State v. Lopez

• Decision Date: 15 June 2021
• Docket Number: No. 2 CA-CR 2020-0098,2 CA-CR 2020-0098
• Parties: THE STATE OF ARIZONA, Appellee, v. ERIC WILLIAM LOPEZ, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. ERIC WILLIAM LOPEZ, Appellant.

No. 2 CA-CR 2020-0098

ARIZONA COURT OF APPEALS DIVISION TWO

June 15, 2021

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NOT FOR PUBLICATION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. 31.19(e).

Appeal from the Superior Court in Graham County

No. CR201800139

The Honorable Travis W. Ragland, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Mark Brnovich, Arizona Attorney General

Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals

By Brian R. Coffman, Assistant Attorney General, Phoenix

Counsel for Appellee

Law Office of Elizabeth M. Hale, Lakeside

By Elizabeth M. Hale

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

EPPICH, Presiding Judge:

¶1 Eric William Lopez appeals from his convictions and sentences for possession of a dangerous drug for sale, possession of a dangerous drug, and possession of drug paraphernalia. Lopez argues the trial court erred in denying his pretrial motion to suppress and allowing evidence to be admitted at trial despite chain-of-custody issues. He also argues his conviction and sentence for possession of a dangerous drug violated his right to be free from double jeopardy. For the following reasons, we vacate Lopez's possession of a dangerous drug conviction and sentence, but otherwise affirm his convictions and sentences.

Factual and Procedural Background

¶2 We view the evidence and draw all reasonable inferences therefrom in the light most favorable to affirming Lopez's convictions. See State v. Miles, 211 Ariz. 475, ¶ 2 (App. 2005). On Saint Patrick's Day in 2018, near midnight, Sergeant Cluff of the Safford Police Department saw a car driving slowly near a high-crime area. He checked the license plate of the car and discovered its registration had been suspended due to a lack of proof of insurance. As a result, Cluff activated the emergency lights in his patrol car to initiate a traffic stop, but the car he was following continued traveling for at least 400 feet before stopping.

¶3 As Cluff walked toward the driver-side window, he saw Lopez turn towards him with a panicked look and reach down between the seats near the center-console area in a manner that blocked Cluff's view. He ordered Lopez to put his hands up, but Lopez did not immediately comply, and Cluff drew his weapon. After Lopez put his hands up, Cluff holstered his weapon and told Lopez why he had been stopped. Lopez told Cluff the car belonged to his daughter and claimed he was coming from his "kid's house" and was going home. Cluff then asked Lopez for his license, registration, and insurance. When Cluff again asked Lopez where he was going, Lopez claimed he was going to get his car and then going home.

¶4 During his interaction with Lopez, Cluff detected a slight odor of alcohol from the car, learned Lopez had taken a shot of alcohol prior to driving, and observed that Lopez had bloodshot, watery eyes and was acting nervous, sweating profusely, and speaking with a shaky voice. Cluff subsequently asked Lopez to step out of the car, and after conducting an investigation into whether he was driving under the influence (DUI), he determined Lopez was not impaired. Cluff then returned to his car to check Lopez's driver license.

¶5 Cluff did not find any issues with Lopez's license. He questioned Lopez about the presence of any weapons or drugs in the car, and after about ninety seconds of questioning, Lopez consented to a search of his car. Inside the car, Cluff saw a scale on the front passenger seat and found a baggie with methamphetamine in between the center console and front passenger seat.

¶6 Lopez was subsequently charged with possession of a dangerous drug for sale, possession of a dangerous drug, and possession of drug paraphernalia. After a two-day trial, Lopez was convicted as charged. The trial court sentenced him to concurrent prison terms of fourteen years for possession of a dangerous drug for sale, ten years for possession of a dangerous drug, and 3.75 years for possession of drug paraphernalia. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).¹

Motion to Suppress

¶7 Before trial, Lopez filed a motion to suppress, arguing Cluff unconstitutionally detained him after the DUI investigation had concluded and obtained involuntary consent to search his car. The state responded that Cluff's detention of Lopez was lawful because Cluff had reasonable and articulable suspicion that criminal activity was afoot and that Lopez's consent was voluntary. The trial court held a suppression hearing and subsequently denied the motion to suppress, making the following findings:

That [Lopez] was initially stopped for a mandatory insurance suspension.

That during the stop the officer observed [Lopez] acting in a manner that led the officer to believe that [Lopez] was trying to stuff something between the console and seat.

That during the stop the officer also observed things that led him to believe that [Lopez] might be driving under the influence.

That the officer's observations of [Lopez], including among other things, [Lopez] trying to stuff something between the console and seat, [Lopez]'s rapid carotid pulse, nervous demeanor, time of night, and explanation regarding where he was going and coming from, considered collectively, provided a reasonable and articulable suspicion that [Lopez] was engaged in illegal activity.

That considering the totality of the circumstances, the length of the stop was reasonable.

That [Lopez] consented to the search of the vehicle.

That there was no evidence of explicit or implicit coercion, or implied threat or covert force.

¶8 On appeal, Lopez argues the trial court erred by denying his motion to suppress. He reasserts his constitutional rights were violated when Cluff continued to detain him after completing his investigation into the traffic violation, contending Cluff only had an inchoate hunch that he was engaged in criminal activity. He also argues Cluff did not have valid consent to search his car and even if he did, Cluff's actions exceeded the scope of his consent.

¶9 "We review the denial of a motion to suppress for an abuse of discretion, but we review legal and constitutional issues de novo." State v.Sallard, 247 Ariz. 464, ¶ 7 (App. 2019) (citations omitted). "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 (App. 2014); State v. Rosengren, 199 Ariz. 112, ¶ 9 (App. 2000) (defer to factual findings supported by the record and not clearly erroneous). And in cases where the trial court did not articulate any factual findings, we will infer those findings that are reasonably supported by the record and necessary to support the ruling. State v. Organ, 225 Ariz. 43, ¶ 10 (App. 2010).

Reasonable Suspicion

¶10 On appeal, Lopez concedes that the initial traffic stop, DUI investigation, and records check were reasonable under the circumstances. However, he contends that once Cluff found no signs of impairment or issues with his driver license, Cluff should have released him because he lacked reasonable suspicion to detain him any longer.

¶11 The Fourth Amendment forbids unreasonable searches and seizures. U.S. Const. amend. IV. A traffic stop is considered a seizure, but a police officer only needs reasonable suspicion that a driver has committed an offense to conduct a stop. State v. Kjolsrud, 239 Ariz. 319, ¶ 9 (App. 2016). "[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'—to address the traffic violation that warranted the stop and attend to related safety concerns." Id. ¶ 10 (quoting Rodriguez v. United States, 575 U.S. 348, 354 (2015)). Authority for the seizure ends when the tasks pertaining to the traffic infraction were, or reasonably should have been, completed. Id. After this time, the officer must allow the driver to leave unless "during the encounter, the officer develops a reasonable and articulable suspicion that criminal activity is afoot." Id. (quoting State v. Sweeney, 224 Ariz. 107, ¶ 17 (App. 2010)).

¶12 "Reasonable suspicion is a justifiable suspicion that the particular individual to be detained is, or has been, involved in criminal activity." Devlin v. Browning, 249 Ariz. 143, ¶ 10 (App. 2020). An officer does not need solid proof, but does need "an objective basis to believe that criminal activity might be occurring sufficient to justify further investigation." Id. (quoting State v. Turner, 243 Ariz. 608, ¶ 7 (App. 2018)); see also State v. Teagle, 217 Ariz. 17, ¶ 25 (App. 2007) ("[T]he Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory detention."). We must look at the totality of the circumstances to determine whether reasonable suspicion exists, Statev. Evans, 237 Ariz. 231, ¶ 8 (2015), and "we accord deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious actions," Teagle, 217 Ariz. 17, ¶ 26.

¶13 Here, Cluff lawfully detained Lopez after checking his driver license based on the totality of the circumstances. At the suppression hearing, Cluff gave the following objective reasons for why he believed Lopez was engaged in criminal activity. First, Cluff testified Lopez had driven at least 400 feet after Cluff activated his emergency lights, despite having "ample opportunity to stop." Second, Cluff testified Lopez's panicked look, positioning of his body to obstruct his view, and "digging in" the center-console area suggested he had concealed something. Third, Lopez denied ownership of the car even though it was...