Opinion
2 CA-CR 2022-0175
01-09-2024
The State of Arizona, Appellee, v. Enrique Nestor Olivarria, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Phoenix Counsel for Appellee James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, Assistant Legal Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20191938001 The Honorable James E. Marner, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Phoenix Counsel for Appellee
James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, Assistant Legal Defender, Tucson Counsel for Appellant
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, PRESIDING JUDGE
¶1 Enrique Olivarria appeals from his convictions and sentences for armed robbery and aggravated robbery. Olivarria contends the trial court erred in denying his motion to suppress evidence on the basis that the officers lacked probable cause to arrest him, and their warrantless search of his bag was therefore unreasonable. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In April, 2019, L.E. was robbed by armed men in a post office parking lot in Green Valley, Arizona. They took from her a canvas bag containing her cell phone and a check. Ultimately, and as described below, Olivarria was arrested for the robbery. Before trial, Olivarria filed a motion to suppress all evidence obtained as a result of his arrest and the subsequent search of the bag, arguing that the officers had exceeded the scope of a lawful investigatory detention, lacked probable cause to arrest him, and unreasonably searched his bag without a warrant. The trial court denied the motion to suppress.
¶3 Olivarria was tried and convicted of armed robbery and aggravated robbery and sentenced to two concurrent terms of imprisonment, the longest of which was twenty years. He appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶4 On appeal, Olivarria argues the trial court abused its discretion in denying his motion to suppress because his initial detention became a de facto arrest without probable cause. As a result, neither the search of his person following the arrest nor the search of the bag was proper. He therefore contends the court improperly determined that the searches of his person were proper because officers had ultimately gained probable cause for his arrest. Further, contrary to the court's ruling, he argues that the state cannot justify its search of the bag either at the scene or at DPS headquarters by an abandonment theory, because he never disclaimed ownership. As a consequence, he contends, the trial court erred in failing to grant his pretrial motion to suppress the fruits of the searches. The state argues that the subject searches were proper because Olivarria's arrest was supported by probable cause. Because there was ultimately a lawful arrest, the state asserts that the search of Olivarria's person was proper incident to that arrest, and the search of the bag was valid as a post-arrest inventory search. The state also asserts, as the court found, that Olivarria had abandoned the dropped bag at the time of his detention, and therefore he had no standing to challenge that search. "We review the denial of a motion to suppress evidence for an abuse of discretion," and consider "only the evidence presented at the suppression hearing." State v. Wilson, 237 Ariz. 296, ¶ 7 (2015).
Although Olivarria does not concede that the law enforcement officers had reasonable suspicion for his investigatory detention, he does not argue the lack thereof on appeal.
¶5 At the suppression hearing, multiple officers testified about Olivarria's detention, arrest, and search. Arizona DPS Trooper Ruiz testified that he had received a report of an armed robbery by three men who fled in a red SUV. Within minutes of receiving the information, Ruiz saw a vehicle matching that description and followed it. He observed three males in the SUV, including the driver, whom he described as a "Hispanic male wearing a black shirt." Because the SUV was travelling in a residential area at high speed, almost causing one collision, Ruiz slowed down, ultimately ending his pursuit when he lost sight of the vehicle.
¶6 Within a few minutes of ending his pursuit, Trooper Ruiz heard over the radio that Trooper Hopkins had seen "two male subjects jumping over brick walls and walking through backyards" within half a mile from where Ruiz had last seen the SUV. Ruiz joined Hopkins and, in a neighborhood alleyway, confronted two Hispanic men-one wearing a black shirt, and the other later identified as Olivarria. At the time of the contact with the troopers, Olivarria was holding a black bag in one hand while reaching into it with the other hand. Concerned for their safety, the troopers commanded the men to get on the ground. On being given the command, the man in the black shirt immediately complied, but Olivarria dropped the bag he was carrying and took a few steps before he went to his knees.
¶7 Following Olivarria's detention, Detective Bennett responded to the scene and briefly searched the dropped bag for weapons. He did not note any weapons, contraband, or other evidence. At some point thereafter, Trooper Kish, tasked to watch over Olivarria, performed a pat-down search of Olivarria for weapons and found "a capped needle" and "two wads of cash" in his pockets. Following the detention of the men, Hopkins went to look for the red SUV and the third suspect. He located the SUV within five minutes, less than half a mile from the scene, and "put it up over the radio." Olivarria was then taken to DPS headquarters, where Deputy Dobbertin conducted an inventory search of the bag Olivarria had dropped and found the check taken from L.E.
¶8 The trial court denied Olivarria's motion to suppress, finding that the pat-down search that revealed the drug paraphernalia and cash had been proper because at the time it was done "objectively there was probable cause to support" Olivarria's arrest. The court also concluded that the search of the bag had been proper both because Olivarria abandoned it and because probable cause existed for his arrest at the time it was searched.
Although the bag was first searched at some point at the scene of Olivarria's detention, the relevant evidence-the check-was discovered only during the inventory search performed after Olivarria's formal arrest.
¶9 Because the trial court properly determined that the troopers had probable cause to arrest Olivarria and that the challenged evidence would have been inevitably discovered following his lawful arrest, the court did not err. See State v. Lamb, 116 Ariz. 134, 138 (1977). And, because we conclude the discovery of the challenged evidence was inevitable and therefore not unlawful, we need not determine whether the bag had been abandoned. See State v. Carlson, 237 Ariz. 381, ¶¶ 7, 31 (2015) (affirming trial court's ruling when result was legally correct for any reason); see also State v. Fuentes, 247 Ariz. 516, ¶ 15 (App. 2019) ("[W]e must uphold the trial court's ruling on any legal ground supported by the record.").
I. Probable Cause for Arrest
¶10 Olivarria argues his arrest was not supported by probable cause. The determination of whether probable cause exists for an arrest is a mixed question of law and fact that we review de novo. State v. Cheatham, 240 Ariz. 1, ¶ 6 (2016). There is probable cause for an arrest "when reasonably trustworthy information and circumstance would lead a person of reasonable caution to believe that a suspect has committed an offense." State v. Hoskins, 199 Ariz. 127, ¶ 30 (2000). Probable cause requires a reasonable level of suspicion with a quantum of proof less than that needed to convict, State v. Aleman, 210 Ariz. 232, ¶ 15 (App. 2005) (holding that mere probability of suspect's intoxication constituted probable cause to secure his blood samples). It may be based either on the information known to the arresting officer or may be based on the collective information of law enforcement at the time of the arrest, see State v. Sardo, 112 Ariz. 509, 515 (1975). Collective information is comprised of "facts and circumstances known to police officers at the time of the arrest" and need not be based on personal, first-hand observation of the arresting officer. State v. Lawson, 144 Ariz. 547, 553 (1985) (citations omitted) (arresting officer need not "personally be in possession of all the facts" so long as collective knowledge of all officers is sufficient).
¶11 Olivarria argues the officers in the alleyway where he was detained lacked probable cause for his arrest and the resulting searches because he did not match Trooper Ruiz's description of any of the occupants of the SUV, and the SUV had no link to him. Olivarria also asserts that Ruiz did not receive any additional information-presumably beyond his observation of the occupants of the SUV-while he was detained to support a formal arrest.
¶12 Trooper Ruiz described the SUV as having three male occupants, including the driver-a "Hispanic male wearing a black shirt." When Ruiz stopped two men in the alleyway, Olivarria's companion was wearing a black shirt, and both men were, as the defendant concedes, Hispanic. The two men did, therefore, match the, albeit limited and general, description given by Ruiz of the robbery suspects. And, Ruiz encountered and detained Olivarria and his companion within a half mile from where Ruiz had last seen the red SUV. Further, Ruiz possessed information which suggested that Olivarra and his companion had been "jumping over brick walls and walking through backyards"-abnormal behavior consistent with persons fleeing a crime. Based on the totality of these circumstances, the trial court did not err in concluding that, the arresting officers collectively-including Ruiz-had sufficient information supporting probable cause to lawfully arrest Olivarria. Certainly, as discussed below, an officer's discovery of the red SUV less than a half mile from where Ruiz encountered and detained Olivarra only further supported probable cause for the ultimate arrest. See State v. Mitcham, 256 Ariz. 104, ¶ 45 (App. 2023) (defendant's proximity to crime scene supports probable cause). See Sardo, 112 Ariz. at 515; Lawson, 144 Ariz. at 553 (arresting officer entitled to rely on police bulletins or reports made ostensibly from firsthand knowledge of others).
II. Inevitable Discovery
¶13 Even were we to accept Olivarria's argument, based on State v. Boteo-Flores, 230 Ariz. 105, ¶¶ 1, 14 (2012), that the officers' initial investigative stop became a de facto arrest without probable cause before the search of his bag, we would affirm the trial court's denial of the motion to suppress. As detailed above, during Olivarria's detention in the alleyway, officers identified the nearby red SUV, providing probable cause to arrest Olivarria. Thus, the evidence here did not arise solely from a search conducted after a purported de facto arrest. Instead, at the latest, at the point the officers identified the SUV, "reasonable suspicions ripen[ed] into probable cause to support an arrest." State v. Romero, 178 Ariz. 45, 51 (App. 1993). Pursuant to that ultimately proper arrest, for the reasons that follow, each piece of evidence ultimately discovered would have inevitably been discovered thereafter. See Lamb, 116 Ariz. at 138 (even evidence obtained unlawfully "need not be suppressed where, in the normal course of the police investigation and absent the illicit conduct, the evidence would have been discovered anyway"); State v. Ault, 150 Ariz. 459, 465 (1986) (even illegally obtained evidence admissible "[i]f the prosecution can establish by a preponderance of the evidence that the illegally seized items or information would have inevitably been seized by lawful means").
¶14 A law enforcement officer may conduct a pat-down search of a suspect upon his lawful detention for purposes of officer and public safety if he "reasonably suspects that an individual may be armed and presently dangerous to the officer or others." In re Steven O., 188 Ariz. 28, 30-31 (App. 1997). Such a search is often called a "Terry search." Id. Typically, if a pat-down exceeds the purposes of a Terry search, the fruits are inadmissible. See State v. Valle, 196 Ariz. 324, ¶¶ 9, 12 (App. 2000) (suppressing evidence found as result of unreasonable Terry search). But, following a formal arrest, law enforcement officers are entitled to search a defendant's person more thoroughly. See State v. Gant, 216 Ariz. 1, ¶ 9 (2007) (permissible scope of a search incident to arrest includes "the 'arrestee's person and the area within his immediate control'" (quoting State v. Chimel, 395 U.S. 752, 763 (1969)). And, upon a defendant's arrest, officers may search his belongings for the purpose of inventorying them. See State v. Stukes, 151 Ariz. 216, 217-18 (App. 1986). An inventory search is reasonable if it is in line with standardized administrative police procedures. Id.
Terry v. Ohio, 392 U.S. 1 (1968).
¶15 Here, Olivarria's person was first cursorily searched in a pat-down search. Trooper Kish testified that he had discovered "a capped needle" and "two wads of cash" in this initial pat-down. It is unclear on the record before us whether the pat-down search occurred before the announcement of the discovery of the SUV. Nonetheless, even though Olivarria was later charged with possession of drugs and drug paraphernalia, the discovery of these items did not serve as the basis of probable cause for his arrest, which was for suspicion of armed robbery. Because the discovery of these items was inevitable, the trial court properly concluded they need not be suppressed. See Lamb, 116 Ariz. at 138.
¶16 As to the bag search, Deputy Dobbertin testified that after Olivarria was transported to the police station, he had conducted a routine inventory search of the bag as part of the sheriff's department standard procedure and had found the check that was taken from the victim. Dobbertin stated that the purpose of this "standard procedure" was to document the contents of a bag so that there is "no contraband being submitted to the jail" and "no accusation of loss of items." Dobbertin's testimony about the standard inventory search of the bag was not challenged. Thus, the trial court properly ruled the check admissible as well, since it would inevitably have been discovered during the inventory search.
¶17 Therefore, even if, as Olivarria argues, the fruits of the search of Olivarria's person pre-arrest were initially gathered as the result of an impermissibly broad Terry search, they would not have been inadmissible. Id. And, because the standardized inventory search of the bag at the police station following Olivarria's arrest was lawful, the fruits of the search were also admissible. See State v. Rojers, 216 Ariz. 555, ¶ 33 (App. 2007). The trial court did not err in denying Olivarria's motion to suppress.
Disposition
¶18 We therefore affirm the trial court's order and Olivarria's convictions and sentences.