Opinion
No. 2 CA-CR 2018-0199
01-28-2019
THE STATE OF ARIZONA, Appellee, v. HORACIO ANTELO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Law Offices of Christopher L. Scileppi P.L.L.C., Tucson By Christopher L. Scileppi 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NOT FOR PUBLICATION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 Pima County
No. CR20170513001
The Honorable Christopher Browning, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Law Offices of Christopher L. Scileppi P.L.L.C., Tucson
By Christopher L. Scileppi
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Horacio Antelo was convicted of transportation of a dangerous drug for sale and possession of drug paraphernalia. The trial court sentenced him to five years in prison for the transportation count, followed by a three-year term of probation for the possession count. On appeal, Antelo argues the court erred by denying his motion to suppress evidence collected during a search of his vehicle because he was unconstitutionally detained during a traffic stop while awaiting the arrival of a drug-detection dog. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In reviewing the denial of a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the trial court's ruling. State v. Wyman, 197 Ariz. 10, ¶ 2 (App. 2000). In January 2017, several law enforcement agencies were working together as part of the Border Interdiction Unit to "make seizures of drugs and bulk cash traveling through Pima County." Based on a tip, Pima County Sheriff's Department Detective Ruiz initiated a stop of the vehicle Antelo was driving after seeing a cracked windshield and learning its registration had been suspended. Shortly thereafter, Customs and Border Protection Agent Moreno arrived to provide "scene security."
¶3 When Ruiz approached the vehicle, he noticed that Antelo "appeared to be nervous," had a "shaky voice" and "a little sweat on [his] upper lip," and was "continuously yawning." Ruiz also thought he detected an odor of marijuana. After obtaining Antelo's information, Ruiz returned to his patrol car to conduct a records check and begin to fill out the paperwork for a warning. He again approached Antelo and asked whether the vehicle contained any drugs or weapons and whether Antelo would consent to a search. After Antelo refused, Ruiz requested that Pima County Sheriff's Deputy Ahern bring his drug-detection dog to the scene for a "free air sniff."
Ruiz asked for consent to search twice, once in English and again in Spanish, after Antelo asked Ruiz if he spoke Spanish.
¶4 Within minutes, before Ruiz had finished filling out the paperwork, Ahern arrived with his dog. The dog alerted to the vehicle, and, during a subsequent search, Ahern and Moreno found approximately two pounds of methamphetamine wrapped in cellophane. A grand jury indicted Antelo for transportation of a dangerous drug for sale and possession of drug paraphernalia.
¶5 Before trial, Antelo filed a motion to suppress the evidence collected during the search of his vehicle, arguing that, under Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015), "traffic stops must conclude when tasks are completed or when they reasonably should have been completed" and "the conduct of law enforcement here prolonged the stop." He relied on the times included in the officers' various reports, arguing Ruiz had stopped Antelo at 4:20 p.m., signed the warning at 4:30 p.m., and requested Ahern at 4:35 p.m. Accordingly, Antelo asserted that the stop reasonably should have been completed by 4:30 p.m., but Ruiz "prolonged the stop in order to have . . . Ahern and his drug-sniffing dog respond to the scene."
¶6 At the suppression hearing, Ruiz, Moreno, and Ahern testified that the times in their reports are "approximate" and not "precise." Ruiz and Ahern further testified that Ahern and his dog arrived at the scene before Ruiz had completed and issued the warning to Antelo. However, Moreno suggested they had waited five to ten minutes for Ahern and his dog to arrive after Ruiz had given Antelo the warning.
¶7 The trial court later denied the motion in an under-advisement ruling. It first noted, "[A]ll of the officers were adamant that the various times in the numerous reports . . . were never intended to be exact or precise." It then adopted the testimony of Ruiz and Ahern as more credible, explaining that, because they were "more closely involved" in the case, "their recollections and reports would be more likely to be accurate than . . . Moreno's," whose involvement had been limited to "providing scene security." Accordingly, the court concluded that "the most reasonable factual scenario suggests that the stop was not prolonged in order to bring a drug detection dog to the scene," making Rodriguez inapplicable.
¶8 Antelo was convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶9 Antelo argues the trial court erred by denying his motion to suppress. We review the denial of a motion to suppress for an abuse of discretion. State v. Guillory, 199 Ariz. 462, ¶ 9 (App. 2001). In doing so, we generally defer to the trial court's "factual determinations, including its evaluation of the credibility of witness testimony." State v. Sweeney, 224 Ariz. 107, ¶ 12 (App. 2010).
¶10 The United States and Arizona Constitutions protect against unreasonable searches and seizures. U.S. Const. amend. IV; Ariz. Const. art. II, § 8. "An investigatory stop of a vehicle constitutes a seizure under the Fourth Amendment" and, thus, requires reasonable suspicion that the driver has committed an offense. State v. Fornof, 218 Ariz. 74, ¶ 5 (App. 2008). An officer who has observed a traffic violation has reasonable suspicion to initiate a stop. State v. Kjolsrud, 239 Ariz. 319, ¶ 9 (App. 2016).
"Except in cases involving 'unlawful' warrantless home entries, the right of privacy afforded by Article 2, Section 8, has not been expanded beyond that provided by the Fourth Amendment." State v. Teagle, 217 Ariz. 17, n.3 (App. 2007). Accordingly, we rely on Fourth Amendment jurisprudence in reviewing the trial court's ruling in this case. See id.
¶11 An investigatory stop "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Sweeney, 224 Ariz. 107, ¶ 17 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). "[T]he tolerable duration of police inquiries . . . is determined by the seizure's 'mission'—to address the traffic violation that warranted the stop and to attend to related safety concerns." Rodriguez, 135 S. Ct. at 1614 (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). "Authority for the seizure thus ends when tasks tied to the traffic stop are—or reasonably should have been—completed." Id.
¶12 That said, "the Fourth Amendment tolerate[s] certain unrelated investigations that d[o] not lengthen the roadside detention." Id. at 1614. However, the stop "'can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission' of issuing a warning ticket." Id. at 1614-15 (alteration in Rodriguez) (quoting Caballes, 543 U.S. at 407). On-scene investigations, including dog sniffs, into other criminal activity constitute "detours" from the mission of the traffic violation and, if they prolong the stop, must be separately supported by reasonable suspicion. Id. at 1615-16; see United States v. Campbell, No. 16-10128, 2019 WL 125649, at *9 (11th Cir. Jan. 8, 2019).
¶13 The issue presented here centers on the three officers' differing versions of the same incident during their testimony at the suppression hearing. Antelo argues that "the trial court erred in failing to hold the state to its burden" of showing the lawfulness of the search because "[t]hese inconsistent versions were equally likely." He contends the court "chose what it believed to be the 'most reasonable factual scenario' as opposed to finding that 'the state had proven that the evidence was acquired lawfully.'" Antelo additionally relies on Moreno's testimony to argue that suppression was required because the officers impermissibly detained him past the completion of the traffic stop, pursuant to Rodriguez.
¶14 Contrary to Antelo's suggestion, the trial court did not fail to hold the state to its burden of proof. Antelo is correct that the state had the burden of establishing the lawfulness of the search by a preponderance of the evidence. See Ariz. R. Crim. P. 16.2(b). But the court's reference to "the most reasonable factual scenario" indicates that it was adopting the facts as laid out by Ruiz and Ahern, not that it was somehow applying the wrong standard.
¶15 At bottom, Antelo is challenging the trial court's factual findings and essentially asking that this court reweigh the evidence presented at the suppression hearing. That is not our function. See Sweeney, 224 Ariz. 107, ¶ 12. Rather, we defer to the court's factual findings if reasonable evidence supports them. State v. Adair, 241 Ariz. 58, ¶ 9 (2016); see State v. Rosengren, 199 Ariz. 112, ¶ 9 (App. 2000). We will not reweigh the evidence and will reverse only if those findings are clearly erroneous. Rosengren, 199 Ariz. 112, ¶ 9; see also State v. Estrada, 209 Ariz. 287, ¶ 2 (App. 2004) (court determines credibility of witnesses); State v. Fodor, 179 Ariz. 442, 448 (App. 1994) ("If a suppression order is based on erroneous factual findings or an incorrect legal standard, it is reversible."). Reasonable evidence supports the findings here.
¶16 Ruiz testified that he had not "completed the warning at the point where [he] requested Deputy Ahern" and that he was still "filling out the warning" when Ahern arrived. He stated that he did not "delay or prolong, at all, . . . [his] preparation or . . . delivery and explanation of the . . . warning to [Antelo] to allow Deputy Ahern and his K-9 to arrive." Ahern similarly testified that, when he arrived at the scene, he had a brief conversation with Ruiz, who "was sitting in his vehicle" and "filling out" paperwork. Although Ahern could not recall whether the dog sniff of Antelo's vehicle was conducted before Ruiz issued the warning to Antelo, Ahern explained that when Ruiz was preparing to deliver the warning, Ahern retrieved the dog from his patrol car and completed the sniff, which would have taken less than a minute. According to Ruiz, however, it took "[a] couple minutes" to explain the warning to Antelo. Reasonable evidence therefore supports the trial court's finding that the dog sniff of Antelo's vehicle had been completed before Ruiz issued the warning to Antelo.
¶17 We acknowledge that Moreno provided contrary testimony favorable to Antelo's position. Nevertheless, it is the trial court's function to evaluate credibility. See State v. Lee, 217 Ariz. 514, ¶ 10 (App. 2008). And we disagree with Antelo's suggestion that the court's determination here was arbitrary. Notably, Moreno's answers at the suppression hearing were inconsistent. He initially testified that there had been no delay between Ruiz issuing the warning to Antelo and the arrival of Ahern and his dog. But he then stated that he could not recall whether Ahern was at the scene when Ruiz delivered the warning to Antelo. Only after the court pointed out this discrepancy did Moreno testify, "I would have to say that he gave him the warning and read it to him [five to ten minutes] prior to Deputy Ahern arriving." Thus, Moreno's inconsistent testimony supports the trial court's determination to adopt Ruiz and Ahern's version of events. See State v. Peeler, 126 Ariz. 254, 256 (App. 1980) (inconsistencies in testimony affect credibility).
¶18 As he did below, Antelo also contends that "Ruiz's own report, coupled with the warning he signed and handed to . . . Antelo suggest suppression." He again constructs a timeline, based on various documents, in which Ruiz stopped Antelo at 4:20 p.m. and completed the warning at 4:30 p.m., but did not call Ahern until 4:35 p.m., after which the stop could have reasonably been completed. However, as noted above, the trial court pointed out in its under-advisement ruling that all the officers indicated the times in their reports are approximate. Indeed, Moreno stated that there sometimes could be a five- to ten-minute difference.
As part of this argument, Antelo relies on the 4:30 p.m. timestamp on the warning. But Ruiz explained, "The time on this [warning] is my approximation of the time of the violation, not the time that I'm serving him with it."
¶19 Lastly, Antelo argues Ruiz asked him a "barrage of questions," which were "unrelated to the mission of completing the warning" and "necessarily prolonged the duration of the stop and rendered it unlawful." Specifically, Ruiz asked Antelo whether there were drugs or weapons in the vehicle, where he was coming from, and whether he would consent to a search of the vehicle. We, however, agree with the state that Antelo failed to raise this argument below. Although Antelo mentioned these questions in his recitation of the facts in his motion to suppress and asked Ruiz at the suppression hearing whether the questions "related to the basis for the traffic stop," Antelo did not argue that the questions prolonged the stop in contravention of the Fourth Amendment. Thus, the argument is forfeited for all but fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶¶ 12, 16 (2018). Because Antelo does not argue such error occurred—and we find no error that can be so characterized —the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008).
At the suppression hearing, Antelo argued in closing: "If getting and using a drug dog prolongs the stop, the use of the dog was unconstitutional. That is the only issue that this Court needs to decide. Did these officers' actions prolong the stop past the point where it was, or reasonably should have been, concluded."
Because Antelo failed to raise this argument below, the record is insufficient for us to evaluate fully whether these questions prolonged the stop. See Escalante, 245 Ariz. 135, ¶ 21 (defendant bears burden of persuasion establishing fundamental, prejudicial error). As the state points out in the answering brief, "[I]t is quite possible that Ruiz asked those questions while simultaneously engaging in other traffic-violation-related tasks." --------
¶20 In sum, there was reasonable evidence establishing that the dog sniff of Antelo's vehicle had been completed before Ruiz issued the warning to Antelo. See Adair, 241 Ariz. 58, ¶ 9; see also Sweeney, 224 Ariz. 107, ¶ 12. And because reasonable evidence supports this finding, the trial court did not err in concluding that the officers did not prolong the traffic stop, see Rodriguez, 135 S. Ct. at 1616, or, therefore, denying the motion to suppress, see Guillory, 199 Ariz. 462, ¶ 9.
Disposition
¶21 For the foregoing reasons, we affirm Antelo's convictions and sentences.