State v. Jackson
| Decision Date | 06 June 2019 |
| Docket Number | No. 1 CA-CR 18-0237,No. 1 CA-CR 19-0095 (Consolidated),No. 1 CA-CR 18-0583,1 CA-CR 18-0237,1 CA-CR 18-0583,1 CA-CR 19-0095 (Consolidated) |
| Parties | STATE OF ARIZONA, Appellee, v. RANDOLPH JACKSON, JR., Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Yavapai County
The Honorable Michael R. Bluff, Judge
AFFIRMED AS MODIFIED
Arizona Attorney General's Office, Phoenix
By Michelle L. Hogan
Law Offices of David W. Dow, Phoenix
By David W. Dow
Counsel for Appellant
MEMORANDUM DECISIONJudge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
¶1 Randolph Jackson, Jr., appeals his convictions and sentences for one count each of sale or transportation of a narcotic drug, possession or use of drug paraphernalia, and misdemeanor resisting arrest. He also appeals two orders denying motions to modify his sentence. For the following reasons, we modify the sentencing minute entry to reflect that the sentence imposed for possession of drug paraphernalia is a slightly mitigated term. In all other respects, Jackson's convictions and sentences are affirmed.
¶2 In March 2014, two Yavapai County Sheriff's Office (YCSO) deputies parked in separate patrol vehicles monitored the roadway for traffic violations.1 One deputy used a radar gun to determine the vehicle in which Jackson was a passenger was traveling eighty miles per hour in a seventy-five-mile-per-hour zone. He also saw the vehicle cross over the fog line and watched as the driver seemed to hide from his view. When the deputy pulled onto the roadway, the vehicle slowed to seventy miles per hour.
¶3 When the deputy stopped the vehicle, he smelled an odor of marijuana and asked the driver and Jackson to exit. Jackson stated they were returning from Nevada and California to Oklahoma, where he had rented the vehicle. When asked about the smell of marijuana, Jackson claimed he legally smoked marijuana in California. Around this time, the deputy learned from dispatch that the rental car company in Oklahoma had reported the vehicle stolen.
¶4 After being arrested and informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Jackson became belligerent and combative, forcefully pushing and pulling away from the deputies. Once Jackson was subdued, a search incident to arrest revealed approximately ten ounces of heroin in the insoles of Jackson's shoes. After obtaining a search warrant for Jackson's phone, the deputies found photos and text messages indicative of drug trafficking.
¶5 The State charged Jackson with sale or transportation of a narcotic drug, possession or use of drug paraphernalia, theft of means of transportation, and resisting arrest. Later, the trial court granted the State's motion to dismiss the theft of means of transportation count without prejudice. Three months after his arrest, Jackson contacted a lieutenant with YCSO to report that the deputies had acted improperly. In that conversation, Jackson admitted he possessed heroin at the time.
¶6 A jury convicted Jackson of all remaining counts, and the trial court sentenced him as a repetitive offender to an aggregate term of fifteen years' imprisonment. Jackson timely appealed his convictions and sentences. While that appeal was pending, Jackson filed two unsuccessful motions to amend his sentence, alleging he was improperly sentenced as a repetitive offender, and timely appealed the orders disposing of those motions. The cases were consolidated on appeal and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),2 13-4031, and -4033(A)(1), (3). See State v. Pill, 5 Ariz. App. 277, 278-79 (1967) ().
¶7 Before trial, Jackson moved to suppress all evidence obtained from the traffic stop. Of his many pleadings, most centered on whether the traffic stop was illegal and whether the deputies had given inconsistent or false statements in prior hearings; none addressed whether the search was conducted incident to a lawful arrest or in violation of Miranda.
¶8 Jackson argues the trial court abused its discretion by refusing to suppress evidence obtained after an illegal traffic stop. We review the denial of a motion to suppress for an abuse of discretion, State v. Butler, 232 Ariz. 84, 87 ¶ 8 (2013), but review the court's legal conclusions de novo, State v. Booker, 212 Ariz. 502, 504, ¶ 10 (App. 2006). In doing so, we consider only the evidence presented at the suppression hearing,3 viewing the facts in the light most favorable to upholding the court's ruling. Butler, 232 Ariz. at 87, ¶ 8.
¶9 To conduct a lawful traffic stop, an officer must have articulable, reasonable suspicion that the person committed a traffic violation. State v. Salcido, 238 Ariz. 461, 464, ¶ 7 (App. 2015) (citing State v. Starr, 222 Ariz. 64, 69, ¶ 11 (App. 2009)). The subjective intentions of the officer do not impact the validity of a traffic stop, so long as he reasonably suspects that a driver committed a traffic violation. Whren v. United States, 517 U.S. 806, 813 (1996). One officer's testimony, without corroboration, is sufficient to support a determination of reasonable suspicion. State v. Montano, 121 Ariz. 147, 149 (App. 1978) ().
¶10 In Arizona, a driver must not travel "on a highway at a speed greater than is reasonable and prudent under the circumstances." A.R.S. § 28-701(A). Driving at speeds above the posted limit creates the presumption of a violation of A.R.S. § 28-701(A). State v. Rich, 115 Ariz. 119, 121 (App. 1977) (citations omitted). Additionally, a driver travelling on a roadway "divided into two or more clearly marked lanes" must drive "as nearly as practicable entirely within a single lane." A.R.S. § 28-729(1); see also State v. Acosta, 166 Ariz. 254, 257 (App. 1990) ().
¶11 The first YCSO deputy testified at the suppression hearing that he observed at least two traffic violations, providing him with reasonable suspicion to initiate the traffic stop. The second deputy confirmed that he had seen the first using the radar gun to measure the car's speed, the car appeared to be speeding, and the car's tires crossed the fog line. Though the driver testified to the contrary, we defer to the trial court'sassessment of witness credibility and resolution of conflicts in the evidence. State v. Olquin, 216 Ariz. 250, 252, ¶ 10 (App. 2007). Based upon this record, the traffic stop was supported by an articulable, reasonable suspicion and the court did not abuse its discretion in denying Jackson's motion to suppress.
¶12 Jackson claims the trial court erred in failing to suppress evidence obtained as a result of an illegal Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968). Because Jackson failed to directly advance this argument below, we limit our review to fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018) (citing State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005)). Moreover, the record does not support Jackson's contention that the search of his shoes was merely a Terry stop. Rather, Jackson had been placed under arrest for theft of means of transportation, and therefore, the search was incident to arrest. Warrantless searches are permissible if conducted incident to a lawful arrest but must be limited to the arrestee's person and the area within his immediate control. Chimel v. California, 395 U.S. 752, 762-63 (1969), abrogated on other grounds by Arizona v. Gant, 556 U.S. 332, 338 (2009).
¶13 Jackson argues that because the theft of means of transportation charge was later dropped, there was no basis for the search. Contrary to this assertion, the record does not affirmatively show a crime did not occur, but merely that the State could not proceed upon the theft charge at the time of trial. In moving to dismiss the theft of means of transportation count, the State avowed that a material witness suffered from Alzheimer's disease and the other out-of-state witnesses had not been cooperative. Nonetheless, at the time of the search, the deputies had probable cause to arrest Jackson after being advised the vehicle had been reported stolen. Thus, Jackson's shoes were removed and searched incident to a lawful arrest, id., and the trial court did not commit error, fundamental or otherwise.
¶14 Jackson contends the trial court erred in allowing the State to present evidence obtained in violation of Miranda. However, the only statements that Jackson identifies as improperly admitted are those he made regarding whether the officers could search his phone. Because the record shows the officers obtained a warrant before searching Jackson's phone, we find no error on this basis.
¶15 To the extent Jackson intended to challenge the admission of other statements he made in the course of his arrest, he has failed to adequately present such a claim and it is therefore waived. See State v. Carver, 160 Ariz. 167, 175 (1989).
¶16 Jackson filed multiple discovery requests and motions to compel the State to produce dash camera recordings and disciplinary records for the two deputies.
¶17 In early pretrial hearings, the YCSO deputy testified his dash camera equipment was broken at the time of the offenses. At a subsequent hearing, the deputy...
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