State v. Marrero
| Decision Date | 19 April 2017 |
| Docket Number | No. 2 CA-CR 2015-0199,2 CA-CR 2015-0199 |
| Parties | THE STATE OF ARIZONA, Appellee, v. MARK ANGEL MARRERO JR., Appellant. |
| Court | Arizona Court of Appeals |
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NOT FOR PUBLICATION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. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Kenneth Lee, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Vanessa C. Moss, Tucson
Counsel for Appellant
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Howard and Judge Vásquez concurred.
¶1 Mark Marrero appeals from his multiple convictions and sentences related to two residential robberies. On appeal, he asserts the trial court erred in not suppressing certain evidence, excluding third-party culpability evidence, denying his motion to vacate judgment, sentencing him to consecutive terms, and requiring him to register as a sex offender. For the following reasons, we affirm his convictions and sentences.
¶2 We view the facts in the light most favorable to upholding the convictions. State v. Boozer, 221 Ariz. 601, ¶ 2, 212 P.3d 939, 939 (App. 2009). On the night of March 19, 2014, H.T. woke up to the sound of "the footsteps of many people running toward the house saying they were police officers." He looked out his window and saw a vehicle that had "police type lights" that flashed "red and blue." Four or five men entered his home through the window and forced him and his wife at gunpoint to lie down on a bed. The intruders threatened several members of the family at gunpoint while taking money and documents. They then forced H.T. and everyone else in the house into the bathroom and told them that if they left, they would be shot.
¶3 On March 26, 2014, M.A. was returning home after picking up his children from school. As he walked into his yard, he saw "an unmarked police car with flashing lights." The men who got out of the car claimed to be "D.E.A." and stated that "there were drugs in the house." M.A. asked if they had a search warrant, and M.A.'s son began yelling at the men. At that point, one of the men drew a gun, pointed it at M.A.'s son, took M.A.'s keys, and entered the house. The intruders forced M.A.'s children on their knees in abedroom and pointed guns at them. The men took about $2,200, some "historic bills" that M.A. collected, jewelry, and two guns. As they were leaving, one of the men took M.A.'s daughter at gunpoint, told M.A. not to follow them, and went outside. M.A. found his daughter outside shortly after they left.
¶4 On March 29, 2014, an officer with the Tucson Police Department stopped Marrero's vehicle for a window tint violation. Marrero initially provided a false name and claimed to not have identification. Because there was no record of a driver's license under the name and date of birth Marrero provided, and Marrero claimed he did not have a driver's license, the officer decided to impound the car. The officer searched the car and found two handguns, one of which matched the gun stolen from M.A. in brand, color, and serial number. In a later interview with a detective, Marrero claimed to have information about "red and blue lights."
¶5 After a jury trial, Marrero was convicted of sixteen counts of kidnapping, six counts of armed robbery, six counts of aggravated robbery, eight counts of aggravated assault, seven counts of aggravated assault of a minor under fifteen, two counts of burglary, and two counts of impersonating a peace officer. He was sentenced to a combination of concurrent and consecutive prison terms totaling 269.5 years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A).
¶6 We review a trial court's decision on a motion to suppress evidence for an abuse of discretion, but review constitutional issues de novo. State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). In our review, we consider only the evidence introduced at the suppression hearing, and we view that evidence in the light most favorable to upholding the trial court's ruling. Id.
¶7 Marrero claims there was no reasonable suspicion to conduct a traffic stop because the officer who conducted the stop didnot have sufficient knowledge to properly assess the level of window tint. He claims the officer who conducted the stop "admitted to a complete absence of training in window tint assessment and violations."
¶8 The record belies this assertion. The officer testified that, "in the course of [his] training, [he was] taught about Arizona laws regarding tinting on vehicles" and "[was] taught what kind of tinting is allowed and what kind is not allowed." He also testified that, in his experience, "[i]f you drive down the street and you look into a vehicle and you can't see who's driving, it's a cue that the tint's too dark." See State v. Teagle, 217 Ariz. 17, ¶ 26, 170 P.3d 266, 273 (App. 2007) ().
¶9 Marrero also questions the officer's methods for assessing the window tint, claiming he "used his own personal subjective standards." In State v. Moreno, this court noted that "[s]ubjectivity may often factor into establishing reasonable suspicion that a window is too dark." 236 Ariz. 347, ¶ 15, 340 P.3d 426, 432 (App. 2014). The fact that an officer used subjective methods for determining window tint does not render a stop based on illegal window tint unreasonable. Id.1
¶10 Marrero next claims the inventory search of his vehicle was improper because it failed to comport with police department procedures. After the officer pulled over Marrero's vehicle, he learned that Marrero did not have a valid driver's license. The officer decided to impound the vehicle and began an inventory search. However, as he began his search, he noticed "a small amount of what appeared to be loose marijuana" on the driver'sseat. At that point, the officer had probable cause to search the vehicle because evidence of a crime was in plain view. See State v. Kelly, 130 Ariz. 375, 378, 636 P.2d 153, 156 (App. 1981) (); see also State v. Reyna, 205 Ariz. 374, ¶ 1, 71 P.3d 366, 366 (App. 2003) ().
¶11 Marrero asserts the search was nonetheless invalid because it was "the direct fruit of the illegal 'inventory search.'" Marrero's claim that the inventory search was invalid rests on the fact that the officer did not "fill out a specific vehicle inventory form." But Marrero has not pointed to anything in the record demonstrating that an officer is required to fill out this form before beginning an inventory search. Nor does the record demonstrate that, if the marijuana had not been found, the officer would not have filled out the form after completing his inventory search, thus making the inventory search valid. Accordingly, we cannot say that the search pursuant to probable cause was the fruit of an invalid search.
¶12 Marrero claims the warrant that authorized seizure of his cell phone records was improper because the officer seeking the warrant "created his own form citing to a federal statute." As the state has noted, there is no authority for the proposition that a specific form must be used in seeking a warrant. We conclude the trial court did not err in denying Marrero's motion to suppress on this ground.2
¶13 Marrero claims the trial court erred in denying his motion to suppress certain statements because those statements were obtained in violation of his right to counsel. He argues that, while he was interrogated, he made multiple requests for an attorney, but the detective conducting the interrogation ignored his requests and continued to question him.
¶14 "If a suspect requests counsel, 'the interrogation must cease until an attorney is present,' [h]owever, 'law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.'" State v. Ellison, 213 Ariz. 116, ¶ 26, 140 P.3d 899, 910 (2006), quoting Miranda v. Arizona, 384 U.S. 436, 474 (1966), and Davis v. United States, 512 U.S. 452, 461 (1994) (emphasis in Ellison).
¶15 Here, the detective informed Marrero that he would be seeking a warrant for Marrero's DNA.3 Marrero responded that he "would have to ask [his] lawyer [a]bout that." As the detective further discussed the issue of a DNA test with Marrero, Marrero said, "I'm not because I don't have legal assistances to be able to be with me." Marrero then asserted, "I've had lawyers and I know that you guys ain't allowed to get a DNA test from me unless I have a lawyer present." None of these statements constituted an unequivocal request for counsel as a condition of further questioning. See State v. Spears, 184 Ariz. 277, 286, 908 P.2d 1062, 1071 (1996) ().
¶16 Marrero later stated, "And I know that you get me a lawyer I'll tell you everything I know but I'm not gonna do that until I have a lawyer and my information is . . . red and blue lights." Even assuming that the first part of this statement was a clear request for counsel, see State v. Finehout, 136 Ariz. 226, 230, 665 P.2d 570, 574(1983), the detective did not ask Marrero any questions in between the first part and the second part of the statement. The detective merely said "okay." Accordingly, the trial court did not err in ruling that Marrero's statement about red and blue lights was admissible. Cf. State v. Jones, 203 Ariz....
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