Opinion
No. 2 CA-CR 2018-0248
04-26-2019
THE STATE OF ARIZONA, Appellee, v. ROBERT ROSS PADGETT, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, 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NOT FOR PUBLICATION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. 31.19(e). Appeal from the Superior Court in Gila County
No. S0400CR201600553
The Honorable Gary V. Scales, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
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 bench trial, Robert Padgett was convicted of possession of dangerous drugs, possession of marijuana, and possession of drug paraphernalia. The trial court suspended the imposition of sentence and placed him on concurrent terms of twelve months' probation for each offense. On appeal, Padgett argues the court erred by denying his motion to suppress statements he made to a law enforcement officer and evidence that was seized after he was detained because the detention was without reasonable suspicion and, therefore, unconstitutional. For the reasons stated below, 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 August 2013, the Gila County Sheriff's Office received multiple reports of individuals stealing turquoise from a mine. After one caller, B.T., gave directions to the area these individuals had been using to access the mine, Lieutenant Thompson, while off duty, drove there. On his way, Thompson saw two men leaving the area in a tan pickup truck, and once there he found an abandoned campsite.
¶3 A few days later, Thompson returned to the area with additional officers, and at the campsite he saw the same tan pickup truck that he had seen on his first trip. According to Thompson, the truck was parked off "the main roadway, so it appeared almost as if it was being hidden from plain view."
¶4 The next day, Thompson received another call from B.T., who reported that two males wearing camouflage clothing and carrying backpacks were leaving the area and that one was carrying a rifle. As Thompson returned to the area, he saw a different vehicle headed toward him. He noticed a male driver and a male passenger. The passenger was the same man Thompson had seen driving the tan pickup truck on his first trip. Thompson, who was in a marked patrol car, pulled off to the side of the narrow roadway to allow the other vehicle to pass, and the two men waved at him. When Thompson waved back and asked the men how they were doing, the other vehicle stopped. Thompson observed that the passenger was wearing camouflage pants. Upon Thompson's request, the driver, E.A., provided identification, and Thompson discovered he had a child-support warrant. The passenger, Padgett, did not have identification but gave Thompson his name.
Thompson also saw a young child—later determined to be the driver's daughter—in the backseat.
¶5 Thompson asked both men to step out of the vehicle and separated them. When Thompson asked what they were doing, Padgett stated that he had "received a phone call from a friend just to go for a ride." E.A., however, responded that Padgett had called him and asked to be picked up. Because the men's stories were inconsistent and because he feared Padgett might "take off running" like others caught at the mine had done, Thompson decided to detain Padgett. For safety reasons Thompson placed Padgett in handcuffs and, given that "there w[ere] wasps around" and "it was hot," Thompson put Padgett in the front seat of his patrol car.
¶6 Padgett initially denied that anything in the vehicle was his, but E.A. told Thompson that "there was a backpack in the rear part of the [vehicle] that belonged to . . . Padgett." When Thompson questioned Padgett again, Padgett reported that "the only thing that belonged to him was a rifle . . . in the front seat." E.A. consented to the search of the vehicle, and Thompson did so after they moved both vehicles down the roadway to a safer area where Thompson had radio service. When Thompson removed a backpack from the back of the vehicle, Padgett stated it was his. Based on E.A.'s consent, Thompson opened the backpack and found, among other things, turquoise; a rake, which is commonly used to locate turquoise; a baggie containing a "crystalline substance" he believed to be methamphetamine; a baggie containing what appeared to be marijuana; and additional plastic bags. Thompson arrested Padgett. He also arrested E.A. pursuant to the child-support warrant.
¶7 A grand jury indicted Padgett for possession of dangerous drugs (methamphetamine), possession of marijuana, and possession of drug paraphernalia (a baggie). Before trial, Padgett filed a motion to suppress statements he made after he was detained, arguing that Thompson lacked reasonable suspicion for the stop or probable cause for the search. He maintained, in part, that when Thompson waved to the men from his patrol car, he effectively stopped them without observing any "illegal driving." He further asserted "all fruits from th[]e illegal actions . . . [must be] suppressed." In response, the state argued Thompson "had reasonable suspicion because of the different stories," E.A. had consented to the search, and Thompson would have "found the drugs any ways" as part of an inventory search after E.A. was arrested.
¶8 At the conclusion of the suppression hearing, the trial court denied the motion to suppress, noting that Thompson "had reasonable suspicion to engage with [Padgett]" and to detain "him . . . for [Thompson's] own safety" and that it was "undisputed [E.A.] gave [Thompson] permission to search the vehicle" after Padgett "volunteered nothing in the car was his." Padgett filed a motion to reconsider, which the court also denied. Padgett was convicted as charged and sentenced as described above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The sentencing minute entry provides that "[t]he determination of guilt was based upon a plea of guilty to the charges contained in the plea agreement" and that the trial court was entering judgment and sentence pursuant to the plea. However, Padgett was found guilty and subsequently convicted of the charged offenses after a bench trial. The trial court orally noted as much at sentencing. Accordingly, we correct the sentencing minute entry to show that there was a "determination of guilt by a Court verdict." See State v. Ovante, 231 Ariz. 180, ¶ 38 (2013) (when discrepancy between oral pronouncement of sentence and written minute entry can be clearly resolved by looking at record, oral pronouncement controls, and this court can order minute entry corrected).
Discussion
¶9 Padgett argues the trial court erred by denying his motion to suppress. Specifically, he contends "[h]is alleged statement that the backpack belonged to him" and "the contents of the backpack" should have been suppressed because they "arose out of an unconstitutional detention." We review the denial of a motion to suppress for an abuse of discretion. State v. Turner, 243 Ariz. 608, ¶ 4 (App. 2018). However, we review de novo whether an officer had reasonable suspicion to conduct an investigatory stop. State v. Fornof, 218 Ariz. 74, ¶ 5 (App. 2008). We must affirm the trial court's ruling if it is legally correct for any reason. State v. Boteo-Flores, 230 Ariz. 551, ¶ 7 (App. 2012).
As noted, Padgett also argued below that the officers had lacked probable cause to search his backpack. However, he does not raise this argument on appeal. It is therefore waived, and we do not address it. See Ariz. R. Crim. P. 31.10(a)(7); State v. Bolton, 182 Ariz. 290, 298 (1995).
¶10 The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. State v. Allen, 216 Ariz. 320, ¶ 9 (App. 2007). However, officers may briefly stop an individual for investigative purposes if they have "reasonable suspicion . . . that criminal activity 'may be afoot.'" State v. Evans, 237 Ariz. 231, ¶ 7 (2015) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)); accord State v. Ramsey, 223 Ariz. 480, ¶ 17 (App. 2010). Reasonable suspicion "only requires that police articulate some minimal, objective justification for an investigatory detention." State v. Teagle, 217 Ariz. 17, ¶ 25 (App. 2007); see Terry v. Ohio, 392 U.S. 1, 21 (1968). Because reasonable suspicion is based on the totality of the circumstances, "[o]ne cannot parse out each individual factor, categorize it as potentially innocent, and reject it. Instead, one must look at all of the factors, (all of which would have a potentially innocent explanation, or else there would be probable cause), and examine them collectively." State v. O'Meara, 198 Ariz. 294, ¶ 10 (2000).
¶11 Padgett argues, as he did below, that Thompson lacked reasonable suspicion to stop the vehicle because the driver, E.A., had "violated no law." But Padgett also appears to recognize that the initial interaction between him, E.A., and Thompson was consensual. Because we agree that the encounter initially was consensual, Thompson did not need reasonable suspicion at the outset. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (encounter is consensual and no reasonable suspicion required as long as "reasonable person would feel free 'to disregard the police and go about his business'" (quoting California v. Hodari D., 499 U.S. 621, 628 (1991))); see also State v. Serna, 235 Ariz. 270, ¶ 8 (2014) ("Encounters that are entirely consensual do not implicate the Fourth Amendment.").
¶12 As Thompson's patrol car approached E.A.'s vehicle on the narrow roadway, Thompson pulled off to the side to allow E.A. to continue driving. E.A. and Padgett waved to Thompson, who waved back and casually asked the men how they were doing. E.A. stopped the vehicle he was driving, and he and Padgett engaged with Thompson. Thompson "did not draw his gun or otherwise physically compel a response" and "did not demand that [E.A. and Padgett] speak with him." Wyman, 197 Ariz. 10, ¶ 8. A reasonable person in this situation would have felt free to continue on his or her way. See Bostick, 501 U.S. at 434.
¶13 This case is readily distinguishable from Florida v. Royer, 460 U.S. 491 (1983), on which Padgett relies. In Royer, the Supreme Court determined that a police encounter at an airport had not been consensual based on "a show of official authority" that included the officers identifying themselves as narcotics agents, telling the defendant he was suspected of transporting narcotics, and asking the defendant to accompany them to a nearby room, all while keeping his airline ticket and driver license and without indicating he was free to leave. Id. at 493-94, 501-02. Here, although Thompson was in a marked patrol car, no show of official authority occurred. See id. at 497 (officer identifying himself as police, without more, does not convert encounter into seizure under Fourth Amendment).
¶14 Padgett nevertheless argues that, even if the initial interaction was consensual, "[b]y the time [he] was placed in [the patrol car], his interaction with Lieutenant Thompson fell squarely within the realm of protection against unlawful search and seizure" and "required some articulable suspicion that crime was afoot." See Serna, 235 Ariz. 270, ¶ 10 (police interactions "inherently fluid"; what begins as consensual can evolve into seizure that prompts Fourth Amendment scrutiny). He maintains Thompson possessed nothing more than a "mere hunch" that Padgett was involved in criminal activity. See State v. Richcreek, 187 Ariz. 501, 505 (1997) (hunches not enough for reasonable suspicion). The state contends Thompson had reasonable suspicion that criminal activity was afoot when he saw Padgett wearing camouflage pants. See Evans, 237 Ariz. 231, ¶ 7; Ramsey, 223 Ariz. 480, ¶ 17. We agree with the state.
In his reply brief, Padgett characterizes his placement in the patrol car as a "de facto arrest" and argues that Thompson lacked probable cause. However, because Padgett did not raise this argument in his opening brief, we do not address it. See Ariz. R. Crim. P. 31.10(a)(7); State v. Larson, 222 Ariz. 341, ¶ 23 (App. 2009). --------
¶15 Thompson was investigating an ongoing problem with thieves stealing turquoise from a mine. That morning, B.T. had reported that he saw two men wearing camouflage in the area the thieves had been using to access the mine and that one of those men was carrying a rifle. On his way there, Thompson encountered two men, E.A. and Padgett, and Thompson immediately recognized Padgett as the man he had seen driving a tan pickup truck in the same area several days prior. Thompson had also seen that same pickup truck in the area one day before, parked at a campsite off the main roadway "as if it was being hidden." As the vehicles passed, Thompson saw that Padgett was wearing camouflage pants, consistent with B.T.'s statement that the two men he had seen were wearing camouflage. All of this information taken together is more than a mere hunch that Padgett was involved in criminal activity. See Richcreek, 187 Ariz. at 505.
¶16 Moreover, we disagree with Padgett that these circumstances are insufficient to establish reasonable suspicion because they "describe a very large category of presumably innocent travelers." Reid v. Georgia, 448 U.S. 438, 441 (1980). Padgett focuses on his camouflage pants, pointing out that many "innocent . . . hikers, scouts, and other nature-loving people" also wear them. While the pants by themselves are "innocent" when viewed in isolation, they were but one of many factors here. Id.; see O'Meara, 198 Ariz. 294, ¶ 10. And the factors "taken together warranted further investigation." Terry, 392 U.S. at 22; see Sokolow, 490 U.S. at 10 ("[T]he relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts." (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983))). Accordingly, the trial court did not err in denying Padgett's motion to suppress. See Turner, 243 Ariz. 608, ¶ 4; Boteo-Flores, 230 Ariz. 551, ¶ 7; Fornof, 218 Ariz. 74, ¶ 5.
Disposition
¶17 For the reasons stated above, we affirm Padgett's convictions and terms of probation and correct the sentencing minute entry to state that the conviction resulted from a bench trial, not a plea agreement.