State v. Green
| Decision Date | 19 October 2018 |
| Docket Number | No. 2 CA-CR 2017-0208,2 CA-CR 2017-0208 |
| Citation | 431 P.3d 599 |
| Parties | The STATE of Arizona, Appellee, v. David Lee GREEN, Appellant. |
| Court | Arizona Court of Appeals |
Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Karen Moody, Assistant Attorney General, Tucson, Counsel for Appellee
Joel Feinman, Pima County Public Defender, By Abigail Jensen, Assistant Public Defender, Tucson, Counsel for Appellant
Arizona Attorneys for Criminal Justice, Phoenix, By Brian Thredgold and Mikel Steinfeld, and American Civil Liberties Union Foundation of Arizona, Phoenix, By Kathleen E. Brody, William B. Peard, and Jared G. Keenan, Counsel for Amici Curiae
OPINION
¶ 1 David Green appeals from his convictions and sentences for two counts of possession of a narcotic drug and one count of possession of drug paraphernalia, all non-dangerous, repetitive offenses. Green argues the trial court erroneously denied his motion to suppress evidence because police unlawfully extended his detention. He further argues the court was required to sentence him to probation under A.R.S. § 13-901.01. We affirm in part and vacate and remand in part.
¶ 2 "In reviewing 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 trial court’s ruling." State v. Gonzalez , 235 Ariz. 212, ¶ 2, 330 P.3d 969 (App. 2014). In an early morning of August 2016, an officer with the Tucson Police Department saw a truck parked in a secluded part of Fort Lowell Park several hours after the park had closed for the night. The officer approached the driver’s door and saw a pipe on the center console that, based on his training and experience, was a type used only for "smoking [il]licit substances." The officer handcuffed Green, the driver, and sat him in the back of his patrol car while he searched the truck, finding another similar pipe. The officer then removed Green from the patrol car, read him his Miranda1 rights, and arrested him for possession of one of the pipes. Although the officer intended to release Green after citing him for trespassing and possession of the pipe, he nevertheless returned Green to the patrol car in order to check whether he was in violation of federal immigration laws pursuant to Senate Bill 1070 and department policy. See A.R.S. § 11-1051.
¶ 3 The check revealed no immigration issues and, when the officer removed Green from the car a second time, he saw a small plastic bag with a "crystalized substance" fall from Green’s lap. The officer conducted a field test for narcotics, and the substance tested positive for the presence of illegal drugs. He then placed Green under custodial arrest. During a search of Green’s person incident to that arrest, the officer found a plastic package with heroin and a container with morphine pills.
¶ 4 Before trial, Green filed a motion to suppress the drug evidence, arguing his detention had been unreasonably prolonged after the officer had decided merely to cite and release him for trespassing and possession of the pipe. Following an evidentiary hearing, the trial court denied the motion, finding the length of the delay had not been unreasonable and, in any event, police had not "gain[ed] any advantage" from it. Following trial, the jury found Green guilty of the offenses as described above.2
¶ 5 Before sentencing, Green filed a motion arguing he was entitled to mandatory probation under § 13-901.01. Specifically, he urged that his 2006 conviction for solicitation to sell a narcotic drug was not a disqualifying prior conviction, or "strike." See § 13-901.01(H)(1). Following a hearing, the court denied the motion and sentenced Green to concurrent prison terms, the longest of which were six years. Green appealed; we have jurisdiction. See A.R.S. §§ 13-4031, 13-4033(A)(1).
¶ 6 Green first argues the trial court erroneously denied his motion to suppress because, after the officer completed his investigation into the trespassing and paraphernalia offenses, he would not have discovered any controlled substances but for having unlawfully prolonged the detention in order to complete an immigration check. We review a trial court’s ruling on a motion to suppress for an abuse of discretion, but review constitutional and purely legal issues de novo. State v. Gay , 214 Ariz. 214, ¶ 4, 150 P.3d 787 (App. 2007).
¶ 7 Without citation to authority, Green argues that before the officer decided to check his immigration status, "this incident became the equivalent of a standard traffic stop" because the officer had "decided that he was going to issue [Green] a citation and release him."3 Accordingly, Green and amici rely on Rodriguez v. United States to argue his detention should not have lasted "longer than is necessary to effectuate [the] purpose" of investigating his trespass and possession of the pipes. ––– U.S. ––––, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015). Arguing the immigration check was a "detour from the mission of the stop," Green insists the delay could not be justified apart from reasonable suspicion that he had been unlawfully present in the country. Green also quotes State v. Taylor to argue police cannot "search anyone they choose to cite for a misdemeanor offense or that they could arrest although they do not intend to [do so]." 167 Ariz. 439, 440, 808 P.2d 324, 325 (App. 1990).
¶ 8 But Rodriguez and Taylor do not control. In Rodriguez , the defendant was entitled to release after he had been cited for a civil traffic violation and neither reasonable suspicion nor probable cause supported any further delay. 135 S.Ct. at 1612. Here, Green had been criminally arrested for possession of drug paraphernalia and, although the officer both could have released and subjectively intended to release him, Green was not entitled to release at that point. See A.R.S. § 13-3883(A)(1), (2), (4) ; see also A.R.S. § 13-3903 (); State v. Pickett , 126 Ariz. 173, 174, 613 P.2d 837, 838 (App. 1980) (). Because Green had been subjected to a valid arrest supported by probable cause, actual release remained contingent not only on completion of the officer’s investigation, but also a favorable exercise of his discretion. See § 13-3883.
¶ 9 Having been arrested, Green was not free to go about his business unless and until he was actually released, see Pickett , 126 Ariz. at 174, 613 P.2d at 838 ; this is so even if the officer had subjectively intended to release Green before investigating possible immigration violations. Therefore, even assuming without deciding that he had no authority to conduct such a check, and that the bag would not have been discovered but for the delay caused thereby, the detention was not unlawfully prolonged. Moreover, Green cites no authority, and we are aware of none, indicating that once an officer subjectively intends to merely cite and release an arrestee, he must do so as soon as possible. Cf. Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ().
¶ 10 Taylor is likewise distinguishable, as it did not concern any question of a delay. There, officers were in the process of citing the defendant for drinking beer in a city park when they searched him and found hashish before deciding to arrest him. 167 Ariz. 439-40, 808 P.2d at 324-25 (). Here, however, the officer did not search Green’s person until after the bag of narcotics had fallen from his lap. At that point, the officer no longer intended to cite and release him, but subjected him to custodial arrest, and a search incident to arrest was therefore permissible. See id. at 440, 808 P.2d at 325. Insofar as Green’s custodial arrest preceded the search of his person, Taylor does not apply. Thus, the court did not err by denying Green’s motion to suppress.4
¶ 11 Green next argues the trial court was required to sentence him to probation because he had not previously been convicted twice of personal possession or use of a controlled substance or drug paraphernalia. See § 13-901.01(A), (H)(1). Specifically, he contends his 2006 conviction for solicitation to sell a narcotic drug was not a conviction for personal possession or use and, therefore, should not have counted as a disqualifying prior conviction.5 See § 13-901.01(H)(1). "Statutory interpretation is a question of law we review de novo." State v. Cope , 241 Ariz. 323, ¶ 5, 387 P.3d 746 (App. 2016).
¶ 12 Also known as Proposition 200, § 13-901.01 codifies the Drug Medicalization, Prevention, and Control Act of 1996, a voter initiative aimed at providing treatment, education, and community service as an alternative to incarceration for persons convicted of personal possession or use of controlled substances. State v. Thomas , 196 Ariz. 312, ¶ 1, 996 P.2d 113 (App. 1999) ; Goddard v. Superior Court , 191 Ariz. 402, ¶ 9, 956 P.2d 529 (App. 1998). It provides, § 13-901.01(A).
¶ 13 Not all persons convicted for personal possession, however, are entitled to probation. In unambiguous terms, the statute excludes defendants who "[h]ad been convicted three times of personal possession of a controlled substance or drug paraphernalia." § 13-901.01(H)(1). Also excluded are...
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State v. Green
...of § 13-901.01, and that he was entitled to mandatory probation and drug treatment. State v. Green , 245 Ariz. 529, 534 ¶ 25, 431 P.3d 599, 604 (App. 2018).¶ 6 We granted review because whether the provisions of § 13-901.01 apply to possession of drugs for sale and inchoate drug offenses ar......
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