Opinion
No. 2 CA-CR 2017-0077
11-08-2017
THE STATE OF ARIZONA, Appellee, v. OMAR SAEID SIGLER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Elizabeth B. N. Garcia, Assistant Attorney General, Phoenix Counsel for Appellee Mark A. Suagee, Cochise County Public Defender By Xochitl Orozco, Deputy Public Defender, Bisbee 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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Cochise County
No. CR201600333
The Honorable John F. Kelliher Jr., Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Elizabeth B. N. Garcia, Assistant Attorney General, Phoenix
Counsel for Appellee Mark A. Suagee, Cochise County Public Defender
By Xochitl Orozco, Deputy Public Defender, Bisbee
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Following a bench trial, Omar Sigler was found guilty of possession of a dangerous drug for sale. On appeal, he argues the trial court erred by denying his motion to suppress the drug-related evidence, contending it was obtained as the result of an unconstitutional seizure. Because we find no error, we affirm.
Factual and Procedural Background
¶2 "In reviewing a trial court's decision on a motion to suppress, we view the facts in the light most favorable to upholding the trial court's ruling and consider only the evidence presented at the suppression hearing." State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App. 2007). In March 2015, Sierra Vista Police Department Officer Brant was conducting his patrol duties when he thought he saw S.S. walking down the street. Brant knew that S.S. had several criminal charges pending and that a warrant for his arrest had been issued. He parked his patrol car, turned on his rear emergency lights "to ensure no other vehicle collided with" it, and walked about half a block towards Sigler, who was walking towards Brant. Once he was within several feet of Sigler, Brant realized he was not S.S. and told Sigler about the misidentification. Sigler commented that many people had mistaken him for S.S. in the past, and the two began a "casual conversation."
¶3 About a minute later, Brant said, "While I'm out with you, do you mind if I check your [identification]?" As they continued conversing, Sigler briefly turned around to reach for something and, when he turned back, handed his identification to Brant. As he did so, Brant noticed that a small, black, golf ball-sized object fell from the area of Sigler's waist to the ground. Brant believed the object "was potentially contraband" and asked Sigler to sit on the curb while he called for assistance. After additional officers arrived, Brant investigated the object, recognized it contained a substance "consistent with methamphetamine," and arrested Sigler.
¶4 A grand jury indicted Sigler of one count of possessing a dangerous drug for sale, and the trial court found him guilty of that charge. The court imposed a prison term of eight years. We have jurisdiction over Sigler's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶5 As the sole issue on appeal, Sigler argues the trial court erred by denying his motion to suppress the methamphetamine. He contends he was "illegally seized" without reasonable suspicion when Brant approached Sigler, asked questions, and requested his identification after realizing Sigler was not S.S. We review mixed questions of law and fact, such as whether a seizure occurred, and the court's ultimate legal conclusions de novo, but we defer to that court's factual findings. State v. Wyman, 197 Ariz. 10, ¶¶ 5, 7, 3 P.3d 392, 395 (App. 2000). "We will affirm a trial court's ruling even though the court reached the right conclusion for the wrong reason." State v. Aguilar, 228 Ariz. 401, ¶ 12, 267 P.3d 1193, 1195 (App. 2011).
¶6 Below, Sigler moved to suppress all evidence seized—namely, the methamphetamine—"after the moment that Officer Brant realized that . . . Sigler was not [S.S.]" He contended that once Brant realized Sigler was not S.S., any reasonable suspicion disappeared and the stop constituted an unlawful seizure. In response, the state argued that Brant's initial stop was not a seizure under the Fourth Amendment, but it conceded that Brant's request for Sigler's identification was a seizure. Relying on the attenuation doctrine and Utah v. Strieff, ___ U.S. ___, 136 S. Ct. 2056 (2016), the state argued that the reasonable suspicion Brant developed by the "intervening drop of a black golf ball shaped object" from Sigler was sufficiently attenuated from any unlawful seizure created by Brant's questioning or request for identification.
¶7 Following a hearing on Sigler's motion, the trial court concluded that "there was an illegal seizure, at th[e] point where the officer recognized that . . . Sigler was not [S.S.]" It went on to find, however, that when Brant asked Sigler for his identification, a reasonable person would have felt free to go. It thus reasoned that the black object falling from Sigler's waist independently provided Brant the reasonable suspicion necessary to continue the stop and denied Sigler's motion.
¶8 On appeal, Sigler again argues that Brant's initial stop and request for identification amounted to an unlawful seizure because a reasonable person in Sigler's position would not have felt free to leave and disregard Brant's questions and request for identification. The state contends the entire encounter, including the request for identification, between Brant and Sigler leading up to the black object falling was a consensual encounter, and therefore Fourth Amendment protections do not apply.
¶9 "Because the Fourth Amendment prohibits only unreasonable seizures, the first step in analyzing an alleged Fourth Amendment violation is determining whether a seizure occurred." State v. Childress, 222 Ariz. 334, ¶ 10, 214 P.3d 422, 426 (App. 2009); see U.S. Const. amend. IV; see also Ariz. Const. art. II, § 8. "[A] person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained." United States v. Mendenhall, 446 U.S. 544, 553 (1980); see also State v. Canales, 222 Ariz. 493, ¶ 6, 217 P.3d 836, 837-38 (App. 2009). Consensual encounters between people and police officers, however, do not implicate the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434 (1991); see also State v. Serna, 235 Ariz. 270, ¶ 8, 331 P.3d 405, 407 (2014). Thus, officers may, without reasonable suspicion, question an individual and ask for identification, "as long as the police do not convey a message that compliance with their requests is required." Bostick, 501 U.S. at 434-35; see State v. Hummons, 227 Ariz. 78, ¶ 7, 253 P.3d 275, 277 (2011). Whether an encounter was consensual, or amounted to a seizure, "depends on the totality of the circumstances and whether a reasonable person under those circumstances would have felt free to leave." Childress, 222 Ariz. 334, ¶ 11, 214 P.3d at 426; see Mendenhall, 446 U.S. at 554.
¶10 In Mendenhall, for example, the officers approached Mendenhall in a public area, an airport, identified themselves as federal agents, and "requested, but did not demand to see [her] identification and ticket." 446 U.S. at 547-48, 555. The Supreme Court concluded that the Fourth Amendment was not violated in the encounter because Mendenhall "was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions." Id.; see also Florida v. Royer, 460 U.S. 491, 501 (1983) ("Asking for and examining Royer's ticket and his driver's license were no doubt permissible [during consensual encounter]."); Serna, 235 Ariz. 270, ¶ 9, 331 P.3d at 407 (initial encounter consensual when defendant "walked toward the officers and voluntarily answered their questions," was "'very cooperative' and demonstrated no ambivalence about conversing with them"); Wyman, 197 Ariz. 10, ¶¶ 3, 8, 3 P.3d at 394-95 (encounter consensual where officer drove patrol car near defendants and "yelled out, 'Hey, can I talk to you?'").
¶11 Conversely, factors that would indicate a reasonable person did not feel free to leave include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554. Courts have also found a seizure occurred where officers "made it physically impossible" for the defendant to leave the encounter, Canales, 222 Ariz. 493, ¶¶ 7-8, 217 P.3d at 838; ordered a defendant to put his hands on his head during questioning, Serna, 235 Ariz. 270, ¶¶ 11-12, 331 P.3d at 408; or continued demanding answers from a defendant after he attempted to walk away from the encounter, Wyman, 197 Ariz. 10, ¶ 8, 3 P.3d at 395.
¶12 In this case, the encounter between Brant and Sigler is like the consensual encounters in cases like Mendenhall and Royer. Brant approached Sigler on a public road, engaged in a "casual conversation" with him, and requested, but did not demand, his identification. Brant described Sigler as "completely cooperative" and characterized the encounter as "an informal transaction." Notably, Brant did not brandish his weapon, physically touch Sigler, use threatening language, or block Sigler's path in any way. Under these circumstances, the trial court did not err in concluding that a reasonable person would have felt free to leave the encounter at any time. See Mendenhall, 446 U.S. at 554; see also Childress, 222 Ariz. 334, ¶ 11, 214 P.3d at 426.
¶13 Sigler argues, however, that Brant used a show of authority to seize him because Brant parked his patrol car nearby with "his lights on and approached [Sigler] in full uniform with badges on display." But Sigler could not see those lights because Brant parked at the end of the block, with the front of his patrol car facing Sigler, and activated only his rear emergency lights. And the fact that Brant was wearing his uniform, thus identifying himself as a police officer, does not "without more, convert the encounter into a seizure." Royer, 460 U.S. at 497; see Mendenhall, 446 U.S. at 555 (it is not "enough to establish a seizure that the person asking the questions was a law enforcement official"); see also State v. Acinelli, 191 Ariz. 66, 70, 952 P.2d 304, 308 (App. 1997) (no seizure where defendant voluntarily resumed encounter despite fact that officer wearing uniform and driving patrol car is "couched with authority"). Sigler's reliance on these two factors is therefore misplaced. Consequently, because Brant's encounter with Sigler was consensual, the constitutional protections against unreasonable seizures were not triggered, and the trial court did not abuse its discretion in denying his motion to suppress. See Bostick, 501 U.S. at 434; see also Serna, 235 Ariz. 270, ¶ 8, 331 P.3d at 407; Aguilar, 228 Ariz. 401, ¶ 12, 267 P.3d at 1195.
Sigler additionally argues that Brant's request for identification was unconstitutional and that the reasonable suspicion Brant developed after seeing the black object fall was not sufficiently attenuated from the stop. He premises both of these arguments, however, on his contention that the initial stop—after Brant realized Sigler was not S.S.—was an illegal seizure. Sigler concedes, however, that an officer's request for identification "is an acceptable practice if the individual is free to leave." And he does not dispute that the black object falling from his person gave Brant reasonable suspicion to detain him and investigate. Having concluded that the encounter between Brant and Sigler was consensual, we need not address these arguments.
¶14 Sigler further argues that, if the encounter was not a seizure protected by the Fourth Amendment of the United States Constitution, then article II, § 8 of the Arizona Constitution provides greater privacy protections and prohibits the situation that occurred here. Our supreme court has concluded that the Arizona Constitution does indeed provide greater privacy protections for a person's home than the Fourth Amendment. State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984) ("While Arizona's constitutional provisions generally were intended to incorporate the federal protections, they are specific in preserving the sanctity of homes and in creating a right of privacy.") (citation omitted); see also State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986) ("As a matter of Arizona law, officers may not make a warrantless entry into a home in the absence of exigent circumstances or other necessity."). The court has also stated, however, that those greater protections do not apply "outside the home-search context." Hummons, 227 Ariz. 78, ¶ 16, 253 P.3d at 279; see State v. Reyna, 205 Ariz. 374, n.5, 71 P.3d 366, 369 n.5 (App. 2003).
¶15 Sigler acknowledges that our supreme court has declined to extend the greater privacy protections granted by Arizona's constitution to areas outside the home, but he asks us to do so based on Massachusetts and Washington case law. See Commonwealth v. Lyles, 905 N.E.2d 1106, 1107 n.1 (Mass. 2009); State v. Harrington, 222 P.3d 92, ¶ 10 (Wash. 2009). Decisions of other courts, "while informative, are not controlling in this court." State v. Dean, 226 Ariz. 47, ¶ 19, 243 P.3d 1029, 1035 (App. 2010); see Kotterman v. Killian, 193 Ariz. 273, ¶ 68, 972 P.2d 606, 624 (1999) ("We alone must decide how persuasive the legal opinions of other jurisdictions will be to our holdings."). Both Massachusetts and Washington courts have found their respective constitutions grant greater privacy protections outside the home than the Fourth Amendment. See Commonwealth v. Rodriguez, 722 N.E.2d 429, 434 n.7 (Mass. 2000); State v. Rankin, 92 P.3d 202, 204-05 (Wash. 2004). Consequently, we find the cases cited by Sigler are "neither wholly analogous nor persuasive." Dean, 226 Ariz. 47, ¶ 19, 243 P.3d at 1035. In light of our supreme court's decisions that the Arizona Constitution does not provide any greater protections than the Fourth Amendment outside the home, we cannot rule otherwise. See State v. Newnom, 208 Ariz. 507, ¶ 8, 95 P.3d 950, 951 (App. 2004) (appellate court has "no authority to overrule or disregard decisions of our supreme court"); see also Hummons, 227 Ariz. 78, ¶ 16, 253 P.3d at 279; State v. Johnson, 220 Ariz. 551, ¶ 13, 207 P.3d 804, 810 (App. 2009) ("[O]ther states . . . have found greater protection in their state constitutions for lawfully stopped passengers, [but] our jurisprudence has consistently found our constitutional protections to parallel those provided by the Fourth Amendment.").
Disposition
¶16 For the foregoing reasons, we affirm Sigler's conviction and sentence.