Texts Authenticated by Fact Phone Was Found on Def or in Car He Was in, Incoming Texts Addressed to Him, Outgoing Text Gave His Home Phone, Car Had Drugs & Texts Mentioned Drugs — Authentication of Photos by Contents, Phone Calls by Whom You Called

State v. Davenport, 2017 Ariz. App. Unpub. LEXIS 1962 (Ariz. Ct. App. Dec. 20, 2017):

P1 After a jury trial, Brandon Davenport was convicted of possession of methamphetamine for sale and possession of drug paraphernalia; he was sentenced to enhanced, concurrent prison terms of 15.75 and 3.75 years. On appeal he requests a new trial, claiming that the trial court abused its discretion by denying his motion to suppress evidence and by admitting text-message evidence at trial. We affirm.

Factual and Procedural Background

P2 "We view the evidence presented in the light most favorable to sustaining the convictions." State v. Fornof, 218 Ariz. 74, ¶ 21, 79 P.3d 954 (App. 2008). In July 2013, Tucson Police Department Officer Rigoberto Egurrola saw an SUV speeding and stopped it. Three people were inside, including Davenport, who was driving, [*2]  and the SUV owner, who was in the front passenger seat.

P3 After getting consent, Egurrola and another officer searched the SUV, finding multiple baggies of methamphetamine underneath the steering wheel compartment. They also found a ledger and three cellphones. Egurrola placed one of the cellphones into an evidence bag, labeled it "3RE," and documented on the evidence bag that the owner was "Brandon Davenport."

P4 That same day, Egurrola briefed Detective Oscar Cueller about the investigation and gave cellphone 3RE to him. Cueller put it in his "secure" desk and one month later, he put it in a locker for evidence processing. In December 2013, Cueller obtained a search warrant for cellphone 3RE and the other two cellphones seized during the July search. In March 2015, an analyst with the Tucson Police Department crime laboratory matched DNA found on the plastic bags holding the methamphetamine to Davenport's DNA profile.

P5 Davenport was indicted on various drug charges. At his second jury trial,¹ he was convicted as described above. We have jurisdiction of his appeal under A.R.S. §§ 13-4031 and 13-4033(A)(1).

Motion to Suppress

P6 As to the motion to suppress, Davenport argues that the trial court erred and abused its [*3]  discretion in failing to rule on his claim that cellphone 3RE had been searched without a warrant, in finding that there was no unreasonable pre-warrant delay, and by failing to hold a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), on the question of whether the warrant was issued on false or reckless statements. "We review the denial of a motion to suppress for an abuse of discretion." State v. Ontiveros-Loya, 237 Ariz. 472, ¶ 5, 352 P.3d 941 (App. 2015). We defer to the trial court's factual findings, but review its legal rulings de novo. State v. Zamora, 220 Ariz. 63, ¶ 7, 202 P.3d 528 (App. 2009). "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing it in the light most favorable to sustaining the trial court's ruling." State v. Reyes, 238 Ariz. 575, ¶ 2, 364 P.3d 1134 (App. 2015).

P7 Davenport moved to suppress the evidence from cellphone 3RE and asked for a Franks hearing to challenge the search warrant. At the suppression hearing in July 2015, Egurrola could not recall whether cellphone 3RE was found on Davenport's person or just in the vehicle, nor was he certain when the cellphones were collected. Cueller testified that following Davenport's arrest, Cueller told him that if he needed to call his probation officer, he should "just call"; Davenport responded by saying his cellphone was "lost or stolen." The trial court denied the [*4]  motion to suppress, finding that the warrant was issued upon probable cause, Davenport was not entitled to a Franks hearing, the evidence obtained from 3RE would be admissible under the good faith exception even if the warrant were invalid, and the five-month delay in obtaining the search warrant was not unreasonable under the Fourth Amendment because Davenport suffered no prejudice.

Warrantless Search of Cellphone

P8 Davenport argues that the trial court abused its discretion by failing to consider and comment on his claim that cellphone 3RE had been searched without a warrant before officers placed it in evidence under seal.² The court did not expressly address this argument in its denial, nor did Davenport object to the court's failure to do so at the time.

P9 Davenport argues that the issue was sufficiently preserved through his arguments at the evidentiary hearing. An objection is sufficient only to the extent that the trial court was given a chance to fix the error. See State v. Fulminante, 193 Ariz. 485, ¶ 64, 975 P.2d 75 (1999). Here, Davenport did not clearly and expressly bring to the trial court's attention the failure to address the argument, and he did not give the trial court a chance to address the claimed error. Thus, Davenport has forfeited review [*5]  for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601 (2005). However, because Davenport does not argue that the alleged error was fundamental, he has waived review of this issue. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135 (App. 2008).

P10 Nonetheless, the trial court heard Davenport's underlying argument about the warrantless search, the state responded, and the court denied the motion to suppress in whole. We assume the court weighed the merits of the argument even without an explicit finding or ruling. Cf. State v. Huffman, 222 Ariz. 416, ¶ 18, 215 P.3d 390 (App. 2009) (assuming the court considered defendant's arguments because the defendant had presented his arguments to the court and the state had responded to the merits); State v. Smith, 242 Ariz. 98, ¶ 27, 393 P.3d 159 (App. 2017) ("The court, however, is not required to state its reasons for denying a motion to dismiss on the record.").

Unreasonable Delay in Obtaining Warrant

P11 Davenport argues that the trial court abused its discretion in finding the five-month delay in seeking a warrant to search cellphone 3RE not unreasonable under the Fourth Amendment because the delay resulted in Egurrola and Cueller having poor memories at the motion to suppress hearing.³ He has, however, failed to cite any authority for this principle—that is, that the Fourth Amendment may be violated by post-arrest delay in obtaining a warrant to search earlier-seized [*6]  evidence. The only cases cited, and the only cases of which this court is aware, address pre-arrest delay between seizure and search, and those were based on violation of the owner's possessory interest. See, e.g., United States v. Place, 462 U.S. 696, 707-10, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (pre-arrest seizure and delay prior to search was unreasonable); State v. Broadfoot, 115 Ariz. 537, 539, 566 P.2d 685 (1977) (pre-arrest seizure and delay in obtaining warrant not unreasonable under the circumstances). Certainly, even in that respect, the United States Supreme Court has explained that someone in custody, like Davenport here, cannot complain about being deprived of his property. See Segura v. United States, 468 U.S. 796, 813, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) (possessory interest of those in custody during search of home was "virtually nonexistent"). Under the circumstances presented here, the trial court did not abuse its discretion in finding the delay in obtaining the warrant not unreasonable under the Fourth Amendment. Id.

P12 Although Davenport argues he was prejudiced by the delay in seeking the warrant due to the faulty memories of the officers, he cites no authority for the proposition that prejudice is part of a Fourth Amendment reasonableness inquiry, nor does he allege any due process or speedy trial violation; Davenport, therefore, waives this argument for review. See State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119 (2004) (opening brief must present significant [*7]  arguments supported by authority, otherwise the party abandons and waives the claim). Even so, it is at least as likely that the nineteen months between the securing of the warrant and the suppression hearing is to blame for any lack of memory as was the five months between the arrest and warrant.

Warrant Application Made with Reckless Disregard for the Truth

P13 Davenport next argues that the trial court abused its discretion in failing to find that statements made in the application for the cellphone 3RE search warrant were made or omitted with reckless disregard for the truth.⁴ "A trial court's finding on whether the affiant deliberately included misstatements of law or excluded material facts is a factual determination, upheld unless 'clearly erroneous.'" State v. Buccini, 167 Ariz. 550, 554, 810 P.2d 178 (1991), quoting United States v. Fawole, 785 F.2d 1141, 1145 (4th Cir. 1986). However, whether a warrant application states probable cause is reviewed de novo. See Frimmel v. Sanders, 236 Ariz. 232, ¶ 25, 338 P.3d 972 (App. 2014).

P14 A defendant may challenge a search warrant if it is based on false or incomplete information. Frimmel, 236 Ariz. 232, ¶ 26. Whether a warrant is properly issued may be challenged in an evidentiary hearing, commonly referred to as a Franks hearing. See Franks, 438 U.S. at 155-56. A defendant is entitled to a Franks hearing "when he makes a substantial preliminary showing (1) that the [*8]  affiant knowingly, intentionally, or with reckless disregard for the truth included a false statement in the supporting affidavit, and (2) the false statement was necessary to the finding of probable cause. Frimmel, 236 Ariz. 232, ¶ 27.

P15 Here, the trial court denied Davenport's request for a Franks hearing; therefore, we look at whether Davenport made the needed "substantial preliminary showing." Franks, 438 U.S. at 155; Frimmel, 236 Ariz. 232, ¶ 29. A search warrant is presumed to be valid. Frimmel, 236 Ariz. 232, ¶ 30. Therefore, "a defendant must make specific allegations of deliberate falsehoods or reckless disregard for the truth, with reference to the relevant portion of the warrant, and support the allegations with a detailed offer of proof and statement of supporting reasons." Id.

P16 Here, Cueller testified that he swore in the warrant affidavit that cellphone 3RE was Davenport's because he relied on the labeled evidence bag listing Davenport as its owner, based on the briefing from Egurrola that cellphone 3RE was found during an investigative stop that also turned up several bags of methamphetamine, and also on his experience that led him to link cellphone use and the distribution of methamphetamine. However, Davenport claims that Cueller acted with reckless disregard for the [*9]  truth by relying on the evidence bag label, by telling the issuing judge that cellphone 3RE was found on Davenport's person, by failing to tell the judge that a chain of custody document indicated only that cellphone 3RE was found in the SUV, and by failing to tell the judge that Davenport said his cellphone was lost or stolen.

P17 To show that the affiant acted with reckless disregard for the truth—the first prong of Franks—the defendant must offer proof that the affiant entertained serious doubts about the truth of the affidavit. See State v. Carter, 145 Ariz. 101, 108-09, 700 P.2d 488 (1985). Additionally, the defendant must show that the false statement is material to meet the second prong of Franks. Id. Here, there is no allegation, let alone proof, that Cueller had serious doubts about the affidavit's truth, failing the first prong of Franks. Additionally, Cueller's allegedly false statement that cellphone 3RE was found on Davenport's person, as opposed to perhaps only having been found inside the SUV, is immaterial, failing the second prong of Franks. Probable cause for the warrant exists—not because cellphone 3RE belonged to Davenport—but because officers found cellphone 3RE near packaged methamphetamine and relied on their experience [*10]  that cellphones are commonly used in the sale of drugs. See State v. Sisco, 239 Ariz. 532, ¶ 8, 373 P.3d 549 (2016) (probable cause based on totality of the circumstances). For these reasons we see no abuse of discretion.⁵

Admission of Text Messages

P18 Finally, Davenport argues that the trial court abused its discretion by admitting text-message evidence at trial over objections that there was insufficient proof of authenticity and that the text messages were inadmissible hearsay. We review a trial court's rulings on the admission of evidence for an abuse of discretion. State v. Davolt, 207 Ariz. 191, ¶ 60, 84 P.3d 456 (2004).

Authentication

P19 Davenport claims that the text messages gathered from cellphone 3RE "could not be authenticated and lacked sufficient foundation." Authentication of an item requires that the "proponent . . . produce evidence sufficient to support a finding that the item is what the proponent claims it is." Ariz. R. Evid. 901(a). "We review the [trial] court's ruling on authentication for an abuse of discretion." State v. Forde, 233 Ariz. 543, ¶ 74, 315 P.3d 1200 (2014).

P20 A court does not make the ultimate determination of authenticity, rather it finds "whether evidence exists from which the jury could reasonably conclude that it is authentic." State v. Damper, 223 Ariz. 572, ¶ 18, 225 P.3d 1148 (App. 2010). Any remaining uncertainty goes to weight rather than the admissibility of the evidence. State v. Fell, 242 Ariz. 134, ¶ 6, 393 P.3d 475 (App. 2017).

P21 Authenticity [*11]  may be established by circumstantial evidence. See, e.g., State v. Lavers, 168 Ariz. 376, 388, 814 P.2d 333 (1991) ("We find adequate circumstantial evidence in the record to support the trial court's conclusion that the tape is authentic."); see also State v. Haight-Gyuro, 218 Ariz. 356, ¶ 19, 186 P.3d 33 (App. 2008) ("[T]he contents of a photograph itself, together with such other circumstantial or indirect evidence as bears upon the issue, may serve to explain and authenticate a photograph sufficiently to justify its admission into evidence."). Analogous to text messages, telephone conversations may be authenticated if circumstances show that the person answering was the one called. Fell, 242 Ariz. 134, ¶ 7, citing Ariz. R. Evid. 901(b)(6)(A). Although some indicia of authorship is required before a text message on a cellphone can be attributed to a particular person, id. ¶ 9, proof of exclusive possession of a cellphone is not required to show that a person was the intended recipient. Id. ¶ 11.

P22 Davenport argues that the state failed to present specific types of evidence to support the authentication of the text messages, such as testimony that he was in possession of the phone or his DNA was on the phone. This court in Fell noted that no authority establishes a minimum threshold for authentication, and that "what constitutes sufficient authentication [*12]  will vary from case to case." 242 Ariz. 134, ¶ 12.

P23 Here, the record supports the trial court's finding that the jury could reasonably conclude the text messages were authentic. See Damper, 223 Ariz. 572, ¶ 18. Cellphone 3RE was found either in the vehicle Davenport was driving, where 126 grams of separately packaged methamphetamine was also found, or on Davenport's person. Two to three incoming text messages in the days leading up to his arrest identify Davenport as the intended recipient.⁶ Two incoming text messages were seemingly sent by one of the other passengers.⁷ One outgoing text message directed the recipient to call Davenport's home phone number if the cellphone was not working. Additionally, Cueller testified that four text messages used slang common in the sale and purchase of methamphetamine or drugs generally. These facts are sufficient evidence from which the jury could reasonably find that cellphone 3RE either belonged to Davenport or was sufficiently within his control at the time of the text messages and thus that he was the intended recipient or sender of the messages.

P24 To the extent that Davenport argues that certain types of evidence of ownership were not introduced, those arguments go to weight and not [*13]  admissibility. See Fell, 242 Ariz. 134, ¶ 6. We find no abuse of discretion in the trial court's finding of sufficient authentication for the purposes of admissibility of the text messages.

Hearsay

P25 Davenport further argues that the trial court abused its discretion by admitting the text messages over his hearsay objection. A trial court's ruling on the admissibility of evidence over hearsay objections is reviewed for an abuse of discretion. See State v. Tucker, 205 Ariz. 157, ¶ 41, 68 P.3d 110 (2003). We will affirm the trial court's ruling if it was legally correct for any reason. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214 (1984).

P26 Hearsay is an out-of-court statement offered for the truth of the matter asserted, Ariz. R. Evid. 801(c), and it is generally inadmissible, Ariz. R. Evid. 802. However, a statement is not hearsay when it is "offered for a purpose other than the truth of the matter asserted." State v. Larson, 222 Ariz. 341, ¶ 21, 214 P.3d 429 (App. 2009). Furthermore, "words or conduct not intended as assertions are not hearsay even when offered as evidence of the declarant's implicit belief of a fact." State v. Chavez, 225 Ariz. 442, ¶ 8, 239 P.3d 761 (App. 2010). Additionally, statements offered to give a defendant's statements meaning are not considered hearsay. See, e.g., State v. Weigel, 145 Ariz. 480, 481, 702 P.2d 709 (App. 1985) (officer's statement "admitted not to prove the truth of what it asserts but to give meaning to defendant's agreement").

P27 In Chavez, the defendant objected to the admission [*14]  of a series of incoming texts asking whether drugs were for sale. 225 Ariz. 442, ¶¶ 3, 6. He argued that the text messages were inadmissible hearsay, offered to prove the truth of the matter asserted—namely, that Chavez was in possession of drugs and attempting to sell them. Id. ¶ 3. The court concluded that "[t]he text messages in this case were not offered to prove the truth of the matter they asserted—that the prospective buyers wanted to purchase drugs from Chavez. Rather, they were offered as circumstantial evidence that Chavez had drugs for sale." Id. ¶ 9. Thus, the text messages were not hearsay and admissible. Id. ¶¶ 9-10.

P28 The text messages here are like those in Chavez. The state offered these text messages not to prove the truth of what the declarants were asserting—that Davenport had methamphetamine for sale—but to show the declarants' belief, true or not, that Davenport was able to make such sales. Multiple text messages from multiple phone numbers expressing such a belief is circumstantial evidence that Davenport possessed methamphetamine for sale. We find no abuse of discretion in the trial court's overruling of Davenport's hearsay objection.

Disposition

P29 For the forgoing reasons, we affirm [*15]  the trial court's denial of Davenport's motion to suppress and the trial court's admission of the text messages. Accordingly, Davenport's convictions and sentences are affirmed.

 

 

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¹ Davenport's first trial ended in mistrial.

² Davenport does not challenge the alleged search of the phone without a warrant, only the trial court's failure to make explicit findings on the issue.

³ The state contends that Davenport does not have standing to challenge the search of cellphone 3RE. In this instance, however, we need not address standing because we affirm for other reasons, see State v. Wood, 180 Ariz. 53, 72, 881 P.2d 1158 (1994).

⁴ Davenport alleges that Cueller's statement that cellphone 3RE was "located on the person and belonging to Brandon Davenport" was false and that Cueller materially omitted the statement that "the defendant had advised that he had his phone 'stolen or lost.'"

⁵ Because we conclude that the warrant was not invalid, it is unnecessary to address Davenport's additional argument that the trial court committed clear error by finding the good faith exception would apply if the warrant were invalid. See Wood, 180 Ariz. at 72 ("Our disposition of the other issues on appeal, however, makes it unnecessary to reach this issue.").

⁶ Text message No. 73, received on July 4, 2013 at 12:30 a.m. reads, "Were you able to get some of your stuff, Brandon?" Text message No. 82, received on July 4, 2013 at 2:03 a.m. reads, "What's up B?" Text message No. 126, received on July 4, 2013 at 5:36 p.m. reads, "Brandon please call me. I have something to tell you."

⁷ Text message No. 93, received on July 4, 2013 at 3:20 reads, "This is Nicole," and text message No. 206, received on July 5, 2013 at 1:20 a.m. reads, "Its Nicole."