State v. Box

• Decision Date: 31 July 2003
• Docket Number: No. 2 CA-CR 2001-0491.,2 CA-CR 2001-0491.
• Citation: 73 P.3d 623,205 Ariz. 492
• Parties: The STATE of Arizona, Appellee, v. Lenny M. BOX, Appellant.
• Court: Arizona Court of Appeals

73 P.3d 623

205 Ariz. 492

The STATE of Arizona, Appellee, v. Lenny M. BOX, Appellant.

No. -0491.

Court of Appeals of Arizona, Division Two, Department B.

July 31, 2003.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Joseph L. Parkhurst, Tucson, for Appellee.

W. Michael Walz, Phoenix, for Appellant.

OPINION

ESPINOSA, Chief J.

¶ 1 After a jury trial, appellant Lenny M. Box was convicted of transporting marijuana for sale. The trial court sentenced him to a presumptive, five-year prison term. On appeal, Box challenges the trial court's denial of his motion to suppress the marijuana found in the trunk of his car after an allegedly unconstitutional search and seizure. For the following reasons, we affirm.

BACKGROUND

¶ 2 In reviewing a denial of a motion to suppress, we review only the evidence submitted at the suppression hearing, State v. Blackmore, 186 Ariz. 630, 925 P.2d 1347 (1996), and we view the facts in the light most favorable to upholding the trial court's ruling, State v. Sheko, 146 Ariz. 140, 704 P.2d 270 (App.1985). The facts here are essentially uncontested. Department of Public Safety (DPS) Officer Torres was driving north on a state highway near Globe when he observed a Buick, driven by appellant, exceeding the speed limit. Torres's attention was also drawn to the Buick because an officer had stopped a car the previous day that had been discovered to be carrying 145 pounds of marijuana, and that car had contained a key with a Buick tag affixed to it. Torres did not stop appellant, however, because Torres was transporting two people in his patrol car in connection with an unrelated incident, and agency regulations did not permit him to make a civil traffic stop in that circumstance. Instead, he radioed the foregoing information to his dispatcher with instructions to contact the Gila County Sheriff's Office and request that a local officer be dispatched to stop appellant for speeding.

¶ 3 Officer Baxley responded to the dispatch and saw Torres following appellant. Torres confirmed with Baxley via radio that appellant's car was the subject of the dispatch. Baxley stopped appellant's car and told appellant he had been stopped at the request of the DPS officer who had seen him speeding. While speaking with appellant during the stop, Baxley noticed the following things in the car. There were two small duffel bags, a blanket, and a pillow in the back seat. There was a plastic jug of water and a plastic bag containing food wrappers and other trash on the floorboard, and there was a cellular telephone, an open Arizona map, and a citizen's band (CB) radio on the front seat. Baxley, whose ten-year career in law enforcement included specialized drug interdiction training through the "Desert Snow highway interdiction program," testified that, from his training and experience, he knew that "[s]ome of those items are consistent with people trafficking in illegal drugs." Appellant gave Baxley his Kansas driver's license, vehicle registration, and proof of insurance. Baxley conducted radio checks on these documents and determined that "[e]verything was clean." He then asked appellant to step out of the car and issued a written warning for the speed violation.

¶ 4 After Baxley handed appellant the warning and returned his driver's license and other documents, he asked appellant where he had been coming from. Appellant said he had left Kansas about ten days earlier and had been vacationing in Tucson. When asked whether he had stayed at a hotel or with a friend, appellant would not say. Baxley asked about the duffel bags, and appellant told him they contained all his clothes for his trip. Baxley asked appellant whether he had any weapons or large amounts of money. Appellant replied that he had no weapons, that there were ten or fifteen dollars in loose currency thrown around the front seat area that he used for "toll bridges," and that he carried approximately $500 on his person. Baxley asked if there was marijuana in the car. Appellant chuckled and looked away, saying he did not drink and would not use marijuana or drugs. Baxley asked if there was cocaine, methamphetamine, or heroin in the car; appellant denied that there was, this time meeting the officer's eyes. Baxley testified that he then

asked for consent to search the vehicle. The reason why is some of the indicators I found in the vehicle from looking in there, and his inconsistent statements about the trip to Tucson and where he was at, I felt that he was probably trafficking in illegal drugs and requested consent to search.

Appellant declined to consent. Baxley did not smell marijuana or any suspicious odor.

¶ 5 Because Baxley was traveling with a trained narcotics detection dog, he then asked appellant to step away from the car to allow the dog to sniff it. In under a minute, the dog "alerted" on the trunk, in Baxley's words, its way of "announcing that there is an odor of illegal drugs coming from the trunk." Torres, who had since deposited his passengers, returned to the scene of the stop, and Baxley told him the dog had alerted on appellant's car.

¶ 6 The officers asked appellant for a key to the trunk, but he told them he did not have one. The officers were forced to access the trunk through the interior, which required "remov[ing] the back seat area and open[ing] up the carpet covering that was there." They found several bundles wrapped in contact paper in the trunk. Baxley could smell the odor of marijuana, and he cut open one of the bundles and saw that it was full of marijuana. After removing all the bundles and laying them out on the car, Baxley placed appellant under arrest. The entire encounter, from the time Baxley's dispatcher called him to appellant's arrest, lasted approximately twenty-five minutes.

¶ 7 Appellant moved to suppress the marijuana, arguing that its discovery was the product of an unconstitutional stop and, alternatively, the product of an unconstitutional detention that had occurred after the purpose of the traffic stop had been completed. In reviewing the denial of a motion to suppress evidence, we defer to the trial court's factual determinations, but the ultimate ruling is a conclusion of law we review de novo. State v. Valle, 196 Ariz. 324, 996 P.2d 125 (App.2000).

DISCUSSION

I. Stop Authorized by A.R.S. § 28-1594

¶ 8 Appellant first argues, as he did below, that Baxley was not authorized to stop him because the officer had not personally observed him speeding. In rejecting this claim, the trial court found it was permissible for Baxley to stop and temporarily detain appellant at the request of Torres, who had actually seen appellant speeding. The court noted that this scenario frequently occurs in the case of an officer operating a radar gun who receives the assistance of other officers in stopping an offender until the officer with the radar gun can proceed to the scene of the stop and issue a citation. The court added that, "if Officer Baxley had issued a citation for a traffic offense which he had not seen, that citation would be fatally flawed."

¶ 9 Appellant's argument is based on A.R.S. § 13-3883(B), which provides in relevant part as follows: "A peace officer may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of any traffic law committed in the officer's presence and may serve a copy of the traffic complaint for any alleged civil or criminal traffic violation." (Emphasis added.) Appellant contends that, because Baxley did not personally witness the alleged speeding violation, his stop was therefore made in violation of article II, § 8 of the Arizona Constitution,¹ which prohibits disturbing individuals in their private affairs "without authority of law."² The state argues that Baxley's stop was authorized by § 28-1594, which provides: "A peace officer or duly authorized agent of a traffic enforcement agency may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of this title and to serve a copy of the traffic complaint for an alleged civil or criminal violation of this title." This statute has no requirement that the suspected traffic violation occur in the officer's presence. Questions of statutory construction are issues of law we review de novo. Zamora v. Reinstein, 185 Ariz. 272, 915 P.2d 1227 (1996). When interpreting statutes, our goal is to find and give effect to the legislature's intent. State v. Fell, 203 Ariz. 186, 52 P.3d 218 (App.2002).

¶ 10 For several reasons, we decline appellant's request, unsupported by case law, that we invoke the rule of lenity and find that § 13-3883(B) conflicts with and trumps § 28-1594 and conclusively bars a law enforcement officer from stopping a motorist for a traffic violation not committed in that officer's presence. First, § 13-3883(B) contains the permissive, nonrestrictive word "may," not conclusive, restrictive language such as "may only." Second, "the legislature is presumed to know existing law when it enacts a statute," Wareing v. Falk, 182 Ariz. 495, 500, 897 P.2d 1381, 1386 (App.1995), and is presumed not to enact meaningless, redundant, or futile legislation, State v. City Court of Tucson, 138 Ariz. 244, 673 P.2d 988 (App. 1983). Section 13-3883(B) was enacted in 1990;³ § 28-1594 was enacted in 1995.⁴ To afford § 28-1594 any nonredundant meaning in light of the preexisting § 13-3883(B), we can only conclude the former authorizes a peace officer to stop motorists for traffic violations committed outside his or her presence.

¶ 11 Finally, when faced with statutory ambiguities, we may look to title and section headings of statutes for guidance in determining legislative intent. Flórez v. Sargeant, 185 Ariz. 521, 917 P.2d 250 (1996). Section 13-3883(B) appears in the criminal code at article 7, chapter 38, title 13, A.R.S., and is entitled "Arrest." Section 13-3883 itself is entitled "Arrest by officer without warrant"...