Opinion
No. 2 CA-CR 2017-0280
07-24-2018
THE STATE OF ARIZONA, Appellee, v. PAMELA ROSEMARIE ROBLES, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy M. Thorson, 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NOT FOR PUBLICATION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. S1100CR201601844
The Honorable Lawrence M. Wharton, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee Michael Villarreal, Florence
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Pamela Robles appeals her convictions for possession of a dangerous drug for sale and possession of drug paraphernalia. She contends the trial court erred in denying her motion to suppress all of the evidence seized as a result of her encounter with a police officer. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing it in the light most favorable to sustaining the trial court's ruling." State v. Reyes, 238 Ariz. 575, ¶ 2 (App. 2015). Late one night in July 2016, a Florence police officer observed a woman he later determined to be Robles walking down the street covered in flour and wearing an apron. Given the time of night, the fact Florence does not have a bakery, and Robles's appearance of "disarray," the officer decided to conduct a "welfare check."
¶3 Without activating his emergency lights or siren, the officer pulled to the side, stopped ahead of Robles and waited on the curb as she walked in his direction. And, despite the fact she could have continued walking unobstructed to her home, Robles deviated ten to fifteen feet from the path to her home and directly approached the officer, without any prompting or commands on his part. The officer recognized Robles, whom he knew lived in a house associated with narcotics activity.
¶4 After asking Robles how she was doing and about her clothing, the officer asked if she had "any dope on [her]." Robles answered no, and he then asked if he could search her purse. Robles responded, "Go right ahead." The officer also asked if she would hold her purse open while he looked inside, and she did. Without touching anything in the purse and using a flashlight, the officer saw "a long, cylindrical tube," with "white residue," which he determined, based on his training and experience, to be a glass pipe. He asked Robles if it was a "meth pipe," and she responded, "Yes." Robles was arrested, and a further search of her purse revealed several small bags of methamphetamine.
¶5 Robles was indicted on one count of possession of a dangerous drug for sale and one count of possession of drug paraphernalia. She moved to suppress all of the evidence seized as a result of her encounter with the officer, maintaining he unlawfully seized her. After an evidentiary hearing, the trial court denied her motion, finding the encounter was consensual. After a jury trial, Robles was convicted of both of the counts listed in the indictment and the court sentenced her to a total term of 15.75 years' imprisonment. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶6 On appeal, Robles argues the trial court erred in denying her motion to suppress because she was illegally seized prior to the police officer's discovery of the contraband in her purse. When reviewing a decision on a motion to suppress, we defer to the trial court's factual findings, including determinations of witness credibility, but consider its ultimate legal conclusion de novo. State v. Moran, 232 Ariz. 528, ¶ 5 (App. 2013).
¶7 The Fourth Amendment prohibits the unreasonable seizure of persons. California v. Hodari D., 499 U.S. 621, 624 (1991). In order to seize an individual for a brief investigatory stop, an officer must have at least "a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000). This standard requires less than a preponderance of evidence or probable cause, but an officer still must have "at least a minimal level of objective justification for making the stop" and more than a bare suspicion or hunch of criminal activity. Id. at 123-24.
¶8 A seizure occurs when an officer restrains an individual's liberty either by force or by a show of authority. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968); State v. Rogers, 186 Ariz. 508, 511 (1996). "Police may, however, approach and question people without implicating the Fourth Amendment, provided that the interaction is consensual." State v. Wyman, 197 Ariz. 10, ¶ 7 (App. 2000). To that end, officers may, without any level of suspicion, question an individual and ask to search bags provided they "do not convey a message that compliance with their requests is required." Florida v. Bostick, 501 U.S. 429, 434-35 (1991). Whether a seizure has occurred versus whether police interaction was consensual depends on "whether, in light of all of the circumstances, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Wyman, 197 Ariz. 10, ¶ 7, quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988).
¶9 Here, the police officer pulled over without activating his emergency equipment and merely waited on the curb in the direction Robles was walking. And, although the officer wished to speak to Robles, it was she who approached him, and without being commanded to do so. Nothing prevented Robles from continuing towards her home, turning around or simply walking away after the officer began to ask her questions. Moreover, when he searched Robles's purse, he did so only after asking to do so and obtaining her consent; Robles told the officer to "Go right ahead." In light of all of the circumstances, we conclude the encounter between Robles and the officer was consensual. See Wyman, 197 Ariz. 10, ¶ 7. Accordingly, we find no error.
The instant case is easily distinguished from Wyman and State v. Baltier, 17 Ariz. App. 441 (1972). In Wyman, we concluded that a seizure occurred when a police officer "incessantly repeated his request" that the defendant speak with him "after [he] refused to respond." 197 Ariz. 10, ¶ 8 (The officer "clearly demonstrated that [Wyman was] not free to ignore him and go about [his] business."). In Baltier, we found a seizure where "two uniformed police officers in a marked patrol car [pulled] alongside" the defendant while he was walking on the sidewalk and, after he ignored their request to "wait a minute," ordered him to stop. 17 Ariz. App. at 444.
In addition, to the extent Robles argues that the officer's search of her purse was nonconsensual, she did not raise this issue in her motion to suppress filed in the trial court. Thus, we review only for fundamental and prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005). However, because she does not allege that any error was fundamental or prejudicial, the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008); see also State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008) (objection on one ground insufficient to preserve issue on another).
While Robles makes claims to the contrary, the trial court adopted the police officer's version of events, and we defer to that court's factual findings, including its determinations of witness credibility. See Moran, 232 Ariz. 528, ¶ 5. --------
Disposition
¶10 For the foregoing reasons, we affirm Robles's convictions and sentences.