. Ct. App. 2008) (holding that defendant had no 

reasonable expectation of privacy at entrance of property that 

is open to the public, and “[a]ny contraband sniffed by the 

canine while on defendant’s front porch . . . fell within the 

‘canine sniff’ rule”). Given these circumstances, we conclude 

that any supposed “flagrancy of the official misconduct [was] de 

minimis.” State v. Blackmore, 186 Ariz. 630, 635, 925 P.2d 
14 

1347, 1352 (1996); see also Reffitt, 145 Ariz. at 460, 702 P.2d 

at 689 (even if police actions in illegally arresting defendant 

were “erroneous and regrettable,” they “did not involve flagrant 

or purposeful misconduct” so as to taint subsequent confession). 

D 

¶22 Mrs. Guillen’s consent was sufficiently attenuated 

from any alleged prior illegality. Accordingly, the court of 

appeals erred in ordering a remand for the trial court to 

determine whether the officers’ request for her consent was 

based in part on the positive dog sniff. Guillen, 222 Ariz. at 

__ ¶ 32, 213 P.3d at 240. Such a determination would be 

irrelevant to the question of whether Mrs. Guillen voluntarily 

consented. See, e.g., Furrow, 229 F.3d at 814; see also United 

States v. Liss, 103 F.3d 617, 621 (7th Cir. 1997) (stating that 

“an officer's motivation . . . is irrelevant. . . . The fact 

that an officer had actual suspicion, however obtained, cannot 

render invalid a consent for which the officer did not need any 

suspicion at all to request”) (citation omitted). Therefore, 

the trial court did not err in ruling that the evidence seized 

from the garage should not be suppressed. 

IV 

¶23 For the foregoing reasons, we vacate the opinion of 

the court of appeals and affirm Guillen’s conviction. 
15 

 _____________________________________ 

 Michael D. Ryan, Justice 

CONCURRING: 

_____________________________________ 

Rebecca White Berch, Chief Justice 

_____________________________________ 

Andrew D. Hurwitz, Vice Chief Justice 

_____________________________________ 

W. Scott Bales, Justice 

_____________________________________ 

A. John Pelander, Justice