Opinion
No. 2 CA-CR 2018-0129
01-14-2019
THE STATE OF ARIZONA, Appellee, v. LUIS A. SANCHEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alexander M. Taber, Assistant Attorney General, Tucson Counsel for Appellee E.M. Hale Law PLLC, Lakeside By Elizabeth M. Hale 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NOT FOR PUBLICATION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 Graham County
No. CR201500297
The Honorable Michael D. Peterson, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alexander M. Taber, Assistant Attorney General, Tucson
Counsel for Appellee E.M. Hale Law PLLC, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred. EPPICH, Presiding Judge:
¶1 After a jury trial, Luis Sanchez was convicted of possession of drug paraphernalia. In this appeal, he argues the trial court should have suppressed evidence obtained during a search of his car. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We review the evidence presented at the suppression hearing "in the light most favorable to upholding the trial court's ruling." State v. Teagle, 217 Ariz. 17, ¶ 2 (App. 2007). Just before midnight, a San Carlos Police Department officer stopped Sanchez for driving without a properly illuminated license plate. During the stop, Sanchez told the officer that his driver license was suspended. The officer asked Sanchez to get out of the car and follow him to his patrol car to complete the necessary steps to issue him a citation. While Sanchez was at the officer's patrol car, among other things, the officer asked "whether there was anything illegal inside [Sanchez's] vehicle." About five minutes after the initial stop, two more officers arrived on the scene.
¶3 The contacting officer wrote Sanchez a citation and returned his registration, intending to release him. However, as Sanchez "was walking back to his car with his registration and citation in his hand," the officer asked him if he could search his car. There is no indication the officer informed Sanchez that he was free to leave before asking for his consent, but the officer testified that if Sanchez would have refused the search, he "would have let him leave." Sanchez agreed to the search.
¶4 Although the San Carlos Police Department had forms for obtaining consent to search, its policy did not require the officer to use one, and he did not do so during the encounter with Sanchez. At the time the officer requested to search the car, he did not have reasonable suspicion of any wrongdoing other than the aforementioned traffic infractions. After Sanchez consented to the search, the officer walked around its exterior with a police dog, and the dog alerted to the presence of drugs inside the car. A subsequent search of the car revealed drugs and drug paraphernalia.
¶5 Sanchez moved to suppress all evidence obtained as a result of the extended encounter, contending, in part, the officer "illegally detained [Sanchez] after issuing the citation and returning the vehicle documents." He also suggested Sanchez's consent was not lawfully obtained based on the officer's failure to use the department's consent to search form and the presence of three armed officers. After an evidentiary hearing, the court denied the motion. Sanchez was later convicted as described above and sentenced to a prison term of 1.75 years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
The jury was unable to reach a verdict as to two additional, drug-related charges.
Discussion
¶6 Sanchez argues the trial court should have suppressed evidence obtained as a result of the search because he was detained beyond the permissible scope of the initial traffic stop, in violation of his constitutional rights. The state concedes that the traffic detention ended when the officer returned Sanchez's documents, but argues the continuing contact with Sanchez constituted a consensual encounter. "In reviewing a trial court's decision on a motion to suppress evidence based on an alleged Fourth Amendment violation, 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 conclusions . . . ." Teagle, 217 Ariz. 17, ¶ 19.
Sanchez's argument is premised upon the protections afforded by the United States Constitution. Although he includes a citation to analogous protections included in our state constitution, he does not develop any argument relying upon that authority. Accordingly, we consider any state constitutional claim waived. See State v. Bolton, 182 Ariz. 290, 298 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
¶7 The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV. A traffic stop is a seizure within the Fourth Amendment, but is considered reasonable as long as the stop is supported by founded suspicion and lasts no longer than necessary to effectuate the purpose of the stop. See State v. Sweeney, 224 Ariz. 107, ¶¶ 16-17 (App. 2010). Once an officer has issued a traffic citation and concluded the purpose of a traffic stop, "the driver must be permitted to proceed on his way without further delay or questioning" unless (1) the encounter becomes consensual or (2) the officer gains reasonable suspicion of other illegal activity. Teagle, 217 Ariz. 17, ¶ 22. If police otherwise prolong the stop, the seizure becomes unlawful, see Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015), and evidence obtained therefrom is subject to exclusion, see Wong Sun v. United States, 371 U.S. 471, 484-86 (1963). Neither party suggests the officer in this case had reasonable suspicion to extend the encounter with Sanchez prior to asking for consent to search the car. Thus, in order for the continued contact to be lawful, it must have been a consensual encounter.
Sanchez cites Rodriguez for the proposition that a traffic stop may only be extended based upon reasonable suspicion of an offense other than that for which the stop was made. See 135 S. Ct. at 1615. But consent was not a consideration in Rodriguez. At the conclusion of the stop in that case the defendant was asked if he would consent to a dog sniff of his car and refused. Id. at 1613. He was then ordered from the vehicle, and detained until another officer arrived. Id. Nothing in Rodriguez suggests that a seizure cannot turn into a consensual encounter as noted in Teagle.
¶8 We have previously determined a traffic stop concludes once an officer returns a driver's documents. See Teagle, 217 Ariz. 17, ¶ 23. After that occurs, an officer may ask additional, unrelated questions, creating a consensual encounter if the driver agrees to answer those questions. Id. But, there is not "a litmus-paper test for distinguishing a consensual encounter from a seizure." Florida v. Royer, 460 U.S. 491, 506 (1983). Rather, we look to "all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 439 (1991). If a reasonable person would feel free to leave, the encounter is consensual, and evidence obtained therefrom is not subject to exclusion as the fruit of an unlawful seizure. See State v. Serna, 235 Ariz. 270, ¶ 8 (2014) ("Encounters that are entirely consensual do not implicate the Fourth Amendment."); see also Wong Sun, 371 U.S. at 484-86 (unlawfully obtained evidence subject to exclusion).
¶9 Sanchez argues the continued contact was not consensual. We disagree. The contacting officer returned all of Sanchez's documents and allowed him to turn towards his car—implicitly signaling Sanchez was free to leave—before initiating further questioning. None of the officers on scene brandished a weapon, and there is no evidence that any of them conveyed that Sanchez was required to continue the encounter. Sanchez's freedom of movement was not restricted in any way. And although other officers were present, the only testimony regarding their interaction with Sanchez was that one of the officers was "joking around and talking" with Sanchez during the extended encounter. Given the levity of their minimal interaction with Sanchez, we give the presence of additional officers little weight in our analysis. And in the absence of any other cue that Sanchez's detention had not ended, the fact that the encounter took place at night in a rural area is of little significance.
¶10 The strongest factor supporting Sanchez's argument is the contacting officer's failure to explicitly advise him he was free to leave. Although such an advisement would have arguably removed any ambiguity as to whether Sanchez was still being detained, Sanchez cites no authority, and we are aware of none, requiring that the officer advise him he was free to leave for the encounter to become consensual. Under the circumstances at hand, we cannot fault the trial court's implicit conclusion that a reasonable person, given the opportunity to leave with all the necessary documentation to proceed on his or her way, would feel free to refuse the officer's request or otherwise terminate the encounter. See Bostick, 501 U.S. at 434 (encounter is consensual if a 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))).
¶11 Sanchez also contends evidence obtained during the search of his car should have been suppressed because his consent was involuntary. See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) ("[T]he Fourth and Fourteenth Amendments require that a consent not be coerced."). In evaluating whether a suspect's consent to a search was voluntary we look to the totality of the circumstances to determine whether consent "was the product of duress or coercion, express or implied." Id. at 227. Here, Sanchez's consent to continue the encounter was explicitly for purposes of allowing the officer to conduct a search, and the same factors that demonstrate the continued encounter was consensual also demonstrate that his consent to allow the search was voluntary. By consenting to the search of his vehicle at the conclusion of the stop, Sanchez transformed what had been a seizure into a consensual encounter for Fourth Amendment purposes and rendered the evidence seized as a result of the search admissible.
In light of our decision, we need not address the state's contention that Sanchez's consent was not required after the officer developed probable cause to search the car from the dog sniff. --------
Disposition
¶12 Sanchez's convictions and sentences are affirmed.