THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24

MEMORANDUM DECISION

IRVINE, Judge.

¶ 1 Bryan Kelly Paxton appeals the denial of a motion to suppress evidence obtained during a warrantless search of his vehicle. Because the automobile exception applies, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 Gilbert police responding to an alarm at an apartment complex became suspicious of a car with its cabin light on, parked in a dark area of the parking lot. Upon investigation, they found Paxton inside typing on a full-sized desktop computer. They checked his driver's license and discovered a valid warrant for his arrest. They arrested Paxton and secured him in the back of their vehicle. Curious about how the desktop computer had power, they returned to Paxton's car and saw an extension cord protruding from the trunk, running across the parking lot asphalt and up a light pole. The cord was plugged into an outlet that had been screwed into the light bulb socket of the pole. When asked whether he lived at the apartment complex, Paxton responded he did not, so the officers concluded the electricity was not his.

¶ 3 One officer smelled the odor of burnt marijuana emanating from the car and looked into the cabin. In plain view, he saw a metal pipe commonly used to smoke marijuana. He also saw a glass pipe, and next to it, a small metal canister which they later learned contained crystal methamphetamine. The officers read Paxton a Miranda warning and proceeded to search the vehicle. Inside the trunk of the car were numerous items used in the manufacture of methamphetamines. Paxton moved to suppress the evidence, arguing only that there were no exigent circumstances justifying the warrantless search of his vehicle.

¶ 4 At the hearing on the motion to suppress, the State argued that an inventory search would have eventually led to the evidence. An officer testified that it was standard police procedure to have the car towed under the circumstances, and in order to do that safely, it was necessary to open the trunk and disconnect the electric cord connected to the light pole. The officer also testified that they knew before the search that stealing electricity was a crime in Arizona. See Ariz. Rev. Stat. ("A.R.S.") § 13-1802(A)(6) (2010).1

¶ 5 Paxton argued that the search was not an "inventory search," but a "search incident to arrest." Because there was no threat to officer safety after Paxton had been secured, he argued the search was invalid. See State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007), aff'd 556 U.S. 332, 345-46 (2009) (holding a search incident to arrest of a vehicle's passenger compartment was invalid unless the defendant could reach into it or there was reason to believe it contained evidence of the offense of arrest).

¶ 6 The trial court ruled as follows:

¶ 7 Paxton was convicted of possession of equipment/chemicals for the manufacture of dangerous drugs, a class 2 felony (count 1); possession or use of dangerous drugs, a class 4 felony (count 2); possession of drug paraphernalia, a class 6 felony (count 3); and theft, a class 1 misdemeanor (count 4). He received five years for count 1, suspended sentences of three years probation upon release from prison for counts 2 and 3, and time-served for count 4. Paxton received 117 days of presentence incarceration credit.

¶ 8 Paxton timely appeals.

DISCUSSION

¶ 9 We review the denial of a motion to suppress for an abuse of discretion, but review de novo constitutional claims and purely legal questions. State v. Gay, 214 Ariz. 214, 217, ¶ 4, 150 P.3d 787, 790 (App. 2007). We view the facts in the light most favorable to sustaining the trial court's ruling, but consider only the evidence at the hearing on the motion to suppress. Id. We will affirm if the trial court is correct for any reason. Id.

¶ 10 As a preliminary matter, we find no merit in Paxton's contention that because this was a "search incident to arrest," all other warrantless search exceptions to the Fourth Amendment are foreclosed. Paxton's argument conflates the fact of a search made after an arrest with the "search incident to arrest" exception to the warrant requirement. Indeed, the Ninth Circuit has recognized that warrantless search exceptions to the Fourth Amendment are not mutually exclusive. United States v. Kincade, 379 F.3d 813, 822 (9th Cir. 2004).

¶ 11 Where, as here, the facts support several exceptions to the warrant requirement, the court is entitled to consider each. Accordingly, the issue on appeal is more correctly phrased as whether the trial court erred in denying Paxton's motion to suppress because no recognized exception to the Fourth Amendment justified the warrantless search of his vehicle. On this record, we find no error.

¶ 12 "The Fourth Amendment generally requires the police to secure a warrant before conducting a search." Maryland v. Dyson, 527 U.S. 465, 466 (1999). One recognized exception to the warrant requirement is the search of a vehicle based upon probable cause. Carroll v. United States, 267 U.S. 132, 153 (1925). This "automobile exception" has no exigency requirement and applies even after the car has been immobilized. State v. Reyna, 205 Ariz. 374, 376, ¶ 7, 71 P.3d 366, 368 (App. 2003).

¶ 13 Paxton argues there was no probable cause to support the "automobile exception" to the warrant requirement based on either (1) the marijuana pipe found in plain view or (2) the electric cord that protruded from the trunk. We disagree.

¶ 14 In United States v. Blackstone, 56 F.3d 1143, 1146 (9th Cir. 1995), the combination of the odor of marijuana on the defendant and a marijuana pipe lying in plain view in his truck provided probable cause for a warrantless search of the vehicle. Paxton concedes that "the presence of illegal drugs found in proximity of drug paraphernalia gives rise to probable cause," but argues that the evidence of the marijuana pipe alone was insufficient. Because one of the officers testified that he did not smell any marijuana, Paxton suggests that none of the officers detected an odor of marijuana. This misstates the record.

¶ 15 In Paxton's motion to suppress, he stated that the other officer, who did not testify at the hearing, had "smelled a moderate odor of burnt marijuana emanating from the vehicle and observed a brass pipe with residue in the center console while standing outside the vehicle" before they began their search. Accordingly, there was evidence of both the marijuana and marijuana pipe before the trial court at the time of the hearing. Based on this evidence, the officers had probable cause to believe that the car contained marijuana, justifying a warrantless search of the vehicle under the automobile exception. The scope of their search covered anywhere marijuana could have been located, including the trunk and a container that sat immediately next to the other pipe in plain view. See United States v. Ross, 456 U.S. 798, 821, 823 (1982) (noting a warrantless search for contraband would support every part of the vehicle that might contain the object of the search, including its contents and the glove compartment). We thus find no error in the probable cause determination based on the odor of marijuana emanating from the car window and the pipe in plain view.

¶ 16 Because we affirm on this ground, we need not reach the issues of probable cause based on the electric cord protruding from the vehicle, or whether other exceptions to the warrantless search requirement apply.

CONCLUSION

¶ 17 We affirm Paxton's convictions and sentences.

ANN A. SCOTT TIMMER, Presiding Judge, DANIEL A. BARKER, Judge, concurring.