Jones v. Sterling

Citation210 Ariz. 308,110 P.3d 1271
Decision Date04 May 2005
Docket NumberNo. CV-04-0216-PR.,CV-04-0216-PR.
PartiesAnthony James JONES, Luis Rodriguez Burgos, Jose Altagracia Rodriguez, Petitioners, v. Hon. Janis A. STERLING, Judge of the Superior Court of the State of Arizona, in and for the County of Yavapai, Respondent Judge, State of Arizona, Real Party in Interest.
CourtSupreme Court of Arizona

110 P.3d 1271
210 Ariz. 308

Anthony James JONES, Luis Rodriguez Burgos, Jose Altagracia Rodriguez, Petitioners,
Hon. Janis A. STERLING, Judge of the Superior Court of the State of Arizona, in and for the County of Yavapai, Respondent Judge,
State of Arizona, Real Party in Interest

No. CV-04-0216-PR.

Supreme Court of Arizona, En Banc.

May 4, 2005.

110 P.3d 1272
Law Office of Lee Brooke Phillips, P.C. by Lee Phillips, Natalie Jacobs, Flagstaff, Attorneys for Petitioners

Terry Goddard, Attorney General, by Cari McConeghy-Harris, Assistant Attorney General, Phoenix and Sheila Sullivan Polk, Yavapai County Attorney by Dennis M. McGrane, Deputy County Attorney, Prescott, Attorneys for Real Party in Interest.


HURWITZ, Justice.

¶ 1 Petitioners in these cases were charged with drug offenses following traffic stops and the discovery of drugs in the cars in which they were traveling. They claim that the police officers who stopped the vehicles were engaged in "racial profiling," the selective enforcement of traffic laws based on race. The issue before us is whether the defendants are entitled to the appointment of an expert witness to assist them in proving this allegation.


¶ 2 Petitioners Anthony James Jones, an African-American, and Luis Rodriguez-Burgos and Jose Altagracia Rodriguez, both of whom are Latino, were in vehicles stopped by Department of Public Safety ("DPS") officers on I-17 in Yavapai County on separate occasions in 2001 and 2002 as part of a statewide drug interdiction effort. In each case, DPS officers discovered drugs inside the vehicles. Petitioners were thereafter arrested and charged with drug offenses.

¶ 3 Petitioners claimed in the superior court that the DPS officers had selectively enforced traffic laws against them and other African-American and Latino motorists and

110 P.3d 1273
contended that the drug charges against them should therefore be dismissed. Their cases were consolidated with cases of other defendants making similar allegations

¶ 4 The defendants first sought document discovery from the State to support their racial profiling claim. They offered testimony by Dr. Frederic I. Solop, Director of the Social Research Laboratory at Northern Arizona University, in support of that application. Dr. Solop said that his preliminary analysis of data about the race of motorists stopped by DPS in Yavapai County and data on the racial composition of motorists violating traffic laws in general led him to conclude that a colorable claim of selective enforcement existed. The superior court granted the discovery motion.

¶ 5 Defendants later moved pursuant to Arizona Rule of Criminal Procedure 15.9(a) for appointment of Dr. Solop as an expert witness. The superior court denied the motion, holding that the alleged selective enforcement of traffic laws was not a defense to the drug offenses for which the defendants were charged and that the appointment of an expert therefore was not "reasonably necessary to present a defense" as required by Rule 15.9(a).

¶ 6 Petitioners sought special action relief in the court of appeals, which declined jurisdiction. We granted the petition for review because the issues presented are of statewide importance and first impression.1 We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") § 12-120.24 (2003).


¶ 7 Arizona Rule of Criminal Procedure 15.9(a) provides:

An indigent defendant may apply for the appointment of an investigator and expert witness ... to be paid at county expense if the defendant can show that such assistance is reasonably necessary to present a defense adequately at trial or sentencing.

The central issue in this case is whether petitioners' selective enforcement claims could constitute a "defense" to the pending criminal charges.


¶ 8 In concluding that selective enforcement of the traffic laws was not a defense to the drug crimes with which petitioners are charged, the superior court primarily relied on Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In that case, police officers patrolling a "high drug area" observed a truck waiting at a stop sign. Id. at 808, 116 S.Ct. 1769. As the police approached the truck, it turned suddenly without signaling and sped off at an "unreasonable" speed. Id. The officers stopped the vehicle, purportedly to warn the driver about traffic violations, and upon approaching the driver's window observed two large plastic bags of what appeared to be crack cocaine in Whren's hands. Id. at 808-09, 116 S.Ct. 1769. Whren and the driver of the truck were arrested and illegal drugs were retrieved from the vehicle. Id. at 809, 116 S.Ct. 1769. The defendants were charged with federal drug offenses and moved to suppress the evidence of the drugs, arguing that the stop was justified by neither probable cause nor reasonable suspicion of drug law violations, and that the officers' traffic-violation ground for approaching the truck was pretextual. Id.

¶ 9 The Whren defendants, both of whom were African-American, conceded that the officers had probable cause to believe that traffic laws had been violated. Id. at 810, 116 S.Ct. 1769. They nonetheless argued that "in the unique context of civil traffic regulations probable cause is not enough," because "a police officer will almost invariably be able to catch any given motorist in a technical violation." Id. (internal quotation marks omitted). This ability to stop virtually any motorist for a traffic violation raised the danger that "police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the cars occupants." Id. To avoid this danger,

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the Whren defendants contended that "the Fourth Amendment test for traffic stops should be, not the normal one ... of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given." Id.

¶ 10 The Supreme Court unanimously rejected the argument "that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved." Id. at 813, 116 S.Ct. 1769. Instead, the Court held that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Id. Because the officers had probable cause for the traffic stop, the Court affirmed the lower courts' refusals to suppress the drugs. Id. at 819, 116 S.Ct. 1769.

¶ 11 Decisions after Whren have confirmed that evidence seized as a result of a traffic stop meeting "normal" Fourth Amendment standards is not rendered inadmissible because of the subjective motivations of the police who made the stop. See Devenpeck v. Alford, ___ U.S. ___, ___-___, 125 S.Ct. 588, 593-94, 160 L.Ed.2d 537 (2004); Arkansas v. Sullivan, 532 U.S. 769, 771-72, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001). Therefore, to the extent that petitioners here sought the appointment of an expert to support a Fourth Amendment argument for suppression of the seized drugs because of the alleged racial motivations of the arresting officers, the superior court properly concluded that Whren barred such a "defense."


¶ 12 Whren, however, did not approve selective enforcement of traffic laws, nor did it hold that proof of such selective enforcement is irrelevant in the defense of a resulting criminal case. Rather, Justice Scalia, writing for a unanimous court, emphasized:

We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.

Whren, 517 U.S. at 813, 116 S.Ct. 1769. Thus, even though the selective enforcement claims in this case provide no basis for suppression of evidence under the Fourth Amendment, the question remains as to whether the petitioners may nonetheless be entitled to expert assistance to prove a Fourteenth Amendment defense to the criminal charges.

¶ 13 As Justice Scalia noted in Whren, it is beyond contest that race-based selective enforcement of the law violates the Equal Protection Clause of the Fourteenth Amendment. Id. "Racially selective law enforcement violates this nation's constitutional values at the most fundamental level; indeed, unequal application of criminal law to white and black persons was one of the central evils addressed by the framers of the Fourteenth Amendment." Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1167 (10th Cir.2003). Just as a state cannot enact criminal laws applicable on their face only to African-Americans or Latinos, neither can its agents enforce facially neutral laws on the basis of race. A state can no more make "driving while Black" a crime by means of its enforcement policies than it could by express law.

¶ 14 The State's briefing readily and correctly concedes this. The State contends, however, that proof of selective enforcement of traffic laws is not a defense to a criminal charge, but rather entitles injured parties only to civil redress pursuant to 42 U.S.C. § 1983. It therefore argues that appointment of an expert to assist in proof of selective enforcement is not, in the words of Rule 15.9(a), "reasonably necessary to present a defense adequately at trial and sentencing."

¶ 15 Selective enforcement of traffic laws on the basis of race can give rise to a § 1983 claim. See, e.g., Johnson v. Crooks, 326 F.3d 995 (8th Cir.2003); Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523 (6th Cir.2002); Chavez v. Ill. State Police, 251 F.3d 612 (7th Cir.2001); Stemler v. City of Florence, 126 F.3d 856 (6th Cir.1997). But the fact that a § 1983 claim is an available remedy for selective enforcement does not

110 P.3d 1275
make it the exclusive remedy. No case cited by the...

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