State v. Moreno

• Decision Date: 30 December 2014
• Docket Number: No. 2 CA–CR 2013–0339.,2 CA–CR 2013–0339.
• Citation: 703 Ariz. Adv. Rep. 23,236 Ariz. 347,340 P.3d 426
• Parties: The STATE of Arizona, Appellee, v. Jesus Ramiro MORENO, Appellant.
• Court: Arizona Court of Appeals

236 Ariz. 347
340 P.3d 426
703 Ariz. Adv. Rep. 23

The STATE of Arizona, Appellee,
v.
Jesus Ramiro MORENO, Appellant.

No. 2 CA–CR 2013–0339.

Court of Appeals of Arizona,
Division 2.

Dec. 30, 2014.

Affirmed.

[340 P.3d 428]

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix by Amy Pignatella Cain, Assistant Attorney General, Tucson, Counsel for Appellee.

Law Offices of Christopher L. Scileppi, P.L.L.C. By Christopher L. Scileppi, Tucson, Counsel for Appellant.

Judge ESPINOSA authored the opinion of the Court, in which Presiding Judge MILLER and Chief Judge ECKERSTROM concurred. OPINION
ESPINOSA, Judge.

¶ 1 After a vehicle was stopped for a window tint violation and a load of marijuana discovered within, a jury convicted Jesus Moreno of conspiracy to commit transportation of marijuana for sale, transportation of marijuana for sale, possession of marijuana for sale, possession of drug paraphernalia, and misconduct involving weapons. The trial court dismissed the charge of possession of marijuana as a lesser-included offense and imposed concurrent, presumptive prison terms totaling 7.5 years on all remaining charges. On appeal, Moreno contends the court erred in denying his motion to suppress evidence, challenging the basis for the traffic stop leading to his arrest. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 In reviewing a trial court's denial of a motion to suppress, we view the facts in the light most favorable to upholding its ruling, considering only the evidence presented at the suppression hearing.

[340 P.3d 429]

State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App.2007). On March 7, 2012, Detective Paul Barco of the Douglas Police Department was in an unmarked truck on State Route 80 near Douglas when he saw two vehicles that appeared to be traveling in tandem. He observed a white Chrysler Concord, following “[n]ot even three seconds” behind a black Nissan SUV.¹ This “caught [his] attention” because the traffic on State Route 80 in that area is normally “really light” and he “hardly saw any traffic” while he was on duty that day. The detective followed the vehicles for several miles and observed behavior he found suspicious. The Nissan appeared to gain speed while the Concord slowed down, as if “they were separating from each other,” consistent with a heat vehicle “lead[ing] p[ro]spective law enforcement off the trial of [a] load vehicle.”

¶ 3 The detective “lost sight of the black Nissan,” but eventually observed it parked on the side of the road with its hood up as he passed the Concord. He continued eastbound until he stopped to speak with a United States Border Patrol agent to advise him of the vehicles traveling in tandem. During that time, the Concord passed the detective's location and he “noticed that [its window] tint appeared to be illegal.” The detective drove back onto the highway and “pulled up really close” to the Concord and noticed “an object hanging from the rearview mirror” that he believed “obstruct[ed] the driver's view,” but he could not identify it.² He then stopped the Concord, and a search ultimately revealed 172 pounds of marijuana. The driver and the passenger, Moreno, were arrested, and the Concord was taken to the Douglas Police Department, where a tint meter reading revealed the front window tint actually was within legal limits.

¶ 4 Before trial, Moreno filed a motion to suppress evidence, arguing the detective “had no reasonable suspicion to effectuate the traffic stop.” Specifically, Moreno contended he was only stopped “for being in a vehicle that had a perfectly legal window tint and for having a rosary that was hanging from the rear view mirror,” and neither constituted a traffic violation. The state responded that the detective had considered several factors which, when taken together, were a sufficient basis for reasonable suspicion of criminal activity, including the in-tandem driving and the detective's experience in the area, and that his good-faith mistake of fact regarding the tint did not otherwise invalidate the stop. Following a hearing, the trial court denied the motion, and Moreno was found guilty at trial on all counts.

DISCUSSION

¶ 5 When reviewing a ruling on a suppression motion, “ ‘we defer to the trial court's factual findings, including findings on credibility and the reasonableness of the inferences drawn by the officer.’ ” State v. Moran, 232 Ariz. 528, ¶ 5, 307 P.3d 95, 98 (App.2013), quoting Teagle, 217 Ariz. 17, ¶ 19, 170 P.3d at 271. We review mixed questions of fact and law de novo, considering whether the totality of the circumstances gave rise to reasonable suspicion to support an investigative detention. State v. Sweeney, 224 Ariz. 107, ¶ 12, 227 P.3d 868, 872 (App.2010). We will uphold the court's ruling if legally correct for any reason supported by the record. State v. Childress, 222 Ariz. 334, ¶ 9, 214 P.3d 422, 426 (App.2009).

¶ 6 At the conclusion of the suppression hearing, the trial court found the detective's mistake regarding the window tint to be one of fact, and concluded that his “actions were reasonable and in good faith, and the objective facts established reasonable suspicion for an actual violation of the law.” When Moreno sought clarification as to whether the court was denying his motion solely on the basis of the tint, the court stated:

No. Now, the other factors there are certainly not as strong as the window tint. I am hanging my hat on the window tint, but certainly all those other factors were something that the Officer had in mind, but the ruling is based on the window tint.

[340 P.3d 430]

Mistaken Belief as to Window Tint

¶ 7 Moreno contends the trial court erred in classifying the detective's incorrect belief that the window tint was illegal as a mistake of fact, which has been held a sufficient basis for founded suspicion if the mistake was made in good faith and reasonable. See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 183–86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (“what is generally demanded of the many factual determinations that must regularly be made by agents of the government ... is not that they always be correct, but that they always be reasonable”). Moreno argues the detective made a mistake of law and, therefore, it could not constitute a valid basis for the stop, citing federal cases from the Ninth Circuit Court of Appeals for that proposition.³ We note, however, that the federal circuit courts have been split on the issue. Compare United States v. Chanthasouxat, 342 F.3d 1271, 1277 (11th Cir.2003) (officer's mistake of law cannot provide objective grounds for reasonable suspicion), and United States v. McDonald, 453 F.3d 958, 961–62 (7th Cir.2006) (same), with United States v. Delfin–Colina, 464 F.3d 392, 399–400 (3rd Cir.2006) (traffic stops based on mistake of law valid if mistake is objectively reasonable), and United States v. Smart, 393 F.3d 767, 770 (8th Cir.2005) (“in mistake cases the question is simply whether the mistake, whether of law or of fact, was an objectively reasonable one”).

¶ 8 During the suppression hearing, the detective testified that his understanding of Arizona law with respect to legality of window tint was that “[i]t's 33 [percent] plus or minus three percent ... [m]eaning it can be 36 percent, or it could be 30 percent ... [o]f the transmission of light going through the window.” This is an accurate recitation of Arizona's window tint statute.⁴ The tint meter reading ultimately established that the Concord's front windows had a light transmission of thirty-six percent, legal under Arizona law.

¶ 9 Moreno acknowledges the detective accurately related the law; however, he contends that by initially determining the Concord's window tint allowed for transmission of less than the permitted amount of light, the detective “erroneously conclud[ed] the legal effects of believed facts.” In other words, because the detective observed legal...