Illegal search and seizure of evidence connected to ‘accomplice’ prejudiced outcome
The Arizona Court of Appeals, Division Two, vacated the sentence of a man convicted of murder in 2004 on Monday, finding sheriff’s investigators unconstitutionally searched and seized evidence from a mobile home belonging to the man’s son shortly after the killing, sending the case back to Pima County Superior Court for re-sentencing.
Francisco Baez Fuentes, 61, failed to appear at his 2004 trial and fled the country but was arrested on a bench warrant on October 19, 2017, while visiting Tucson nearly 13 years after the trial took place and jurors returned guilty verdicts, according to court documents.
Fuentes was sentenced to natural life in prison for the shooting death of Daniel Pacheco, 29, and 37.5 years on aggravated assault charges connected to the 2004 incident on Feb. 12, 2018, with both sentences to run concurrently.
At Fuentes’ sentencing, the court found “the [jury’s] finding of presence of an accomplice” to be an aggravating factor that contributed to the natural life sentence, according to the appellate court’s opinion.
“We are therefore unable to conclude that the evidence seized from the mobile home was harmless as to sentencing,” the appeals court said.
The 2004 killing took place near Fuentes’ home at 2156 E Old Vail Connection Road, south of Tucson International Airport.
The illegal search took place weeks after the killing on a Marana property Fuentes had purchased for his son, who was in the military at the time, while detectives were looking for a man named Guero, an acquaintance of Fuentes and known witness to the shooting.
Marcos Amado, a homicide detective for the Pima County Sheriff’s Department, told Pima County Superior Court Judge Frank Dawley, from whom he was attempting to get a warrant to search the Marana property in 2004, that an informant, “advised me that he knew Mr.Fuentes to own property in Marana at an unknown location and believe[s] the subject Guero was there now,” according to a transcript of the telephonic search warrant excerpt.
However, prior to contacting Dawley for the warrant, Amado and another detective entered the property and performed a “security sweep” of a mobile home on the property to which they said the front door was open when they arrived.
During the sweep they found a hat they believed was the same witnesses told them Guero regularly wore and a pistol which they believed was not the murder weapon, according to a motion to suppress the fruits of an illegal search Fuentes’ lawyer, Harley Kurlander, filed prior to the start of trial.
Judge Dawley granted Amado the search warrant and the detectives seized the hat and the .22-caliber pistol which were later used at trial by prosecutors to implicate Guero as an accomplice because a shell for the pistol was found at the crime scene, according to the appeals court decision. Fuentes killed Pacheco with a 9 mm pistol.
Kurlander argued in his motion to suppress that no probable cause existed for the search and that Amado “mislead the judge into believing” that the informant knew for certain that Guero was on the Marana property.
Judge Deborah Bernini presided over the trial and denied Kurlander’s motion to suppress, finding that Fuentes did not have “a legitimate expectation of privacy” on the Marana property, according to a court minute entry.
15 years later, the appeals court found otherwise, concluding that Fuentes did have a constitutional expectation of privacy at the Marana property and that the U.S. Supreme Court “has never articulated a ‘protective sweep’ exception to the warrant requirement in the absence of a contemporaneous arrest,” according to their decision.
The appeals court noted, “the Sixth Amendment does not require that a jury find an aggravating circumstance before a natural life sentence can be imposed,” but that the trial court specified the presence of an accomplice contributed to the sentencing.