Devlin v. Browning, 060520 AZAPP2, 2 CA-SA 2019-0061

Docket Nº2 CA-SA 2019-0061
Opinion JudgeESPINOSA, JUDGE
Party NameJoshua Devlin, Petitioner, v. Hon. Christopher Browning, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.
AttorneyThe Behan Law Group PLLC, Tucson By Michelle L. Behan Counsel for Petitioner Tucson City Attorney's Office, Criminal Division Michael G. Rankin, Tucson City Attorney Alan L. Merritt, Deputy City Attorney By Mari L. Worman, Senior Assistant Prosecuting City Attorney, Tucson Counsel for Real Party ...
Judge PanelJudge Espinosa authored the opinion of the Court, in which Presiding Judge Eppich concurred and Judge Eckerstrom dissented. ECKERSTROM, Judge, dissenting:
Case DateJune 05, 2020
CourtCourt of Appeals of Arizona

Joshua Devlin, Petitioner,

v.

Hon. Christopher Browning, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,

and

The State of Arizona, Real Party in Interest.

No. 2 CA-SA 2019-0061

Court of Appeals of Arizona, Second Division

June 5, 2020

Special Action Proceeding Pima County Cause No. CR20192077001

The Behan Law Group PLLC, Tucson By Michelle L. Behan Counsel for Petitioner

Tucson City Attorney's Office, Criminal Division Michael G. Rankin, Tucson City Attorney Alan L. Merritt, Deputy City Attorney By Mari L. Worman, Senior Assistant Prosecuting City Attorney, Tucson Counsel for Real Party in Interest

Judge Espinosa authored the opinion of the Court, in which Presiding Judge Eppich concurred and Judge Eckerstrom dissented.

OPINION

ESPINOSA, JUDGE

¶1 In this special action, Joshua Devlin challenges the respondent judge's reversal of the Tucson City Court's grant of his motion to suppress evidence gained from a roadside driving under the influence (DUI) investigation following a traffic stop. Because we conclude the respondent judge properly reversed the city court's determination, we accept jurisdiction but deny relief.

Factual and Procedural Background

¶2 In October 2017, Tucson Police Department Officer Jonathan Kinkade, a five-year patrol officer with extensive training and experience in DUI enforcement, was on duty in the early morning hours when he observed a car travelling over the speed limit on Broadway Boulevard, a major artery near the Tucson downtown area with its many bars and restaurants closing at 2:00 a.m. Kinkade stopped the car and, upon contacting the driver, Devlin, saw that he had bloodshot, watery eyes and smelled the odor of alcohol; there was a passenger in the car as well. Kinkade asked Devlin if he had been drinking, and Devlin acknowledged he had. Devlin handed the officer his license without difficulty, did not appear confused, answered questions appropriately, and did not have "problems with his speech." The officer then conducted a "one pass" nystagmus test to determine whether the cause of Devlin's bloodshot watery eyes might be due to fatigue rather than alcohol consumption and observed a lack of smooth pursuit in Devlin's left eye.

¶3 Officer Kinkade asked Devlin to step out of the vehicle and he administered several field sobriety tests. Devlin exhibited various "cues" of impairment, and, in response to questioning, stated he had been at two different establishments from around 11:00 p.m. to 1:00 a.m., had a "single drink at each place, " and did not feel "any of the effects of the alcohol he drank." After administering a breath test, Kinkade arrested Devlin for driving under the influence. The entire encounter lasted about fifteen minutes.

¶4 Devlin was charged with DUI in Tucson City Court, and he filed a motion to suppress, arguing that Officer Kinkade "had no reasonable suspicion that . . . Devlin was engaged in criminal activity at the time he initiated the DUI investigation." In response, the state argued the detention was authorized by A.R.S. § 28-1594, was based on reasonable suspicion, and was reasonable in any event. Following an evidentiary hearing, the city court judge granted the motion to suppress, concluding the officer's observations were insufficient to justify a DUI investigation.

¶5 The state appealed that decision to the superior court, arguing again that the detention was authorized by statute, was based on reasonable suspicion, and was reasonable. In a notice of supplemental authority, the state also cited Newell v. Town of Oro Valley, 163 Ariz. 527 (App. 1990), "as additional authority for the proposition that because Devlin had been lawfully detained for speeding . . . the officer was authorized to require [him] to exit the vehicle regardless of whether [he] suspected Devlin was impaired." Citing Newell, but concluding there had been reasonable suspicion of driving under the influence, the respondent judge reversed the city court's ruling and remanded the matter. Devlin thereafter filed this petition for special action.

Jurisdiction

¶6 "Whether to accept special action jurisdiction is for this court to decide in the exercise of our discretion, " Potter v. Vanderpool, 225 Ariz. 495, ¶ 6 (App. 2010), and "[a] primary consideration is whether the petitioner has an equally plain, speedy and adequate remedy by appeal, " Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, ¶ 9 (App. 2009). Other considerations include whether the case raises issues of statewide importance, issues of first impression, pure legal questions, or issues that are likely to arise again. Luis A. v. Bayham-Lesselyong, 197 Ariz. 451, ¶ 2 (App. 2000).

¶7 Because this case arises from the state's successful appeal of the city court's order to the superior court, the sole avenue for Devlin to seek appellate review is through special action. See A.R.S. § 22-375 (prohibiting appeal from a final judgment of the superior court in an action appealed from a city court unless the action "involves the validity of a tax, impost, assessment, toll, municipal fine or statute"); State v. Superior Court ex rel. Norris, 179 Ariz. 343, 344 (App. 1994). Additionally, the question presented is a purely legal one and capable of recurring. See State ex rel. Romley v. Martin, 203 Ariz. 46, ¶ 4 (App. 2002) (special-action jurisdiction appropriate for "cases involving purely legal questions, or issues that are likely to arise again"). We therefore accept jurisdiction of this special action.1

Discussion

¶8 On special-action review, Devlin argues the respondent judge improperly substituted his judgment for that of the trial court and that he misapplied Newell in his ruling. We review a trial court's ruling on a motion to suppress for an abuse of discretion. State v. Ontiveros-Loya, 237 Ariz. 472, ¶ 5 (App. 2015). "We consider only the evidence presented at the suppression hearing, and we view that evidence in the light most favorable to sustaining the court's rulings." Id. However, a court's determination as to whether an officer has reasonable suspicion to detain a driver for further investigation is a legal question, which we review de novo. See Ornelas v. United States, 517 U.S. 690, 698-99 (1996) (appellate court should review de novo ultimate questions of reasonable suspicion and probable cause); State v. Rogers, 186 Ariz. 508, 510 (1996).2

¶9 Devlin contends that the officer's observations when he stopped Devlin and before asking him to step out of his vehicle were sufficient only for him to suspect Devlin had consumed alcohol, but "there was no reasonable suspicion of impairment by alcohol." As Devlin points out, consuming alcohol and driving is not a crime in itself. Rather, Arizona statutes prohibit driving while "impaired to the slightest degree, " or with a blood alcohol content (BAC) of .08 or more. See A.R.S. §§ 28-1381, 28-1382. Thus, in order to form reasonable suspicion of a crime in this context, an officer must base that suspicion on some indicia of impairment or a BAC over the legal limit.

¶10 Reasonable suspicion is a justifiable suspicion that the particular individual to be detained is, or has been, involved in criminal activity. State v. Canales, 222 Ariz. 493, ¶ 9 (App. 2009). It does not, however, "require solid proof, but rather an objective basis to believe that criminal activity might be occurring sufficient to justify further investigation." State v. Turner, 243 Ariz. 608, ¶ 7 (App. 2018). Although, as Devlin asserts, "circumstances that 'describe a very large category of presumably innocent travelers' are insufficient to establish reasonable suspicion because travelers would then be subject to 'virtually random seizures, '" State v. Teagle, 217 Ariz. 17, ¶ 25 (App. 2007) (quoting Reid v. Georgia, 448 U.S. 438, 441 (1980)), "[a]n officer need not 'rule out the possibility of innocent explanations for [a defendant's] conduct, '" Turner, 243 Ariz. 608, ¶ 7 (quoting State v. Evans, 237 Ariz. 231, ¶ 11 (2015)).

¶11 We agree with the respondent judge that under the totality of the circumstances here, Officer Kinkade had reasonable suspicion to conduct a DUI investigation. That reasonable suspicion stemmed from the time of night and area involved, which Kinkade testified was a known artery for impaired drivers leaving nearby "alcohol establishments, " a car travelling ten miles per hour over the speed limit, his observations that Devlin's eyes were bloodshot and watery, the odor of alcohol emanating from the car, Devlin's admission to consuming alcohol not long before driving, and the indication of nystagmus in one of Devlin's eyes. Taken together, these factors collectively gave rise to reasonable suspicion.3 See State v. Childress, 222 Ariz. 334, ¶¶ 4, 23 (App. 2009) (reasonable suspicion to administer field sobriety tests where driver exhibited slight odor of alcohol, red, watery eyes, and admitted to drinking); State v. Santimore, 987 A.2d 332, ¶ 11 (Vt. 2009) (reasonable suspicion for DUI investigation based on smell of alcohol and bloodshot, watery eyes); cf. State v. Gutierrez, 240 Ariz. 460, ¶ 8 (App. 2016) (reasonable suspicion to stop vehicle for possible impaired driving based on unnecessary braking and crossing fog line).

¶12 Our dissenting colleague mistakenly asserts that our conclusion dispenses with "any evidence whatsoever" of impairment and permits police to detain "every person who attempts to drive after leaving a bar or tavern." But that not only disregards the totality of circumstances in this case and the reasonableness component of a constitutionally compliant investigatory detention, it ignores that Devlin was initially stopped and detained not for consuming alcohol, but for speeding. Only after a routine traffic stop did Officer Kinkade observe signs that Devlin might be impaired.

¶13 The dissent also charges a lack of fidelity to the record, but true...

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