Opinion
No. 1 CA-CR 17-0140
02-27-2018
STATE OF ARIZONA, Appellee, v. PATSY ANN MYMERN, Appellant.
COUNSEL Mojave County Legal Advocate's Office, Kingman By Jill L. Evans Counsel for Appellant Arizona Attorney General's Office, Phoenix By Adele G. Ponce Counsel for Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Mohave County
No. S8015CR201501294
The Honorable Steven F. Conn, Judge (Retired)
AFFIRMED
COUNSEL
Mojave County Legal Advocate's Office, Kingman
By Jill L. Evans
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Adele G. Ponce
Counsel for Appellee
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.
BEENE, Judge:
¶1 Patsy Ann Mymern ("Mymern") appeals her convictions and sentences, arguing the superior court erred in denying her motion to suppress evidence discovered during a traffic stop. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2015 in Kingman, Trooper Ryan Timmerman conducted a traffic stop of a pickup truck driven by Alton Hill, in which Mymern was a passenger. Based on Hill's behavior, constricted pupils, and admission to using methamphetamines that day, Timmerman was suspicious of criminal activity and investigated further. Timmerman noticed that Mymern's pupils were also "[v]ery constricted" and saw a white powdery substance in her right nostril. After Hill refused to consent to a search of the truck, Timmerman called for a drug detection K9 unit. The K9 alerted on the truck. A search revealed two large baggies of methamphetamines, a brass spoon, and a digital scale containing crystalline substance residue in a purse on the floorboard and seven baggies of methamphetamines in a grocery bag on the middle console.
¶3 Mymern was charged with possession of dangerous drugs for sale (count 1), transportation of dangerous drugs for sale (count 2), and possession of drug paraphernalia (count 3). She unsuccessfully moved to suppress the evidence found in the truck. The jury convicted her on all counts, and the superior court sentenced her to 6.5 years for counts 1 and 2, and nine months for count 3, to be served concurrently. This timely appeal followed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1), 13-4031, and -4033(A).
DISCUSSION
¶4 Mymern argues the superior court erred in denying her motion to suppress because law enforcement lacked reasonable suspicion
to extend the traffic stop beyond its original purpose. Thus, she argues, the drugs and drug paraphernalia discovered during the search of the truck must be suppressed. We disagree.
¶5 Pursuant to the Fourth Amendment of the United States Constitution and Article 2, Section 8, of the Arizona Constitution, persons are protected from unreasonable searches and seizures. State v. Allen, 216 Ariz. 320, 323, ¶ 9 (App. 2007). When a violation of the Fourth Amendment or its state counterpart is determined to have occurred, the exclusionary rule generally requires the suppression at trial of any evidence directly or indirectly gained as a result of the violation. State v. Schinzel, 202 Ariz. 375, 382, ¶ 28 (App. 2002).
¶6 "We review a trial court's ruling on a motion to suppress for abuse of discretion, considering only the evidence presented at the suppression hearing and viewing the facts in a light most favorable to sustaining the trial court's ruling." State v. Adair, 241 Ariz. 58, 60, ¶ 9 (2016). Although we generally defer to the court's factual findings if the evidence reasonably supports them, we review the court's ultimate legal determination that the search complied with the Fourth Amendment de novo. State v. Evans, 237 Ariz. 231, 233, ¶ 6 (2015); State v. Davolt, 207 Ariz. 191, 202, ¶ 21 (2004). "We do not reweigh the evidence on appeal and will overturn the trial court's findings only if no substantial evidence supports them." State v. Rodriguez, 205 Ariz. 392, 397, ¶ 18 (App. 2003).
¶7 "[P]olice can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." Evans, 237 Ariz. at 234, ¶ 7. "In determining whether reasonable suspicion exists, officers and courts reviewing their actions take into account the totality of the circumstances—the whole picture of what occurred at the scene"—and "[f]rom that whole picture the officers must derive a particularized and objective basis for suspecting the particular person stopped of criminal activity." Id. at ¶ 8 (internal citations and quotations omitted). "Although a mere unparticularized suspicion or hunch does not establish reasonable suspicion," courts must give consideration "to the specific reasonable inferences [that an officer] is entitled to draw from the facts in light of his experience." Id. (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)) (internal quotations omitted); see State v. Teagle, 217 Ariz. 17, 24, ¶ 26 (App. 2007) ("In reviewing the totality of the circumstances, we accord deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious actions."); see also United States v. Arvizu, 534 U.S. 266, 273-74 (2002) (reviewing reasonable
suspicion determinations in view of the totality of the evidence, giving due weight to officers' experience and specialized training).
¶8 A traffic stop becomes an unlawful seizure "if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation." Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015) (internal quotation and citation omitted). Police "may not extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff." State v. Driscoll, 238 Ariz. 432, 434, ¶ 8 (App. 2015) (citing Rodriguez, 135 S. Ct. at 1614) (internal quotation omitted).
¶9 At the suppression hearing, Trooper Timmerman testified that he had been a law enforcement officer for 12 years. In that time, he attended several drug interdiction classes, received advanced training in roadside impairment detection, investigated numerous drug cases, and conducted thousands of traffic stops.
¶10 Timmerman testified that on October 20, 2015 at 1:55 p.m., he was on routine patrol and saw a white pickup truck pull out from the Dollar General store. The driver, Hill, was not wearing a seat belt. Timmerman began to follow Hill's vehicle at this point, and when Hill made a sharp turn and accelerated at a high rate of speed, Timmerman pulled him over. Timmerman testified that once Hill stopped he "immediately stuck his hands out the window, which was unusual," because people typically stick their hands out of the window when ordered by police, which Timmerman had not done.
¶11 Timmerman approached the truck on the driver's side and began a conversation with Hill, who was "very agitated . . . [and] clearly irritated with being stopped." He told Hill that he stopped him for speeding and, as was his usual practice, asked Hill to exit the truck. While Hill was walking to Timmerman's patrol car, Timmerman made contact with the passenger, Mymern. When asked where they were going, Mymern said to a friend's house. Timmerman testified that Mymern "stumbled over her words," suggesting she was nervous.
¶12 Timmerman then joined Hill at the patrol car. Hill admitted he made the sharp turn because he was trying to avoid Timmerman and did not want to receive another seat belt ticket. As he began writing a warning, Timmerman engaged Hill in conversation. He asked Hill where he was going. Hill said he was going home, which did not match the story Mymern told. Timmerman then asked Hill when he last used methamphetamines. Hill admitted to using methamphetamines earlier that
morning. Timmerman explained that he asked Hill about his drug use because his pupils were "[e]xtremely constricted," he was agitated, and he could not stand still. Based on Timmerman's training and experience, this was a sign of dangerous drug use.
¶13 Given the fact that Hill stuck his hands out of the window when first stopped, admitted trying to avoid Timmerman by making a sharp turn, admitted to using methamphetamines that day, and had constricted pupils, Timmerman was suspicious of criminal activity. Based on his suspicion, Timmerman went back to the truck to speak with Mymern through the passenger door window. Timmerman asked Mymern when she last used methamphetamines because her pupils were also "[v]ery constricted" and Hill had admitted using earlier that day. Mymern said she had not used methamphetamines in a long time. When asked how she would ingest it, Mymern said she snorted it. Timmerman then asked her to raise her head so he could see her nostrils. He saw a white powdery substance in Mymern's right nostril, which, based on his training and experience, he believed to be illegal drugs. Timmerman told Mymern not to touch her nose. She defied him, touched her nose, and "wiped it down her face to her lips." Timmerman then removed Mymern from the truck and placed her under arrest.
¶14 Timmerman went back to Hill, who was waiting by the patrol car. Hill denied having any drugs in the truck, but when Timmerman asked specifically about methamphetamines, Hill's demeanor changed; he looked away and hesitated in answering. Hill refused to consent to a search of the truck or a K9 dog sniff. Timmerman called for a K9 unit at 2:16 p.m., which arrived at 2:49 p.m. After the K9 alerted on the truck, Timmerman conducted the search, discovering the drugs and drug paraphernalia. By Timmerman's calculations, from the time he initially observed Hill at 1:55 p.m. to when the K9 unit arrived at 2:49 p.m., the traffic stop lasted just shy of one hour.
¶15 In denying Mymern's motion to suppress, the superior court did not place considerable weight on the different statements made by Hill and Mymern as to where they were headed or on the fact that Hill appeared to be more agitated than the average person at a traffic stop. The court did, however, find that evidence of Hill and Mymern's drug use provided Timmerman with reasonable suspicion to investigate further and extend the traffic stop. The court found that because Hill admitted to using methamphetamines that day, he likely was driving with either methamphetamines or methamphetamine metabolite in his system. Likewise, Mymern admitted to snorting methamphetamines years ago,
"and just coincidentally, on her nose there is powder or residue" that Timmerman described as consistent with illegal drugs. The Court specifically found that
The fact that [Mymern] was in a vehicle and showed signs of having used an illegal drug recently, coupled with [Hill's] statement that he had used drugs the same day, that might lead to some suspicion that there were drugs in the vehicle.
Also, when [Mymern] is told 'don't touch your nose' and then what does she do, she immediately touches her nose and wipes away the evidence of a possible crime, that probably is the crime of tampering with physical evidence, no less than someone who tries to flush drugs down the toilet, or take bags and throw them out the window, or cut them open and release a substance into the surrounding atmosphere. So she probably could have been charged with tampering with physical evidence, probably as a felony.
So, these are all the things that are known to [Timmerman] at the time that he calls for the drug dog. . . . [T]here was a delay somewhere between a half hour and 50 minutes. This is clearly more than a de minimis delay; but in my opinion, everything that I have stated so far gave the officer reasonable suspicion to detain both [Mymern and Hill].
I believe that under the circumstances of this case there is not a . . . basis to suppress the evidence.
¶16 Given the totality of the circumstances considering Timmerman's training and expertise, reasonable suspicion existed to believe that Mymern and Hill may be involved in criminal activity. Thus, prolonging the otherwise-completed traffic stop for speeding to investigate and conduct a K9 dog sniff for possible drugs was not an unlawful seizure. See Rodriguez, 135 S. Ct. at 1614; Driscoll, 238 Ariz. at 434, ¶ 8. Because substantial evidence supports the superior court's findings, it did not abuse its discretion in denying Mymern's motion to suppress.
CONCLUSION
¶17 For the foregoing reasons, we affirm Mymern's convictions and sentences.