Opinion
No. 1 CA-CR 12-0182
01-15-2013
STATE OF ARIZONA, Appellee, v. LAWRENCE E. ROMAN, JR., Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Matthew Binford, Assistant Attorney General Attorneys for Appellee David Goldberg Attorney at Law By David Goldberg Attorney for Appellant
NOTICE: 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(Not for Publication -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
Arizona Supreme Court)
Appeal from the Superior Court in Yavapai County
Cause No. V1300CR200980573
The Honorable Tina R. Ainley, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Matthew Binford, Assistant Attorney General
Attorneys for Appellee
Phoenix
David Goldberg Attorney at Law
By David Goldberg
Attorney for Appellant
Ft.
Collins
DOWNIE, Judge ¶1 Lawrence E. Roman, Jr. appeals his convictions and sentences. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Deputy Sutton was the first officer to respond to a call regarding a "fight or assault in progress." Upon arriving, he saw a white van driving away and three men arguing in front of a bar. One man ("P.V.") had a bloody nose and lip "consistent with a fight." Another man ("A.S.") threw a beer bottle and told P.V., "You got me into trouble now." The deputy pointed to the van, then about 100 yards away, and asked if it was "involved." A.S. replied, "Yes." ¶3 Within a few seconds, Deputy Drish arrived on the scene. Deputy Sutton told him the van was "somehow involved in the fight" and asked him to stop it. Deputy Drish immediately pursued the van in his patrol car. His red and blue emergency lights were flashing, and he later activated his siren. Although there were places along the roadway where the van could pull over, it did not do so. The deputy pursued the van for one-half to three-quarters of a mile. ¶4 The van ultimately stopped in a driveway about a mile from the bar. Roman exited the driver's side. Deputy Drish ordered him to the ground and handcuffed him. Roman told the deputy he "was just trying to get home." Deputy Drish smelled a "strong odor of an intoxicant" on Roman's breath, and Roman "stagger[ed] from side to side" when escorted to a patrol car. A record check revealed that Roman was driving with a suspended license. ¶5 Deputy Sutton drove Roman to the bar to further investigate the fight. He asked P.V. if Roman was involved in the fight. P.V. said, "No." Officers conducted field sobriety tests on Roman. ¶6 Roman was charged with three counts of DUI and one count of unlawful flight from a law enforcement officer. He filed a motion to dismiss the unlawful flight count and to "suppress all other evidence," alleging it was gleaned from an unlawful stop and detention in violation of the Fourth Amendment. Analogizing the situation to one involving an anonymous tip, the motion also argued A.S.'s "mere assertion" Roman was involved in the fight was "not reliable information that [he] was actually engaged in a crime," that Deputy Sutton should have investigated further before ordering the pursuit, and that being "involved" was insufficient to justify a warrantless seizure. ¶7 In response, the State argued the pursuit did not constitute a stop or detention under the Fourth Amendment. It further asserted that Roman's failure to stop in response to the police siren and lights gave rise to an independent and intervening justification for the stop that would, if necessary, "negat[e] any taint from alleged impropriety of the attempted stop." The State also contended the stop and eventual detention were justified because officers reasonably suspected Roman was involved in criminal activity. ¶8 After an evidentiary hearing, the superior court found that Roman "was not seized until he pulled into his driveway" and that "[p]rior to the stop, Deputy Drish developed at least reasonable suspicion that [Roman] was committing the crime of Unlawful Flight from a Law Enforcement Vehicle." The court denied the motion to suppress. ¶9 A jury found Roman guilty of the three DUI charges, and he was sentenced to a term of imprisonment. Roman timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21, 13-4031, and -4033.
The court also denied the motion to dismiss the unlawful flight charge. The jury acquitted Roman of that charge, though, so it is not at issue on appeal.
DISCUSSION
¶10 In reviewing the denial of a motion to suppress, we consider only the evidence presented at the suppression hearing, and we view the facts in the light most favorable to sustaining the ruling. State v. Moore, 183 Ariz. 183, 186, 901 P.2d 1213, 1216 (App. 1995) (citations omitted). We review legal and constitutional issues de novo. State v. Ahumada, 225 Ariz. 544, 546, ¶ 5, 241 P.3d 908, 910 (App. 2010) (citation omitted). "We will uphold a trial court's ruling on a motion to suppress if it is correct for any reason." Id. ¶ 11"Police officers may briefly detain an individual who they have reasonable suspicion to believe is involved in a crime." State v. Boteo-Flores, 230 Ariz. 105, 107, ¶ 11, 280 P.3d 1239, 1241 (2012). Reasonable suspicion requires "a particularized and objective basis for suspecting that a person is engaged in criminal activity." State v. O'Meara, 198 Ariz. 294, 295, ¶ 7, 9 P.3d 325, 326 (2000); see also State v. Altieri, 191 Ariz. 1, 2, ¶ 8, 951 P.2d 866, 867 (1997) (citations omitted) (officers may stop a vehicle when there are objective facts available raising suspicion of criminal activity). Courts consider the collective knowledge of the police officers involved. See State v. Lawson, 144 Ariz. 547, 553, 698 P.2d 1266, 1272 (1985) (discussing probable cause for an arrest). ¶12 The officers had sufficient cause to pursue and stop Roman's vehicle. See State v. Watkins, 207 Ariz. 562, 566, ¶ 16, 88 P.3d 1174, 1178 (App. 2004) ("Exigent circumstances permitting temporary detention of a witness may exist when a crime has been reported recently, the officers are confronted with a rapidly-moving situation, or the police come upon a flight scenario."). The events at issue -- from Deputy Sutton's arrival at the bar to Roman stopping in his driveway -- all happened within a few minutes. Deputy Sutton found three men arguing at the bar, one of whom had a bloody face. He saw a van driving away that one of the men said was "involved." The van's departure from the scene, coupled with A.S.'s statement, gave rise to reasonable articulable suspicion that the van's occupant was engaged in criminal activity. ¶13 Roman's failure to yield to police sirens and lights provided an independent justification for the stop. See A.R.S. § 28-622.01 (a driver "who wilfully flees or attempts to elude a pursuing official law enforcement vehicle" is guilty of a class 5 felony); see also State v. Fogarty, 178 Ariz. 170, 171, 871 P.2d 717, 718 (App. 1993) ("[A]ny refusal to stop on command of an officer who is in a police car violates the felony flight statute because of the potential for personal danger inherent in vehicular pursuit, even if that pursuit does not attain excessive speeds or involve reckless driving."). In a suppression hearing, the court's duty is "to determine, as a matter of law, that evidence was lawfully acquired" -- not whether the defendant is guilty of the underlying offense. State v. Myers, 117 Ariz. 79, 88, 570 P.2d 1252, 1261 (1977). The fact that a person is acquitted of the offense for which he was stopped is irrelevant in evaluating the constitutional validity of the stop. See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). ¶14 Roman's reliance on State v. Martinez is misplaced. 230 Ariz. 382, 284 P.3d 893 (App. 2012). In Martinez, the court was asked to determine whether sufficient evidence existed to support a guilty verdict for unlawful flight, not whether officers had reasonable suspicion to make an investigatory stop. Id. at 383, ¶ 1, 284 P.3d at 894. Similarly unavailing is Roman's reliance on cases discussing the reliability of anonymous tips. A.S. was not an anonymous tipster. Rather, as Deputy Sutton testified, A.S. was involved in the incident that deputies were dispatched to investigate, and he was present at the scene. Roman's contention that the "undisputed evidence was that the police did not find the source of this information reliable or credible" is not supported by the record. Deputy Sutton testified that there were factors suggesting A.S. was a reliable witness. ¶15 Roman's alternative argument -- that he was not detained, but arrested without probable cause -- was not made below. Absent fundamental error, appellate courts will not consider issues raised for the first time on appeal. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991) (citations omitted). Roman does not assert fundamental error and has therefore waived that argument. See State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶ 17, 185 P.3d 135, 140 (App. 2008) (citations omitted).
Roman relies on a version of State v. Martinez that was withdrawn two months before he filed his opening brief. See State v. Martinez, 229 Ariz. 546, 278 P.3d 324 (App. 2012).
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CONCLUSION
¶16 We affirm Roman's convictions and sentences.
_______________
MARGARET H. DOWNIE,
Presiding Judge
CONCURRING: _______________
MAURICE PORTLEY, Judge
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PHILIP HALL, Judge