State v. Goodyear
| Decision Date | 25 October 2017 |
| Docket Number | No. 2 CA-CR 2016-0291,2 CA-CR 2016-0291 |
| Parties | THE STATE OF ARIZONA, Appellee, v. IAN THOMAS GOODYEAR, 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NOT FOR PUBLICATION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. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Casey F. McGinley, Judge Pro Tempore
The Honorable Scott Rash, Judge
AFFIRMED IN PART, VACATED IN PART, MODIFIED IN PART
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.
¶1 Following a jury trial in absentia in April 2016, appellant Ian Goodyear was convicted of transportation of a dangerous drug for sale, possession of a dangerous drug, possession of a dangerous drug for sale, possession of drug paraphernalia, and possession of a deadly weapon during the commission of a felony drug offense.1 In July 2016, the trial court sentenced him to concurrent, minimum, and presumptive prison terms, the longest of which are five years.
¶2 On appeal, Goodyear argues: (1) the trial court erroneously denied his motion to suppress,2 (2) his convictions for transportation and possession of a dangerous drug for sale violate the prohibition against double jeopardy, and (3) the court miscalculated the number of days of presentence incarceration credit to which he is entitled. For the following reasons, we vacate Goodyear's conviction and sentence for possession of a dangerous drug for sale, modify the court's sentence to include presentence incarceration credit of eighty-one days, and otherwise affirm.
¶3 In reviewing a trial court's ruling on a motion to suppress, "we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the . . . ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014). In reviewing a ruling on a motion to suppress, we defer to the court's factual determinations, but we review its legal conclusions de novo. See State v. Olm, 223 Ariz. 429, ¶ 7, 224 P.3d 245, 248 (App. 2010); see also In re Ilono H., 210 Ariz. 473, ¶ 3, 113 P.3d 696, 697 (App. 2005) ().
¶4 During the morning of July 16, 2014, Drug Enforcement Administration Agent Michael Garbo was part of a group surveillance of a stash house located in a Tucson neighborhood known for "drug trafficking." Officers observed two vehicles with New Mexico license plates involved in "suspicious" activity at a nearby convenience store.3 Individuals with New Mexico license plates did not frequent the area; "[t]here was a lot of transit back and forth" between the subject vehicles, activity consistent with drug sales which often occur in public places like convenience store parking lots; and, the vehicles departed "in tandem," conduct "very common[ly]" found with illegal drug activity.
¶5 At approximately 6:30 p.m. on the same day, an agent reported seeing one of the New Mexico vehicles parked in a stall at a nearby car wash. Garbo, who was dressed in "plain clothes," drove around the front of the car wash and made eye contact with Goodyear's codefendant, Tonya Dearman, who was in the driver's seat of the vehicle. Garbo approached Dearman, who had "hurriedly" left the car and started putting tokens into the car wash machine after he made eye contact with her. Garbo introduced himself as a law enforcement officer and asked if he could speak with Dearman, whom he described as looking "extremely nervous." Garbo had been wearing a digital recording device; his conversation with Dearman was played and admitted into evidence at the suppression hearing.
¶6 After Garbo explained to Dearman that there had been "heavy criminal activity" in the area, she proceeded to talk with him. Garbo did not physically block Dearman's vehicle with his body or car during the conversation. He testified Dearman continued to talk with him as she washed her car, and that his contact with her at that point was "[a]bsolutely" consensual. When Garbo asked Dearman who was in the car, she identified one of the occupants as "Ian," explained that he "tows cars," and "that they were headed back to New Mexico," where she and Ian lived. While Garbo was speaking with Dearman outside the car, Border Patrol Agent Hector Lopez, who was dressed in "street clothes," approached the passenger side of Dearman's car and tapped on the front-passenger window, which was heavily tinted. Although Lopez did not verbally ask the front-seat passenger to roll down the window, she did so, revealing Goodyear in the back seat. Lopez then asked Goodyear to roll down his window and saw that he was shirtless and was holding "a lockback pocket knife with the blade exposed." Lopez asked Goodyear if he had any weapons or guns in the vehicle, and he responded that he had a gun.
¶7 Lopez informed Garbo "[t]here's a gun in the car," after which Goodyear was taken out of the vehicle and "came toward[]" Garbo, who handcuffed him for "safety reasons." At that point, Garbo "did not know where the knife or any type of gun was located." Garbo conducted a pat-down search on Goodyear, during which he "felt a bag inside [Goodyear's pocket] with a hard crystalline substance," which based on his training and experience, he "felt" was crystal methamphetamine; the search also yielded a knife. The bag found in Goodyear's pocket contained 12.45 grams of crystal methamphetamine, an amount consistent with the "distribution" of drugs.
¶8 Garbo testified, "At that point there [were] several things kind of going on at once." The officers asked the front-seat passenger to get out of the car; she did so, leaving the door open and revealing, in plain view under the center console, a ceramic pipe "commonly used for smoking methamphetamine." Garbo testified that, "due to the fact that the door was open," the pipe was "the first observation [he] made" before he looked anywhere else in the vehicle.4 He then opened the rear passenger door and found lying on the floor a set of digital scales consistent with narcotics paraphernalia, another ceramic pipe, and a handgun in the driver-side seatback. Garbo then opened the driver's door, and sticking out of the side of a large purse on the driver-side floorboard he found a third ceramic pipe. Inside the purse he found debit and credit cards bearing Dearman's name and "two large, clear Ziplocked bags" containing crystal methamphetamine.
¶9 Garbo testified that once he knew a gun was involved, his encounter with Dearman was no longer consensual, and he ordered her to "move over to the other side of the wall." He stated, At that point, Garbo and Lopez were the only two officers dealing with three individuals, Dearman, Goodyear, and the front-seat passenger. Dearman appeared to be "extremely high," under the influence of crystal methamphetamine.
¶10 Goodyear filed a motion to "preclude," asking the trial court to suppress the methamphetamine found in his pocket and the items found in Dearman's car. He argued that, because the pat-down search was unwarranted, and because Garbo did not recognize the methamphetamine found in Goodyear's pocket as contraband, the evidence was seized illegally. Although Goodyear did not expressly join in Dearman's motion to suppress, in which she had presented different arguments than he had raised in his motion, his attorney fully participated in the suppression hearing. At the conclusion of that hearing, Goodyear reminded the court he had a pending motion to suppress with different arguments than Dearman had presented, but noted that "[t]he testimony [for his motion] is, basically, identical to what [the court had] heard," and agreed that no additional testimony was required.
¶11 At the conclusion of the suppression hearing, the trial court explained that although State v. Serna applies to the facts at issue, because that case was decided in August 2014, after the July 2014 incident, State v. Garcia Garcia, was the applicable law at the relevant time. See Serna, 235 Ariz. 270, ¶ 28, 331 P.3d 405, 411 (2014) (); Garcia Garcia, 169 Ariz. 530, 532, 821 P.2d 191, 193 (App. 1991) (). The court further found the "officer's view of [Goodyear's] knife and Mr. Goodyear's statement, 'I have a gun,'" created a reasonable fear for officer safety, "such that the detention at that point was reasonable[, based on] suspicion of a crime occurring or having been committed, that a Terry stop5 was—detention was appropriate under the totality of the circumstances." The court also explained that, although there was no reasonable suspicion to stop and detain Dearman initially, once Lopez determined Goodyear had a gun, under Garcia Garcia, Garbo "could detain [Dearman] for officer safety" and Lopez could ask Goodyear to get out of the vehicle. The court relied on Davis v. United States, 564 U.S. 229, 241 (2011), where the Supreme Court found that a search based on officers' objectively reasonable reliance on binding precedent is not...
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