State v. Davenport
| Decision Date | 27 November 2019 |
| Docket Number | No. 2 CA-CR 2019-0096,2 CA-CR 2019-0096 |
| Parties | THE STATE OF ARIZONA, Appellee, v. STYRON MICHAEL DAVENPORT, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pinal County
The Honorable Patrick K. Gard, Judge Pro Tempore
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Julian Francis, Assistant Attorney General, Phoenix
Counsel for Appellee
Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
¶1 After a jury trial, Styron Davenport was convicted of possession of marijuana, possession of drug paraphernalia, and resisting arrest. The trial court sentenced him to concurrent prison terms of 1.5 years for each count. On appeal, Davenport argues the court erred in denying his motion to suppress because the deputies lacked reasonable suspicion to stop him and probable cause to arrest him. He also contends there was insufficient evidence to support his conviction for resisting arrest. For the reasons stated below, we affirm.
¶2 We view the facts in the light most favorable to upholding Davenport's convictions. See State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). One evening in May 2017, Pinal County Sheriff's Deputies Rusty Fernando and Mark Terry, who were in full uniform, were involved in a "saturation detail"—or an "additional police presence in common thoroughfares"—in Casa Grande. They were completing a separate stop when they observed Davenport walk across a five-lane street at a forty-five-degree angle while "[t]here were a lot of vehicles going both north and south."
¶3 Fernando "U-turn[ed]" their marked police vehicle and activated the emergency lights, and upon stopping Terry approached Davenport on foot. Terry asked Davenport to remove his hands from his pockets, which he did, but, as soon as Terry asked Davenport whether he had any weapons, Davenport immediately put his hands back into his pockets. Fearing that Davenport was reaching for a weapon, Terry grabbed his left arm and wrist. According to Terry, as Davenport "tried to pull away . . . and run," Fernando grabbed Davenport's right arm. Both deputies instructed Davenport to stop resisting and to take his hands out of his pockets, but Davenport continued to struggle.
¶4 Less than a minute later, as Davenport was making a fist with his left hand, the deputies' sergeant struck Davenport in the stomach area. Davenport bent over at the waist, and the deputies were able to force himto the ground. Despite the deputies' repeated commands to stop struggling, Davenport continued to resist and refused to remove his hands from his pockets. Fernando struck Davenport multiple times on the head before his arms relaxed, and Terry was able to handcuff him. According to Terry, however, Davenport "tensed back up" and "started fighting . . . some more." Fernando then saw a baggie with a green leafy substance in Davenport's right hand. They suspected the substance was marijuana, removed it from his hand, and took him to their police vehicle. Fernando told Davenport that he had been stopped for jaywalking, and Davenport responded that he "knew the reason for the stop" and that he was "stupid for fighting law enforcement." Subsequent testing confirmed the substance was marijuana.
¶5 Davenport was indicted for possession of marijuana, possession of drug paraphernalia, and resisting arrest. He was convicted as charged and sentenced as described above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶6 Davenport argues the trial court erred in denying his motion to suppress because the deputies lacked reasonable suspicion to stop him and probable cause to arrest him. "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the trial court's factual findings." State v. Fornof, 218 Ariz. 74, ¶ 8 (App. 2008). We review for an abuse of discretion a ruling on a motion to suppress. State v. Crowley, 202 Ariz. 80, ¶ 7 (App. 2002). However, we review de novo legal issues, including whether reasonable suspicion or probable cause existed. State v. Sweeny, 224 Ariz. 107, ¶ 12 (App. 2010); State v. Aleman, 210 Ariz. 232, ¶ 15 (App. 2005).
¶7 The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV, XIV; see State v. Gilstrap, 235 Ariz. 296, ¶ 7 (2014). An arrest must be based on probable cause. State v. Morris, 246 Ariz. 154, ¶ 9 (App. 2019) (). However, "a police officer may make a limited investigatory stop . . . if the officer has an articulable, reasonable suspicion, based on the totality of the circumstances, that the suspect is involved in criminal activity." State v. Teagle, 217 Ariz. 17, ¶ 20 (App. 2007). For example, "an officer who haswitnessed a traffic violation may initiate a stop." State v. Kjolsrud, 239 Ariz. 319, ¶ 9 (App. 2016).
¶8 The deputies stopped Davenport for jaywalking, which is a traffic violation. See Bergmann Precision, Inc. v. Indus. Comm'n, 199 Ariz. 164, ¶ 17 (App. 2000) (). Section 28-793, A.R.S., provides as follows:
A crosswalk is "[t]hat part of a roadway at an intersection included within the prolongations or connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in absence of curbs, from the edges of the traversable roadway." A.R.S. § 28-601(3)(a).1
¶9 Before trial, Davenport filed a motion to suppress "all evidence obtained either directly or indirectly as a result of [his] unlawful arrest." He argued the deputies had "illegally stopped [him]" because he did not violate § 28-793(A), which he maintained is the only subsection that could apply here. Relying on the definition of crosswalk in § 28-601(3)(a), he contended that he crossed the street at a "legal unmarked crosswalk." Davenport also asserted he was "unlawfully arrested" because the deputieslacked probable cause that he had committed an offense. In response, the state argued the motion should be denied because the deputies had "specific and articulable facts justifying an investigative stop" based on their observations of Davenport crossing the street. The state also pointed out, "It is enough that the [deputies] suspect[ed] a violation"—an actual violation was not required. And regarding the arrest, the state argued that the deputies "were lawfully permitted to gain control of [Davenport]" when he "continually resisted orders to keep [his] hands away from his pockets and put them behind his back."
¶10 After a suppression hearing, the trial court denied the motion. The court agreed with Davenport that subsections (B) and (C) of § 28-793 did not apply. Focusing on subsection (A), the court determined that Davenport had "crossed at a 45 degree angle" and "was not in the normal width of a crosswalk area." The court noted that Davenport "had to stop in the middle of an intersection to allow traffic northbound to proceed," which was not "yield[ing] the right-of-way before entering the crosswalk." Additionally, the court agreed with the state that the deputies were allowed to stop Davenport "for mere reasonable suspicion that he may have violated [§ 28-793] whether it's their mistake or not," although it noted that they could not have "arrest[ed] him for it." And the court reasoned, because the deputies had believed Davenport was jaywalking, they could stop him, and, once Davenport put his hands in his pockets, the deputies acted for officer safety and saw the marijuana as a result of that struggle. The court therefore concluded it was a "lawful arrest."
¶11 As he did below, Davenport argues the deputies lacked reasonable suspicion to stop him because he did not violate the jaywalking statute. He asserts there are "unmarked crosswalks" in the area and, "from where . . . they were sitting," the deputies "really couldn't see if Davenport was near or in one of [those] crosswalks." He also contends that he "didn't interfere with the traffic and the cars didn't have to slow down." Davenport additionally argues that the deputies lacked probable cause to arrest him, reasoning that "[e]ven if the officers were arresting him for resisting arrest, that resistance was triggered by the unlawful investigatory stop."
¶12 The state concedes on appeal that § 28-793(A) is the relevant subsection in this case. It contends, however, that if Davenport was crossing the street "at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection," he was required to "yield the right-of-way to all vehicles on the roadway." The parties seem to agree that Davenport was not using a "marked crosswalk." § 28-793(A). And contrary to Davenport's assertion, the evidence presented at thesuppression hearing established that he had not been crossing "within an unmarked crosswalk at an intersection." Id...
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