State v. Saez
| Decision Date | 25 June 1992 |
| Docket Number | Nos. 1,CA-CR,s. 1 |
| Citation | 845 P.2d 1119,173 Ariz. 624 |
| Parties | STATE of Arizona, Appellee, v. Alfonso Machado SAEZ, Appellant. 90-0135, 1 90-0136. |
| Court | Arizona Court of Appeals |
Alfonso Machado Saez ("defendant") was indicted in Yuma County Cause No. 15990 on two class 2 felonies: importation of a narcotic drug (cocaine) and possession of a narcotic drug (cocaine) for sale. In Yuma County Cause No. 16080, the defendant was indicted on five counts of sale of a narcotic drug (cocaine), class 2 felonies; one count of conspiracy to sell a narcotic drug (cocaine), a class 2 felony; and one count of attempted sale of a narcotic drug (cocaine), a class 3 felony. The indictments were joined for a jury trial. One count of a sale was dismissed; the defendant was found guilty on all of the remaining counts.
Following the defendant's conviction, the trial court imposed concurrent aggravated sentences of 10.5 years for importation of a narcotic drug and possession of a narcotic drug for sale. It imposed consecutive aggravated terms of 10.5 years on each of the four counts of sale of a narcotic drug. Finally, the court imposed aggravated terms of 10.5 years and 7.5 years on the conspiracy and attempted sale counts, to be served concurrently with each other but consecutively to the other sentences.
The defendant appealed from his convictions and sentences, raising the following issues:
1. Whether the court erred in denying his motion to suppress the cocaine seized at the time of his arrest;
2. Whether there was sufficient evidence to support his conviction of conspiracy to sell a narcotic drug;
3. Whether there was sufficient evidence to support his conviction of attempted sale of a narcotic drug; and
4. Whether his convictions for sale of a narcotic drug should be vacated because they rest upon the unqualified expert testimony of the buyers, uncorroborated by a chemical analysis.
Gilford Anderson, a narcotics informant, testified at trial that he approached Virginia Ramos in June 1989 and asked for her help in buying a kilogram of cocaine. Ramos agreed to help by locating a possible source. Later in the day, Ramos and her friend, Dorothy Steele, drove Anderson from his motel to Ernie's Burgers. The defendant arrived and said that he had heard that the informant was interested in buying cocaine; he added that he could obtain a kilogram of cocaine for $8000 if Anderson would accompany him to Los Angeles. Anderson departed with the understanding that, if he wanted to go to California, he would meet the defendant at the restaurant the following day.
Steele and Ramos testified about events leading to the meeting at Ernie's. Ramos said that she contacted the defendant on his pager after learning of the informant's interest in buying cocaine. The defendant came to Steele's house where Ramos told him about the prospective buyer. The defendant said that he could probably get some cocaine. He then made five brief telephone calls. During these calls, the defendant spoke Spanish that neither Steele nor Ramos could understand, but Steele's telephone records showed that all of the calls were placed to Los Angeles. After he finished making the phone calls, the defendant told Ramos to bring Anderson to Ernie's Burgers so that they could talk about the transaction. The meeting ensued.
Steele described herself as a frequent purchaser and user of cocaine. She stated that she had bought the drug from the defendant on three occasions: once in July 1988, once between October and December 1988, and once at Ernie's on the day in June 1989 that she and Ramos took the informant to meet the defendant. Ramos confirmed that, on the last occasion, Steele had cocaine in her possession when she left the restaurant.
Tammy Benavides, a frequent user of cocaine and heroin, testified that she purchased cocaine from the defendant at a Yuma park in June or July 1989.
On August 28, 1989, acting on a tip from a confidential informant, law enforcement agents of the Southwest Border Alliance set up surveillance of the defendant's home in Winterhaven, California. They watched the defendant as he drove a car across the Colorado River to Yuma and headed toward Ernie's Burgers, a restaurant identified as the site of a planned cocaine sale. When the agents stopped the car near the restaurant, they saw the defendant empty a plastic bag containing a white powder into a water jug by his side. They then seized the bag and the jug. Subsequent chemical analysis of the water inside the jug revealed the presence of 22.6 grams of cocaine, a useable quantity.
The defendant contends that the trial court erred in failing to suppress evidence--the water jug, a plastic bag and diluted cocaine--seized when the agents stopped his vehicle. He claims that the stop of his vehicle amounted to an "arrest" without probable cause in violation of the Fourth Amendment to the United States Constitution. The state responds that what occurred was a proper "investigative stop" premised on the tip of a reliable informant and corroborated by the agents' observations. The subsequent arrest of the defendant and the seizure of evidence was proper, the state maintains, because it was based upon probable cause supplied when the defendant was observed dumping a plastic bag containing white powder into the water jug.
After a hearing, the trial court denied the motion to suppress. On appeal, its ruling will not be disturbed absent a "clear abuse of discretion," State v. Atwood, , 171 Ariz. 576, 603, 832 P.2d 593, 620 (1992), which we do not find in this case.
The stop of an automobile by police is a seizure for purposes of the Fourth Amendment. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); State v. Graciano, 134 Ariz. 35, 37, 653 P.2d 683, 685 (1982). A tip from a reliable informant can provide an adequate basis for a stop. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), citing Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968); see Florida v. Bostick, 501 U.S. 429, ----, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991).
The record showed that the informant had a history of giving reliable information that led to the arrest of six suspects and the conviction of four. In this case, the informant told officers that the defendant was going to make a sale of cocaine at Ernie's around 1:00 p.m. Police surveillance of the defendant as he drove toward Ernie's at about 12:40 p.m. tended to corroborate that information. Such corroborative circumstances support a finding of reasonable suspicion. Alabama v. White, 496 U.S. 325, 325, 110 S.Ct. 2412, 2413, 110 L.Ed.2d 301 (1990).
After the agents stopped the defendant's car, they observed him dumping white powder into the water jug. This observation supplied probable cause for the defendant's arrest. The seizure of the plastic bag and the jug from the passenger compartment of the vehicle was valid incident to that arrest. New York v. Belton, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981).
Contrary to the defendant's argument, his arrest was not premature because the agents approached his car with guns drawn. Before they stopped the defendant, the agents had information that he was in possession of weapons. Police are permitted to draw their weapons when they have reasonable basis to fear for their safety; by doing so, they do not convert an investigative stop into an arrest. United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683, 83 L.Ed.2d 604 (1985) ().
The defendant challenges the sufficiency of the evidence supporting his convictions for (1) conspiracy to sell a narcotic drug, (2) attempted sale of a narcotic drug and (3) sales of a narcotic drug. The verdicts must be upheld if supported by "substantial evidence," in other words, evidence that would convince an unprejudiced thinking mind of the truth of the fact for which the evidence was presented. Atwood,, 171 Ariz. at 597, 832 P.2d at 614. " 'If reasonable [persons] may fairly differ as to whether certain evidence establishes a fact in issue, then such evidence must be considered as substantial.' " Id., quoting State v. Tison, 129 Ariz. 546, 553, 633 P.2d 355, 362 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982).
The defendant complains that there is insufficient evidence to support the conspiracy conviction because there was no proof that he consummated an agreement with Anderson to sell the informant cocaine. This argument is meritless.
A conviction for conspiracy requires proof of (1) an intent to promote or aid the commission of an offense, (2) an agreement among one or more persons that one of them or another person will engage in conduct constituting the offense and (3) an overt act committed in furtherance of the offense. Ariz.Rev.Stat.Ann. section ("A.R.S. § ") 13-1003 (1989); State v. Newman, 141 Ariz. 554, 559, 688 P.2d 180, 185 (1984). The indictment specifically charged the defendant with conspiring with Steele and Ramos to sell cocaine. There was sufficient evidence to support this allegation.
When Ramos told the defendant of Anderson's interest, the defendant told her that he probably could obtain cocaine to sell to Anderson. He then made telephone calls to Los...
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