State v. Boni
| Decision Date | 31 March 2014 |
| Docket Number | No. 2 CA-CR 2013-0092,2 CA-CR 2013-0092 |
| Parties | THE STATE OF ARIZONA, Appellee, v. NOEL SAGUILIG BONI, Appellant. |
| Court | Arizona Court of Appeals |
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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender, Tucson
By Robb P. Holmes, Assistant Legal Defender
Counsel for Appellant
Judge Miller authored the decision of the Court, in which Chief Judge Howard and Judge Brammer concurred.1
¶1 Noel Boni was convicted after a jury trial of leaving the scene after causing an accident resulting in injury, simple assault, aggravated assault, aggravated driving under the influence, and aggravated driving with an alcohol concentration of 0.08 or more. He was sentenced to concurrent and consecutive terms totaling nine years' imprisonment. Boni argues the trial court erred in denying his motion to suppress evidence and in denying in part his motion for a judgment of acquittal on amended Count One, leaving the scene after causing an accident resulting in serious physical injury, and Count Three, aggravated assault.
¶2 On appeal, we view the facts in the light most favorable to upholding the convictions. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). On the night of January 30, 2010, a minivan failed to stop at a red light, struck a pedestrian, N.A., in a crosswalk, and left the accident scene. An eyewitness to the accident described the minivan as "grayish bluish" with a bike rack on the rear of the vehicle. Soon after, police officers located an unoccupied minivan matching this description parked on the shoulder of a freeway. Tucson Police Officer Andre Gamulo observed Boni walking on the freeway's frontage road carrying a gas can and pulled into a secluded parking lot, waiting for Boni to walk past. When he did, Officer Gamulo asked Boni what he was doing, and Boni informed him that he had run out of gas. Boni was askedto describe his vehicle and indicated it was "a van with a bike rack on the back" located "on the freeway." Officer Gamulo then read Boni his rights pursuant to Miranda2 and called for other officers to come to the scene.
¶3 Tucson Police Officer Christopher Morand arrived and began questioning Boni. He noticed that Boni's "eyes were red and watery," that "[h]e had a flushed appearance to his face," and that "he had an odor of alcohol emitting from his breath." After Boni admitted he had been drinking that evening, Officer Morand began to administer field sobriety tests—all of which Boni failed. Officer Morand placed Boni under arrest for driving under the influence (DUI).
¶4 Boni was charged with one count each of leaving the scene after causing an accident resulting in death or serious injury, aggravated assault based on serious physical injury, aggravated assault based on the use of a deadly weapon or dangerous instrument, aggravated DUI while his license was suspended, revoked, or restricted, and aggravated driving with an alcohol concentration of 0.08 or more while his license was suspended, revoked, or restricted. The trial court denied Boni's motion to suppress the evidence resulting from his encounter with Officers Gamulo and Morand.
¶5 At the close of the state's case-in-chief, Boni moved for a directed verdict of acquittal on all counts, pursuant to Rule 20, Ariz. R. Crim. P. The trial court granted Boni's motion in part, finding that the state had not established there was a serious physical injury and therefore "there was not substantial evidence to warrant a conviction" for Count One, leaving the scene after causing an accident resulting in serious injury, or Count Two, aggravated assault, serious physical injury. The court allowed the lesser included offenses of leaving the scene after causing an accident resulting in injury and simple assault to go to the jury. Boni was found guilty of amended Count One, leaving the scene of anaccident resulting in injury, and amended Count Two, simple assault, as well as the other charges.
¶6 Boni argues the trial court erred in denying his motion to suppress evidence obtained at the time of his arrest, claiming the police officers lacked reasonable suspicion to detain him and lacked probable cause to arrest him.
¶7 In reviewing the denial of a motion to suppress evidence, we consider only the evidence presented at the suppression hearing, State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996), and view that evidence in the light most favorable to upholding the trial court's ruling, State v. Rodriguez, 205 Ariz. 392, ¶ 34, 71 P.3d 919, 929 (App. 2003). We defer to the trial court's findings of fact, including its evaluation of witness credibility, but review de novo the court's determinations of reasonable suspicion and probable cause. State v. Sweeney, 224 Ariz. 107, ¶ 12, 227 P.3d 868, 872 (App. 2010); State v. Aleman, 210 Ariz. 232, ¶ 15, 109 P.3d 571, 577 (App. 2005).
¶8 Boni first contends Officer Gamulo lacked reasonable suspicion to stop and question him because, although officers were looking for a blue van with a bike rack and possible damage to the front passenger area, "[t]hey had no description of the van's make, model, or year, no information about the license plate number, and no information about the occupant or occupants of the van." The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. A limited investigatory stop "'is permissible under the Fourth Amendment if supported by reasonable suspicion' that criminal activity is afoot." State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996), quoting Ornelas v. United States, 517 U.S. 690, 693 (1996); see also Terry v. Ohio, 392 U.S. 1, 30-31 (1968). "Reasonable suspicion that a person is wanted in connection with a completed felony also can justify a brief stop." State v. Kinney, 225 Ariz. 550, ¶ 14, 241 P.3d 914, 919 (App. 2010).
¶9 But not every police-citizen encounter implicates the Fourth Amendment. See State v. Wyman, 197 Ariz. 10, ¶ 7, 3 P.3d 392, 395 (App. 2000). Indeed, "[l]aw enforcement officers have wide latitude to approach people and engage them in consensual conversation." State v. Hummons, 227 Ariz. 78, ¶ 7, 253 P.3d 275, 277 (2011). A stop constitutes a seizure only when "by means of physical force or a show of authority, [a person's] freedom of movement is restrained," and "a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 553, 554 (1980).
¶10 At the suppression hearing, the parties stipulated to the facts as summarized by the trial court. Police officers were looking for a blue or gray minivan with a bike rack that had left the scene of an injury accident involving a pedestrian. A police officer located an unoccupied minivan matching this description on the freeway. The abandoned vehicle had "damage on the right passenger front area" that matched where witnesses indicated the victim had been hit. When Officer Gamulo noticed Boni walking on the frontage road to the freeway and asked him what he was doing, Boni indicated that he was getting gas for his minivan located on the freeway. Gamulo then read Boni his rights and upon further questioning Boni admitted to having consumed "some beer a few hours earlier." After participating in a series of field sobriety tests, Boni was arrested.
¶11 The trial court ruled "the initial encounter that the police had with Mr. Boni was consensual"; alternatively, "the totality of the circumstances indicate[d] that the police officers had reasonable suspicion to stop and question Mr. Boni." We agree with the trial court's determination that Officer Gamulo's initial encounter with Boni was consensual. Gamulo merely asked Boni a question as he walked along a public street. Boni did not attempt to end the conversation or ask to leave. Thus, Gamulo did not "seize" Boni for purposes of the Fourth Amendment when he initiated the encounter. See State v. Robles, 171 Ariz. 441, 443, 831 P.2d 440, 442(App. 1992) ().
¶12 Assuming for the purpose of addressing Boni's additional argument that Officer Gamulo's questioning was a nonconsensual seizure, the requisite reasonable suspicion existed to conduct an investigatory stop. Boni was seen walking near an unoccupied vehicle with characteristics that matched an eyewitness's description of one involved in a hit-and-run injury accident. Given the circumstances, Gamulo reasonably could have suspected that Boni should be detained and that further investigation was needed. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (); State v. Ramsey, 223 Ariz. 480, ¶ 23, 224 P.3d 977, 982 (App. 2010) ().
¶13 Boni also claims the trial court erred by finding that there was sufficient evidence to constitute probable cause to arrest him. Specifically, Boni...
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