Opinion
No. 2 CA-CR 2018-0115
12-28-2018
THE STATE OF ARIZONA, Appellee, v. ALESIA DIANE ESPINOSA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Michael Villarreal, Florence Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201700735
The Honorable Jason R. Holmberg, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee Michael Villarreal, Florence
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Alesia Espinosa appeals her conviction and sentence for transportation of a dangerous drug for sale, claiming the trial court erred in denying her motion to suppress evidence obtained in violation of the Fourth Amendment. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We review the trial court's factual findings on a motion to suppress for an abuse of discretion but review constitutional issues and legal determinations de novo. State v. Evans, 237 Ariz. 231, ¶ 6 (2015); State v. Booker, 212 Ariz. 502, ¶ 10 (App. 2006). In our review, "we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court's ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2 (App. 2014).
¶3 In March 2017, Pinal County Sheriff's Deputy Steven Hall was on patrol near Apache Junction when he saw Espinosa driving a maroon sport utility vehicle (SUV), with a passenger in the front seat. Hall observed that the SUV was travelling in the passing lane and also noticed that items hanging from the rearview mirror obstructed the driver's view. Hall conducted a record check on the license plate, and it appeared the SUV did not have insurance, so he activated his lights to stop it, but Espinosa continued driving for about three quarters of a mile before pulling over. During that time, Hall observed "multiple movements . . . in the passenger compartment of the vehicle, reaching and stuff like that."
¶4 When Espinosa finally stopped, Deputy Hall asked her for her driver license, registration, and proof of insurance. Espinosa provided her license but no insurance card. After conducting a warrants check that revealed no outstanding warrant for Espinosa or her passenger, Hall returned to the SUV and noticed that Espinosa "appeared very nervous" and was visibly shaking. He asked her where she was going and coming from and whether she had anything illegal in the vehicle. She responded that she and the passenger had gone shopping in the Gilbert-Mesa area and had nothing illegal in the vehicle.
¶5 Hall then spoke separately to the passenger, and her responses were not consistent with Espinosa's. Hall again asked Espinosa whether there was anything illegal in the vehicle, and she responded, "No, I have it on me." She handed Hall an item he identified as "a crystalline substance," saying, "It's meth, please don't arrest me." At that point, Hall placed Espinosa in handcuffs and arrested her for possession of methamphetamine. He then searched the SUV and found a bag underneath the front passenger seat containing approximately two ounces of methamphetamine. About ten minutes passed between the time of the stop and the arrest.
¶6 Espinosa was charged with one count each of possession of a dangerous drug for sale, transportation of a dangerous drug for sale, possession of a dangerous drug, and possession of drug paraphernalia. She subsequently filed a pretrial motion to suppress the evidence obtained by Deputy Hall, claiming he had "unreasonably prolonged the traffic stop." Following a hearing, the trial court denied the motion, and a jury found Espinosa guilty of transportation of a dangerous drug for sale. The court sentenced her to a mitigated five-year term of imprisonment. We have jurisdiction over her appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The possession charges were dismissed without prejudice on the first day of trial.
The jury also found Espinosa guilty of possession of a dangerous drug for sale, but this was dismissed with prejudice as a lesser-included offense of transportation of a dangerous drug for sale. In its sentencing minute entry, the trial court erroneously stated Espinosa was sentenced to a five-year term of imprisonment for that crime. In its answering brief, the state requested that we correct the minute entry, but the trial court already corrected this error on its own. --------
Discussion
¶7 Espinosa argues Deputy Hall improperly prolonged the traffic stop in violation of her Fourth Amendment rights because after he observed the traffic violations, "[n]o further investigation was necessary" and his only duty "was to issue a citation or a warning and to allow [Espinosa] to leave."
¶8 The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV; see State v. Gilstrap, 235 Ariz. 296, ¶ 7 (2014). An investigatory stop of a vehicle is a seizure, "but is less intrusive than an arrest, and for that reason officers 'need only possess a reasonable suspicion that the driver has committed an offense' to conduct a stop." State v. Kjolsrud, 239 Ariz. 319, ¶ 9 (App. 2016) (quoting State v. Livingston, 206 Ariz. 145, ¶ 9 (App. 2003)). The stop, however, "must be temporary and last no longer than is necessary to effectuate [its] purpose." State v. Sweeney, 224 Ariz. 107, ¶ 17 (App. 2010) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). Additionally, an officer may conduct "ordinary inquiries" incident to the stop, Illinois v. Caballes, 543 U.S. 405, 408 (2005), such as "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance," Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015). Once the officer "has effectuated the purpose of the stop, he must allow a driver to continue" unless the encounter either becomes consensual or, during the encounter, the officer develops "a reasonable and articulable suspicion that criminal activity is afoot." Sweeney, 224 Ariz. 107, ¶ 17; see also State v. Teagle, 217 Ariz. 23, ¶ 22 (App. 2007).
¶9 Espinosa does not dispute that Deputy Hall was justified in stopping her for observed traffic violations. Rather, she contends Hall improperly extended the duration of the stop by "continu[ing] an investigation . . . once the purpose for the traffic stop was concluded." She asserts the "suspicion in this case was whether the vehicle lacked registration and insurance," and because it was "obvious" that the vehicle "lacked this requirement" and the obstructed view and lane usage "needed no investigation," Hall was required "to issue a citation or a warning and to allow [Espinosa] to leave." But Hall testified that throughout the ten-minute duration of the stop, he had not yet determined whether he was going to issue a citation because he was waiting to see if Espinosa "actually had proof of registration and insurance." While "[a]uthority for the seizure . . . ends when tasks tied to the traffic infraction are—or reasonably should have been—completed," Rodriguez, 135 S. Ct. at 1614, the stop here was quite brief, and there is nothing in the record to suggest Hall should have completed his tasks any sooner, see State v. Maciel, 240 Ariz. 46, ¶ 19 (2016) ("'In assessing whether a detention is too long in duration to be justified as an investigative stop,' we examine whether the police 'diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.'" (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985))).
¶10 Additionally, although Espinosa claims Hall improperly interrogated her about the reasons for her travel because the questioning "had nothing to do with the traffic violations or lack of proper documentation," an officer does not unreasonably prolong an otherwise lawful stop by asking brief questions unrelated to it. Teagle, 217 Ariz. 17, ¶ 24; see United States v. Childs, 277 F.3d 947, 954 (7th Cir. 2002) ("Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention."). Thus, Hall's ten-minute investigation did not constitute an unlawful delay.
¶11 Moreover, even had Deputy Hall's investigation exceeded a reasonable time for investigating the traffic violations, his actions were justified by reasonable suspicion. Before making contact with Espinosa, he observed furtive movement in the SUV, and she did not pull over for a significant distance, causing him to believe there was "further activity . . . above . . . a regular civil traffic stop." After Espinosa stepped out of the SUV, Hall observed that she appeared "very nervous" and was physically shaking. He was accordingly justified in briefly questioning Espinosa and her passenger. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (suspect's nervous, evasive behavior relevant factor in determining constitutional propriety of officer's decision to investigate further). And the passenger's inconsistent account warranted asking Espinosa a second time if she had anything illegal in her vehicle. See State v. Riley, 196 Ariz. 40, ¶ 15 (App. 1999) (reasonable suspicion where erratic driving, nervousness, and responses to questions suggested deception). Accordingly, the investigation did not violate Espinosa's Fourth Amendment rights.
¶12 For the first time on appeal, Espinosa also argues that Deputy Hall needed a search warrant to open the bag containing the methamphetamine found under the passenger seat. When a defendant fails to object to a purported trial error, she bears the burden of demonstrating fundamental and prejudicial error. State v. Escalante, 245 Ariz. 135, ¶¶ 12, 21 (2018). Espinosa asserts fundamental error occurred but offers no explanation or authority. Her failure to develop this argument constitutes waiver. State v. Bolton, 182 Ariz. 290, 298 (1995); State v. Carver, 160 Ariz. 167, 175 (1989). And although we will not ignore any fundamental error apparent in the record, see State v. Fernandez, 216 Ariz. 545, ¶ 32 (App. 2007), we perceive none here, see Arizona v. Gant, 556 U.S. 332, 341, 346-47 (2009) (search of vehicle permitted when "arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest"). The trial court did not err in denying Espinosa's motion to suppress.
Disposition
¶13 Espinosa's conviction and sentence are affirmed.