Opinion
2 CA-CR 2023-0152
11-08-2024
The State of Arizona, Appellee, v. Allen Jerome Patterson, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Eliza C. Ybarra, Assistant Attorney General, Tucson Counsel for Appellee Elizabeth M. Hale, Lakeside Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202201766 The Honorable Daniel A. Washburn, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Eliza C. Ybarra, Assistant Attorney General, Tucson Counsel for Appellee
Elizabeth M. Hale, Lakeside Counsel for Appellant
Presiding Judge O'Neil authored the decision of the Court, in which Judge Vasquez and Judge Kelly concurred.
MEMORANDUM DECISION
O' NEIL, Presiding Judge
¶1 A law enforcement officer detained Allen Patterson based on his suspicion that Patterson was dealing drugs from his rental vehicle parked at a car wash. After a drug-sniffing dog alerted to the presence of drugs, the officer searched the vehicle and found illegal drugs, paraphernalia, and a firearm. Patterson appeals from his convictions and sentences for transporting narcotic and dangerous drugs for sale, using electronic communication in drug-related transactions, and misconduct involving weapons. He asserts that the trial court erred in denying his motion to suppress evidence and improperly permitted an expert witness to compare handwriting in a drug ledger found in his vehicle against a sample from a handwritten pleading. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A). We affirm.
Reasonable Suspicion
¶2 Representing himself before trial, Patterson filed a handwritten motion to suppress evidence found in his rental vehicle and subsequent witness statements. On appeal, Patterson challenges the trial court's denial of that motion. Arguing that the police officer who detained him lacked reasonable suspicion, he asserts the officer violated his rights under the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution.
¶3 Our federal and state constitutions prohibit unreasonable searches and seizures. State v. Wilson, 237 Ariz. 296, ¶ 7 (2015). Police officers with reasonable suspicion that an individual is engaged in a crime may briefly detain the individual to confirm or dispel their suspicion. See State v. Boteo-Flores, 230 Ariz. 105, ¶¶ 11, 15 (2012). Reasonable suspicion requires "a particularized and objective basis for suspecting the particular person stopped of criminal activity," after taking into account "the totality of the circumstances-the whole picture." United States v. Cortez, 449 U.S. 411, 417-18 (1981). While a mere "hunch" is not enough, see Terry v. Ohio, 392 U.S. 1, 27 (1968), the reasonable suspicion standard requires "considerably less than proof of wrongdoing by a preponderance of the evidence" and is "obviously less demanding than that for probable cause," United States v. Sokolow, 490 U.S. 1, 7 (1989); see also State v. Evans, 235 Ariz. 314, ¶¶ 3, 9, 24 (App. 2014) (observation of driver "flailing" his fists toward passenger sufficient for stop), aff'd, 237 Ariz. 231 (2015). "[S]eemingly innocent behavior can form the basis for reasonable suspicion if an officer, based on training and experience, can 'perceive and articulate meaning in given conduct[,] which would be wholly innocent to the untrained observer.'" Boteo-Flores, 230 Ariz. 105, ¶ 12 (first alteration added, second alteration in Boteo-Flores) (quoting Brown v. Texas, 443 U.S. 47, 52 n.2 (1979)).
¶4 "[W]e consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the trial court's factual findings." State v. Fornof, 218 Ariz. 74, ¶ 8 (App. 2008). We review de novo the ultimate legal determination as to whether an investigative stop was justified by reasonable suspicion. Id. ¶ 5. But we defer to both the court's factual findings and "the inferences drawn by the [trial] court and the officers on the scene." Evans, 235 Ariz. 314, ¶ 8 (alteration in Evans) (quoting United States v. Valdes-Vega, 738 F.3d 1074, 1077 (9th Cir. 2013)), aff'd, 237 Ariz. 231 (2015).
¶5 At the suppression hearing, the officer who had detained Patterson testified that he had observed two vehicles parked side by side at the vacuum stations of a car wash, at least two hours before it typically gets busy. The officer explained that vacuum stations were commonly used for "drug sales," because the people involved could "act like they're doing something normal." He noted the vehicles were "dirty" and "muddy," even though the car wash was arranged in such a way that most customers would first wash the exterior of their cars before reaching the vacuum stations. The officer ran the license plates. The plate on one vehicle was registered to a known drug user who was living at a "trap house," which the officer had been "investigating for months." The other car was a rental from Phoenix. The officer explained that criminals frequently use rental cars to avoid being easily traced.
¶6 The officer also saw A.V., whom the officer knew had been involved in drug sales and had an outstanding arrest warrant, exit the driver's seat of the rental and begin vacuuming the front passenger's seat. The officer knew that during an encounter with law enforcement a month earlier, A.V. had given a false name and fled, leaving behind a purse containing drugs. The officer called for backup, then approached A.V. She appeared "very nervous" when he called her by name.
¶7 Although the officer had seen A.V. in the driver's seat, he did not know who had rented the car. When the officer then saw Patterson exit the back seat, he recognized Patterson from a previous encounter. Reliable sources had informed him that Patterson was "a high-level dealer" from Phoenix who supplied multiple drug dealers in Casa Grande and carried a weapon. The officer knew that Patterson had prior convictions for armed robbery and drug-related charges and had previously fled from law enforcement officers during an investigation of drug sales at a local hotel. A year earlier, another officer caught Patterson with drugs during a traffic stop. As the backup officer was approaching, Patterson opened the driver's side door and began to get into the driver's seat while the engine was still running.
¶8 Concerned that Patterson might flee or retrieve a weapon, endangering the officers and the nearby public, and not knowing which of the occupants had rented the car, the officer stopped Patterson from entering the driver's seat. The backup officer patted Patterson down and handcuffed him.
¶9 We conclude the totality of the circumstances supported a reasonable suspicion that Patterson was engaged in criminal activity. See Cortez, 449 U.S. at 417-18. The officer saw two unwashed vehicles parked near the vacuums, one of which was a rental, at an area known for drug activity, at an unusual time of day. See United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975) ("Officers may consider the characteristics of the area in which they encounter a vehicle."); Fornof, 218 Ariz. 74, ¶ 6 (totality of circumstances can include time of day). He recognized two individuals who had been involved in drugs, one of whom had an active warrant and appeared nervous. See State v. Woods, 236 Ariz. 527, ¶ 12 (App. 2015) (criminal history contributes to reasonable suspicion); Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (nervousness a factor). Although some of these facts primarily concerned Patterson's companions at the car wash, they contributed to the totality of circumstances that informed the officer's suspicions. See State v. Ramsey, 223 Ariz. 480, ¶ 23 (App. 2010). The officer was also aware of Patterson's own criminal history, his involvement in drug sales, and his tendency to carry a weapon. See Woods, 236 Ariz. 527, ¶ 12. And based on the knowledge available to him, the officer reasonably interpreted Patterson's behavior as suggesting an intent to flee and representing a possible danger against the safety of the officers and the public. See Wardlow, 528 U.S. at 124 ("[E]vasive behavior is a pertinent factor in determining reasonable suspicion."). The officers had reasonable suspicion to detain Patterson, and the trial court properly denied the motion to suppress.
To the extent Patterson suggests his handcuffing converted his detention into an arrest, the use of handcuffs "does not in and of itself dictate that an arrest has occurred." Romero, 178 Ariz. at 50.
Handwriting Comparison
¶10 At trial, the state presented evidence of a drug ledger found in Patterson's vehicle containing a handwritten list of names and dollar amounts. While cross examining the officer who discovered the ledger, Patterson asked whether there was "any identifying information in that ledger at all as to who it belonged to," and the officer indicated there was none. Patterson argues the trial court erred in multiple respects when it allowed the state to rebut that challenge to his ownership of the ledger by introducing evidence that handwriting in the ledger matched Patterson's handwritten motion to suppress, which Patterson had prepared on his own behalf before trial.
I. Expert Disclosure
¶11 First, Patterson asserts the trial court erred by allowing a detective to testify as a handwriting expert and compare the handwriting in the ledger to the sample from his motion. The state disclosed the detective as a drug expert, but Patterson argues that the state did not also disclose the detective as a handwriting expert. He therefore maintains the court should have precluded the detective from testifying about the handwriting comparison. The state argues the handwriting was not at issue until Patterson raised it at trial and thus asserts it was not required to disclose the detective as a handwriting expert.
¶12 The trial court has broad discretion over discovery rulings, State v. Fields, 196 Ariz. 580, ¶ 4 (App. 1999), including any sanctions for violating disclosure obligations, State v. Tucker, 157 Ariz. 433, 439 (1988); see Ariz. R. Crim. P. 15.7(c). A court has discretion "to permit a previously undisclosed witness to testify if the court believes that no prejudice will result to the accused, or that any prejudice which otherwise might result may be rectified by other means." State v. Piedra, 120 Ariz. 53, 57 (App. 1978). We review discovery rulings for abuse of discretion. Fields, 196 Ariz. 580, ¶ 4. Even after a disclosure violation occurs without remedy, "a subsequent conviction will not be reversed on that account unless the defendant can demonstrate prejudice from the violation." Tucker, 157 Ariz. at 439. Even assuming a disclosure violation here, Patterson has shown no prejudice to warrant reversing the court's decision to permit the detective's testimony.
¶13 Patterson suggests the state's nondisclosure prejudiced him by preventing him from addressing the handwriting analysis in a pretrial interview. He has not explained, however, how the opportunity to address that issue in an interview could have affected the verdict. See State v. Moody, 208 Ariz. 424, ¶ 116 (2004) (affirming refusal to preclude testimony, in part, because defendant offered "no explanation of how . . . the late disclosure prejudiced him"). More importantly, Patterson has offered no reason to believe that an interview during trial, rather than preclusion, would have been an inadequate remedy.
¶14 Witness preclusion is "a remedy of last resort," State v. Burns, 237 Ariz. 1, ¶ 91 (2015), invoked "only when no less stringent sanction will suffice," State v. Cota, 229 Ariz. 136, ¶ 59 (2012); see also Ariz. R. Crim. P. 15.7(c). "[S]ome discovery violations can be easily solved . . . by allowing a witness to be interviewed during trial." State v. Krone, 182 Ariz. 319, 322 (1995); see also State v. Hill, 174 Ariz. 313, 325 (1993) (postponing cross-examination of witness after witness testified about undisclosed topics was "a reasonable method of handling the problem"); State v. Binford, 120 Ariz. 86, 89 (App. 1978) (affirming decision to permit undisclosed rebuttal witnesses where state provided defense opportunity to interview). Patterson, however, never requested the opportunity to interview the detective regarding the handwriting analysis during trial. The trial court did not abuse its discretion by declining to preclude the detective's testimony as a handwriting expert.
II. Handwriting Sample
¶15 Patterson further argues the trial court erred in allowing the state to use his suppression motion as a handwriting sample instead of obtaining a sample from Patterson directly. Rule 15.2, Ariz. R. Crim. P., requires a defendant to "provide handwriting specimens" in the presence of counsel upon the state's written request. Ariz. R. Crim. P. 15.2(a)(1)(G), (2). We review the application of a rule de novo. See State v. Burkett, 179 Ariz. 109, 111 (App. 1993). Because Patterson did not object to this alleged error at trial, however, we review only for fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018); State v. Hamilton, 177 Ariz. 403, 408 (App. 1993) (objection on one ground does not preserve objections on other grounds). We conclude that Patterson has shown no error, fundamental or otherwise, because Rule 15.2 does not apply.
Because it is premised on an incorrect interpretation of Rule 15.2, we also reject Patterson's related argument that using his motion as a handwriting sample instead of obtaining one through Rule 15.2 violated his Sixth Amendment right to counsel during critical stages of a criminal process. And to the extent Patterson argues the state's use of his motion violated his right to due process, we deem it waived because he fails to sufficiently develop his argument. See State v. Vargas, 249 Ariz. 186, ¶ 22 (2020) ("[I]f the appellant fails to properly develop an argument, the court may consider it abandoned and waived.").
¶16 Rule 15.2(a) "is merely a means by which the [state] may obtain [a handwriting] specimen" if necessary. State v. Trujillo, 120 Ariz. 527, 530 (1978). This rule is inapplicable when "the state already has such a specimen and can prove it is the defendant's." Id. Patterson's handwritten motion was already in the trial court record and available to the state when the handwriting issue arose at trial, and Patterson did not dispute that the motion contained his own handwriting. See id. The state had no need to compel production of a sample. See Ariz. R. Crim. P. 15.2(a)(1)(G). As explained in Trujillo, Rule 15.2(a) is "merely a means" to obtain evidence from a defendant. 120 Ariz. at 530. It does not restrict the state's ability to obtain evidence through other, independent means.
¶17 We therefore reject Patterson's argument that the state should have been precluded from using the motion as a handwriting sample unless Patterson was advised that his "pro se motion could be used against him" before filing it. Rule 15.2 imposes no such requirement, particularly for a handwriting sample that is not obtained under that rule. Patterson's argument appears to rest on an implication that had Patterson received such advice, he might have decided not to file the motion at all, thus depriving the state of a writing sample. Notably, had the state requested one, Patterson's production of a sample under Rule 15.2 would have been compulsory: upon such written request, a "defendant must . . . provide handwriting specimens." Ariz. R. Crim. P. 15.2(a)(1)(G) (emphasis added). Nothing in the rule suggests any avenue for the defendant to deny the state access to a writing sample. See State v. Asbury, 124 Ariz. 170, 172 (App. 1979) (presence-of-counsel requirement permits defense attorney to inform defendants that they have "no legal right to refuse to provide the evidence, and that a refusal could be used as evidence of guilt").
III. Authentication
¶18 Finally, Patterson asserts the state failed to properly authenticate the sample from the handwritten motion. Absent an objection at trial, we review only for fundamental, prejudicial error. See Escalante, 245 Ariz. 135, ¶ 12. Because he has established no error, his argument fails.
¶19 Authentication is a "condition precedent to admissibility." State v. Lavers, 168 Ariz. 376, 386 (1991). Under Rule 901(a), Ariz. R. Evid., proper authentication requires the proponent to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." The trial court "does not determine whether the evidence is authentic, but only whether evidence exists from which the jury could reasonably conclude that it is authentic." Lavers, 168 Ariz. at 386. This "flexible approach" allows the court to "consider the unique facts and circumstances in each case" when determining whether the item has been properly authenticated. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 14 (App. 2008). "We review the court's ruling on authentication for an abuse of discretion." State v. Forde, 233 Ariz. 543, ¶ 74 (2014).
¶20 The trial court did not admit the sample from Patterson's handwritten motion into evidence. Nor was the sample used to authenticate the drug ledger, whose admission Patterson has not challenged. Rule 901's authentication requirement, therefore, does not apply. Regardless, even assuming authentication was required, that requirement is satisfied here.
¶21 Indeed, because the drug ledger was properly authenticated by other means, Rule 901(b)(3) suggests that the expert's comparison of the sample from the handwritten motion to the authenticated drug ledger would have been sufficient in itself to satisfy the authentication requirement for the sample. See Ariz. R. Evid. 901(b)(3) (authentication requirement satisfied by "comparison with an authenticated specimen by an expert witness or the trier of fact"). Moreover, Patterson signed the motion, and the signature matches the handwriting in the rest of the document. Cf. Ariz. R. Evid. 901(b)(6) (person's "self-identification" during telephone conversation may "show that the person answering was the one called"). The motion itself suggests Patterson's authorship. Cf. id. Patterson also implied the motion was his during the suppression hearing. See Lavers, 168 Ariz. at 388 (circumstantial evidence sufficient for authentication). Finally, Patterson's attorney filed the motion on his behalf and later acknowledged it was her "client's writing." See id.
Disposition
¶22 We affirm Patterson's convictions and sentences.