Opinion
No. 2 CA-CR 2016-0158
05-22-2017
THE STATE OF ARIZONA, Appellee, v. TOBY JAMES JONES SR., Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By David A. Simpson, Assistant Attorney General, Phoenix 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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Cochise County
No. S0200CR201400472
The Honorable James L. Conlogue, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By David A. Simpson, Assistant Attorney General, Phoenix
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Miller and Judge Espinosa concurred. STARING, Presiding Judge:
¶1 Toby Jones appeals his convictions of multiple drug-related offenses, challenging the trial court's denial of his motion to suppress evidence obtained by sheriff's deputies during a traffic stop. He claims deputies unreasonably extended the stop to permit the arrival of a canine unit. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 In reviewing a ruling on a motion to suppress, "we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court's ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014); State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App. 2000) (deference to factual findings supported by record and not clearly erroneous). And when, as here, the court did not articulate any factual findings, we will infer those findings that are reasonably supported by the record and necessary to support the ruling. See State v. Organ, 225 Ariz. 43, ¶ 10, 234 P.3d 611, 614 (App. 2010).
¶3 On August 11, 2014, Cochise County Sheriff's Sergeant Randal Wilson checked the license plate of a pickup truck Jones was driving, and learned the registration had been cancelled for lack of mandatory automobile liability insurance. Wilson initiated a traffic stop for the registration and insurance violations. Additionally, although Wilson was not personally familiar with the truck, he believed Jones owned it when he investigated the license plate. Also, he was aware that a confidential informant had purchased methamphetamine from a woman living with Jones. Wilson, who was assigned to the Narcotics Enforcement Team, believed at least one drug transaction had occurred at Jones's residence. After Wilson activated his lights, the truck stopped in the curb lane, which was separated from a large open pit mine by a narrow sidewalk and a chain link fence.
¶4 Jones's adult daughter, another adult woman, an adult male, and a dog were passengers in the truck. Wilson asked Jones for his driver's license, registration, and proof of insurance. Jones did not provide proof of insurance, but claimed he had resolved the insurance problem. Wilson asked all four individuals to get out of the truck; he testified he had safety concerns about traffic and the vehicle's position, and having them out of the truck would allow him to keep "better eyes on everyone." He did, however, honor a request to allow the male passenger to remain in the truck because of a physical condition.
¶5 Both before and after ordering Jones and the two women out of the truck, Wilson asked whether there were any weapons or drugs in it, and was told there were none. Wilson also ran a check on all four occupants for wants and warrants or other court action and did not recall any having been found.
¶6 Jones was "very adamant" that he had resolved the insurance problem, and Wilson allowed him to return to the truck three times to search for his paperwork. Each trip lasted between two and four minutes, not including the time Jones and Wilson spent discussing the matter away from the truck. For safety reasons, Wilson accompanied Jones whenever he returned to the truck. Jones never provided proof of insurance.
¶7 Wilson asked for consent to search Jones and the truck. Jones initially said Wilson could search the truck. But after his daughter commented the stop was not "normal," noting the number of officers who had arrived and were monitoring the scene, Jones withdrew his consent and said Wilson would need to get a dog if he wanted to search anything. Another deputy immediately requested a canine unit. At that point, fifteen to twenty minutes had elapsed since Wilson had initiated the stop.
¶8 Jones subsequently invited Wilson to search the truck, but Wilson declined, stating, "[N]o, you've already requested that I get a dog, so I'll wait for the dog to come." While they waited, Jones exhibited nervous behavior and was "constantly moving and fidgeting," and Wilson "could almost count the heartbeats in" Jones's neck because his carotid pulse was visible. Jones's nervousness intensified whenever Wilson asked Jones to consent to searches of his person or the truck. Wilson believed he started writing a citation while they waited, but did not finish it, and he ultimately turned responsibility for the entire investigation over to Deputy Philip Hogan, the dog handler.
¶9 Hogan arrived with his dog, Henry, approximately twenty minutes after receiving the call from one of the deputies on scene. He spoke with Wilson, who advised him about the signs of nervousness Jones had exhibited. After deputies assisted the male passenger out of the truck as a safety precaution, Hogan walked Henry around the outside of the truck, and Henry alerted Hogan to the odor of drugs around the driver's side door and window.
¶10 Hogan placed Henry back in his unit, advised Wilson of the positive alert, and asked if Jones and the others had been searched for weapons. Hogan testified Henry's alert heightened his concern for officer safety, because individuals "smuggling illegal drugs . . . use weapons to protect their product." After learning no one had been checked for weapons, Hogan attempted to conduct what he described as a "Terry pat" on Jones. As Hogan and Jones spoke, Jones "continued trying to distance himself," repeatedly telling Hogan "to go search the truck" and that there was nothing in it. When Hogan asked if Jones had anything illegal in his pockets, Jones became upset and began to pull items from one of his pockets. As he did so, Hogan saw the corner of "a plastic baggie sticking out," which Jones pushed back into his pocket while continuing to remove other items.
Terry v. Ohio, 392 U.S. 1, 27 (1968) (officer may conduct "reasonable search for weapons" when reason exists to believe person armed and dangerous even if no probable cause to arrest).
¶11 Hogan ordered Jones "to place his hands on the tailgate of the truck and spread his legs" and, rather than complying, Jones twice leaned into the tailgate in an apparent effort to make his right pocket inaccessible. As Hogan attempted to move Jones away from the tailgate, Hogan felt the baggie, initially believing it contained marijuana. Jones said, "You found it." Hogan removed the baggie from Jones's pocket and found it contained a white crystalline substance consistent with methamphetamine. As Hogan placed Jones in handcuffs and told him he would be searched, Jones stated: "I guess you want the half pound now." Hogan then found "a larger double-bagged plastic bag of a crystalline substance" in Jones's sock.
¶12 Jones was indicted for knowingly transporting a dangerous drug, methamphetamine, for sale; knowingly possessing a dangerous drug for sale; and two counts of unlawfully possessing drug paraphernalia. Jones filed a motion to suppress the evidence seized during the traffic stop, arguing that deputies unreasonably extended the duration of the stop beyond the time necessary to investigate the registration and insurance problems, Jones did not consent to the extension of the stop, and Hogan had no legal basis to conduct the "Terry pat." The trial court denied the motion to suppress, and a jury found him guilty of all charges. After dismissing one of the charges because it was a lesser-included offense, the court sentenced Jones to concurrent terms of imprisonment, the longest of which was fourteen years. This appeal followed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶13 On appeal, Jones contends the trial court erred in denying his motion to suppress, arguing, as he did below, that deputies unreasonably extended the stop to permit the arrival of the canine unit. We will not disturb the court's ruling "absent a clear abuse of discretion." State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). A court's decision on a motion to suppress involves a mixed question of fact and law. State v. Evans, 237 Ariz. 231, ¶ 6, 349 P.3d 205, 207 (2015). A court abuses its discretion when it commits an error of law. State v. Havatone, 241 Ariz. 506, ¶ 11, 389 P.3d 1251, 1254 (2017). "[T]o the extent its ultimate ruling is a conclusion of law, we review de novo." State v. Zamora, 220 Ariz. 63, ¶ 7, 202 P.3d 528, 532 (App. 2009). The lawfulness of a roadside detention, including its duration, is a question of law. State v. O'Meara, 197 Ariz. 328, ¶ 2, 4 P.3d 383, 384 (App. 1999), aff'd, 198 Ariz. 294, 9 P.3d 325 (2000).
¶14 The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV; State v. Gilstrap, 235 Ariz. 296, ¶ 7, 332 P.3d 43, 44 (2014). Evidence seized as a result of an unreasonable search is generally suppressed, State v. Allen, 216 Ariz. 320, ¶ 9, 166 P.3d 111, 114 (App. 2007), and "warrantless searches are presumptively unreasonable," Rodriguez v. Arellano, 194 Ariz. 211, ¶ 9, 979 P.2d 539, 542 (App. 1999). The state has the burden to prove by a preponderance of the evidence that an exception to the warrant requirement justifies the seizure of evidence obtained as a result of a warrantless search. See Ariz. R. Crim. P. 16.2(b); Rodriguez, 194 Ariz. 211, ¶¶ 7, 11-12, 979 P.2d at 541-43.
¶15 A traffic stop is a seizure under the Fourth Amendment, and is unlawful absent reasonable suspicion the driver has committed an offense. State v. Livingston, 206 Ariz. 145, ¶ 9, 75 P.3d 1103, 1105 (App. 2003). The scope of a lawful traffic stop includes checking for outstanding warrants against the driver and reviewing the registration and proof of insurance, as these inquiries advance the objective of "ensuring that vehicles on the road are operated safely and responsibly." Rodriguez v. United States, 575 U.S. ___, ___, 135 S. Ct. 1609, 1615 (2015). A traffic stop ends, however, when the officer returns the driver's documents, provides a written warning or citation, and informs the driver and passengers they are free to leave. See Arizona v. Johnson, 555 U.S. 323, 333 (2009); State v. Teagle, 217 Ariz. 17, ¶ 23, 170 P.3d 266, 272 (App. 2007).
¶16 During a lawful traffic stop, an officer may also investigate "matters unrelated to the justification for the traffic stop . . . so long as those inquiries do not measurably extend the duration of the stop." Johnson, 555 U.S. at 333. Such investigation may include a dog sniff on the outside of the vehicle so long as the stop is not "prolonged beyond the time reasonably required" to complete and issue the traffic citation. Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1612, quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005). Detaining a vehicle and driver beyond that time requires either consent or reasonable suspicion of criminal activity. Teagle, 217 Ariz. 17, ¶ 22, 170 P.3d at 272. Reasonable suspicion is a less demanding standard than probable cause, but it still requires "some minimal, objective justification for an investigatory detention" that is "more than an inchoate 'hunch.'" Id. ¶ 25.
¶17 Here, during the first fifteen to twenty minutes of the traffic stop, Wilson was occupied with matters related to the stop, including removing the individuals from the truck, requesting records checks and allowing Jones to search repeatedly for the insurance paperwork he continually insisted he had. See Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1615. Further, Jones has not disputed on appeal that the detention became consensual when he said Wilson would need a dog in order to search anything. But Jones argues, and the state appears to concede, he revoked his consent to waiting for a dog when, before Hogan arrived, he invited Wilson to search the truck and Wilson stated, "[N]o, you've already requested that I get a dog, so I'll wait for the dog to come."
¶18 We disagree that deputies impermissibly extended the duration of the traffic stop by waiting for the arrival of the canine unit. Wilson's testimony indicated he believed he had reasonable suspicion of drug activity based on the confidential informant's account, and an ongoing investigation of Jones for illegal drug activity. Moreover, by the time Jones revoked his consent to waiting for a canine and invited Wilson to search the truck, Wilson had observed Jones's nervous, secretive behavior suggesting concealment of drugs. Thus, the stop had developed into a non-consensual detention in order to investigate possible illegal drug activity.
Wilson testified Jones "had been under previous investigations for the possible distribution of illegal drugs," and that he was the subject of a pending investigation.
We reject any suggestion Hogan's pat-down search of Jones was not supported by concerns for officer safety. Hogan testified he had heightened concern in light of the dog's alert. Moreover, officers arriving to assist with an investigation are not bound by a colleague's initial failure to do a pat-down search when reasonable. See Terry v. Ohio, 392 U.S. 1, 19 (1968) (central inquiry of Fourth Amendment analysis is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security").
¶19 We conclude Jones's continued detention was justified by reasonable suspicion of criminal activity other than the insurance and registration problems justifying the original stop. See Teagle, 217 Ariz. 17, ¶ 22, 170 P.3d at 272. First, Wilson's awareness that a woman living with Jones was selling methamphetamine, and his belief that at least one transaction had occurred in their residence, is relevant to the existence of reasonable suspicion that Jones himself was involved in the distribution of methamphetamine. Wilson also was aware of previous investigations of Jones for illegal drug activity, and that Jones was the subject of a pending investigation. He also testified Jones's nervousness was outwardly visible, as shown by a visibly pulsing carotid artery and "constantly moving and fidgeting," and that Jones's nervousness increased whenever Wilson mentioned searching him or the truck. See State v. Ramsey, 223 Ariz. 480, ¶ 20, 224 P.3d 977, 981 (App. 2010) (nervous and evasive behavior pertinent to determining reasonable suspicion). These observations supported "more than an inchoate 'hunch'" Jones was involved in criminal activity. See Teagle, 217 Ariz. 17, ¶ 25, 170 P.3d at 272.
See A.R.S. §§ 28-2532(A) (registration requirement), 28-4135 (insurance requirement).
Viewed objectively, Jones's actions appear to have been designed to steer Wilson toward the truck and avoid a search of his body, while also avoiding the heightened suspicion that would follow a dog alerting on the truck. --------
¶20 Moreover, "[i]n reviewing the totality of the circumstances, we accord deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious actions." Id. ¶ 26. Further, as noted, although the trial court did not make any findings related to the existence of reasonable suspicion, we may infer any findings necessary for the ruling that the record supports. See Organ, 225 Ariz. 43, ¶ 10, 234 P.3d at 614. We also presume the court correctly applied the law, and will affirm its ruling if it is legally correct for any reason supported by the record. See State v. Moody, 208 Ariz. 424, ¶ 81, 94 P.3d 1119, 1144 (2004).
¶21 Here, while each fact could be viewed as consistent with innocent behavior, or insufficient by itself to establish reasonable suspicion, we must consider them collectively, rather than independently, in determining the existence of reasonable suspicion. See O'Meara, 198 Ariz. 294, ¶ 10, 9 P.3d at 327. Considered in the aggregate, the foregoing circumstances established reasonable suspicion that Jones was engaged in drug trafficking, and justified a brief nonconsensual detention pending the arrival of the canine unit. Accordingly, we conclude the court did not abuse its discretion by denying Jones's motion to suppress.
Disposition
¶22 For the foregoing reasons, we affirm the convictions and sentences imposed.