State v. Evans

• Decision Date: 31 July 2014
• Docket Number: No. 2 CA–CR 2013–0342.,2 CA–CR 2013–0342.
• Citation: 692 Ariz. Adv. Rep. 17,332 P.3d 61,235 Ariz. 314
• Parties: The STATE of Arizona, Appellee, v. Dale Lee EVANS, Appellant.
• Court: Arizona Court of Appeals

235 Ariz. 314

332 P.3d 61

692 Ariz. Adv. Rep. 17

The STATE of Arizona, Appellee,

v.Dale Lee EVANS, Appellant.

No. 2 CA–CR 2013–0342.

Court of Appeals of Arizona, Division 2.

July 31, 2014.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Tucson, Counsel for Appellee.

Joel A. Larson, Cochise County Legal Defender, Bisbee, Counsel for Appellant.

Judge VÁSQUEZ authored the opinion of the Court, in which Presiding Judge KELLY and Judge OLSON ¹ concurred.

OPINION

VÁSQUEZ, Judge.

¶ 1 After a jury trial, appellant Dale Evans was convicted in absentia of possession of marijuana, possession of drug paraphernalia, and aggravated driving under the influence pursuant to A.R.S. §§ 28–1381(A)(3) and 28–1383(A)(1).² The trial court later sentenced him to concurrent, presumptive terms of imprisonment, the longest of which is 2.5 years. On appeal, Evans contends the court erred in denying his motion to suppress all evidence obtained from the traffic stop that led to his arrest. Relying on Terry v. Ohio, 392 U.S. 1, 20, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), he asserts the stop was “not justified at its inception” because Cochise County Sheriff's deputies lacked “an articulable, reasonable suspicion, based on the totality of the circumstances, that [he was] involved in criminal activity.” For the following reasons, we affirm Evans's convictions and sentences.

¶ 2 “In reviewing the denial of a motion to suppress evidence, we consider only the evidence presented at the suppression hearing, and view that evidence in the light most favorable to upholding the trial court's ruling.” State v. Olm, 223 Ariz. 429, ¶ 2, 224 P.3d 245, 247 (App.2010) (citation omitted). We “give deference to the trial court's factual findings, including findings regarding [an officer's] credibility and the reasonableness of inferences that he drew, but we review de novo the trial court's ultimate legal determination.” State v. Gonzalez–Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).

Relevant Background

¶ 3 At the hearing on Evans's motion to suppress, Deputy Dana Anderson testified that his duties included “[p]atrol, DUI investigation, ... [and] booking people in jail” and agreed that he was “[b]asically a uniformed officer out on the street.” He stated he had been the passenger in a marked patrol car on an afternoon in November 2004 when, at about four o'clock, he had seen a truck parked “right at the stop sign” of an intersection in an area “known for illegal immigrant activity ... [and] marijuana hauling.” When he looked at the vehicle, he saw the driver turned in his seat and “[f]lailing his arms towards the passenger” with closed fists. Anderson demonstrated the movements for the court and said he told his partner, “[H]ey, we might have a rolling domestic violence ... pull over and turn around.” After his partner returned their patrol car to the intersection and turned around, the truck pulled out in front of them, and the deputies initiated the traffic stop.

¶ 4 On cross-examination, Anderson estimated that the patrol car had been travelling at fifty-five miles an hour, that he was twenty-five to thirty feet from the intersection when the driver's actions “caught the corner of [his] eye,” and that he observed the driver for “four or five seconds.” He stated he had seen the driver make three arm movements toward the vehicle's passenger, which he described as “[l]eft, right, left,” but had not seen any contact made, “just ... arms.”

¶ 5 At the close of the hearing, the trial court agreed with Evans that it was unlikely Anderson had observed the driver for as much as four or five seconds. Rather, based on Anderson's testimony, the court found his observations of Evans's arm movements lasted “closer to a second-and-a-half or a second than ... to four or five seconds.” The court then stated,

But, in any event, I believe, based on the evidence presented, that the arm movements, though they might not have been criminal activity, were articulable facts that justified the Officers in trying to find out more.

....

... [T]here was a lot that [Anderson] didn't know, but it wasn't as if [he] looked at the vehicle and decided based on a hunch that there was something afoot. He saw arm activity that might have been consistent with some domestic violence assault, and I think that the officers were justified in investigating further by stopping the vehicle, after it apparently started up.

Accordingly, the court denied Evans's motion to suppress.

Discussion

¶ 6 Evans contends Anderson's limited observations of Evans's arm movements “formed the sole basis for the stop.” He argues those observations were insufficient to give rise to the reasonable suspicion required by Terry, and, citing this court's decision in State v. Fornof, 218 Ariz. 74, 179 P.3d 954 (App.2008), he suggests the probative value of Anderson's observations was “undermine[d]” by the state's failure to elicit evidence of his training or experience or of the “significance of the surrounding circumstances such as the location, the time of day, and the physical appearance of the individuals involved.” He also relies on United States v. Foreman, 369 F.3d 776 (4th Cir.2004), to argue Anderson's “extremely fleeting observation of movements which [were] ambiguous at best fails to eliminate that substantial portion of the innocent motoring public necessary [to establish] a reasonable suspicion” for the investigative stop. See id. at 781. He posits that the arm movements Anderson saw may have been consistent with the driver gesticulating while telling a story, waving away an insect inside the passenger compartment, extinguishing a match, dancing to a musical beat, or using American Sign Language.

¶ 7 A law enforcement officer's investigatory stop of a vehicle constitutes a seizure under the Fourth Amendment and “must be justified by some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.” State v. Richcreek, 187 Ariz. 501, 503–04, 930 P.2d 1304, 1306–07 (1997), quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ( Sokolow II ) (investigatory stop permissible when based on “a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot’ ”), quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868. “Although an officer's reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause.” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citation omitted), quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868. And “reasonable suspicion” is a “commonsense, nontechnical concept[ ] that deal [s] with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); cf. Terry, 392 U.S. at 27, 88 S.Ct. 1868 (pat-down search after investigatory stop permissible if “reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger”).

¶ 8 In reviewing a claim that law enforcement officers lacked the reasonable suspicion required for an investigatory stop, we “apply ‘a peculiar sort of de novo review,’ slightly more circumscribed than usual, because we defer to the inferences drawn by the [trial] court and the officers on the scene, not just the [trial] court's factual findings.” United States v. Valdes–Vega, 738 F.3d 1074, 1077 (9th Cir.2013) (citation omitted), quoting Arvizu, 534 U.S. at 278, 122 S.Ct. 744 (Scalia, J., concurring). As the Supreme Court has explained,

A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference.

Ornelas, 517 U.S. at 699, 116 S.Ct. 1657. A reviewing court must consider whether the historical facts, along with the inferences drawn by law enforcement officers and the trial court, satisfy the constitutional standard. Id. at 696–97, 699, 116 S.Ct. 1657. The need for such deference is rarely more apparent where, as in this case, an officer testifies it was a defendant's physical actions that aroused suspicions, and the trial court has relied on the officer's in-court demonstration of those actions to determine the stop was reasonable. See Arvizu, 534 U.S. at 276, 122 S.Ct. 744 (noting trial court's “superior access to the evidence and the well-recognized inability of reviewing courts to reconstruct what happened in the courtroom”; appellate court “should not have casually rejected” testimony about and demonstration of conduct officer found suspicious).

¶ 9 Evans is correct that, in reviewing a Fourth Amendment claim involving a Terry stop, a court must consider whether, given the “ ‘totality of the circumstances,’ ” the officer had “a ‘particularized and objective basis' for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273, 122 S.Ct. 744, quoting Cortez, 449 U.S. at 417–18, 101 S.Ct. 690. In Fornof, for example, we considered “such objective factors as the suspect's conduct and appearance, location, and surrounding circumstances, such as the time of day, ... taking into account the officer's relevant experience, training, and knowledge.” 218 Ariz. 74, ¶ 6, 179 P.3d at 956. And here, although Anderson indicated his decision to stop Evans had been influenced, in part, by the fact that the truck was parked “right...