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

Not for Publication Rule 111, Rules of the Supreme Court

MEMORANDUM DECISION

HOWARD, Chief Judge.

¶1 After a jury trial, appellant Ramon Moreno was convicted of possession of marijuana for sale and possession of drug paraphernalia. On appeal, Moreno argues the trial court erred by denying his motion to suppress evidence seized pursuant to a search warrant because he claims the law enforcement officer's warrant affidavit contained untruthful statements and omissions of material fact. Because we find no error, we affirm.

Factual and Procedural Background

¶2 In reviewing the trial court's denial of a motion to suppress evidence, we consider only the evidence presented at the suppression hearing and we view that evidence in the light most favorable to sustaining the court's ruling. State v. Kinney, 225 Ariz. 550, ¶ 2, 241 P.3d 914, 917 (App. 2010). Tucson Police Department Detectives Cheek and Ridgeway were driving through a neighborhood for an unrelated investigation when Cheek rolled down the vehicle's windows and smelled an odor of fresh marijuana while approaching an intersection. The detectives continued with the unrelated investigation before they returned to the intersection and approached the closest residence. The odor was not coming from that residence so they walked north and noticed the odor became stronger and was coming from a duplex. Cheek approached a pickup truck parked in front of the duplex and smelled a slight odor of marijuana coming from the truck's bed cover. Cheek then approached the duplex and smelled marijuana mixed with the smell of a deodorizer coming from the front windows and door of the duplex. Cheek looked through part of the blinds on one of the windows and saw deodorizer spray and a role of packaging tape. He then knocked on the front door and Moreno came outside, shutting the door behind him. Cheek noticed Moreno had a piece of marijuana residue on the front of his shirt. Cheek also smelled a stronger odor of marijuana coming from inside the house as Moreno stepped through the door and shut it behind him. Cheek detained Moreno and applied for a search warrant for Moreno's residence. Officers found 160 pounds of marijuana in the residence and a drug ledger in Moreno's pocket. Moreno was arrested and charged with possession of marijuana for sale and possession of drug paraphernalia.

¶3 Before trial, Moreno moved to invalidate the search warrant and suppress evidence obtained after its execution, arguing that Cheek had made false statements and omitted a material fact in his affidavit in support of the warrant. The trial court denied his motions, finding Cheek's statements to be credible and some to be supported by Moreno's testimony. The court noted Cheek's statement that Ridgeway never indicated he had information from a confidential informant prior to their discovery of the odor of marijuana. Ridgeway did not testify at the hearing but the court found Cheek's statement to be truthful. After Moreno was tried and convicted, the court sentenced him to two concurrent terms of imprisonment, the longest of which was 15.75 years. This appeal followed.

Motion to Suppress

¶4 Moreno argues the trial court erred by denying his motion to invalidate the search warrant and to suppress all evidence seized after its execution. He claims the probable cause for the warrant was invalid pursuant to Franks v. Delaware, 438 U.S. 154 (1978), because the warrant request was based upon false information Cheek intentionally provided. Moreno also contends the detective excluded material facts when requesting the warrant because he failed to report that the detectives "had prior information regarding marijuana on the premises." We review the denial of a motion to suppress for an abuse of discretion. State v. Zamora, 220 Ariz. 63, ¶ 7, 202 P.3d 528, 532 (App. 2009). In doing so, we uphold the court's factual determinations on whether the affidavit included deliberate misstatements of the law or excluded material facts unless clearly erroneous, see State v. Buccini, 167 Ariz. 550, 554, 810 P.2d 178, 182 (1991), but "to the extent its ultimate ruling is a conclusion of law, we review de novo," Zamora, 220 Ariz. 63, ¶ 7, 202 P.3d at 532.

¶5 A defendant challenging a warrant affidavit must first establish by a preponderance of the evidence "that the affiant knowingly, intentionally, or with reckless disregard for the truth included a false [material] statement" or omitted a material fact in the affidavit. Buccini, 167 Ariz. at 554, 810 P.2d at 182. If the trial court finds the affiant made a false material statement or omitted a material fact, the court then must redraft the affidavit by removing the false statement or adding the omitted fact before determining whether sufficient probable cause remains to support the warrant. Id. If there is insufficient probable cause after the warrant is redrafted, all evidence seized pursuant to the warrant must be excluded. Id.

¶6 Moreno first contends "the information sworn to by Detective Cheek is so unbelievable that it can only be concluded that it was false." But he does not point to any specific statements nor does he offer an explanation or argument as to why these statements are false besides making general contentions the detective's testimony was "incredulous." Moreno therefore has failed to develop any argument as to this contention and has waived it on appeal. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellant's brief shall include an argument stating party's contentions, reasons therefor, and necessary supporting authority); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim."); State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) ("In Arizona, opening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised [and f]ailure to argue a claim usually constitutes abandonment and waiver of that claim."). Moreover, the trial court is the sole judge of credibility. See State v. Olquin, 216 Ariz. 250, ¶ 10, 165 P.3d 228, 252 (App. 2007). Accordingly, we defer to the court's findings that Cheek's statements were credible. See id.

¶7 Moreno next argues he proved by a preponderance of the evidence that the detectives omitted information regarding a confidential informant from the affidavit because Ridgeway refused to answer questions about whether the detectives had such information. But because Ridgeway did not testify at the suppression hearing and his prior statement was not admitted as evidence, we do not consider his prior statement. See State v. Kinney, 225 Ariz. 550, ¶ 2, 241 P.3d 914, 917 (App. 2010). However, even if we did consider Ridgeway's prior statement, it is insufficient to establish Cheek omitted a material fact from the affidavit because Ridgeway merely states he will not answer questions about an informant. Further, Cheek testified at the suppression hearing that Ridgeway never indicated to him that he had any prior information regarding the marijuana at Moreno's residence. Accordingly, the trial court's finding that Moreno did not prove by a preponderance of the evidence that a material fact was omitted from the affidavit was not clearly erroneous.

¶8 Moreno further contends the trial court's requirement that he provide "more proof of falsity . . . than testimony of Detective Cheek and the evidence from Detective Ridgeway's interview . . . render[s] the Franks standard impossible to meet." However, the court properly applied the Franks' standard adopted by our supreme court in Buccinni, 167 Ariz. at 554, 810 P.2d at 182. Because we find no error in the court's denial of Moreno's motions to invalidate the search warrant and suppress evidence collected pursuant to the warrant, we uphold his convictions and sentences.

Conclusion

¶9 For the foregoing reasons, we affirm Moreno's convictions and sentences.

PETER J. ECKERSTROM, Presiding Judge, J. WILLIAM BRAMMER, JR., Judge*, concurring.