Opinion
No. 1 CA-CR 13-0290
01-30-2014
STATE OF ARIZONA, Appellee, v. COREY BRIAN IRINO, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Terry J. Adams Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2012-125144-001
The Honorable Patricia A. Starr, Judge Pro Tem
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Terry J. Adams
Counsel for Appellant
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop joined. JONES, Judge:
¶1 Corey Brian Irino (Appellant) appeals the trial court's denial of his motion to suppress evidence acquired as the result of a protective search. For the reasons discussed below, we affirm the trial court's decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 On the evening of September 1, 2011, Glendale Police Officers, Lively and Goode (Officers), observed a Honda Accord in the area of Northern and 59th Avenue and ran a random license plate check of the vehicle. The officers pulled over the vehicle after the computer return indicated it was unregistered. Lively approached the driver and asked for his license, vehicle registration, and proof of insurance. The driver, who indicated he had just purchased and registered the vehicle that day, discovered the envelope containing the vehicle registration and proof of insurance was not between the driver's seat and center console where he last placed it. As a result, the driver asked his passenger, Appellant, to check under the passenger seat for the envelope. Appellant then reached under his seat in search of the registration and proof of insurance as the second officer, Goode, walked toward the passenger side of the vehicle. Goode, unaware of the reason for Appellant's movement, observed Appellant reach under the seat, known as "a common place for weapons to be hidden." As a result, Goode shouted for Appellant to "put his hands up where [he] could see them." Appellant responded to Goode's instructions. When Goode arrived at the passenger window, he observed Appellant had placed his hands in his lap. At that point, Goode "felt at least comfortable that [Appellant] didn't have a weapon in his hands." While speaking with Appellant through the open window, however, Goode detected the odor of marijuana emanating from the car, and could not determine if Appellant's baggy clothing concealed a weapon.
At the motion to suppress hearing, Lively testified he did not recall his conversation with the driver but most likely conducted the questioning regarding license, registration, and proof of insurance routine in traffic stops.
¶3 Consequently, Goode directed Appellant to exit the vehicle and proceeded to frisk Appellant to ascertain whether he possessed a weapon. During the frisk, Goode detected the outline of an object which Appellant would later identify as a marijuana pipe in Appellant's left pant pocket. When Goode asked Appellant if he had any marijuana on his person, Appellant responded in the affirmative. On his own initiative, Appellant produced marijuana and a second marijuana pipe from his right pant pocket. Goode arrested Appellant at that time for possession of marijuana and drug paraphernalia, informing Appellant of his Miranda rights.
¶4 Following trial, Appellant was found guilty of Count 1, possession or use of marijuana, and Count 2, possession of drug paraphernalia, both Class 1 non-dangerous, non-repetitive misdemeanor offenses. In substitution for jail time, Appellant was sentenced to one year unsupervised probation and ordered to attend a drug education program. Appellant timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (2013).
ISSUE ON APPEAL AND STANDARD OF REVIEW
¶5 Appellant appeals the trial court's denial of his motion to suppress evidence of marijuana and drug paraphernalia obtained when Goode searched him at the time of the stop, alleging the search was conducted without reasonable suspicion in violation of his Fourth Amendment rights.
¶6 We review the trial court's denial of the motion to suppress evidence for abuse of discretion. State v. Sharp, 193 Ariz. 414, 419, ¶ 12, 973 P.2d 1171, 1176 (1999). We will not reverse a ruling on a motion to suppress unless it constitutes clear and manifest error. State v. Sinclair, 159 Ariz. 493, 497, 768 P.2d 655, 659 (App. 1988). Although we defer to the factual findings made by the trial court and the reasonableness of inferences drawn by law enforcement officers, we review de novo the trial court's ultimate legal determinations. State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996); State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).
DISCUSSION
¶7 Appellant argues Goode lacked reasonable suspicion he was armed and dangerous at the time of the search, and thus conducted an illegal search in violation of the Fourth Amendment of the U.S. Constitution and Article 2, Section 8 of the Arizona Constitution.
¶8 The Fourth Amendment bars unreasonable searches and seizures. U.S. Const. amend. IV; Terry v. Ohio, 392 U.S. 1, 8 (1968). The reasonableness of the search involves "all the circumstances of the particular governmental invasion of a citizen's personal security," balanced alongside legitimate government interest. Terry, 392 U.S. at 19; Wyoming v. Houghton, 526 U.S. 295, 300 (1999). The government has a legitimate interest in the safety of police officers, particularly during traffic stops, which are considered one of the most dangerous police duties. See Maryland v. Wilson, 519 U.S. 408, 414 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977); State v. Childress, 222 Ariz. 334, 339-40, ¶¶ 17-18, 214 P.3d 422, 427-28 (App. 2009). In such narrow circumstances, police are authorized to take necessary steps to protect their safety under a reasonable suspicion an individual may be armed and dangerous. See Michigan v. Summers, 452 U.S. 692, 698-99(1981); Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979); State v. Kaiser, 204 Ariz. 514, 517, ¶ 6, 65 P.3d 463, 466 (App. 2003). The "Terry pat-down" or "protective frisk" permits officers to conduct a weapon search limited to the outside of clothing in order to protect themselves and others in circumstances where they lack probable cause to make an initial arrest. Terry, 392 U.S. at 27, 29-30.
¶9 Goode conducted a lawful Terry frisk as reasonable grounds existed to suspect Appellant might be armed at the time of the traffic stop. Reasonable suspicion is the justifiable belief an individual is possibly armed and dangerous. Arizona v. Johnson, 555 U.S. 323, 326-27 (2009); State v. Montoya, 164 Ariz. 459, 461, 793 P.2d 1126, 1128 (App. 1990). "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." In re Steven O., 188 Ariz. 28, 31, 932 P.2d 293, 296 (App. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).
¶10 As an initial matter, traffic stops "are especially fraught with danger to police officers." Michigan v. Long, 463 U.S. 1032, 1047 (1983). As Goode approached the passenger side of the unregistered vehicle, he observed Appellant "reaching under the seat," an area Goode knew from experience to be "a common place for weapons to be hidden." Goode appropriately relied upon the knowledge gained through his experiences in law enforcement to consider the potential dangerous consequences attached to Appellant's gesture. Terry, 392 U.S. at 27 (reasonable suspicion includes "specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience"). Although Appellant was looking for the vehicle's registration and other documents, Goode had not been made aware that such was the case and it would have been outside the normal course of events in a traffic stop for Goode to anticipate the vehicle's papers were underneath the seat. Furthermore, when Goode "yelled" for Appellant to "put his hands up where [he] could see them," Goode inferred from the circumstances his safety was possibly threatened.
¶11 Appellant asserts the protective frisk was unconstitutional because Goode felt "safe" seeing Appellant respond to his commands to "stop what he was doing and put his hands up." We disagree. When Goode observed Appellant through the open window of the passenger door, he detected the odor of marijuana as if "someone had smoked marijuana in the car." Detecting the odor of burnt marijuana justifiably indicated to Goode that criminal activity may be occurring with an increased likelihood of the presence of weapons. In re Ilono H., 210 Ariz. 473, 477, 113 P.3d 696, 700 (App. 2005) ("To conduct such a protective search, an officer must first have reasonable suspicion supported by articulable facts that criminal activity may be afoot.") (quoting United States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000)); see State v. Zamora, 114 Ariz. 75, 77, 559 P.2d 195, 197 (App. 1976) ("The odor of marijuana is in itself enough to provide probable cause to initiate a search.").
The evidentiary hearing transcript of the Goode's testimony places in context how Goode used the word "safe." Q: "And you didn't draw your weapon, because you saw - you felt safe enough with with [sic] [Appellant's] response to your commands?" A: "Correct." Q: "Okay. And you did not think it was necessary to draw your weapon, because at this point you didn't think he was going for a weapon underneath the seat?" A: "Well, I could see he didn't have anything in his hands, so there was no reason at that point for me to pull my weapon."
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¶12 Finally, Appellant's "baggy clothing" exacerbated Goode's difficulty in making a safety determination. Given that the odor of marijuana signaled criminal activity was possibly underway with its attendant potential for the presence of weapons, Goode reasonably suspected Appellant's baggy clothing could conceal a weapon. In re Roy L., 197 Ariz. 441, 445, ¶ 11, 4 P.3d 984, 988 (App. 2000) (finding reasonable suspicion existed for an officer to conduct a Terry stop of a juvenile based upon hearsay the juvenile carried a weapon and the juvenile's baggy clothing which precluded the officer from discerning "by looking at him whether he had a gun").
¶13 In reviewing the reasonableness of Terry frisks, courts consider the totality of the circumstances. State v. Johnson, 220 Ariz. 551, 555, ¶ 6, 207 P.3d 804, 808 (App. 2009). "[A]ny reasonable fear for safety is enough to warrant a search under Terry . . . ." State v. Garcia Garcia, 169 Ariz. 530, 532, 821 P.2d 191, 193 (App. 1991).
¶14 We find there was reasonable suspicion based upon articulable facts for Goode to conduct a protective search for dangerous weapons. The inherent dangerousness of a traffic stop, the existence of an unregistered vehicle, Goode's observation of Appellant reaching under the passenger seat as he approached the car, the odor of burnt marijuana coming from the vehicle indicating possible criminal activity, and Appellant's baggy clothing which could have concealed a weapon, provided sufficient grounds for Goode to reasonably conduct a protective frisk of Appellant.
CONCLUSION
¶15 For the foregoing reasons, we affirm the trial court's denial of Appellant's motion to suppress the marijuana and drug paraphernalia discovered as the result of a protective search.