State v. Caraveo, 1 CA-CR 08-0878.

• Decision Date: 13 August 2009
• Docket Number: No. 1 CA-CR 08-0878.,1 CA-CR 08-0878.
• Citation: 213 P.3d 377,222 Ariz. 228
• Parties: STATE of Arizona, Appellant, v. Arturo Vega CARAVEO, Appellee.
• Court: Arizona Court of Appeals

213 P.3d 377

222 Ariz. 228

STATE of Arizona, Appellant, v. Arturo Vega CARAVEO, Appellee.

No. 1 CA-CR 08-0878.

Court of Appeals of Arizona, Division 1, Department A.

August 13, 2009.

Andrew P. Thomas, Maricopa County Attorney By Gerald R. Grant, Deputy County Attorney, Phoenix, Attorneys for Appellant.

James J. Haas, Maricopa County Public Defender By Peg Green, Deputy Public Defender, Phoenix, Attorneys for Appellee.

OPINION

BARKER, Judge.

¶ 1 The State of Arizona appeals from the trial court's order granting Arturo Vega Caraveo's motion to suppress evidence that police officers obtained after conducting a pat-down of his person. The State contends that the trial court erred by concluding that State v. Johnson, 217 Ariz. 58, 170 P.3d 667 (App. 2007), prohibits a citizen from consenting to a patdown search during a consensual encounter with police officers. For the following reasons, we agree, and, accordingly, reverse the trial court's ruling and remand this matter to the trial court for additional proceedings.

Facts and Procedural History¹

¶ 2 On April 20, 2008, at approximately 5:00 p.m., two officers reportedly observed Caraveo driving and parking a vehicle on the sidewalk in front of a house. After Caraveo exited the vehicle and began walking towards the house, the officers approached him. Based on the encounter, the officers obtained a loaded .380 caliber handgun that had been concealed in Caraveo's rear pants pocket, a jiggle key that Caraveo admitted he used to start the vehicle, and two baggies of methamphetamine located in Caraveo's wallet, which was in his right front pants pocket. Caraveo was subsequently indicted on four counts: (1) theft of means of transportation, a class 3 felony; (2) possession of burglary tools, a class 6 felony; (3) misconduct involving weapons, a class 4 felony; and (4) possession or use of dangerous drugs, a class 4 felony.

¶ 3 On August 21, 2008, Caraveo filed a motion to suppress and requested an evidentiary hearing and oral argument. The trial court held an evidentiary hearing on the motion to suppress on September 24, 2008. The State presented the arresting officer, Officer Newton, as its only witness.

¶ 4 Officer Newton testified that he and his partner, Officer Denney, observed Caraveo in a white Saturn pulling onto the sidewalk with the "vehicle completely covering the sidewalk [such that] no pedestrians could pass," which constituted traffic and parking violations. He stated that his partner, Officer Denney, then rolled down his window and called out to Caraveo, "how you doing, man?" Caraveo then approached the patrol car, and Officer Denney exited the vehicle to talk with Caraveo.

¶ 5 The two discussed why Caraveo parked on the sidewalk and if he would mind showing the officers identification. After observing a "slight bulge in [Caraveo's] front waistband," Officer Newton testified that he asked Caraveo "if he wouldn't mind letting [him] pat him down, check him for weapons" and that Caraveo responded, "Sure, man, no problem." Officer Newton further testified that he was clear in requesting consent to search and that he did not point his gun at Caraveo or put him in handcuffs prior to requesting such consent.

¶ 6 After Officer Newton's testimony, Caraveo testified on his own behalf. Caraveo denied driving or parking the vehicle; he stated that he left the house to retrieve the beer in the car but that once he saw the police officers, he decided to return to the house without the beer. He testified that once he responded to Officer Denney's greeting, both of the officers got out of their patrol car and quickly "jerked up the front of [his] shirt" and that one officer then started conducting a patdown. He testified that the officers never asked if they could conduct a patdown and that he never consented to one.

¶ 7 After the evidence was presented, Caraveo's counsel argued:

I think if you look at the facts, more likely than not, my client never consented to the patdown. But that's really not the issue here. The issue is in a consensual encounter without reasonable suspicion that criminal activity is afoot, they can't be conducting a patdown on my client. Case law is very clear.

He contended that "even if [Caraveo] did consent in a consensual encounter, [the officers] can't be conducting a patdown." The State argued that consent to search is a "clear exception to the frisk rule," and that Caraveo expressly consented to the patdown.

¶ 8 After taking the matter under advisement to consider State v. Johnson, the court issued its ruling as follows:

The Court after considering the Motion and Response, and the evidence presented at the evidentiary hearing finds that the contact between the defendant and the police officers was a consensual encounter. Under State v. Johnson, 217 Ariz. 58, 170 P.3d 667 (App.2007), the officers were not entitled to conduct the pat down search as there was no articulable suspicion of criminal activity connected to the defendant's actions.

The State timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2001) and 13-4032(6) (Supp.2008).

Discussion

¶ 9 We review a trial court's ruling on a motion to suppress for an abuse of discretion if it involves a discretionary issue and de novo if it involves pure issues of law or constitutional issues. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004).

¶ 10 We note as an initial matter that during pendency of this appeal, the United States Supreme Court overruled the case from this court, State v. Johnson, relied upon by the trial court. Arizona v. Johnson, ___ U.S. ___, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). In order to properly address the issue presented to us, we must address each of these decisions.

¶ 11 In State v. Johnson, three officers pulled over a vehicle after checking the license plate and finding that the vehicle had a mandatory insurance suspension. Id. at 59, ¶¶ 2-3, 170 P.3d at 668. The vehicle contained multiple occupants, one of whom, Johnson, was dressed entirely in blue with a blue bandanna, which Officer Trevizo recognized as one indicator of gang affiliation. Id. at 60, ¶ 5, 170 P.3d at 669. Hoping to gather gang intelligence, Officer Trevizo started a conversation with Johnson, whom she noticed was carrying a scanner in his jacket. Id. at ¶¶ 5-8. Once Johnson left the vehicle, Officer Trevizo patted him down for officer safety. Id. at ¶ 9. Based on the evidence obtained from the patdown, Johnson was charged with possession of a weapon by a prohibited possessor and possession of marijuana. Id. at ¶ 10.

¶ 12 Johnson argued that the frisk was unconstitutional because his encounter with the officer was consensual and unrelated to the traffic stop. Id. at 61, ¶ 12, 170 P.3d at 670. Relying on In re Ilono H., 210 Ariz. 473, 476, ¶ 11, 113 P.3d 696, 699 (App.2005), the panel in Johnson stated that "[a]n officer may not, however, conduct a pat-down search during a consensual encounter if the officer lacks reasonable suspicion that criminal activity is occurring, even if the officer has reason to believe a suspect may be armed and dangerous." Id. The court thus held that "when an officer initiates an investigative encounter with a passenger that was consensual and wholly unconnected to the original purposes of the routine traffic stop of the driver, that officer may not conduct a Terry frisk of the passenger without reasonable cause to believe `criminal activity may be afoot.'" Id. at 65, ¶ 29, 170 P.3d at 674. Express consent to the patdown itself, as contrasted with consent to the encounter generally, was never raised and was not at issue.

¶ 13 As noted, the United State Supreme Court subsequently reversed this decision. Arizona v. Johnson, ___ U.S. ___, 129 S.Ct. 781, 172 L.Ed.2d 694. The Court held:

[I]n a traffic-stop setting, the first Terry condition — a lawful investigatory stop — is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

Id. at ___, 129 S.Ct. at 784 (emphasis added). The Court found that the encounter between Officer Trevizo and Johnson was not consensual, as nothing had occurred that "would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free `to depart without police permission.'" Id. at ___, 129 S.Ct. at 788 (quoting Brendlin v. California, 551 U.S. 249, 257, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007)). The Court emphasized: "An officer's inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop." Id. Like the court of appeals in State v. Johnson, the Court did not address the separate issue of express consent to a patdown.

¶ 14 It is this issue that was not addressed in either State v. Johnson or Arizona v. Johnson that is presented here: whether the trial court erred by finding Caraveo's consent to the patdown search irrelevant to whether it was constitutional.² The State argues that consent is an exception to the requirements of a warrant and probable cause. We agree with the State.

¶ 15 Citing Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), and Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the State argues that if a defendant voluntarily consents to a search, the search must be upheld as constitutional. The United...