State v. Canales

• Decision Date: 13 October 2009
• Docket Number: No. 2 CA-CR 2009-0023.,2 CA-CR 2009-0023.
• Citation: State v. Canales, 217 P.3d 836, 222 Ariz. 493 (Ariz. App. 2009)
• Parties: The STATE of Arizona, Appellant, v. Marcos Adrian CANALES, Appellee.
• Court: Arizona Court of Appeals

217 P.3d 836

222 Ariz. 493

The STATE of Arizona, Appellant, v. Marcos Adrian CANALES, Appellee.

No. 2 CA-CR 2009-0023.

Court of Appeals of Arizona, Division 2, Department B.

October 13, 2009.

Barbara LaWall, Pima County Attorney By Jacob R. Lines, Tucson, Attorneys for Appellant.

The Law Offices of Stephen P. Barnard, P.C. By Stephen P. Barnard, Tucson, Attorneys for Appellee.

OPINION

VÁSQUEZ, Judge.

¶ 1 The State of Arizona appeals the trial court's dismissal of charges against Marcos Canales after an evidentiary hearing on Canales's motion to dismiss based on a lack of probable cause to arrest him for driving under the influence of intoxicating liquor (DUI). Because we conclude the officer lacked reasonable suspicion to detain Canales, we affirm.

Facts and Procedural Background

¶ 2 We view the evidence presented at the suppression hearing in the light most favorable to upholding the trial court's ruling. State v. Rosengren, 199 Ariz. 112, ¶ 2, 14 P.3d 303, 306 (App.2000). Just after 11:00 p.m. on March 11, 2008, Pima County Sheriff's Deputy Audetat was dispatched to an apartment complex to investigate a suspicious vehicle in the parking lot. An unidentified person had called 911 and reported the vehicle. Audetat parked directly behind a car closely matching the description that had been provided and shined the patrol car's alley light toward the vehicle. As he approached on foot, he noticed Canales, who was sitting in the driver's seat, place a twenty-four-ounce beer can behind the passenger's seat. Audetat smelled an odor of alcohol coming from the vehicle and observed Canales had red, watery, bloodshot eyes. After back-up officers arrived, Audetat asked Canales to step out of the vehicle and perform two field sobriety tests. On the walk-and-turn test, Canales demonstrated three cues of impairment, and on the one-leg-stand test, he demonstrated one. A preliminary breath test revealed the presence of alcohol. Audetat arrested Canales for DUI, and another deputy performed a blood draw.

¶ 3 Based on the results of the blood test, Canales was charged with aggravated DUI while his license was suspended, revoked, or in violation of a restriction; aggravated DUI with an alcohol concentration of 0.08 or more while his license was suspended, revoked, or in violation of a restriction; aggravated DUI having two or more prior DUI convictions; and aggravated DUI with an alcohol concentration of 0.08 or more, having two or more prior DUI convictions. Before trial, Canales filed motions to dismiss for lack of reasonable suspicion and probable cause, and after a hearing, the trial court dismissed based on the lack of probable cause. The state has timely appealed.

Discussion

¶ 4 In the single issue raised on appeal, the state contends the trial court abused its discretion in granting the motion to dismiss because Audetat had probable cause to arrest Canales for DUI. Canales counters that the officer detained him without "any reasonable suspicion of criminal activity or a traffic violation,"¹ which he maintains violated his rights under the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution. Because we find the reasonable suspicion issue dispositive, we do not reach the issue of whether the officer had probable cause to arrest Canales. See State v. Canez, 202 Ariz. 133, ¶ 51, 42 P.3d 564, 582 (2002) (appellate court may affirm trial court if correct for any reason).

¶ 5 We review de novo whether there was reasonable suspicion to conduct an investigatory stop, State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996), and defer to the trial court's factual findings that are supported by the record, State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App.2000), viewing them in the light most favorable to upholding the trial court's ruling, State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App.2007).

¶ 6 Not all interactions between police officers and citizens implicate the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 20 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Wyman, 197 Ariz. 10, ¶ 7, 3 P.3d 392, 395 (App.2000). Only when the encounter is not voluntary and results in the restraint of the individual's liberty is the individual "seized" within the meaning of the Constitution. Terry, 392 U.S. at 20 n. 16, 88 S.Ct. 1868; see also State v. Guillory, 199 Ariz. 462, ¶ 11, 18 P.3d 1261, 1264 (App.2001) (seizure requires use of physical force or submission to assertion of authority). "Whether an encounter is a detention ... depends on whether the police conduct would have conveyed to a reasonable person that he or she was not free to decline the officer's requests or otherwise terminate the encounter." United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.1996).

¶ 7 Audetat testified at the suppression hearing that when he entered the parking lot, he parked his police car "in such a way that [Canales's] vehicle could not back out," so that it was "kind of immobilized ... by [his] car." He then turned on his "alley light," which shone "in the direction" of the inside of Canales's car, and immediately approached the driver's side window on foot. The trial court concluded that this amounted to a "stop, certainly, with the deputy parking behind the vehicle, even though the vehicle had not been moving."

¶ 8 Audetat's actions had made it physically impossible for Canales to terminate the encounter by leaving in his vehicle, and by shining a light toward the interior of the car and directly approaching the driver's side door, Audetat had conveyed to Canales that he was the subject of the inquiry. Under these circumstances a reasonable person would not have believed he was free "to disregard the police and go about his business." California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Canales was, therefore, detained. See Rogers, 186 Ariz. at 510-11, 924 P.2d at 1029-30 (defendant detained when officers approached on foot, displayed badge, and said, "we need to talk to you"); see also United States v. Kerr, 817 F.2d 1384, 1386-87 (9th Cir.1987) (where police officer in marked vehicle blocked driveway as defendant attempted to back out, officer "provided [defendant] with no reasonable alternative except an encounter with the police"); People v. Cascio, 932 P.2d 1381, 1387 (Colo.1997) (noting courts have found detention exists when police car "wholly blocks the defendant's ability to leave"); Riley v. State, 892 A.2d 370, 374 (Del.2006) (detention occurred when police approached vehicle with badges and flashlights, after parking their vehicle in such a way as to prevent defendant from driving away); State v. Jestice, 177 Vt. 513, 861 A.2d 1060, 1062-63 (2004) (defendant detained where defendant would have had to back up and maneuver around police car and officer to exit parking lot and officer shined headlights into vehicle); McChesney v. State, 988 P.2d 1071, 1075 (Wyo.1999) (noting use of police car to block defendant's car has been found to constitute seizure).

¶ 9 However, this conclusion does not end our analysis. We must also determine whether the detention was supported by reasonable suspicion, which is "a justifiable suspicion that the particular individual to be detained is involved in criminal activity." State v. Graciano, 134 Ariz. 35, 37, 653 P.2d 683, 685 (1982). Canales contends the anonymous citizen's telephone tip² was insufficient to justify the investigatory stop and Audetat personally had not observed any behavior that would have created reasonable suspicion of criminal activity. To support his argument Canales relies on State v. Altieri, 191 Ariz. 1, 951 P.2d 866 (1997), in which our supreme court held that an anonymous tip about criminal activity was insufficient to support reasonable suspicion.³

¶ 10 In Altieri, the Arizona Department of Public Safety received an anonymous tip claiming that a man was driving a car containing 150 pounds of marijuana. 191 Ariz. 1, ¶ 2, 951 P.2d at 867. The informant provided the name and age of the driver; the make, model, appearance, and license plate number of the vehicle; and the vehicle's approximate location. Id. Officers located and stopped the car based solely on this information. Id. ¶ 3. On appeal, Altieri contended the tip was insufficient to provide reasonable suspicion to stop his vehicle. The court of appeals affirmed the trial court's denial of his motion to suppress, and the supreme court reversed. Id. ¶¶ 5-6.

¶ 11 The supreme court acknowledged that "an anonymous tip may, in some circumstances, be sufficient to support a stop, [if it] ... show[s] sufficiently detailed circumstances to indicate that the informant came by his information in a reliable way." Id. ¶ 9. And it noted that when the tip "fails to provide sufficient underlying circumstances demonstrating the reliability of the information, the reliability may be supplied by independent observations of the police corroborating the information in the tip." Id.; see State v. White, 122 Ariz. 42, 43, 592 P.2d 1308, 1309 (App.1979). However, to provide reasonable suspicion, the tip "must contain `a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.'" Altieri, 191 Ariz. 1, ¶ 9, 951 P.2d at 868, quoting Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Ultimately, our supreme court concluded the tip leading to Altieri's arrest did not provide reasonable suspicion for the initial stop, because it contained only "neutral, non-predictive information about the defendant and his activities." Id. ¶ 14.

¶ 12 In State v. Gomez, 198 Ariz. 61, 6 P.3d 765 (App.2000), Division One of this court expanded upon the reasoning in Altieri. In Gomez an unidentified caller stated she had observed a passenger in a vehicle pointing a gun out of the window and...