State v. Acosta, 1

CourtCourt of Appeals of Arizona
Citation166 Ariz. 254,801 P.2d 489
Docket NumberCA-CR,No. 1,1
PartiesSTATE of Arizona, Appellant, v. Roberto Gonzalez ACOSTA, Appellee. 89-306.
Decision Date13 November 1990


Roberto Gonzalez Acosta, the defendant, was indicted for one count of possessing cocaine and one count of transporting cocaine. He filed a motion to suppress the cocaine found during a search of the car he was driving. After an evidentiary hearing, which included the testimony of the defendant and three officers, the court granted the motion to suppress. The state timely appealed. We affirm the trial court's suppression of the evidence.


In reviewing a trial court's ruling on a motion to suppress, we consider the facts in the light most favorable to upholding the ruling. State v. Morrow, 128 Ariz. 309, 310, 625 P.2d 898, 899 (1981).

On the evening of October 16, 1988, Arizona Department of Public Safety (DPS) Officer Sandra Pritchett was patrolling Interstate Highway 40 in northern Arizona. Her attention was attracted by a dark-colored Chevrolet Camaro, which she determined to be traveling about 53 miles per hour in a 65 mile-per-hour zone. She followed the vehicle and saw it cross over the highway dividing line several times. She testified that she was concerned that the driver was simply a poor driver or one who was sleepy or drunk, or that there was a problem with the vehicle. Officer Pritchett stopped the vehicle for unsafe lane usage.

Officer Pritchett asked the defendant for his driver's license and the automobile's registration. The defendant gave her a California identification card (not a driver's license) and a California registration document. Officer Pritchett called in the identification and learned that the defendant had no driver's license. She also learned that the registration was in the name of a California man, not the defendant.

When asked who owned the vehicle, the defendant said that he did not know the owner, but offered the names "Ramon" and "Miguel." The defendant said that he was very tired, that he had been driving for six hours, and that he was on his way to Texas.

Officer Pritchett thought that the car could have been stolen. She asked the defendant if there were any drugs or weapons in the car, to which he replied that there were not. She then asked if she could look in the car, in response to which Officer Pritchett believed that the defendant consented. The officer looked under the seats of the vehicle, then in the console.

While standing beside the vehicle, Officer Pritchett had noticed that the right rear interior panel was loose. After looking in the interior of the car, Officer Pritchett asked the defendant to open the rear portion of the vehicle. The defendant gave her the keys and the officer opened the hatchback. The plastic bolts holding in the rear interior panel were halfway out; Officer Pritchett unscrewed them and pulled away the panel. Inside the compartment she saw a "bag of rags" and a jack. She moved the items "over a little bit and I saw what I believed to be cocaine, kilos." Officer Pritchett then called Officer Rene Valencia for backup.

Officer Pritchett told Officer Valencia that the defendant spoke Spanish, so Officer Valencia informed the defendant of his Miranda 1 rights in Spanish. All of the discussions between Officer Valencia and the defendant were in Spanish.

The defendant was arrested and taken to the police station in Prescott. There, he was interviewed by Officer Gary Goldsmith, who spoke only a little Spanish. However, between the Spanish that Officer Goldsmith knew, the English that the defendant knew, and hand gestures, Officer Goldsmith was able to interview the defendant without a translator. The defendant told Officer Goldsmith that he had been paid $500 or $600 by an unidentified man in a bar in the Los Angeles area to drive the car to San Antonio, leave the car at the airport, and fly back to Los Angeles.


The first issue raised by the state is whether the defendant, who did not own

[166 Ariz. 256] the Camaro, has standing to challenge the search and seizure. The state relies upon Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In Rakas, the United States Supreme Court set forth a guideline for determining whether a person affected by an automobile search has standing to challenge the search. It held that, in order for a person to have standing, he must have had a legitimate expectation of privacy in the vehicle. 439 U.S. at 143, 99 S.Ct. at 430. The Court concluded in Rakas that the persons had no standing to challenge the search because they were neither owners nor borrowers of the vehicle, but mere passengers in it at the time it was searched

Other courts which have directly addressed the issue of whether a non-owner driver has standing to object to a search have held that the driver does have standing, finding that a legitimate expectation of privacy did exist. E.g., United States v. Miller, 821 F.2d 546, 548-49 (11th Cir.1987) (finding standing to search car borrowed from friend); United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir.1980) (finding standing to search car borrowed from friend), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981). The Arizona cases cited by the state do not deal with non-owner-drivers of automobiles and therefore are unpersuasive.

Here, the defendant was the driver of the vehicle searched. Although the defendant admitted that he did not own the automobile, he claimed that it had been loaned to him. Officer Pritchett's investigation of the vehicle did not reveal that it had been reported stolen. As the driver of the borrowed vehicle, the defendant had a reasonable expectation of privacy regarding its contents. Therefore, we find that the defendant has standing to challenge the search and seizure.


The next issue raised is whether Officer Pritchett had a reasonable suspicion to stop the vehicle. At the evidentiary hearing, the defendant argued that Officer Pritchett stopped the vehicle not because of a reasonable suspicion of criminal conduct, but rather due to the fact that the defendant is Hispanic, and because she suspected that he might be transporting drugs. Whether a reasonable suspicion exists to justify an investigatory stop is a mixed question of law and fact and is therefore reviewed de novo. State v. Martinez, 1990 WL 17818, 55 Ariz.Adv.Rep. 65, 66 (App., February 27, 1990). An officer may stop an automobile and detain the driver for investigatory purposes when the totality of the circumstances gives rise to a particularized and founded suspicion that the person is engaged in criminal activity. E.g., United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); State v. Graciano, 134 Ariz. 35, 37, 653 P.2d 683, 685 (1982).

The trial court found that Officer Pritchett began to follow the defendant because he was driving 53 miles per hour in a 65 mile-per-hour zone. It further found that the defendant had crossed the line dividing the lanes by a tire's width as many as six times. These findings were supported by the evidence. However, the trial court then concluded that there was no reasonable suspicion warranting the traffic stop: "[I]t's my finding that this officer at this time [of the stop] in this particular case didn't even have a hunch [of illegal activity]."

The Seventh Circuit recently considered whether, in a similar situation, reasonable suspicion existed to stop a vehicle. In United States v. Garcia, 897 F.2d 1413 (7th Cir.1990), the defendants' pickup truck was stopped for traveling 50 miles per hour in a 45 mile-per-hour zone. The police officer subsequently found marijuana in the truck, and arrested the defendants. On appeal, the defendants claimed that the officer did not have reasonable suspicion to stop the truck, and alleged that they were stopped merely because they were Hispanic and traveling north in a vehicle with out-of-state license plates. The court held that:

While such conduct, if unsupported by any suspicion other than race, would clearly raise serious fourth amendment concerns, this is not the case here.

[166 Ariz. 257] Trooper Baker pulled the defendants over for speeding. It is uncontestable that traveling at any speed over the posted speed limit is a traffic offense and a trooper is justified in stopping a vehicle for the offense. Therefore, we must conclude that the stop of Carlos' vehicle was proper

Id. at 1419.

In State v. Winter, 146 Ariz. 461, 706 P.2d 1228 (App.1985), an officer stopped a vehicle because it was traveling against the lane divider, weaving between lanes, and without an expiration date sticker on its Missouri license plate. Upon investigation, the officer learned that the vehicle was stolen, and arrested the defendant. The defendant attempted to suppress evidence obtained during the investigatory stop by arguing that the stop was not based upon a particularized and founded suspicion by the officer that a crime was being committed. The court, in upholding the stop, stated:

Officer Hernandez testified that appellant was driving close to the median barrier on the freeway and was weaving inside the lane. Believing appellant to be tired or intoxicated and in violation of a law which requires vehicles to travel within one lane, she stopped appellant. We need not decide whether the absence of an expiration sticker on the Missouri plates warranted the stop because the foregoing facts were sufficient to give rise to the officer's particularized and founded suspicion of criminal activity.

Id. at 466-67, 706 P.2d at 1233-34.

In the case before us, the court's ruling on this issue was clearly erroneous. There was reasonable suspicion for Officer Pritchett to...

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