State v. Nevarez

• Decision Date: 30 May 2014
• Docket Number: No. 2 CA–CR 2013–0065.,2 CA–CR 2013–0065.
• Citation: 235 Ariz. 129,687 Ariz. Adv. Rep. 6,329 P.3d 233
• Parties: The STATE of Arizona, Appellee, v. Esgardo Javier NEVAREZ, Appellant.
• Court: Arizona Court of Appeals

235 Ariz. 129

329 P.3d 233

687 Ariz. Adv. Rep. 6

The STATE of Arizona, Appellee,

v.Esgardo Javier NEVAREZ, Appellant.

No. 2 CA–CR 2013–0065.

Court of Appeals of Arizona, Division 2.

May 30, 2014.

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

Isabel G. Garcia, Pima County Legal Defender by Alex Heveri, Assistant Legal Defender, Tucson, Counsel for Appellant.

Judge ESPINOSA authored the opinion of the Court, in which Presiding Judge KELLY and Judge ECKERSTROM concurred.

OPINION

ESPINOSA, Judge.

¶ 1 In early 2011, Esgardo Nevarez was charged with two counts of aggravated driving under the influence of an intoxicant (DUI). Prior to trial, he moved to suppress the evidence against him, arguing it was obtained as the result of an unlawful stop. He also moved to dismiss the charges or suppress evidence on grounds that police officers had interfered with his right to counsel and to gather exculpatory evidence. Both motions were denied and, following a bench trial at which he stipulated to the facts underlying both charges, Nevarez was convicted and sentenced to concurrent, mitigated prison terms, the longest of which was 2.5 years. On appeal, he renews his arguments concerning the constitutionality of the stop and ensuing investigation.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to sustaining the challenged conviction. See, e.g., State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App.2008). In January 2011, around 1:00 a.m., Tucson Police Department Officer K. Wilson pulled over a vehicle driven by Nevarez after being unable to see a license plate on the car. As Wilson walked up to the vehicle, he saw a temporary registration tag on the back window. After transmitting the information on the tag over the radio he approached the vehicle's occupants. While doing so, Wilson observed beer containers in the front and backseat. When he asked Nevarez for identification, he noticed that Nevarez's speech was “very incoherent” and he appeared to have difficulty understanding the officer's request. Wilson then performed a records check, which revealed Nevarez's license had been suspended and revoked.

¶ 3 Nevarez was arrested for DUI and taken to the police station, where a telephonic search warrant to perform a blood draw was obtained. When advised of the blood draw, Nevarez stated he wanted an attorney to “read [him] the warrant.” An officer told him “it was not going to happen” but said he would be given an opportunity to speak with an attorney later. Police drew a blood sample, and subsequent testing revealed a blood alcohol concentration (BAC) greater than .08. After initially invoking his right to an independent blood draw, Nevarez “more or less ... said ‘I'll take care of it later; let's just get this done.’ ”

¶ 4 As noted above, Nevarez filed an unsuccessful motion to suppress “any evidence acquired as a result of the illegal seizure” and dismiss the case based on his claim that the investigatory stop of his vehicle was without reasonable suspicion. The trial court also denied a second motion to dismiss or suppress, premised on alleged violations of the right to counsel and right to exculpatory evidence in the form of an independent blood draw. After Nevarez unsuccessfully petitioned this court for special action relief, he moved the trial court to reconsider its ruling on the investigatory stop. That motion was denied, and Nevarez was convicted and sentenced as outlined above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A).

Discussion

Investigatory Stop

¶ 5 Nevarez first argues the trial court erred in failing to suppress all evidence gathered as a result of the traffic stop, which included the results of the BAC test and Officer Wilson's observations regarding his impairment. He claims the stop was invalid because Wilson “failed to look at the back window of the vehicle for a temporary registration once he saw there was no plate where a plate should be displayed.” SeeA.R.S. § 28–2156(D) (temporary registration must be displayed “so that it is clearly visible from outside the vehicle”). Arguing that the officer noticed the registration affixed to the rear window “almost immediately” after stopping his vehicle, Nevarez also challenges the continuation of the investigation after “the reason for the stop had dissipated.”

¶ 6 The state does not dispute that a temporary registration was properly affixed to the rear window of Nevarez's vehicle, but argues Officer Wilson's initial conclusion concerning the absence of a visible license was a “good faith mistake of fact” that supports a finding of reasonable suspicion. Citing Wilson's testimony that he did not see the temporary registration tag until he approached Nevarez's vehicle on foot, the state contends that continued investigation of the vehicle was authorized because “[a] stop does not end ... until an officer hands back documentation and/or issues a warning or citation.” We review the trial court's ruling on this issue for an abuse of discretion, deferring to factual findings but reviewing de novo the ultimate legal question—whether police had a reasonable suspicion of criminal activity. See State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996).

¶ 7 Under the Fourth Amendment of the United States Constitution, an investigatorystop of a motor vehicle constitutes a seizure. State v. Gonzalez–Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). However, because a traffic stop is less intrusive than an arrest, it requires only reasonable suspicion on the part of the investigating officer. Id. at 118, 121, 927 P.2d at 778, 781. Thus, while an officer needs “ ‘a particularized and objective basis' ” for suspecting an individual has violated the law, id. at 118, 927 P.2d at 778, quoting United States v. Cortez, 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), he is not required to determine if an actual violation has occurred prior to stopping a vehicle for further investigation, State v. Vera, 196 Ariz. 342, ¶ 6, 996 P.2d 1246, 1247–48 (App.1999).

¶ 8 Uncontroverted testimony at the suppression hearing established that the temporary registration posted on Nevarez's car was not initially visible to Officer Wilson. As the trial court noted, “it was not until after he had exited his vehicle, walked closer to [Nevarez's] vehicle, and had lights shining towards the rear of the vehicle” that he saw the temporary registration. The court also reviewed photographs of Nevarez's vehicle showing the position and size of the temporary registration. Based on this evidence, we find no error in the court's determination that Wilson had a reasonable basis for suspecting Nevarez had violated the license plate statutes.¹SeeA.R.S. §§ 28–2156(D), 28–2354.

¶ 9 We next consider whether, as Nevarez claims, “[t]he trial court erred in failing to suppress all evidence” based on a finding that “the basis for the stop ... dissipated” when the arresting officer observed the temporary registration. An investigatory stop cannot last “ ‘longer than is necessary to effectuate the purpose of the stop.’ ” State v. Sweeney, 224 Ariz. 107, ¶ 17, 227 P.3d 868, 873 (App.2010), quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Once the purpose of the stop has been accomplished, the officer must let the driver continue on his way “unless (1) the encounter between the driver and the officer becomes consensual, or (2) during the encounter, the officer develops a reasonable and articulable suspicion that criminal activity is afoot.” Id. In determining whether the scope of an investigatory stop is reasonable, we give “ ‘careful consideration [to] the totality of the circumstances.’ ” State v. Boteo–Flores, 230 Ariz. 105, ¶ 14, 280 P.3d 1239, 1242 (2012), quoting Royer, 460 U.S. at 500, 103 S.Ct. 1319.

¶ 10 Officer Wilson testified he did not see Nevarez's temporary registration until he was at a point “[c]lose to the back of [the] trunk.” While still in the vicinity of the trunk, Wilson transmitted the temporary registration number over the radio “[t]o identify the driver of the vehicle and identify that the registration is, in fact, valid.” As the officer approached the car window, he observed “a number of beer ... bottles or cans scattered throughout the backseat,” an “unopened beer in the center console,” and “some additional empty beer cans or bottles up front.” Upon speaking with Nevarez, Wilson noticed several physical signs of intoxication, including “red, watery eyes” and “incoherent” speech. Based on this evidence, the trial court determined the brief detention of Nevarez did not violate his rights under the Fourth Amendment.

¶ 11 Although it appears there are no reported Arizona decisions featuring analogous facts,² we find United States v. Jenkins, 452 F.3d 207 (2d Cir.2006), instructive here. In Jenkins, police stopped a car that appeared to lack a rear license plate. Id. at 209. Upon approaching the car, one of the officers noticed a temporary plate “but did not focus on it because he was concentrating his attention on the occupants of the [vehicle].” Id. As the officers approached the driver's and passenger's side windows, they detected the odor of marijuana. Id. They proceeded to investigate the occupants, two of whom eventually were charged with unlawful possession of firearms. Id. at 209–10. In upholding the search of the vehicle, the court stated, “when police officers stop a vehicle on a reasonable, albeit erroneous, basis and then realize their mistake, they do not violate the Fourth Amendment merely by approaching the vehicle and apprising the vehicle's occupants of the situation.” Id. at 213; see also United States v. Edgerton, 438 F.3d 1043, 1051 (10th Cir.2006) (acknowledging that brief encounter...