State v. Gonzalez-Gutierrez

• Decision Date: 05 December 1996
• Docket Number: A,GONZALEZ-GUTIERRE,No. CR-96-0030-PR,CR-96-0030-PR
• Citation: 187 Ariz. 116,231 Ariz.Adv.Rep. 6,927 P.2d 776
• Parties: , 231 Ariz. Adv. Rep. 6 STATE of Arizona, Appellee, v. Rodolfoppellant.
• Court: Arizona Supreme Court

Page 776

927 P.2d 776

187 Ariz. 116, 231 Ariz. Adv. Rep. 6

STATE of Arizona, Appellee, v. Rodolfo GONZALEZ-GUTIERREZ, Appellant.

No. CR-96-0030-PR.

Supreme Court of Arizona In Banc.

Dec. 5, 1996.

[187 Ariz. 117] Grant Woods, Attorney General, Phoenix by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Consuelo M. Ohanesian, Assistant Attorney General, for Appellee.

Susan A. Kettlewell, Pima County Public Defender, Tucson by Lori J. Lefferts, Assistant Public Defender, for Appellant.

OPINION

JONES, Justice.

Defendant Rodolfo Gonzalez-Gutierrez was charged with possession and transportation of marijuana for sale. Prior to trial, defendant moved to suppress all evidence seized from his automobile, alleging violation of his rights under the Fourth Amendment to the United States Constitution and article II, section 8 of the Arizona Constitution. ¹ The trial court denied the motion and proceeded to trial, resulting in convictions on two counts of possession and transportation. In a memorandum decision, the court of appeals upheld the trial court's denial of defendant's motion to suppress and affirmed the convictions. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), A.R.S. § 12-120.24, and Ariz.R.Crim.P. 31.19. We reverse the denial of defendant's motion to suppress, vacate the court of appeals' memorandum decision, and remand the case to the trial court for further proceedings consistent with this opinion.

FACTS

Agent Ramon Rojas of the Border Patrol arrested defendant at 8:15 a.m. on July 7, 1994 as the latter approached the City of Tucson, westbound on Interstate 10. Rojas, whose primary responsibility was the detection and apprehension of illegal aliens, was observing the morning rush hour traffic from a marked car parked in the median at milepost 277. Defendant drove past Rojas' car and glanced at Rojas "out [of] the corner of his eye."

Although Rojas had only a few seconds to observe defendant's passing car, he noticed that defendant and his passenger both appeared to be Hispanic, that defendant was driving at the same speed as other vehicles on the road, and that the passenger was slouched in his seat appearing to be asleep. After Rojas entered traffic to follow defendant's car, defendant veered slightly onto the shoulder. Then, as Rojas gained on defendant, defendant scratched his head. Rojas pulled alongside defendant's vehicle and looked at him, but neither the defendant nor his passenger looked back. Defendant stopped scratching his head and appeared to grasp the steering wheel with a tight grip. Soon thereafter, Rojas learned by radio dispatch that defendant's vehicle was currently registered to a person in Chandler, Arizona with a non-Hispanic name.

By reason of these observations, Rojas suspected that defendant and his passenger may have been illegal aliens. He thus stopped defendant at milepost 270, within the Tucson metropolitan area. Arriving at the stopped car to question defendant about his nationality and residential status, Rojas observed two bales of marijuana in plain view on the back seat. The presence of the bales in the vehicle became the subject of defendant's criminal indictment and convictions.

STANDARD OF REVIEW

Whether there is a sufficient legal basis on which to justify a vehicular stop by a Border Patrol agent on the open highway is a mixed question of law and fact. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790 n. 19, 72 L.Ed.2d 66 (1982); see also State v. Winegar, 147 Ariz. 440, 445, 711 P.2d 579, 584 (1985). We therefore give deference to the trial court's factual findings, including findings regarding the agent's credibility and the reasonableness of inferences that he drew, but we review de novo the trial court's ultimate legal determination. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); State v. Hyde, 186 Ariz. 252, 275 n. 7, 921 P.2d 655, 678 n. 7 (1996)(citing United States v. Kurt, 986 F.2d 309, 311 (9th Cir.1993) (trial court's "good faith" determination reviewed de novo )).

DISCUSSION

An investigatory stop of a motor vehicle constitutes a seizure under the Fourth Amendment, but because such stops are less intrusive than arrests, they do not require the probable cause necessary to issue an arrest warrant. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 881, 95 S.Ct. 2574, 2578, 2580, 45 L.Ed.2d 607 (1975). Nevertheless, because Fourth Amendment protection is fully applicable to an investigatory stop, the "totality of the circumstances" must provide "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

We are aware of the recent decision of the United States Supreme Court in Whren v. United States, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). ² The instant case is easily distinguished fromWhren because here the stop did not involve an observed traffic violation and was not made as a pretext for searching defendant's car for evidence of other criminal activity. Agent Rojas simply stopped defendant's car because he instinctively suspected that defendant and his passenger were illegal aliens.

According to Rojas' testimony, the stop was based on several factors, and, in denying the motion to suppress, the trial court stated that taken separately "the individual factors would not have been a sufficient basis [for stopping defendant] but, considered ... together, it [was] ... clear the agent had probable cause to stop the vehicle." ³ The court of appeals affirmed, stating that "based upon all the circumstances, the officer's observations led to the reasonable conclusion that a stop of the vehicle was justified." Review of all the facts in light of constitutional standards applicable to an investigatory highway stop leads this court to conclude otherwise.

In Cortez, the Supreme Court established the test for determining the legality of automobile stops. 449 U.S. at 418, 101 S.Ct. at 695. Like the instant case, Cortez involved an immigration stop by federal Border Patrol agents. We read Cortez as imposing on courts the duty to apply a two-part analysis of the "totality of the circumstances" which led to the investigatory stop. Under the first part, a court evaluates subjective elements, such as the agent's training and experience, as well as objective elements, which include criminal profiles and the agent's actual observation of suspicious conduct. Id. We employed the Cortez test in State v. Graciano, 134 Ariz. 35, 37-38, 653 P.2d 683, 685-86 (1982). We emphasized, however, that the first part of the test could not be met simply by attempting to validate an officer's "unparticularized suspicions" or by attaching legal significance to mere intuitive hunches. Graciano, 134 Ariz. at 37, 653 P.2d at 685 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)).

Moreover, under the second part of the test, the circumstances must support a justifiable suspicion, that is, there must be an evidentiary indicator suggesting that the subject of the automobile stop was involved in criminal activity. Cortez, 449 U.S. at 418, 101 S.Ct. at 695; Graciano, 134 Ariz. at 37, 653 P.2d at 685. ⁴

In this case, Agent Rojas testified that he had six years' experience as a Border Patrol agent, of which about eighteen months were in the Tucson area. He made the stop because he suspected that defendant was an illegal alien. Yet, the facts offered by Rojas in support of the notion that defendant's behavior was typical of aliens illegally entering the United States were: (1) defendant glanced at the marked Border Patrol vehicle out of the corner of his eye; (2) the passenger slouched in his seat, perhaps pretending to be asleep; (3) defendant drove at the same speed as the rest of traffic; (4) the incident occurred during the morning rush hour; (5) defendant moved slightly onto the right shoulder when Rojas started following him; and (6) defendant and his passenger were both Hispanic.

The behavior that prompted Agent Rojas' thoughts, according to Rojas, was that as Rojas' vehicle approached, defendant scratched his head, then quit scratching his head and gripped the steering wheel firmly, and when Rojas pulled his car alongside, neither defendant nor the passenger looked at Rojas as he looked at them. Rojas testified that he would have stopped defendant based on these observations alone.

Prior to Cortez, the Supreme Court held in Brignoni-Ponce that "when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion." 422 U.S. 873, 881, 95 S. Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) (emphasis supplied). But, the suspicion must be reasonable, that is, it must be particularized such that it does more than simply describe large numbers of others who are also driving on the highways in that vicinity and at that time. The Court stated further:

Roads near the border carry not only aliens seeking to enter the country illegally, but a large volume of legitimate traffic as well.... We are confident that substantially all of the traffic in [border] cities is lawful and that relatively few of their residents have any connection with the illegal entry and transportation of aliens. To approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers.

Id. at 882, 95 S.Ct. at 2581.

Under Brignoni-Ponce, observations that may lead to lawful immigration stops include such things as characteristics of the area,...