State v. Orellano-Tiznado

• Decision Date: 29 March 2013
• Docket Number: 2 CA-CR 2012-0227
• Parties: THE STATE OF ARIZONA, Appellee, v. JUAN ALEJANDRO ORELLANO-TIZNADO, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. JUAN ALEJANDRO ORELLANO-TIZNADO, Appellant.

2 CA-CR 2012-0227

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

FILED: March 29, 2013

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

Cause No. CR201100067

Honorable John F. Kelliher Jr., Judge

AFFIRMED IN PART; VACATED IN PART

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani, Joseph T. Maziarz, and

Alan L. Amann

Tucson

Attorneys for Appellee

John William Lovell

Tucson

Attorney for Appellant

VÁSQUEZ, Presiding Judge.

¶1 Appellant Juan Orellano-Tiznado was charged with conspiracy to transport over two pounds of marijuana for sale, transportation of over two pounds of marijuana for sale, possession of over four pounds of marijuana for sale, and possession or use ofdrug paraphernalia. A jury found him guilty of these charges and the trial court sentenced him to concurrent, presumptive prison terms of five years on all but the paraphernalia charge, imposing a one-year term on that offense. On appeal, Orellano-Tiznado contends the court abused its discretion when it denied his motion to suppress evidence seized from the Jeep he had been driving. He also asserts, and the state agrees, the conviction and sentence for possession of marijuana for sale must be vacated based on the prohibition against double jeopardy because that offense was a lesser-included offense of transportation of marijuana for sale. This appeal followed the trial court's grant of Orellano-Tiznado's petition for post-conviction relief and leave to file a delayed appeal.

¶2 The evidence presented at trial, viewed in the light most favorable to sustaining the convictions, see State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008), established the following. Douglas police detectives had been conducting surveillance at a retail store parking lot based on suspected drug sales being conducted from that location. They saw Orellano-Tiznado back the red Jeep he was driving into a spot and after observing other suspicious conduct by Orellano-Tiznado and his passenger Pedro Lopez, they followed the Jeep. Detectives also saw a minivan driven by Christina Moreno following the Jeep. After observing additional suspicious behavior, including the fact that the vehicles were being driven in tandem and in excess of the speed limit, officers stopped them both. Moreno consented to the search of the minivan; in it officers found 147.6 pounds of marijuana wrapped in thirty-three bundles.

¶3 Orellano-Tiznado, Lopez and Moreno were arrested. Searching Orellano-Tiznado incident to that arrest, detectives found $1,719 in cash, two cellular telephones, and a receipt from the retail store for items found in the minivan. The Jeep and the minivan were taken to the Sierra Vista Department of Public Safety (DPS) storage lot. Officers conducted an inventory search of both vehicles. In the Jeep they found a drug ledger, which contained numbers that matched those inscribed on bundles of marijuana found in the minivan. The retail store's surveillance video recordings provided additional evidence of suspicious conduct by Orellano-Tiznado, Lopez and Moreno from earlier that afternoon, before Orellano-Tiznado left in the Jeep.

¶4 Orellano-Tiznado was charged with and convicted of the offenses described above. Before trial, he filed a motion to suppress the inventory search of the Jeep, arguing it had been unconstitutional because it "was not conducted pursuant to a valid exception" to the requirement that a search be conducted pursuant to a warrant. He asserted the search was not a permissible inventory search because it had not been conducted in accordance with "standardized criteria or established routine," as required by the Supreme Court in Florida v. Wells, 495 U.S. 1, 4 (1990). He argued officers had used the inventory search as a ruse for finding evidence of a crime, contrary to the restrictions on inventory searches specified in Wells, rather than for a legitimate governmental interest conducted pursuant to a valid law enforcement policy.

¶5 Although the trial court agreed with the state the motion had not been filed timely, it nevertheless conducted an evidentiary hearing the first day of trial. After the hearing, the court found the state had sustained its burden of establishing the inventorysearch had been conducted in accordance with police procedures. In reviewing the court's ruling, "we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the trial court's factual findings." State v. Fornof, 218 Ariz. 74, ¶ 8, 179 P.3d 954, 956 (App. 2008). To the extent the court's ruling involves a discretionary issue, we defer to the trial court, but we review constitutional and legal issues de novo. See State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007).

¶6 Inventory searches are a well-defined exception to the Fourth Amendment's probable cause and warrant requirements. State v. Organ, 225 Ariz. 43, ¶ 20, 234 P.3d 611, 616 (App. 2010). "An inventory search of a vehicle is valid if two requirements are met: (1) law enforcement officials must have lawful possession or custody of the vehicle, and (2) the inventory search must have been conducted in good faith and not used as a subterfuge for a warrantless search." Id. ¶ 21. "[A]n inventory search conducted pursuant to standard procedures is presumptively . . . conducted in good faith and therefore reasonable." Id.; see also Colorado v. Bertine, 479 U.S. 367, 372 (1987) (same); South Dakota v. Opperman, 428 U.S. 364, 368-70 (1976) (warrantless inventory search of impounded vehicle appropriate if routine and not pretext for concealing investigatory motive). The primary purposes of an inventory search are "the protection of the owner's property and 'the protection of the police against claims or disputes over lost or stolen property.'" State v. Floyd, 120 Ariz. 358, 361, 586 P.2d 203, 206 (App. 1978), quoting Opperman, 428 U.S. at 369. And, as the Supreme Court observed in Wells, the reason an inventory search must be conducted in a manner consistent withstandardized criteria is to prevent the use of such searches as "a ruse for a general rummaging in order to discover incriminating evidence." 495 U.S. at 4.

¶7 Here, Douglas police detective Roger Rodriguez testified at the suppression hearing that he had been working as part of the State Gang Task Force when he came into contact with the Jeep Orellano-Tiznado had been driving and the minivan driven by Moreno. Rodriguez explained the two vehicles had been stopped after officers had observed the individuals engaged in suspicious behavior at a retail store parking lot in Douglas; the Jeep was stopped by Detective Paul Barco and secured by Bisbee police officers. Rodriguez testified he had arrested Moreno for possession of marijuana for sale and had reason to believe she had acted as an accomplice or coconspirator with Orellano-Tiznado and Lopez, who were arrested on the same charges. The two vehicles were taken to the DPS Office in Sierra Vista.

¶8 Rodriguez further testified he had been an employee of the Douglas police department for eleven years and on the gang task force since 2005. The prosecutor then asked him, "Do you believe you are reasonably familiar with the policies of the Department of Public Safety with regard to vehicle impounds and vehicle forfeitures?" Rodriguez responded he was. The prosecutor then asked if there were policies regarding vehicle impounds and forfeitures and Rodriguez responded there were and that these policies were combined together as one policy. When asked to summarize that policy, Rodriguez explained, the vehicle is "supposed to be cleaned out and documented—all items documented. . . . To show what was in the vehicle." The primary purpose of the search is not to look for evidence, he said, but to take an "inventory of the property insidethe vehicle." The prosecutor then asked Rodriguez, "Do you and your fellow officers always follow that policy when securing a vehicle in the impound yard?" Rodriguez answered, "Yes."

¶9 Rodriguez explained further that Barco had conducted the inventory search of the Jeep and that Rodriguez had read Barco's report and other reports regarding the case. Based on that information, he knew that a piece of paper that looked like a part of a ledger had been recovered from the vehicle; it contained "a number and certain weights, consistent with items found of contraband inside the gray mini-van." Rodriguez took photographs of that piece of paper as it appeared "inside the cubby on the driver's side of the Jeep Cherokee," and unfolded, outside the "cubby."

¶10 During cross-examination, Rodriguez stated Barco had "clean[ed] out the vehicle per policy." Although Rodriguez admitted he did not know the policies "[v]erbatim," he stated that officers "must take everything out of the vehicle before it is put into any yard authorized by the Department of Public Safety for storage." At this point, Rodriguez identified from his file a copy of a policy, which the prosecutor handed to defense counsel, explaining he had not provided counsel with a copy of the policy earlier because of the untimeliness of the motion to suppress and because Orellano-Tiznado had not requested it before the hearing. Rodriguez conceded that, until the day before, he had not read the policy since five years earlier and that he did not know whether Barco knew what the policy was. But, when asked whether he knew if officers had followed the policy, he responded, "Whether they know the policy—we do that same thing every day on every arrest we make, on every seizure." Presumably referring to histraining period, he added, "We do...