State v. Fornof

• Decision Date: 25 March 2008
• Docket Number: No. 2 CA-CR 2007-0091.,2 CA-CR 2007-0091.
• Citation: 218 Ariz. 74,179 P.3d 954
• Parties: The STATE of Arizona, Appellee, v. Billie Marie FORNOF, Appellant.
• Court: Arizona Court of Appeals

179 P.3d 954

218 Ariz. 74

The STATE of Arizona, Appellee, v. Billie Marie FORNOF, Appellant.

No. 2 CA-CR 2007-0091.

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

March 25, 2008.

Terry Goddard, Arizona Attorney General By Randall M. Howe and David A. Sullivan, Tucson, Attorneys for Appellee.

Law Office of Thomas E. Higgins By Thomas E. Higgins, Tucson, Attorney for Appellant.

OPINION

VÁSQUEZ, Judge.

¶ 1 A jury found appellant Billie Marie Fornof guilty of possession of a narcotic drug for sale and possession of drug paraphernalia. On appeal, Fornof argues that police lacked sufficient basis to stop the car in which she had been riding as a passenger and the trial court therefore erred when it denied her motion to suppress the evidence officers found on her person. She also contends the court erred by permitting an expert to testify that he believed the drugs she had possessed were for sale, rather than personal use. For the reasons discussed below, we affirm.

Facts and Procedural Background

¶ 2 We view the evidence presented in the light most favorable to sustaining the convictions. State v. Cropper, 205 Ariz. 181, ¶ 2, 68 P.3d 407, 408, supp. op., 206 Ariz. 153, 76 P.3d 424 (2003). At approximately 11:40 p.m. on March 19, 2006, Tucson Police Sergeant Tony Kadous was driving a marked patrol car north towards the intersection of 12th Avenue and President Street when he noticed a red car that had stopped on President Street, just east of the intersection on the right side of the road. A pedestrian was reaching into the passenger side of the vehicle and exchanging something with the female passenger. Kadous slowed down and turned onto President, coming up behind the car. The pedestrian looked at him and walked quickly away. As the red car drove away, Kadous activated his emergency flashing lights, and the red car stopped after traveling about another hundred feet. Kadous asked the driver of the car and the passenger for their names and, after further investigation, discovered an outstanding arrest warrant for Fornof, who was the passenger. Kadous arrested Fornof and, searching her incident to the arrest, found a torn-off corner of a sandwich bag in her pocket, containing a pea-sized quantity of what appeared to be powder cocaine. A female police officer assisted Kadous, and after a more thorough search, found a number of rocks of crack cocaine in Fornof's underwear.

¶ 3 Fornof was charged with possession of a narcotic drug for sale and possession of drug paraphernalia. A jury found Fornof guilty on both charges, and the trial court sentenced her to a mitigated, three-year prison term on the possession for sale charge and a concurrent, presumptive, one-year prison term on the paraphernalia charge. This appeal followed; we have jurisdiction under A.R.S. § 13-4033(A).

Discussion

Reasonable suspicion for vehicle stop

¶ 4 Fornof challenges the trial court's denial of her motion to suppress evidence, claiming the search incident to her arrest violated the Fourth Amendment to the United States Constitution. Specifically, she contends Sergeant Kadous lacked reasonable suspicion to stop the vehicle in which she had been riding as a passenger before he conducted that search.

¶ 5 An investigatory stop of a vehicle constitutes a seizure under the Fourth Amendment. State v. Richcreek, 187 Ariz. 501, 505, 930 P.2d 1304, 1308 (1997) ("When the blue lights on the patrol car begin to flash, the person being followed does not feel free to ignore them and drive on."). Thus, an officer may only conduct such a stop if the totality of the circumstances "raise[s] 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). This "reasonable suspicion" requirement for an investigatory stop, first articulated in Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), falls short of the probable cause required for an arrest. As the United States Supreme Court stated in Adams v. Williams:

In Terry this Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, [T]erry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), quoting Terry, 392 U.S. at 22, 88 S.Ct. 1868 (internal citations omitted). Although we review de novo whether the police had reasonable suspicion to justify an investigatory stop, State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996), we defer to the trial court's findings of fact and "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers," Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Evidence derived from a stop not based on reasonable suspicion is "fruit of the poisonous tree" and must be suppressed. Richcreek, 187 Ariz. at 506, 930 P.2d at 1309.

¶ 6 Our assessment of reasonable suspicion is based on the totality of the circumstances, considering such objective factors as the suspect's conduct and appearance, location, and surrounding circumstances, such as the time of day, and taking into account the officer's relevant experience, training, and knowledge. See United States v. Arvizu, 534 U.S. 266, 275, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Graciano, 134 Ariz. at 37, 653 P.2d at 685; see also United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ("Officers may consider the characteristics of the area in which they encounter a vehicle."); Illinois v. Wardlow, 528 U.S. 119, 139, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (time of day a factor).

¶ 7 Although Fornof acknowledges this totality of the circumstances test, she also contends we should follow the reasoning of the Tenth Circuit Court of Appeals in United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997). There the court, quoting Karnes v. Skrutski, 62 F.3d 485, 496 (3rd Cir.1995), stated "it is `impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.'" But, this reasoning conflicts with the totality of the circumstances test articulated by our supreme court, because it invites the type of piecemeal evaluation of the innocence of each individual factor rejected by the United States Supreme Court. See Arvizu, 534 U.S. at 274, 122 S.Ct. 744; Graciano, 134 Ariz. at 37-38, 653 P.2d at 685-86. Thus, we decline to follow it. See State v. Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App. 2003) (court of appeals may not disregard decisions of supreme court); see also U.S. Const. art. VI, cl. 2.

¶ 8 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. In re Ilono H., 210 Ariz. 473, ¶ 2, 113 P.3d 696, 697 (App.2005). Here, Kadous testified at the suppression hearing that he had stopped the car after seeing a pedestrian "standing next to the passenger side of the vehicle. The vehicle was stopped and he was reaching in. They were doing an exchange. The [female] passenger . . . was also handing [him] something. I didn't know what it was at the time." He stated that his initial suspicion that illegal activity was taking place was confirmed when the pedestrian looked at him and walked off quickly.

¶ 9 At the time of the exchange, around 11:40 p.m., the car was about one hundred feet from the intersection of 12th Avenue and President Street, which Kadous further testified, "had a history of drug and prostitute problems with loitering and drug sales and usage," and that based on his training and experience, the activity he observed was "indicative of . . . a possible drug exchange." Taking into account Kadous's nineteen years of police experience, the court found the exchange he observed, late at night, in an area known for drug transactions, "coupled with the individual leaving in a quick manner as soon as he sees a police officer," was sufficient grounds for reasonable suspicion. It therefore denied Fornof's motion to suppress.

¶ 10 Fornof argues "[a]t best all . . . Kadous had was a suspicion or hunch that the individuals were involved in criminal activity." She quotes Graciano for the proposition that "[t]o uphold the stop in question on the basis of these observed circumstances would subject many innocent individuals to just the type of intrusions prohibited by the [F]ourth [A]mendment." Id. at 38, 653 P.2d at 686.

¶ 11 Our inquiry into whether an officer possessed reasonable suspicion is fact specific. State v. Valle, 196 Ariz. 324, ¶ 17, 996 P.2d 125, 130 (App.2000), citing Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). Neither party cites any case involving similar facts that resolves the issue of whether an officer's observation of an apparent hand-to-hand exchange between two people in a specific location known for drug activity is sufficient to give rise to a reasonable articulable suspicion of illegal activity.¹

¶ 12 We note that in the cases the trial court cited in denying Fornof's motion to suppress, the grounds for reasonable suspicion were arguably more substantial than in the...