State v. Magner

• Decision Date: 27 January 1998
• Docket Number: No. 1,CA-CR,1
• Citation: 956 P.2d 519,191 Ariz. 392
• Parties: , 261 Ariz. Adv. Rep. 8 STATE of Arizona, Appellee, v. Daniel Joseph MAGNER, Appellant. 97-0267.
• Court: Arizona Court of Appeals

Page 519

956 P.2d 519

191 Ariz. 392, 261 Ariz. Adv. Rep. 8

STATE of Arizona, Appellee, v. Daniel Joseph MAGNER, Appellant.

No. 1 CA-CR 97-0267.

Court of Appeals of Arizona,

Division 1, Department B.

Jan. 27, 1998.

Review Denied May 19, 1998.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Jack Roberts, Assistant Attorney General, Phoenix, for Appellee.

Ronald S. Lowy, Miami Beach, FL, for Appellant.

OPINION

SULT, Judge.

¶1 Daniel Magner ("defendant") appeals from his convictions and sentences for possessing and transporting marijuana for sale. He asserts his convictions are founded upon evidence seized as a result of an illegal detention of his person. We agree and therefore reverse.

BACKGROUND

¶2 On Tuesday, November 28, 1995, Department of Public Safety Officer Jeff Brownlee ("Brownlee") stopped defendant on Interstate 40 east of Flagstaff for driving 71 m.p.h. in a 65 m.p.h. zone. During the stop, Brownlee made several observations of defendant and his vehicle. Based upon his training and the inferences he drew from those observations, Brownlee became suspicious that defendant was involved in transporting drugs. After issuing defendant a written warning for speeding and returning his driver's license and registration, Brownlee requested defendant's permission to search the vehicle. When defendant refused, Brownlee informed defendant that he was not free to leave, ordered him from the car, and called for a drug detection dog to come to the scene.

¶3 Because the Flagstaff dog was unavailable, a dog from Williams was called but did not arrive for approximately forty-five minutes. The dog was put to work and alerted on defendant's car, at which point Brownlee placed defendant under arrest. Defendant surrendered his keys, and the officer opened the car trunk and discovered marijuana inside.

¶4 A grand jury indicted defendant for possession of more than four pounds of marijuana for sale and transportation of more than two pounds of marijuana for sale, each a class 2 felony. Defendant moved to suppress the marijuana, arguing, inter alia, that he was detained without reasonable suspicion of criminal activity, and that he was detained for an unreasonable amount of time. After an evidentiary hearing, the trial court denied the motion.

¶5 Defendant and the state agreed to a bench trial based upon a stipulated record. The trial court found defendant guilty on both counts and sentenced him to concurrent, minimum terms of four years imprisonment. Defendant timely appealed.

ISSUES

¶6 At the outset, we note that defendant concedes that Brownlee's traffic stop was proper and defendant also does not dispute the propriety of his arrest following the dog's alert. The first question defendant raises is whether reasonable suspicion supported the officer's detention of defendant in order to secure the drug dog. The second question is whether the period of his detention while awaiting the arrival of the drug dog was excessive.

ANALYSIS

I. The Detention of Defendant

A. The Evidence

57 7 To justify detaining a person for investigative reasons, an officer must be able to articulate specific facts which, together with rational inferences from those facts, reasonably warrant the suspicion that the defendant had committed, or was about to commit, a crime. State v. Killean, 184 Ariz. 164, 170, 907 P.2d 550, 556 (App.1995), vacated on other grounds, 185 Ariz. 270, 915 P.2d 1225 (1996). These facts and inferences taken as a whole, the "totality of the circumstances," must provide "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

¶8 At the evidentiary hearing in this matter, Brownlee testified that he had more than eight years of experience in drug interdiction and had attended numerous drug interdiction courses conducted by law enforcement agencies. He then articulated several specific observations he made of defendant, together with the inferences he drew from those observations.

¶9 Brownlee observed that defendant generally refused eye contact, that defendant's eye twitched the one time he did make contact, and that defendant was unusually upset at being stopped. Brownlee concluded from this behavior that defendant was nervous. He observed that defendant had his car registration on the passenger seat, which caused Brownlee to wonder whether defendant had a gun in the glove box. He observed that defendant's wearing of a tie was inconsistent with the jeans and sneakers he was also wearing, and that a tie was unusual for a cross-country trip. He concluded that defendant was attempting to present as a businessman to any passing patrolman, thus lessening his chances of being stopped. Through questioning defendant, Brownlee learned that defendant was traveling to Arkansas from Tucson, a city he knew to be a source for illegal drugs, and defendant's account of his stay in Tucson seemed confusing to Brownlee. He observed that defendant's car was dirty, a factor which the officer knew from his training was consistent with "people who are involved with criminal activity" who "travel from Point A to Point B as fast as they can" without cleaning their cars. Finally, the officer noted a black overnight bag in the back seat and inferred that since most people like to keep their luggage in a safe place, defendant risked placing this bag on the seat to keep the contents of the trunk hidden. To Brownlee, the cumulative effect of these observations and inferences raised a suspicion that defendant was transporting illegal drugs.

¶10 By its denial of defendant's motion, the trial court found as true Brownlee's observations and also found rational the inferences Brownlee drew from those observations. Based on the totality of these factors, the trial court concluded that Brownlee had reasonable suspicion to detain defendant.

B. The Standard of Review

¶11 A trial court's ruling on the propriety of an investigative detention presents a reviewing court with a mixed question of law and fact and, consequently, with a "mixed" standard of review. We review de novo the ultimate question whether the totality of the circumstances amounted to the requisite reasonable suspicion. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). However, we defer to the trial court's factual findings underlying that determination, which deference includes the trial court's assessment whether the inferences drawn by the officer were rational. Id. We review those findings for an abuse of discretion. State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996). An abuse of discretion occurs when a factual finding, or inference drawn therefrom, is not justified by, and is clearly against, reason and evidence. State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983).

¶12 In this matter, Brownlee was the only witness and the trial court was not required to make any conflicting credibility determinations. We therefore find no abuse of discretion in the trial court's accepting as accurate the observations that Brownlee made and also accepting that he drew the inferences to which he testified. However, since it is only rational inferences that can contribute to an ultimate finding of reasonable suspicion, Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), we must test Brownlee's inferences to determine whether the trial court abused its discretion in finding those inferences were rational. Moreover, in making the ultimate finding whether the totality of the circumstances justified a reasonable suspicion, which is our de novo responsibility, we must examine each factor in order to determine the "degree of suspicion that attaches to particular types of non criminal acts." United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983)). We therefore will address each of Brownlee's observations individually.

C. The Individual Factors

Defendant's Nervousness

¶13 Brownlee explained that he thought defendant was nervous because defendant generally did not make eye contact with him, and defendant's eye "really started twitching" during the one instance when there was eye contact. Brownlee further explained that defendant was unusually upset at being stopped. According to the officer, motorists who are stopped for a traffic violation normally are upset, but not to the extent of refusing eye contact or attempting some degree of congeniality.

¶14 We agree that the officer's observations supported a conclusion of some nervousness on defendant's part. However, courts must be wary of granting much weight to a law enforcement officer's subjective observation that a defendant was nervous. United States v. Fernandez, 18 F.3d 874, 879 (10th Cir.1994). "It is common knowledge that most citizens ... whether innocent or guilty, when confronted by a law enforcement officer who asks them potentially incriminating questions are likely to exhibit some signs of nervousness." Id. See also United States v. Wood, 106 F.3d 942, 948 (10th Cir.1997) (citing cases discounting the relevance of a suspect's nervousness when confronted by police and noting that the "government's repetitive reliance on ... nervousness ... as a basis for reasonable suspicion ... must be treated with caution"). Moreover, an officer usually does not know the suspect and cannot reasonably evaluate whether the observed behavior is normal for that suspect. United States v. Fernandez, 18 F.3d at 879.

¶15 However, "dramatic" indications of nervousness may contribute substantially to a suspicion of criminal activity. United States v. Green, 52 F.3d 194, 199 (8th Cir.1995). Compare State v. Houpt, 169 Ariz. 550, 551, 821 P.2d 211, 212 (App.1991...