State v. Poag

• Decision Date: 22 November 2016
• Docket Number: No. 1 CA-CR 15-0474,1 CA-CR 15-0474
• Parties: STATE OF ARIZONA, Appellee, v. ANDRE OMAR POAG, Appellant.
• Court: Court of Appeals of Arizona

STATE OF ARIZONA, Appellee, v. ANDRE OMAR POAG, Appellant.

No. 1 CA-CR 15-0474

ARIZONA COURT OF APPEALS DIVISION ONE

November 22, 2016

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. CR2014-149701-001

The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Mikel Steinfeld

Counsel for Appellant

MEMORANDUM DECISION

Judge Christopher T. Whitten¹ delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.

WHITTEN, Judge:

¶1 Andre Omar Poag appeals his conviction and sentence for possession or use of dangerous drugs. For the reasons that follow, we affirm.

BACKGROUND²

¶2 At approximately 12:00 p.m. on October 14, 2014, Mesa Police Officer Brandon Lavin responded to a dispatch call regarding a suspicious person at the Mesa Madrid Townhouse complex ("Mesa Madrid"). The subject was described as a "Hispanic male or black male, wearing a gray hoody," who reportedly was seen peering through car windows.

¶3 When Officer Lavin arrived at the scene, he found Poag, whose appearance matched the reported description, rummaging inside a dumpster. Officer Lavin asked Poag to exit the dumpster and identify himself. Poag complied, and Officer Lavin then asked him what he was doing. Poag explained that he was at Mesa Madrid to visit his cousin, and he was searching the dumpster for scrap metal to sell. When questioned further, Poag was unable to provide his cousin's full name (only initials "Y.D.") or unit number (stating that it was "around the corner" from unit 26, while pointing in the direction opposite from where unit 26 was located).

¶4 Officer Lavin arrested Poag for third-degree trespass. While conducting a search incident to arrest, Officer Lavin found a crystal-like substance later determined to be methamphetamine inside a small container in Poag's sweatshirt pocket.

¶5 The State charged Poag with one count of possession or use of dangerous drugs. The State also alleged several historical prior felony convictions.

¶6 A jury found Poag guilty as charged.³ After finding Poag had two prior felony convictions, the trial court sentenced him to a mitigated term of six years' imprisonment. Poag timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010).

DISCUSSION

I. Motion to Suppress.

¶7 Approximately one month before his first trial, Poag moved to suppress the methamphetamine evidence seized from the search incident to his arrest. Poag argued Officer Lavin lacked probable cause to arrest him for trespass because there was no evidence he had notice his entry was prohibited, and therefore the attendant search was unconstitutional.

¶8 At the evidentiary hearing on the motion, Officer Lavin testified that the City of Mesa has a "no trespass program" in which private property owners may file a letter with the City stating they will prosecute trespassers. The party identified in the letter is the designated trespass victim, allowing police officers to make trespass arrests without contacting a victim. To participate in the program, a private property owner is required to display "no trespassing signs at the entrances."

¶9 At some point on October 14, Officer Lavin ascertained that Mesa Madrid was participating in the "no trespass" program.⁴ Although Officer Lavin did not ask Poag to leave the complex and did not observe any "no trespassing" signs the day of the arrest, he testified that he had probable cause to arrest Poag for trespass based on: (1) Poag's presence in the dumpster, (2) Poag's attempt to remove an item from the dumpster, (3) Poag's inability to provide a full name or unit number for his cousin, and (4) Mesa Madrid's participation in the "no trespass" enforcement program. Officer Lavin further testified that he checked the placement of Mesa Madrid's "no trespassing" signs the morning of the evidentiary hearing and determined that Poag "would have had to" pass one of the "no trespassing" signs when he entered the Mesa Madrid complex.

¶10 Defense witness Kathleen Tomaiko also testified regarding Mesa Madrid's sign placement. She explained that Mesa Madrid is surrounded by a tall wall on all but the west side, and each of the four west-facing vehicular entrances have a "no trespassing" sign posted in both English and Spanish. No signs are posted along the walkways, however, and Tomaiko testified (contrary to Officer Lavin's testimony) that a pedestrian could traverse the walkways without seeing a "no trespassing" sign.

¶11 After taking the matter under advisement, the trial court denied the motion to suppress, finding Officer Lavin's initial detention of Poag for questioning was reasonable because Poag matched the reported description and was found rummaging through a dumpster, which is "suspicious or at least unusual behavior." The court further found that Officer Lavin's limited questioning of Poag developed sufficient facts for the officer to reasonably conclude Poag "did not have a lawful basis to be at the property and had committed the offense of trespassing." In determining Poag had reasonable notice he was not permitted to enter Mesa Madrid, the court acknowledged it is "unknown what signage existed at the time of this incident," but concluded "the best evidence is that at locations that open the property grounds to the public, there was clear signage about trespassing."

¶12 Poag challenges the trial court's suppression ruling, arguing his arrest for trespass was unlawful and therefore the subsequent search was unconstitutional. Specifically, Poag contends there was no evidence that "no trespassing" signs were posted on the date of his arrest, and therefore he was not placed on reasonable notice that his entry into Mesa Madrid was prohibited and Officer Lavin lacked probable cause to arrest him for trespass in the third degree.

¶13 "We review a trial court's denial of a motion to suppress for an abuse of discretion, considering only the evidence presented at the suppression hearing" and viewing those facts in the light most favorable to sustaining the trial court's decision. State v. Spencer, 235 Ariz. 496, 498, ¶ 8, 333 P.3d 823, 825 (App. 2014); State v. Mendoza-Ruiz, 225 Ariz. 473, 474 n.1, ¶ 2, 240 P.2d 1235, 1236 n.1 (App. 2010). We defer to a trial court's determination of an officer's credibility and the reasonableness of any inferences he drew, but review de novo the court's legal conclusions. Mendoza-Ruiz, 225 Ariz. at 475, ¶ 6, 240 P.3d at 1237.

¶14 "Probable cause is something less than the proof needed to convict and something more than suspicions." State v. Aleman, 210 Ariz. 232, 237, ¶ 15, 109 P.3d 571, 576 (App. 2005) (internal quotation omitted). "In reviewing the legality of a suspect's arrest, we first determine what facts and circumstances the police were aware of at the time of [the] arrest." State v. Boles, 183 Ariz. 563, 569, 905 P.2d 572, 578 (App. 1995). "If those facts and circumstances gave the police reasonable cause to believe the suspect was committing or had committed an offense, the arrest was lawful." Id.

¶15 Pursuant to A.R.S. § 13-1502(A)(1), a person commits criminal trespass in the third degree by "[k]nowingly entering or remaining unlawfully on any real property after a reasonable request to leave by a law enforcement officer, the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry."

¶16 In this case, Officer Lavin came upon Poag in a dumpster on private property, where he was searching for scrap metal to sell. From limited questioning, the officer quickly learned that Poag did not live at Mesa Madrid and was unable to provide either the full name or unit number for the person he was ostensibly visiting. Although Officer Lavin did not observe any "no trespassing" signs that afternoon, at some point that day, he verified that Mesa Madrid participated in the "no trespass" program, which requires participants to post "no trespassing" signs at areas otherwise open to the public. On this record, there is sufficient evidence from which the trial court could have found that Mesa Madrid had posted "no trespassing" signs on the date of the arrest, providing Poag reasonable notice his entry was prohibited, and Officer Lavin therefore had probable cause to arrest him for trespass.

¶17 Poag alternatively argues he lacked reasonable notice his entry was prohibited because Mesa Madrid's "no trespassing" signs were insufficient and not placed at pedestrian entrances. As Poag notes, Tomaiko testified it would be possible for a pedestrian to traverse Mesa Madrid's walkways without passing a "no trespassing" sign. This testimony conflicted with Officer Lavin's testimony, however, that Poag "would have had to" pass one of the "no trespassing" signs when he entered the Mesa Madrid complex. We defer to the trial court's assessment of witness credibility and its resolution of evidentiary conflicts. See State v. Keener, 110 Ariz. 462, 464, 520 P.2d 510, 512 (1974). Poag also argues that a "no trespassing" sign, absent any accompanying physical barrier, does not provide reasonable notice that a person may not enter restricted property for a legitimate purpose, namely, to visit a resident. In this case, the evidence reflects Poag was scavenging a dumpster, not attempting to visit a Mesa Madrid resident, at the time of his arrest. He was also unable to identify, either by full name or unit number, the person he was purportedly there to visit. Given these facts, the trial court did not abuse its discretion by denying Poag's motion to suppress based on its finding that Poag: (1) had reasonable notice his entry was prohibited and...