IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

KENRICK FONCETTE, Appellant.

No. 1 CA-CR 14-0030

Appeal from the Superior Court in Maricopa County

No. CR2012-008318-002

The Honorable Teresa A. Sanders, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By David Simpson

Counsel for Appellee

Blumberg & Associates, Phoenix

By Bruce E. Blumberg

Counsel for Appellant
STATE v. FONCETTE

Opinion of the Court

2

OPINION

Presiding Judge Kent E. Cattani delivered the opinion of the Court, in 

which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.

C A T T A N I, Judge:

¶1 Kenrick Foncette appeals from his convictions of possession 

of marijuana for sale and possession of drug paraphernalia and the 

resulting sentences. Foncette argues the superior court erred by denying 

his motions to suppress evidence discovered in his hotel room after what 

he argues were illegal searches. Specifically, he claims police officers 

violated his Fourth Amendment rights by using a drug-detection dog in the 

hallway outside his hotel room and by manufacturing an exigency to justify

their subsequent warrantless entry into the hotel room. We conclude that 

he has not shown a Fourth Amendment violation.

¶2 Foncette further asserts that, although the officers obtained a 

search warrant after securing the room, the warrant impermissibly 

authorized a late-night search without good cause in violation of Arizona’s 

statutory restriction on nighttime searches, Arizona Revised Statutes 

(“A.R.S.”) § 13-3917.

1 Absent a constitutional violation, however, 

suppression is not an authorized remedy for a purely statutory violation of 

the nighttime search statute, see A.R.S. § 13-3925(A), and ample cause 

supported nighttime service of the warrant in any event. For these reasons, 

we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶3 One night in late October 2010, Foncette and another man 

were driving a rental car in Tempe. Around 11:30 p.m., Officer Shearan of 

the Tempe Police Department stopped the car for a traffic violation. During 

the stop, Officer Shearan smelled fresh marijuana emanating from the car 

and requested the assistance of a drug-detection dog.

¶4 Officer Ribotta and his police dog arrived at the traffic stop, 

and the dog alerted to the exterior of the vehicle, then to the seam of the 

 

1 Absent material revisions after the relevant date, we cite a statute’s 

current version.
STATE v. FONCETTE

Opinion of the Court

3

backseat leading to the trunk, and then to the trunk. The officers searched 

the car, but did not find marijuana. They did, however, smell an 

overwhelming odor of fresh marijuana coming from the trunk.

¶5 After the stop, Foncette and his companion were allowed to 

leave, and Officer Manchak, driving an unmarked vehicle, followed them

to a hotel. Hotel staff buzzed the officers into the lobby, where Officer 

Manchak confirmed Foncette’s room number with the front desk clerk. 

Officer Ribotta (without being informed of Foncette’s room number) 

walked down a hallway with his dog, and the dog alerted to Foncette’s 

room.

¶6 Officer Shearan knocked on the hotel room door several 

times. Less than one minute after the first knock, Foncette opened the door 

slightly, then, at the officers’ request, fully opened it. Officers Shearan and 

Manchak smelled an odor of fresh marijuana as soon as Foncette opened 

the door.

¶7 In light of the dog’s alert and the odor of marijuana, the 

officers asked Foncette and his companion to step out of the room. Foncette 

left the room, but his companion, who was lying on the bed, did not 

respond. Officer Shearan and other officers entered the room to remove 

Foncette’s companion; they all left as soon as Officer Shearan walked him 

out of the room.

¶8 Foncette and his companion were detained in the hallway and 

spoke briefly with the officers. The officers obtained a warrant for a 

nighttime search of the hotel room, and they subsequently found plastic 

wrap and foam sealant (often used to package marijuana) together with

over 20 pounds of marijuana. Foncette was arrested and charged with 

possession of marijuana for sale and possession of drug paraphernalia.

¶9 Before trial, Foncette filed two motions to suppress the 

evidence discovered in the hotel room. In the first motion, he argued that 

the use of the police dog to investigate by sniffing in the hotel hallway was 

an unreasonable search under the Fourth Amendment, and that the latenight search pursuant to the warrant violated Arizona’s statutory 

restriction on nighttime searches. In the second motion, Foncette asserted—

among other claims—that the officers’ warrantless entry into the room to 
STATE v. FONCETTE

Opinion of the Court

4

remove his companion violated the Fourth Amendment. As relevant here, 

the superior court denied the motions.2

¶10 A jury found Foncette guilty as charged, and he timely 

appealed after sentencing. We have jurisdiction under Article 6, Section 9, 

of the Arizona Constitution and A.R.S. § 13-4033.

DISCUSSION

¶11 We review the superior court’s denial of a motion to suppress 

for an abuse of discretion. State v. Davolt, 207 Ariz. 191, 202, ¶ 21, 84 P.3d 

456, 467 (2004). We consider only the evidence presented at the suppression 

hearing and view this evidence in the light most favorable to sustaining the 

ruling. State v. Jacot, 235 Ariz. 224, 227, ¶ 9, 330 P.3d 981, 984 (App. 2014). 

We defer to the superior court’s factual findings but review de novo issues 

of law, including the court’s ultimate legal determination that the search 

complied with the Fourth Amendment. Davolt, 207 Ariz. at 202, ¶ 21, 84 

P.3d at 467; Jacot, 235 Ariz. at 227, ¶ 9, 330 P.3d at 984; State v. Blakley, 226 

Ariz. 25, 27, ¶ 5, 243 P.3d 628, 630 (App. 2010).

I. Investigation Using a Drug-Detection Dog.

¶12 The Fourth Amendment protects “[t]he right of the people to 

be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures.” U.S. Const. amend. IV. A search occurs when law 

enforcement officers acquire information by physically intruding into 

constitutionally protected areas without license to do so. Florida v. Jardines, 

133 S. Ct. 1409, 1414 (2013). The government’s invasion of an individual’s 

reasonable expectation of privacy also constitutes a search under the Fourth 

Amendment. United States v. Jacobsen, 466 U.S. 109, 113 (1984); Katz v. United 

States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

¶13 Foncette first argues that the use of the police dog to sniff for 

drugs in the hotel hallway was an unreasonable search under the Fourth 

Amendment. He claims both that he had a reasonable expectation of 

privacy in the hallway outside his room and that the dog’s sniff 

impermissibly detected private information from inside the room.

 

2 In the second motion, Foncette also sought suppression of 

statements he made to police while detained in the hallway, alleging 

untimely warnings under Miranda v. Arizona, 384 U.S. 436 (1966). The 

superior court granted that portion of the motion.
STATE v. FONCETTE

Opinion of the Court

5

¶14 Foncette relies on Jardines, in which the United States 

Supreme Court held that police officers conducted an improper search by 

entering onto the curtilage of a home with a drug-sniffing dog and having 

the dog sniff the porch area. 133 S. Ct. at 1417–18. Critical to the majority 

decision in Jardines was the officers’ physical intrusion onto a 

constitutionally protected area (the curtilage of a home) without an express 

or implied license to enter the area for their specific purpose (a drug-sniff 

by a police dog). Id. at 1415–16.

¶15 Here, however, the officers did not impermissibly cross into a 

constitutionally protected area to investigate with the dog. Although hotel 

guests are entitled to constitutional protection against unreasonable 

searches and seizures that infringe on their expectation of privacy within 

the room, see Davolt, 207 Ariz. at 202, ¶¶ 23–24, 84 P.3d at 467, the hallway 

outside Foncette’s hotel room was not a private area. Instead it was a public 

access area within the hotel, open (even overnight) to hotel staff and 

management as well as other hotel guests. See, e.g., State v. Kosman, 181 

Ariz. 487, 490, 892 P.2d 207, 210 (App. 1995) (“Defendant had no reasonable 

expectation of privacy in the area outside his door [in an apartment 

complex] because the area is a public place where anyone, including the 

police, had a right to be.”). Although close in proximity to a private area, 

the public access hallway outside the door was not the type of area “to 

which the activity of home life extends” so as to qualify as curtilage of the 

hotel room. Oliver v. United States, 466 U.S. 170, 182 n.12 (1984); see also

United States v. Dunn, 480 U.S. 294, 300–01 (1987) (stating that the extent of 

a home’s curtilage is determined by assessing “the proximity of the area 

claimed to be curtilage to the home, whether the area is included within an 

enclosure surrounding the home, the nature of the uses to which the area is 

put, and the steps taken by the resident to protect the area from observation 

by people passing by”).

¶16 Moreover, hotel personnel in this case permitted the officers

and the drug dog to enter the hallway, even though it was nighttime. This 

authorization from hotel management—who had the right to control access 

to the hallway—provided any required license for the officers to enter the 

hallway. Compare Jardines, 133 S. Ct. at 1416 (“But introducing a trained 

police dog to explore the area around the home in hopes of discovering 

incriminating evidence is something else. There is no customary invitation 

to do that.”).

3 Under Jardines, law enforcement officers may not use a dog 

 

3 Foncette also references the Arizona Constitution’s protection of 

privacy in temporary residences and suggests that a hotel room should be 
STATE v. FONCETTE

Opinion of the Court

6

to sniff for drugs without license to do so when that investigation is 

conducted from within a constitutionally protected area. 133 S. Ct. at 1415–

18. Here, however, the officers were legally present in the hallway from 

which the dog sniffed for drugs, and Foncette accordingly is not entitled to 

relief on this basis.

¶17 Foncette also claims that the officers’ use of the dog to sniff 

for drugs invaded his reasonable expectation of privacy within the room 

because the sniff detected information about items inside the private area. 

But “any interest in possessing contraband cannot be deemed ‘legitimate,’” 

and thus state actions that reveal only contraband do not compromise any 

privacy interest that society accepts as reasonable. Illinois v. Caballes, 543 

U.S. 405, 408 (2005). And, under Supreme Court precedent, using a welltrained drug-detection dog to sniff for drugs “discloses only the presence 

or absence of narcotics, a contraband item,” and thus generally does not 

constitute an improper search. United States v. Place, 462 U.S. 696, 707 

(1983); Caballes, 543 U.S. at 409; see also, e.g., United States v. Reed, 141 F.3d 

644, 650 (6th Cir. 1998); United States v. Roby, 122 F.3d 1120, 1125 (8th Cir.

1997); United States v. Vasquez, 909 F.2d 235, 238 (7th Cir. 1990); United States 

v. Colyer, 878 F.2d 469, 477 (D.C. Cir. 1989). But see United States v. Thomas, 

757 F.2d 1359, 1366–67 (2d Cir. 1985) (concluding that a dog sniff at the door 

of an apartment constituted a search because it detected the contents of a 

private, enclosed space subject to the heightened expectation of privacy 

within a dwelling). Accordingly, Foncette has not established a Fourth 

Amendment violation.

II. Initial Warrantless Entry.

¶18 Foncette next challenges the officers’ warrantless entry into 

the hotel room. Specifically, he claims that the police created the risk of 

destruction of evidence that the State cites to justify entry without a 

warrant.

¶19 A search conducted without a warrant is presumptively 

unreasonable under the Fourth Amendment. Kentucky v. King, 131 S. Ct. 

1849, 1856 (2011); Katz, 389 U.S. at 357. Nevertheless, because the 

cornerstone of Fourth Amendment protection is “reasonableness,” there are 

certain exceptions to the warrant requirement. King, 131 S. Ct. at 1856. One 

 

considered equivalent to a home. But Foncette fails to develop any specific 

argument justifying this position under state law or to address the cases 

that distinguish hotels from homes with regard to, for instance, the extent 

of the surrounding curtilage area.
STATE v. FONCETTE

Opinion of the Court

7

such exception applies in the case of exigent circumstances, including an 

exigent “need ‘to prevent the imminent destruction of evidence.’” Id.

(citation omitted). Preventing destruction of evidence does not, however, 

justify warrantless entry if the police themselves created the exigency “by 

engaging or threatening to engage in conduct that violates the Fourth 

Amendment.” Id. at 1858.

¶20 Here, the officers’ conduct comported with the Fourth 

Amendment. As noted above, the officers were lawfully present in the 

hallway with the authorization of hotel management. See supra ¶ 15. From 

there, they could reasonably seek a consent-based encounter by knocking 

on the hotel room door. See King, 131 S. Ct. at 1858; see also Jardines, 133 S. 

Ct. at 1416 (“[A] police officer not armed with a warrant may approach a 

home and knock, precisely because that is ‘no more than any private citizen 

might do.’”) (citation omitted). Although the officers knocked on Foncette’s 

door sometime after midnight, the late-night knock was not unreasonable 

given the traffic stop a short time earlier, and Foncette in fact answered the 

door less than one minute after the officers first knocked.

¶21 Once Foncette opened the door in response to the officers’ 

knock, the officers immediately smelled fresh marijuana. At that point, it 

was not unreasonable to ask Foncette and his companion to leave the room 

to preserve the status quo while waiting for a warrant, nor was it 

unreasonable to make a limited entry to remove the companion—without 

opening containers or otherwise searching for evidence—when the 

companion refused to leave the room.

¶22 Foncette alleges that before knocking, the police had 

improperly decided to enter the room. But the touchstone of the analysis is 

the objective reasonableness of the officers’ conduct, not their alleged 

subjective intent or whether they could have proceeded differently. See 

King, 131 S. Ct. at 1859 (“Our cases have repeatedly rejected a subjective 

approach, asking only whether the circumstances, viewed objectively, 

justify the action.”) (citations and internal quotation marks omitted); see also 

id. at 1859–60 (rejecting a test that would invalidate an exigency if it was 

reasonably foreseeable the conduct would create the exigency); id. at 1860–

61 (rejecting a rule that would “fault law enforcement officers if, after 

acquiring evidence that is sufficient to establish probable cause to search 

particular premises, the officers do not seek a warrant but instead knock on 

the door and seek either to speak with an occupant or to obtain consent to 

search”). Here, the officers briefly entered the hotel room pursuant to a 

valid exigent circumstance, and the superior court did not err by denying 

Foncette’s motion to suppress on this ground.
STATE v. FONCETTE

Opinion of the Court

8

III. Nighttime Search.

¶23 Finally, Foncette argues that the evidence obtained from the 

search pursuant to the warrant should have been suppressed because the 

warrant improperly authorized a late-night search without good cause in 

violation of Arizona’s statutory restriction on nighttime searches. We 

review a finding of good cause for a nighttime search for an abuse of 

discretion. State v. Adamson, 136 Ariz. 250, 259, 665 P.2d 972, 981 (1983).

¶24 Under A.R.S. § 13-3917, search warrants generally may not be 

served overnight—between 10:00 p.m. and 6:30 a.m.—unless the magistrate 

allows nighttime service on a showing of good cause. Good cause exists if 

the reasons given in support of a nighttime search comport with common 

sense and “as a whole reasonably support[] the inference that the interests 

of justice are best served by the authorization of nighttime service.” State v. 

Jackson, 117 Ariz. 120, 122, 571 P.2d 266, 268 (1977) (citation omitted).

¶25 Absent a constitutional violation, Arizona law does not 

contemplate suppression of evidence to remedy a violation of the nighttime 

search statute. A.R.S. § 13-3925(A) (“Any evidence that is seized pursuant 

to a search warrant shall not be suppressed as a result of a violation of this 

chapter except as required by the United States Constitution and the 

constitution of this state.”). Here, Foncette alleges only a statutory

violation, and we have found no constitutional violation, so his request for 

relief on this basis is unavailing.

¶26 Moreover, the circumstances existing when the warrant 

issued provided ample cause for a nighttime search. Foncette relies on State 

v. Rypkema, in which the state sought to justify a nighttime warrant on the 

basis that the target was a drug trafficker who had allegedly just received a 

large quantity of cocaine, and that drug sales often occur at night. 144 Ariz. 

585, 588, 698 P.2d 1304, 1307 (App. 1985). This court held that good cause 

for a nighttime search could not be based solely on the nature of the 

contraband (drugs) and the generic allegation that drug sales often occur at 

night, without any indication that the trafficker was aware of police 

presence, much less that the contraband would actually be transferred or 

destroyed under the circumstances presented. Id. at 589, 698 P.2d at 1309.

¶27 Here, in contrast, Foncette and his companion were alerted to 

the police presence at least by the time Foncette opened the door after the 

knock, and their awareness that the police were at their door raised a 

concrete risk that the drugs might be destroyed, as distinct from the 

inchoate risk alleged in Rypkema. See, e.g., King, 131 S. Ct. at 1857 (“[I]n the 
STATE v. FONCETTE

Opinion of the Court

9

vast majority of cases in which evidence is destroyed by persons who are 

engaged in illegal conduct, the reason for the destruction is fear that the 

evidence will fall into the hands of law enforcement.”). Under the 

circumstances, the superior court did not err by finding good cause for the 

nighttime search.

CONCLUSION

¶28 Foncette’s convictions and sentences are affirmed.