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

MEMORANDUM DECISION

Not for Publication Rule 111, Rules of the Supreme Court

ECKERSTROM, Presiding Judge.

¶1 Following a jury trial, appellant Kathleen Metzner was convicted of possession of four or more pounds of marijuana for sale and possession of drug paraphernalia. The trial court imposed concurrent prison sentences, the longer of which is three years. On appeal, Metzner argues the search warrant issued in this case was invalid and the court thus erred in denying her motions to suppress. We affirm for the reasons that follow.

Factual and Procedural Background

¶2 "When reviewing a suppression order entered after a hearing, we consider only the evidence presented at the hearing, which we view in the light most favorable to upholding the trial court's order." State v. Carlson, 228 Ariz. 343, ¶ 2, 266 P.3d 369, 370 (App. 2011). The primary informant in this case was arrested on February 1, 2011, after deputies from the Pima County Sheriff's Department discovered approximately two pounds of marijuana in his vehicle during a traffic stop. The informant told a deputy that Metzner had given him the marijuana for sale a few days ago and that he was returning it to her because he was unable to sell it. The informant also believed she had more marijuana on her premises. Based on this and other information, a detective applied for and obtained a telephonic search warrant for Metzner's house and vehicles, where law enforcement officers discovered over 200 pounds of marijuana.

¶3 Before trial, Metzner filed a motion to suppress pursuant to Franks v. Delaware, 438 U.S. 154 (1978), in which she argued the detective had misrepresented material information when applying for the search warrant, rendering it invalid. The trial court denied the motion after a hearing. The court found that although some of the statements made in the affidavit for the search warrant "may have contained inaccuracies," those inaccuracies were immaterial and were not the result of "any intentional falsehood or . . . statement made in reckless disregard of the truth." The court also concluded that probable cause would have been found even if the inaccuracies had been corrected.

¶4 Metzner subsequently had an opportunity to interview the primary informant. Based on his statements during that interview, she filed a renewed motion to suppress in which she claimed the informant had no "information from any source whatsoever that [she] was storing marijuana on her property." The trial court heard argument on the renewed motion before trial and accepted a transcript submitted by Metzner in support of the motion.

¶5 The trial court then denied the renewed motion and reaffirmed its earlier ruling. The court found the informant's latest statements were "not particularly reliable" and were ultimately irrelevant because they did not indicate the detective had made a false statement, made a statement with insufficient evidence to believe it was true, or acted with reckless disregard for the truth when applying for the warrant. This timely appeal followed the judgment and sentencing.

Discussion

¶6 Metzner contends the detective's statements made in the affidavit for the search warrant were false or misleading, making the warrant invalid and requiring suppression of the evidence obtained. We review the denial of a motion to suppress for an abuse of discretion, State v. Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d 618, 621 (App. 2002), and find none in this case.

¶7 When, as here, a defendant seeks to suppress evidence obtained pursuant to a facially valid warrant, she must prove by a preponderance of the evidence that "(a) [t]he affiant made a false statement which was knowingly or intentionally false or which was made in reckless disregard for the truth; [and] (b) [a]fter the false statement is excised, the affidavit's remaining content is insufficient to support a finding of probable cause." State v. Carter, 145 Ariz. 101, 108, 700 P.2d 488, 495 (1985); accord State v. Spears, 184 Ariz. 277, 285, 908 P.2d 1062, 1070 (1996). If an affidavit contains falsehoods or material omissions that were made deliberately or recklessly, "the court must redraft [it] by deleting the falsehoods and adding the omitted material facts before moving on to the probable cause determination." State v. Buccini, 167 Ariz. 550, 554, 810 P.2d 178, 182 (1991). "[P]robable cause exists if `given all the circumstances set forth in the affidavit. . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Id. at 556, 810 P.2d at 184, quoting Illinois v. Gates, 462 U.S. 213, 238 (1983) (omission in Buccini). We review a probable cause determination de novo. Id.

¶8 As she did below, Metzner alleges on appeal that the detective's affidavit was erroneous or misleading in the following respects:

¶9 The trial court determined any such inaccuracies and omissions had been accidental or simply negligent and thus had not been made with the mental state necessary for suppression. See Carter, 145 Ariz. at 109, 700 P.2d at 496. We defer to these factual determinations, as they are supported by the record and not clearly erroneous. See Buccini, 167 Ariz. at 554, 810 P.2d at 182. We further note, as the state correctly points out, that affidavits are often prepared in the haste of a criminal investigation and must be "interpreted in a common sense and realistic fashion." State ex rel. Collins v. Superior Court, 129 Ariz. 156, 158, 629 P.2d 992, 994 (1981). They do not require the "`elaborate specificity'" that some of Metzner's arguments presume. Id., quoting United States v. Ventresca, 380 U.S. 102, 108 (1965).

¶10 For the first time on appeal, Metzner also challenges the affidavit on the grounds that the detective omitted that the informant's parents' previously had been arrested for trafficking marijuana and that the informant was a daily marijuana user. In addition, Metzner raises a new argument challenging the allegedly "vague and stale" corroborating information that was obtained from a second informant. The affidavit provides that a second informant who had been arrested in the area a few months earlier with over 400 pounds of marijuana "stated that he had received the load from the same described property . . . and from a female" whose name he did not know. On further questioning by the judge who ultimately issued the search warrant, the detective acknowledged that this second informant "didn't have a real good exact description" of the property.

¶11 Rule 16.1(c), Ariz. R. Crim. P., provides that any defense or objection not timely raised in a motion to suppress is "precluded" when the basis for that objection could have been known through the exercise of reasonable diligence. Metzner's new arguments fall within the scope of this rule. Because suppression issues are often factually intensive, appellate courts are reluctant to reach them in the first instance. See State v. West, 176 Ariz. 432, 440, 862 P.2d 192, 200 (1993), overruled on other grounds by State v. Rodriguez, 192 Ariz. 58, n.7, 961 P.2d 1006, 1012 n.7 (1998); State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335, 344 (1981). Nevertheless, fundamental error review remains available for suppression arguments not presented below. See, e.g., State v. Newell, 212 Ariz. 389, ¶ 34, 132 P.3d 833, 842 (2006); State v. Cañez, 202 Ariz. 133, ¶ 70, 42 P.3d 564, 586 (2002); State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200, 209 (1996); State v. Rojers, 216 Ariz. 555, ¶ 13, 169 P.3d 651, 654 (App. 2007).

¶12 To obtain relief under this standard, a defendant bears the burden of showing that error occurred, that it was fundamental, and that it resulted in prejudice. State v. Tarkington, 218 Ariz. 369, ¶ 6, 187 P.3d 94, 95 (App. 2008); accord State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). Because Metzner has not argued the alleged errors are fundamental, we could deny relief on this ground alone. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see also State v. Estrella, 230 Ariz. 401, n.1, 286 P.3d 150, 153 n.1 (App. 2012) ("Enforcement of our waiver standards is especially appropriate in the context of a motion to suppress because in such cases we are limited to the record presented at the hearing on that motion."). But even if the arguments were not waived, we would deny relief on the merits.

¶13 "[A]n affidavit offered to procure a search warrant `cannot be expected to include . . . every piece of information gathered in the course of an investigation.'" United States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008), quoting United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (omission in Tate). Here, the primary informant's drug use and family history did not need to be included in the affidavit because this information did not impeach the informant's credibility or cause the detective to "entertain[] serious doubts about the truth of the affidavit." Carter, 145 Ariz. at 109, 700 P.2d at 496. As to the detail, timeliness, and reliability of the second informant's statement, the state correctly points out that the judge "was not deprived of a fair opportunity to evaluate th[is] corroborating evidence" before issuing the warrant. We therefore find no error and no prejudice on the grounds alleged.

¶14 The trial court further determined that even if the alleged missing or distorted details had been corrected in this case, the resulting affidavit still contained probable cause for the warrant. The state urges this conclusion on appeal, and we agree with it. All the challenges Metzner now makes do not alter the remaining facts: that the primary informant possessed marijuana for sale, he admitted he was returning two pounds of marijuana to Metzner, he had seen marijuana at her house in the past, and he believed she currently had marijuana at her house. This information created a "`fair probability'" to believe contraband would be found in the places described in the warrant, and this is all that is required to establish probable cause. Buccini, 167 Ariz. at 556, 810 P.2d at 184, quoting Gates, 462 U.S. at 238; see also State v. Sweet, 143 Ariz. 289, 294, 693 P.2d 944, 949 (App. 1984) (noting probable cause does not require certainty).

¶15 Although Metzner suggests a court would have assessed the informant's credibility differently had the affidavit been reformed, the informant's possession of marijuana and willingness to further incriminate himself were sufficient to establish his reliability. See State v. O'Brien, 22 Ariz.App. 425, 426, 582 P.2d 176, 177 (1974) (finding drug user's statement he saw defendant in possession of marijuana adequately reliable and made with sufficient basis). And an accomplice's inculpatory statements may create probable cause. E.g., United States v. Brown, 366 F.3d 456, 459 (7th Cir. 2004); United States v. Patayan Soriano, 361 F.3d 494, 505-06 (9th Cir. 2004); United States v. Chin, 981 F.2d 1275, 1278 (D.C. Cir. 1992). Because probable cause existed for the search warrant in this case, the trial court correctly denied Metzner's motions to suppress.

Disposition

¶16 For the foregoing reasons, Metzner's convictions and sentences are affirmed.

JOSEPH W. HOWARD, Chief Judge and VIRGINIA C. KELLY, Judge, concurring.