State v. Kearns

• Decision Date: 21 June 2011
• Docket Number: 1 CA-CR 10-0458
• Parties: STATE OF ARIZONA, Appellee, v. JON PATRICK KEARNS, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee, v. JON PATRICK KEARNS, Appellant.

1 CA-CR 10-0458

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT E

Dated: June 21, 2011

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)

Appeal from the Superior Court in Maricopa County

Cause No. CR2009-173392-001 DT

The Honorable Joseph Kreamer, Judge

REVERSED AND REMANDED

Thomas C. Horne, Attorney General

by Kent E. Cattani, Chief Counsel,

Criminal Appeals/Capital Litigation Section

and Jeffrey L. Sparks, Assistant Attorney General

Attorneys for Appellee

Phoenix

James J. Haas, Maricopa County Public Defender

by Joel M. Glynn, Deputy Public Defender

Attorneys for Appellant

Phoenix

PORTLEY, Judge

¶1 Defendant, Jon Patrick Kearns, appeals from his conviction and sentence. For the following reasons, we reverse his conviction and sentence, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY ¹

¶2 After responding to a call for service in North Phoenix, Officer Reeves returned to his marked police car to write a report. While in his car, he noticed Defendant walking on the opposite side of the street. Officer Reeves decided to make contact after Defendant looked in his direction.

¶3 Officer Reeves got out of his car and said something to Defendant, but could not remember what he had said. Defendant responded by changing direction and approaching Officer Reeves. Officer Reeves immediately asked Defendant if "he would mind letting me see some form of [identification] ." After Defendant gave Officer Reeves his identification card, Defendant was asked to sit on the ground during the warrant check.² Defendant complied.

¶4 Officer Reeves went to his car to run a search for warrants. After finding none, he returned to Defendant, who was still sitting on the ground. Defendant asked Officer Reeves why he was stopped, and Officer Reeves responded "that I hadn't stopped him, that I was just talking to him."

¶5 While Defendant remained seated, and while still possessing Defendant's identification, Officer Reeves sought consent to search Defendant's backpack. Defendant responded that he would rather Officer Reeves not search his bag. Officer Reeves responded: "You've been very cooperative. You [sic] sure you don't mind if I look in your backpack." Defendant again declined consent. Officer Reeves responded, "Why? Do you have drugs in it?"³ Defendant then admitted that marijuana was in the front pocket of the backpack. Officer Reeves found the marijuana and arrested Defendant.

¶6 The State charged Defendant with knowingly possessing marijuana, a class 6 felony. Defendant moved to suppress the marijuana, claiming that he was seized in violation of the United States and Arizona constitutions. After an evidentiary hearing, the trial court denied the motion. The State designated the offense as a misdemeanor, and the case proceeded to a bench trial. The court found Defendant guilty, and sentenced him to six months of unsupervised probation. Defendant appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031, and -4033(3) (2010).

DISCUSSION

¶7 Defendant contends that the trial court erred by failing to grant his motion to suppress. Specifically, he contends that he was seized in violation of the Fourth Amendment to the United States Constitution.⁴

¶8 Because Defendant was seized without a warrant, the State bears the burden of proving that the encounter complied with the Fourth Amendment. See Ariz. R. Crim. P. 16.2(b); Rodriguez v. Arellano, 194 Ariz. 211, 215, ¶ 12, 979 P.2d 539, 543 (App. 1999). On appeal, we defer to the trial court's factual determinations. State v. Zamora, 220 Ariz. 63, 67, ¶ 7, 202 P.3d 528, 532 (App. 2009); State v. Teagle, 217 Ariz. 17, 22, ¶ 19, 170 P.3d 266, 271 (App. 2007). Whether a seizure occurred is a mixed question of law and fact that we review de novo. State v. Wyman, 197 Ariz. 10, 13, ¶ 7, 3 P.3d 392, 395 (App. 2000); State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996); see United States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007) ("Whether an encounter between a defendant and an officer constitutes a seizure is a mixed question of law and fact that we review de novo.").

¶9 After motions and an evidentiary hearing, the trial court found that Defendant voluntarily gave Officer Reeves his identification and consented to the search of his backpack. Moreover, the court found that the encounter was consensual and that Defendant could have terminated the encounter at any time. The court then concluded that once Defendant admitted to having marijuana, Officer Reeves had probable cause to arrest Defendant and search his backpack incident to arrest.

¶10 The Fourth Amendment protects persons from "unreasonable searches and seizures." "[T]he first step in analyzing an alleged Fourth Amendment violation is determining whether a seizure occurred." State v. Childress, 222 Ariz. 334, 338, ¶ 10, 214 P.3d 422, 426 (App. 2009). Not all encounters between police and citizens involve a seizure. The Fourth Amendment is not implicated and no seizure occurs "when a law enforcement officer merely identifies himself and poses questions to a person if the person is willing to listen." Washington, 490 F.3d at 770 (citing Florida v. Royer, 460 U.S. 491, 497 (1983)); see State v. Canales, 222 Ariz. 493, 495, ¶ 6, 217 P.3d 836, 838 (App. 2009). A person is seized "only 'when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'" State v. Rogers, 186 Ariz. 508, 511, 924 P.2d 1027, 1030 (1996) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). An otherwiseconsensual encounter becomes a seizure if a reasonable person, based on the totality of the circumstances, would believe "that he or she was not free to decline the officer's requests or otherwise terminate the encounter." Canales, 222 Ariz. at 495, 217 P.3d at 838 (quoting United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996) (internal quotation marks omitted); In re Ilono H. , 210 Ariz. 473, 475, ¶ 8, 113 P.3d 696, 698 (App. 2005) (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)).

¶11 Initially, there was no evidence of why Officer Reeves stopped Defendant, and Officer Reeves testified that he could not recall why he initially made contact with Defendant.⁵Whatever was said was sufficient to make Defendant alter his course of travel. See California v. Hodari D. , 499 U.S. 621, 626 (1991) (holding that a seizure occurs where a suspect submits to the assertion of police authority); but see INS v. Delgado, 466 U.S. 210, 216 (1984) (holding that a seizure doesnot occur merely because there is inherent social pressure to cooperate with officers).

¶12 Defendant, however, does not challenge the initial stop. Instead, based on the totality of the circumstances, he argues that a reasonable person would not feel free to leave because Officer Reeves demonstrated his authority by directing Defendant to sit on the ground, taking his identification, and then asking consent to search and other potentially incriminating questions. We agree.

¶13 Many courts have held that an officer's decision to retain a suspect's identification and continue asking questions is "highly material" to determine if a seizure occurred.⁶ See, e.g., United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002); see also United States v. Ford, 548 F.3d 1, 6 (1st Cir. 2008); United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997) (finding that continued retention of identification makes the stop a seizure because the defendant could not lawfully drive away); United States v. Lambert, 46 F.3d 1064,1068 (10th Cir. 1995); United States v. Jordan, 958 F.2d 1085, 1088 (D.C. Cir. 1992); Golphin v. State, 945 So. 2d 1174, 1189 (Fla. 2006); State v. Page, 103 P.3d 454, 457 (Idaho 2004) (holding that "a limited detention does occur when an officer retains a driver's license or other paperwork of value"); State v. Pollman, 190 P.3d 234, 240 (Kan. 2008); State v. Dixon, 218 S.W.3d 14, 20 n.1 (Mo. Ct. App. 2007); State v. Daniel, 12 S.W.3d 420, 427 (Tenn. 2000) ("Abandoning one's identification is simply not a practical or realistic option for a reasonable person in modern society."); Salt Lake City v. Ray, 998 P.2d 274, 278 (Utah Ct. App. 2000) ("Generally, when a person's identification or other important papers are taken by a law enforcement officer, a reasonable person would not feel free to leave."); State v. Thomas, 955 P.2d 420, 423 (Wash. Ct. App. 1998) ("Once an officer retains the suspect's identification or driver's license and takes it with him to conduct a warrants check, a seizure within the meaning of the Fourth Amendment has occurred."); 4 Wayne R. Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(b) n.81 (4th ed. 2010) (collecting cases).

¶14 Here, Officer Reeves asked Defendant if he "would mind letting [him] see some form of [identification]" immediately after making initial contact. Defendant provided his identification, and Officer Reeves returned to his policevehicle to determine if Defendant had any warrants for his arrest. See United States v. Analla, 975 F.2d 119, 125 (4th Cir. 1992) (finding it relevant that the officer did not take the license into the police vehicle). After finding no warrants, Officer Reeves returned and asked for consent to search Defendant's backpack and if he had drugs. During questioning, Defendant was still sitting, and Officer Reeves kept Defendant's identification. See United States v. Walker, 933 F.2d 812, 817 (10th Cir. 1991) (finding a seizure where the officer retained the defendant's driver's license after a traffic stop and...