Opinion
No. 1 CA-CR 16-0029
12-20-2016
STATE OF ARIZONA, Appellee, v. SHAWN MARK RAMEY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Christopher M. DeRose Counsel for Appellee Julia Cassels, Phoenix Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. S8015CR201400679
The Honorable Steven F. Conn, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Christopher M. DeRose
Counsel for Appellee Julia Cassels, Phoenix
Counsel for Appellant
MEMORANDUM DECISION
Judge Maurice Portley (Retired) delivered the decision of the Court, in which Chief Judge Michael J. Brown and Judge Kent E. Cattani joined. PORTLEY, Judge:
¶1 Shawn Ramey appeals the superior court's denial of his motion to suppress. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
"In reviewing the denial of a motion to suppress evidence, we view the facts in the light most favorable to upholding the trial court's ruling." State v. Wyman, 197 Ariz. 10, 12, ¶ 2, 3 P.3d 392, 394 (App. 2000).
¶2 Shortly after sundown one evening in May 2014, Deputy Patterson, who regularly patrols the neighborhood, passed a black SUV "coming out of [an] alleyway." He thought the vehicle seemed suspicious because not many vehicles drive through those alleys, "especially at th[at] time of night." Patterson made "a u-turn" and "attempted to follow the vehicle" as it was driving in the alleyway.
¶3 Patterson also radioed Sergeant Karim, who was nearby, and informed him of the vehicle in the alley. Karim spotted the vehicle as it turned south on a dirt roadway next to a vacant lot. Karim saw the vehicle leave the dirt lane, "drive across [the street]," and "pull into the driveway of a residence."
¶4 From about fifty-feet away, Karim "observed the driver get out [of the vehicle], and walk towards the house, then back to the car . . . and back and forth like he didn't [k]now what to do" for "a few seconds." Karim parked his patrol car in front of the house, got out, began approaching the driver, and asked him, "[w]hat are you doing?" As the driver, later identified as Ramey, started to walk toward Karim, but before answering, Patterson arrived. He parked his patrol car, with high beams on, behind Ramey's vehicle, preventing it from leaving. Patterson also turned on his patrol car's overhead emergency lights.
A diagram, drawn by Deputy Patterson and Sergeant Karim, depicting the scene and admitted at the suppression hearing, is attached as an Appendix to this decision.
¶5 Karim then "direct[ed] [Ramey] to talk to Deputy Patterson." The driver walked toward Patterson, followed by Karim. Patterson asked the driver to identify himself, and he provided his name. Patterson then told that to Karim and he called dispatch. As Patterson and Ramey were talking, Karim learned that Ramey's driver's license was suspended.
¶6 Ramey was arrested for driving with a suspended license. His SUV was impounded, and during an inventory search, Karim found plastic baggies that contained, what was later tested and determined to be, heroin and methamphetamine, along with a police scanner and binoculars. Ramey was subsequently indicted for possession of narcotic drugs for sale (heroin), possession of dangerous drugs for sale (methamphetamine), and two counts of possession of drug paraphernalia. The State also alleged historical felony convictions, aggravating factors, and that Ramey was on probation at the time of the offense.
¶7 Before trial, Ramey filed a motion to suppress the evidence, alleging violations of the Fourth and Fourteenth Amendments to the U.S. Constitution. After an evidentiary hearing, the superior court denied the motion, concluding that the exchange constituted "a voluntary encounter on the part of [Ramey]" and, in the alternative, that "the deputies, at the very least, had a reasonable suspicion that enabled them to detain [Ramey]" because Ramey "seemed obviously to be in the driveway for reasons which were not readily explainable."
¶8 The State subsequently agreed to dismiss two counts and amend the indictment to mere possession of dangerous drugs and possession of narcotic drugs in exchange for Ramey waiving his right to a jury trial and submitting the case on a stipulated record. The court found Ramey guilty beyond a reasonable doubt on both counts, and later sentenced him to two aggravated, concurrent prison sentences of three years.
Because Ramey had also admitted violating probation in four other cases, he was separately sentenced to prison for those offenses.
DISCUSSION
¶9 Ramey argues that (1) the stop was not consensual, and (2) officers lacked reasonable suspicion to conduct the investigatory stop. In reviewing the ruling denying his motion, "we consider only the evidence presented at the suppression hearing." State v. Hummons, 227 Ariz. 78, 79, ¶ 2, 253 P.3d 275, 276 (2011) (internal quotation marks and citations omitted). And "we defer to the trial court's factual findings, but we review de novo mixed questions of law and fact and the trial court's ultimate legal conclusion." State v. Wyman, 197 Ariz. 10, 13, ¶ 5, 3 P.3d 392, 396 (App. 2000) (citations omitted).
I. Consensual Stop Became Seizure
¶10 The Fourth Amendment protects the right of the people to be free from "unreasonable searches and seizures." U.S. Const. amend. IV. Police can interact with citizens, without the interactions being considered "seizures of persons." See Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968). In fact, "no seizure occurs when police ask questions of an individual . . . so long as the officers do not convey a message that compliance with their requests is required." Florida v. Bostick, 501 U.S. 429, 437 (1991). As a result, "the first step in analyzing an alleged Fourth Amendment violation is determining whether a seizure occurred." State v. Childress, 222 Ariz. 334, 338, ¶ 10, 214 P.3d 422, 426 (App. 2009). If the encounter between an officer and citizen is consensual, the Fourth Amendment is not implicated. See Bostick, 501 U.S. at 439 ("The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation."). But, as our supreme court has noted, an encounter can be fluid and "what begins as a consensual encounter can evolve into a seizure that prompts Fourth Amendment scrutiny." State v. Serna, 235 Ariz. 270, 272, ¶ 10, 331 P.3d 405, 407 (2014). Therefore, we examine whether the encounter started off as consensual, "but whether at some point it became non-consensual, thus triggering Fourth Amendment protections." Id.
¶11 The State argues, and the superior court found, that the initial encounter between Ramey and Karim was consensual. Given our deference to the fact finder, we agree. Ramey was driving in the neighborhood, and, based on the testimony, voluntarily drove into the driveway, stopped, got out and was pacing before Karim started to approach him and asked, "[w]hat are you doing." Neither member of the sheriff's department did anything to cause Ramey to park in the driveway or get out of his car; there had been no show of force or authority, such as sirens or drawn weapons, nor any restraints on Ramey's freedom to make him voluntarily park, get out and pace before the contact. See Brendlin v. California, 551 U.S. 249, 254 (2007). However, before Ramey answered Karim, Patterson arrived with his high beams on, parked behind Ramey's SUV, and then turned on his emergency lights, while the patrol car was blocking the street. Karim, after seeing Patterson get out of his car, directed Ramey to talk to Patterson, and Ramey complied. Did Patterson's action in blocking the SUV with flashing emergency lights change the nature of the encounter?
¶12 A person can be seized under the Fourth Amendment when a police officer terminates the person's freedom or restrains it by either physical force or a show of authority. Brendlin, 551 U.S. at 254. The test to determine whether there was a show of authority is an objective one; whether the officer's words or actions convey to a reasonable person that his or her movement has been ordered restricted. California v. Hodari D., 499 U.S. 621, 628 (1991); see also Bostick, 501 U.S. at 434 (noting that an encounter is consensual as long as a reasonable person "would feel free to disregard the police and go about his business[.]").
¶13 The superior court found that although Patterson pulled in and parked behind Ramey, Ramey "probably" had room to "back out and drive away." The court concluded that this inquiry was irrelevant, however, because what prevented Ramey from driving away was not that he was blocked in, but that he had "voluntarily gotten out of his vehicle." Further, the court reasoned that even if Ramey was seized, it was a "diminimus [sic] seizure for Fourth Amendment purposes." The evidence presented at the hearing, however, shows that when Patterson pulled up, turned on his emergency lights and blocked Ramey's SUV, the situation quickly evolved from a consensual encounter to a seizure under the Fourth Amendment. Karim did not finish his conversation with Ramey, but directed him to talk with Patterson, which he did. And it was clear that Ramey was not free to leave. See Hodari D., 499 U.S. at 626 (noting that a show of authority resulting in submission is a seizure); see also State v. Rogers, 186 Ariz. 508, 510-11, 924 P.2d 1027, 1029-30 (1996) (holding seizure occurred where officers who approached defendant said, "police officers, we need to talk to you.").
II. Reasonable Suspicion
¶14 Our analysis, however, still needs to address if the detention, an investigatory stop, was based on reasonable suspicion. State v. Canales, 222 Ariz. 493, 495, ¶¶ 6-7, 217 P.3d 836, 838 (App. 2009). An investigatory stop may occur when the officer has reasonable articulable suspicion of criminal activity; a minimum level of objective justification for making the stop. Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). Although we are mindful that "a mere unparticularized suspicion or hunch [of criminal activity] does not establish reasonable suspicion," officers and courts must look at the totality of the circumstances to justify a Terry stop. State v. Evans, 237 Ariz. 231, 234, ¶ 8, 349 P.3d 205, 208 (2015) (quoting Terry, 392 U.S. at 27) (internal quotation marks omitted). "[A] location's characteristics," for example, "are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation," Wardlow, 528 U.S. at 119, and we also give consideration "to the specific reasonable inferences that an officer is entitled to draw from the facts in light of his experience," Evans, 237 Ariz. at 234, ¶ 8, 349 P.3d at 208 (quoting Terry, 392 U.S. at 27) (internal amendments omitted). Moreover, we "need not rule out the possibility of innocent conduct" to determine that reasonable suspicion exists. United States v. Arvizu, 534 U.S. 266, 277 (2002) (citing Wardlow, 528 U.S. at 125).
¶15 After considering the totality of the circumstances, the officers had justification to conduct the brief, investigatory stop. Although Patterson noticed Ramey driving through the unpaved alleys, any hunch about potential criminal activity became more when Karim watched Ramey pull into the driveway, get out of his SUV, walk towards the house and back again, and "was bouncing back and forth" and did not want to go into the house, "like somebody that shouldn't have been there . . . or didn't want to be there." The officers had reasonable suspicion to inquire about what Ramey was doing at that house. Therefore, after considering the specific reasonable inferences that Karim and Patterson were entitled to draw as a result of their experience, even though Ramey's actions may have had an innocent explanation, the officers had more than just a mere inchoate hunch of reasonable suspicion of criminal activity to justify the stop. See State v. Teagle, 217 Ariz. 17, 23, ¶ 25, 170 P.3d 266, 272 (App. 2007) ("Although 'reasonable suspicion' must be more than an inchoate 'hunch,' the Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory detention."); United States v. Valdes-Vega, 738 F.3d 1074, 1077 (9th Cir. 2013) ("[W]e defer to the inferences drawn by the district court and the officers on the scene, not just the district court's factual findings."); see also Arvizu, 534 U.S. 266 (reversing because appellate court did not properly consider totality of circumstances but instead evaluated, in isolation, each fact with innocent explanation).
Ramey also argues that the officers should have given him Miranda warnings prior to any questioning. Officers, however, are not required to give Miranda warnings to defendants during Terry stops. State v. Maciel, 240 Ariz. 46, 49, ¶ 12, 375 P.3d 938, 941 (2016). --------
CONCLUSION
¶16 Based on the foregoing, we affirm the superior court's denial of Ramey's motion to suppress.
APPENDIX
Appendix A - Diagram of the scene, drawn by Deputy Patterson and Sergeant Karim depicting Patterson's vehicle, denoted as ("Patrol Vehicle") and Karim's vehicle, denoted as ("RK").
Image materials not available for display.