Opinion
No. 2 CA-CR 2014-0332
03-16-2015
THE STATE OF ARIZONA, Appellee, v. ABEL EDUARDO HERRERA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee Isabel G. Garcia, Pima County Legal Defender By Alex Heveri, Assistant Legal Defender, Tucson 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NOT FOR PUBLICATION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. 31.24.
Appeal from the superior Court in Pima County
No. CR20140628002
The Honorable Richard D. Nichols, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Alex Heveri, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred.
VÁSQUEZ, Judge:
¶1 After a jury trial, Abel Herrera was convicted of possession of four pounds or more of marijuana for sale and transportation of marijuana weighing four pounds or more for sale. The trial court sentenced him to mitigated, concurrent, five-year prison terms. Herrera argues the court erred by denying his motion to suppress. He also contends his convictions violate double jeopardy. For the following reasons, we vacate Herrera's conviction and sentence for possession of marijuana for sale but otherwise affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Herrera's convictions. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). On a morning in January 2014, a gray Ford Taurus with a woman driver and female passenger pulled off the frontage road of Interstate 19 near Green Valley. The passenger got out and opened the trunk. Two men approached from a nearby ditch, threw bales over the fence, climbed over the fence, placed the bales in the trunk, and got into the car. The car then drove away, traveling northbound.
¶3 Bicyclists reported the incident to 9-1-1. The dispatcher sent an "attempt to locate" bulletin for a gray Ford Taurus with a female driver, a front-seat passenger, and two male backseat passengers. In response to that bulletin, Sahuarita patrol officer Samuel Long positioned his vehicle in the interstate median to watch traffic. Shortly thereafter, he observed a gray Ford Taurus with two females in the front and two backseat occupants. He could not identify the gender of those in the backseat. The car was in the
fast lane, traveling approximately seventy-five miles per hour, "less than a car length behind [a] white sedan."
¶4 After traffic cleared, Long pulled out to pursue the Taurus. In doing so, he passed the white sedan, which had moved to the right lane. Long stopped the Taurus based on a violation of A.R.S. § 28-730(A), which prohibits following another vehicle too closely. Herrera was one of the two men sitting in the backseat. A subsequent search of the car revealed 51.4 pounds of marijuana concealed in the trunk.
¶5 A grand jury indicted Herrera for possession and transportation of marijuana for sale. Before trial, he filed a motion to dismiss or, alternatively, to suppress evidence of the marijuana, arguing the stop was pretextual and the officer lacked reasonable suspicion because there was insufficient evidence that the driver of the Taurus had violated § 28-730(A). The court denied the motion, finding "the stop was a pretext stop" but "was supported by reasonable suspicion based on the officer's observation of the suspect vehicle following another vehicle at approximately 75 miles per hour, less than one car length behind."
¶6 Herrera 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).
Motion to Suppress
¶7 Herrera contends that "[t]he trial court erred, as a matter of law, by not suppressing all evidence discovered after finding that the stop was pretextual." We review the denial of a motion to suppress evidence for an abuse of discretion, State v. Fikes, 228 Ariz. 389, ¶ 3, 267 P.3d 1181, 1182 (App. 2011), considering only the evidence presented at the suppression hearing, State v. Nelson, 208 Ariz. 5, ¶ 4, 90 P.3d 206, 207 (App. 2004). However, we review questions of law de novo, including whether there was reasonable suspicion for a traffic stop. State v. Canales, 222 Ariz. 493, ¶ 5, 217 P.3d 836, 837 (App. 2009).
¶8 "Traffic stops are seizures within the meaning of the Fourth Amendment, but because they are less intrusive than arrests, an officer needs only reasonable suspicion that a traffic violation has occurred to initiate a stop." State v. Sweeney, 224 Ariz. 107, ¶ 16, 227 P.3d 868, 872-73 (App. 2010); see also State v. Acosta, 166 Ariz. 254, 257, 801 P.2d 489, 492 (App. 1990) ("[T]he violation of a traffic law provides sufficient grounds to stop a vehicle."). Reasonable suspicion is "'a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996), quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981).
¶9 Herrera maintains Long's reason for the stop was pretextual and based "on a subjectively determined alleged traffic violation." Citing State v. Livingston, 206 Ariz. 145, 75 P.3d 1103 (App. 2003), he argues "[w]here minor traffic violations are used as a pretext to justify a search of some unrelated crimes, the stop is unconstitutional and the evidence must be suppressed." Herrera further contends "the stop here was not supported by actual facts testified to by Long of an actual traffic violation."
¶10 Herrera's reliance on Livingston is misplaced. There, the defendant was stopped for violating A.R.S. § 28-729(1), which, in relevant part, requires drivers to "drive a vehicle as nearly as practicable entirely within a single lane." Livingston, 206 Ariz. 145, ¶¶ 6, 10, 75 P.3d at 1105-06. The officer testified that the defendant's "right side tires had crossed the white shoulder line on one occasion," but she did not "over-correct after crossing the white line" or otherwise affect traffic. Id. ¶¶ 4-5. The trial court granted the defendant's motion to suppress the evidence seized from her car after the traffic stop. Id. ¶ 8. It found that the defendant's "'perhaps momentary crossing of the line . . . was not so egregious as to constitute a violation of [the] statute'" and that the officer therefore had no traffic violation on which to rely for reasonable suspicion. Id. (alterations in original).
¶11 On appeal, we determined that the "as nearly as practicable" language of § 28-729(1) "demonstrates an express legislative intent to avoid penalizing brief, momentary, and minor deviations outside the marked lines." Livingston, 206 Ariz. 145, ¶ 10,
75 P.3d at 1106. We thus concluded the trial court did not abuse its discretion by granting the motion to suppress. Id. ¶ 12. Contrary to Herrera's argument, we did not broadly suggest that evidence obtained from pretextual stops based on "subjective and minor" traffic violations must be suppressed. Indeed, we recognized that pretextual traffic stops are permissible if otherwise supported by reasonable suspicion. Id. ¶¶ 13-14; see also Jones v. Sterling, 210 Ariz. 308, ¶ 11, 110 P.3d 1271, 1274 (2005) ("[E]vidence seized as a result of a traffic stop meeting 'normal' Fourth Amendment standards is not rendered inadmissible because of the subjective motivations of the police who made the stop.").
¶12 Unlike Livingston, this case involves a violation of § 28-730(A), which provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent and shall have due regard for the speed of the vehicles on, the traffic on and the condition of the highway." It does not contain the same "as nearly as practicable" language as § 28-729(1). Even assuming the "reasonable and prudent" language of § 28-730(A) is subjective, as Herrera contends, that statute nonetheless requires a safe following distance; the only question is what constitutes a safe distance. We thus cannot say the language of § 28-730(A) evinces a legislative intent to allow "minor deviations." Livingston, 206 Ariz. 145, ¶ 10, 75 P.3d at 1106.
¶13 At the suppression hearing, Long testified the gray Ford Taurus was traveling approximately seventy-five miles per hour, "less than one car length behind the white sedan." Although Long did not explicitly explain what constitutes a "reasonable and prudent" following distance under § 28-730(A), he did testify that, based on his training and experience, the Taurus was following the sedan at an unsafe distance, given its speed. To the extent Herrera challenges Long's credibility, we defer to the trial court. See State v. Mendoza-Ruiz, 225 Ariz. 473, ¶ 6, 240 P.3d 1235, 1237 (App. 2010). Long's testimony therefore established reasonable suspicion to initiate a traffic stop. See Canales, 222 Ariz. 493, ¶ 5, 217 P.3d at 837. Accordingly, we cannot say the court abused its discretion by denying Herrera's motion to suppress. See Fikes, 228 Ariz. 389, ¶ 3, 267 P.3d at 1182.
Double Jeopardy
¶14 Herrera also argues that his "convictions for both transportation and possession of marijuana for sale violate double jeopardy principles." He acknowledges that he failed to raise this issue below and has therefore forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). However, a double jeopardy violation constitutes fundamental, prejudicial error. State v. Musgrove, 223 Ariz. 164, ¶ 10, 221 P.3d 43, 46 (App. 2009).
¶15 The state concedes error, and we agree. "[A] conviction of possessing for sale the same marijuana one is convicted of transporting for sale violates the double jeopardy clause of the Fifth Amendment to the United States Constitution and article 2, section 10 of the Arizona Constitution." State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 8, 965 P.2d 94, 96 (App. 1998); see also A.R.S. § 13-3405(A)(2), (4). Because Herrera's convictions for both offenses were based on the same conduct, we vacate his conviction and sentence for possession of marijuana for sale. See Chabolla-Hinojosa, 192 Ariz. 360, ¶ 21, 965 P.2d at 99 (vacating possession charge, which is lesser-included offense).
Disposition
¶16 For the foregoing reasons, we vacate Herrera's conviction and sentence for possession of marijuana for sale but otherwise affirm.