Opinion
2 CA-CR 2024-0018
10-22-2024
The State of Arizona, Appellee, v. Jose Carmelo Coronado, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee E.M. Hale Law, Lakeside By Elizabeth M. Hale Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR201402798 The Honorable Bradley M. Soos, Judge Pro Tempore The Honorable Steven J. Fuller, Judge
Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Jacob R. Lines, Assistant Attorney General, Tucson
Counsel for Appellee
E.M. Hale Law, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
Judge Kelly authored the decision of the Court, in which Presiding Judge O'Neil and Judge Vasquez concurred.
MEMORANDUM DECISION
KELLY, Judge:
¶1 Jose Coronado appeals from his conviction and sentence for transportation of marijuana for sale. Coronado argues the trial court erred by denying his motion to suppress evidence and admitting impermissible profile evidence as to drug trafficking. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 "We view the evidence in the light most favorable to upholding the jury's verdicts, resolving all reasonable inferences against" Coronado. State v. Copeland, 253 Ariz. 104, ¶ 2 (App. 2022). On a November morning in 2014, an Arizona Department of Public Safety trooper stopped Coronado, who was driving westbound on Interstate 10, after he observed him driving "in very close proximity to another sedan." Once stopped, the trooper requested that Coronado step out of the vehicle and then asked him a series of questions. During this conversation, Coronado gave the trooper permission to search his vehicle. Also, at two separate points during this conversation, the trooper asked Coronado to put his finger in a heart rate monitor to check his heart rate, which Coronado did without objection. During their search of Coronado's vehicle, troopers located twenty pounds of marijuana hidden within the back seat area.
¶3 Coronado was later indicted for transportation of marijuana for sale. Before trial, he filed a motion to suppress the evidence seized during the traffic stop, which the trial court denied. After a three-day jury trial, Coronado was found guilty, and the court sentenced him to a slightly mitigated term of 4.5 years in prison. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13- 4033(A)(1).
Discussion
¶4 Coronado raises two issues on appeal. He argues that the trial court erred by denying his motion to suppress all evidence obtained as a result of the trooper's request that he place his finger in a heart rate monitor during the traffic stop, which he contends was an illegal search. He also argues that the court erred by admitting testimony at trial regarding a card found in his wallet bearing the image of Santa Muerte and its connection to drug trafficking.
I. Motion to Suppress Evidence
¶5 Coronado argues that the trial court erred by denying his motion to suppress because administering "a heart rate test during a traffic stop [was] an illegal search for the purposes of the Fourth Amendment." He contends that any evidence obtained as a result of the illegal search should have been suppressed as fruit of the poisonous tree. We review the denial of a motion to suppress for an abuse of discretion, see State v. Fikes, 228 Ariz. 389, ¶ 3 (App. 2011), "considering only the evidence presented at the suppression hearing," State v. Schinzel, 202 Ariz. 375, ¶ 12 (App. 2002).
¶6 However, Coronado did not raise this claim below. In his pretrial motion to suppress, he argued only that law enforcement illegally extended the traffic stop without reasonable suspicion of criminal activity and asserted that the trooper did not have "reasonable suspicion of any criminal activity [as] nothing he learned during the traffic stop would distinguish between an innocent traveler and a suspicious one." He argued his Fourth Amendment right to be free of unreasonable searches and seizures was violated "when [law enforcement] extended the traffic stop to conduct a criminal investigation" and requested that all evidence obtained as a result be suppressed. After a hearing on the matter, the trial court found that both Coronado's traffic stop and his consent to search the vehicle were constitutionally valid and denied the motion.
¶7 On appeal, Coronado does not challenge the trial court's ruling as to reasonable suspicion for the stop or the length of his detention; nor does he challenge the voluntariness of his consent to search his vehicle. He argues instead that "[a]dministering a heart rate test during a traffic stop is an illegal search." Because Coronado failed to present this argument below, he has forfeited review for all but fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶¶ 12, 21 (2018); State v. Newell, 212 Ariz. 389, ¶ 34 (2006) (reviewing suppression argument raised for first time on appeal for fundamental error); see also State v Alvarez 228 Ariz 579 ¶ 16 (App. 2012) (argument not preserved for appellate review when trial court not given opportunity to rule on it).
¶8 Under fundamental error review, Coronado must first establish trial error. See Escalante, 245 Ariz. 135, ¶ 21. Then, he must show that the error is fundamental by demonstrating that "(1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." Id. Error under the first two prongs requires a separate showing of prejudice, meaning Coronado must show that absent the error, objectively, a reasonable jury could have "plausibly and intelligently returned a different verdict." Id. ¶¶ 21, 31. If Coronado establishes the third prong, he has shown both error and prejudice. See id. ¶ 21.
¶9 During the traffic stop, after Coronado acknowledged that he had been arrested for a marijuana offense on a previous occasion, the trooper asked him, "you don't have any marijuana in the car today?" Coronado responded that he did not and told the trooper that he could "go ahead and check" his vehicle. After this exchange, the trooper asked Coronado to put his finger in the heart rate monitor, which he did without objection. A few minutes later, after Coronado again gave the trooper permission to search his vehicle, the trooper checked his heart rate for a second time. The trooper did not document the heart rate readings or results in his report. The trooper then gave Coronado a consent-to-search form written in both English and Spanish, which Coronado signed.
¶10 "The Fourth Amendment of the United States Constitution and Article 2, Section 8, of the Arizona Constitution protect against unreasonable searches and seizures." State v. Allen, 216 Ariz. 320, ¶ 9 (App. 2007). "A 'search' under the Fourth Amendment occurs when an individual's reasonable expectation of privacy is infringed." State v. Peltz, 242 Ariz. 23, ¶ 25 (App. 2017) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). It is well-settled that "intrusions into the human body" by law enforcement are searches under the Fourth Amendment. State v. Mitcham, 256 Ariz. 104, ¶ 18 (App. 2023) (quoting Schmerber v. California, 384 U.S. 757, 767 (1966)); see also State v. Quinn, 218 Ariz. 66, ¶ 6 (App. 2008) ("Normally, because any forced extraction of blood by the State invades one's expectation of privacy in bodily integrity, the intrusion is subject to the requirements of the Fourth Amendment."). Further, administering a breath test is a search under the Fourth Amendment. Diaz v. Bernini, 246 Ariz. 114, ¶ 6 (2019).
¶11 When a Fourth Amendment violation occurs, the "exclusionary rule generally requires the suppression at trial of any evidence directly or indirectly gained as a result of the violation." Allen, 216 Ariz. 320, ¶ 9. However, generally "suppression is not required unless a nexus exists between the violation and the evidence obtained." State v. Rumsey, 225 Ariz. 374, ¶ 16 (App. 2010); see also State v. Rosengren, 199 Ariz. 112, ¶ 22 (App. 2000) ("In general, [the exclusionary] rule applies to illegally obtained evidence and requires suppression only when a causal connection exists between a constitutional violation and the government's obtaining of such evidence."). "[I]f the evidence is not seized as a result of the [unconstitutional conduct], there is no nexus." State v. Bolt, 142 Ariz. 284, 287 (App. 1983), approved as modified, 142 Ariz. 260 (1984).
¶12 We need not determine whether the trooper's use of the heart rate monitor amounted to an unconstitutional search, because Coronado has failed to establish any nexus between it and the subsequent seizure of evidence. Coronado initially gave the trooper permission to search his vehicle before the heart rate monitor was used, continued to offer to let the trooper search his vehicle throughout the traffic stop, and ultimately signed a consent-to-search document. Furthermore, the record before us does not suggest that the trooper's decision to search Coronado's vehicle was connected to the results of the heart rate monitor, which the trooper could not recall during the suppression hearing and which were not documented in his report. As such, Coronado's consent was sufficiently attenuated from the search. See State v. Guillen, 223 Ariz. 314, ¶¶ 13, 22 (2010) (suppression "is not required if the unconstitutional conduct is sufficiently attenuated from the subsequent seizure"). Therefore, even if the use of the heart rate monitor was an illegal search, it had no bearing on the consented-to search of Coronado's vehicle. See State v. Carlson, 237 Ariz. 381, ¶ 7 (2015) ("We will 'affirm the trial court's ruling if the result was legally correct for any reason.'" (quoting State v. Perez, 141 Ariz. 459, 464 (1984))). Accordingly, Coronado has failed to demonstrate error, let alone fundamental error, and the trial court did not err by denying his motion to suppress. See Escalante, 245 Ariz. 135, ¶¶ 12, 21.
II. Santa Muerte Card
¶13 Coronado next argues that the trial court erred by admitting testimony at trial regarding the significance of an image of Santa Muerte found in his wallet following his arrest and contends this was inadmissible profiling evidence. When an issue has been properly preserved at trial, we review the court's ruling on the admissibility of evidence for an abuse of discretion. See State v. Gill, 242 Ariz. 1, ¶¶ 4-7 (2017). However, when the court is not provided with an opportunity to rule on the issue because it is not sufficiently argued, then review is forfeited for all but fundamental, prejudicial error. See Alvarez, 228 Ariz. 579, ¶ 16.
The image of Santa Muerte is a religious icon of a female skeleton wrapped in a robe.
¶14 During trial, Coronado objected when the arresting officer first mentioned the Santa Muerte card, stating, "I'm going to object to any testimony regarding that, your Honor. If I may have an opportunity to voir dire the witness regarding this." The trial court overruled the objection and allowed the state to first lay foundation with the witness. The witness testified regarding his training and experience related to Santa Muerte, and the state moved to admit into evidence a photograph of the Santa Muerte card found in Coronado's wallet. Coronado did not object. The witness confirmed that Santa Muerte has a "special meaning within the drug trafficking community" as the patron saint of drug traffickers, who keep the image with them to protect them "from being obtained by law enforcement or getting caught."
¶15 Coronado again asked to voir dire the witness. The trial court denied the request, stating that Coronado would "have plenty of latitude on cross." Coronado did not object again or renew his earlier, general objection during additional testimony about the card by a narcotics detective, nor did he argue that the testimony surrounding it constituted impermissible profiling evidence. Because Coronado failed to object to the testimony on the grounds that it constituted profiling evidence, he did not preserve the issue he now raises on appeal, and he must therefore demonstrate that any error was both fundamental and prejudicial. See Escalante, 245 Ariz. 135, ¶¶ 12, 21; see also State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008) ("[A]n objection on one ground does not preserve the issue on another ground.").
¶16 "Drug-courier profile evidence suggests that a defendant possesses one or more behavioral characteristics typically displayed by persons trafficking in illegal drugs." Escalante, 245 Ariz. 135, ¶ 22. These profiles informally compile characteristics based on the experience of officers who investigate drug activity. State v. Garcia-Quintana, 234 Ariz. 267, ¶ 11 (App. 2014). This profile may consist of a variety of factors such as demeanor, age, use of cash for purchases, attire, and mode of travel to and from certain locations. Id. A drug courier profile is inadmissible as substantive proof of guilt because it "creates too high a risk that a defendant will be convicted not for what he did but for what others are doing." State v. Lee, 191 Ariz. 542, ¶ 12 (1998) (quoting State v. Cifuentes, 171 Ariz. 257, 257 (App. 1991)).
¶17 Coronado argues that the law enforcement testimony regarding the Santa Muerte card was impermissible drug profiling evidence, as it was used to allow the jury "to infer that because Coronado had a Santa Muerte card, he was also a member of the Sinaloa Drug Cartel." He asserts that the officers' testimony was substantially more prejudicial than probative, and amounted to an opinion that Coronado was carrying this card because he was trafficking drugs. See Escalante, 245 Ariz. 135, ¶¶ 24-25 (testimony that dryer sheets and coffee beans mask the smell of illegal drugs is permissible, but testimony that defendant's possession of dryer sheets and coffee beans, "together with other behaviors," was consistent with drug trafficking is inadmissible).
¶18 However, even if admitting the Santa Muerte testimony was fundamental error, Coronado has nevertheless failed to demonstrate prejudice. See id. ¶ 21. In order to demonstrate prejudice, Coronado must show that "without this evidence and attendant argument, 'a reasonable jury . . . could have reached a different [verdict].'" Id. ¶ 29 (emphasis added in Escalante) (quoting State v. Henderson, 210 Ariz. 561, ¶ 27 (2005)).
¶19 The state presented overwhelming evidence of Coronado's guilt. The state introduced his statement to detectives wherein Coronado admitted that he was behind on his rent payments and agreed to transport the marijuana to Phoenix for $1,000. In his confession, Coronado explained that he met with a man from a drug trafficking organization who provided him with a car to use to drive the drugs to Phoenix. Once he arrived, he was supposed to call the person who would pick up the marijuana to complete the transaction. In addition, the state introduced the testimony of the officers who located the twenty pounds of marijuana hidden in a compartment of Coronado's vehicle. Therefore, based on the other evidence admitted at trial, in particular Coronado's confession, we cannot conclude that a reasonable jury could have reached a different verdict absent the allegedly impermissible profiling evidence. Accordingly, Coronado has failed to establish that any error regarding the Santa Muerte testimony was both fundamental and prejudicial. See Escalante, 245 Ariz. 135, ¶¶ 21, 31.
We conclude that even if Coronado had preserved this issue for appellate review, any abuse of discretion in allowing the testimony was harmless error for the same reasons articulated above. See State v. Copeland, 253 Ariz. 104, ¶ 26 (App. 2022) ("Under harmless error review, the state has the burden of demonstrating beyond a reasonable doubt that the error had no influence on the jury's judgment."). Although the state did not explicitly argue harmlessness in its answering brief, the state discusses other evidence of guilt and provides argument as to why the alleged profiling evidence did not affect the verdict. See State v. Ortiz, 238 Ariz. 329, ¶ 71 (App. 2015) (addressing the principles underlying harmless error review can overcome waiver). The state thus, in essence, conducted a harmless error analysis, and we may review accordingly. See State v. Ketchner, 236 Ariz. 262, ¶¶ 2026 (2014) (conducting harmless error review despite state's failure to argue error was harmless in brief).
Disposition
¶20 We affirm Coronado's conviction and sentence.