State v. Sanchez
| Decision Date | 31 August 2018 |
| Docket Number | No. 2 CA-CR 2017-0222,2 CA-CR 2017-0222 |
| Parties | THE STATE OF ARIZONA, Appellee, v. PATRICIA SANCHEZ, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Santa Cruz County
The Honorable Anna M. Montoya-Paez, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Law Offices of Matthew C. Davidson Ltd., Nogales
By Matthew C. Davidson
Counsel for Appellant
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom concurred and Judge Brearcliffe concurred in part and dissented in part.
¶1 Patricia Sanchez appeals from her conviction for driving while under the influence of alcohol (DUI). Sanchez argues the trial court erred by denying her motion to suppress all evidence because she was arrested without probable cause, by failing to suppress blood-draw evidence because probable cause did not exist for issuance of the search warrant, and by placing her on probation despite the fact her pretrial incarceration exceeded the maximum sentence that could be imposed for the offense resulting in her conviction. For the reasons that follow, we affirm Sanchez's conviction but vacate her sentence of probation and remand the matter for resentencing.
¶2 On July 2, 2016, two brothers drove with their two-year-old cousin to a pharmacy in Nogales, Arizona. Tragically, the child broke free of his cousin's hand in the parking lot, and was struck and killed by a truck driven by Sanchez.
¶3 At a hearing on Sanchez's motion to suppress evidence, Nogales police sergeant Mario Rodriguez testified concerning his investigation of the accident. Upon arrival, Rodriguez learned that the child had been killed and that Sanchez had been driving the truck that struck him. When Rodriguez knelt next to Sanchez, who was distraught and kneeling, he noticed a "strong, pungent odor" of alcohol coming from her breath and asked her if she had been drinking. Sanchez answered that she "drank two cans" earlier in the day. Rodriguez also observed that Sanchez's eyes were watery and her face was "flushed," but he could not determine if that was due to her distraught state or because of impairment. Officers then arrested Sanchez.
¶4 At the suppression hearing, Nogales police detective Jose Bermudez testified that he administered the Horizontal Gaze Nystagmus Test (HGN) to Sanchez at the police station. During the test, he noted twocues of alcohol impairment—nystagmus at maximum deviation and lack of smooth pursuit in both eyes. Bermudez did not administer any other field sobriety tests because of Sanchez's "emotional state" and out of concern for her safety.
¶5 Bermudez also prepared the paperwork needed for a search warrant permitting officers to obtain a blood draw from Sanchez and to search her truck. He filled out a telephonic warrant worksheet form called the "Nogales Police Department Telephonic Search Warrant Worksheet" in anticipation of speaking to a judge by telephone. When another officer contacted the on-call judge, a city court magistrate, she told him that she was near the court and could take the warrant application in person. Bermudez testified he typically creates an affidavit when applying for a warrant in person, rather than using a worksheet, which he uses for warrants sought by telephone. However, when Bermudez learned that the magistrate would take the warrant application in person, he had already completed the worksheet and estimated it would take him another thirty minutes or so to draft an affidavit. He was concerned that the additional thirty-minute delay would result in the warrant not being executed, and the blood sample not being drawn, until beyond two hours from the time of accident. According to Bermudez, Arizona law requires blood draws to be within two hours of the "driving behavior" because of the body's elimination of alcohol over time. Bermudez testified that, had he prepared an affidavit rather than simply the worksheet, he would have changed only the format and not any of the substance presented.
¶6 The magistrate met with Bermudez in the courtroom and, under oath, Bermudez went over the worksheet and warrant form with her. Bermudez presented the worksheet to the magistrate "[t]o let her know all of the information that [he] had . . . as well as the probable cause for the search warrant." Beyond the information in the worksheet, Bermudez conveyed his observations that Sanchez had a "flushed face and bloodshot, watery eyes" to the magistrate. None of the discussion between Bermudez and the magistrate was audio recorded or otherwise transcribed.
¶7 The magistrate proceeded to issue the search warrant, signing the "Standard Arizona Duplicate Original Search Warrant" form Bermudez had created along with the worksheet. A duplicate original search warrant form is typically signed by the applicant officer on behalf of the judge when the judge issues a warrant by phone. See A.R.S. § 13-3915(D). The warrant here is part of a sequentially numbered seven-page document, the first five pages of which is the worksheet. The warrant begins, "To any peace officer in the State of Arizona: Proof by affidavit having been this day made beforeme by: Detective Jose Bermudez[,] I am satisfied that there is probable cause to believe that . . . ." Both the magistrate and Bermudez signed the final page of the warrant.
¶8 Pursuant to the search warrant, a blood sample was drawn from Sanchez at a local hospital. Analysis of the sample revealed a blood-alcohol concentration of .209 percent. While at the hospital with Sanchez, Bermudez realized the search warrant contained the wrong license plate number for Sanchez's truck. Bermudez then contacted the issuing magistrate, met with her again in person and, after being placed under oath, both he and the magistrate initialed the warrant by the corrected license plate number.
¶9 At the suppression hearing, Sanchez argued the officers lacked probable cause for her arrest and that the warrant lacked probable cause, due to the lack of a supporting affidavit. She argued Bermudez's failure to record the statements made to the issuing magistrate in the absence of an affidavit was a violation of law. The trial court denied the motion to suppress, concluding there was sufficient probable cause stated in the warrant application even without considering any unrecorded statements made by Bermudez to the issuing magistrate. The court also concluded no constitutional violation resulted from the lack of an audio recording. The court also ruled there was sufficient probable cause for Sanchez's arrest.
¶10 After a jury trial, Sanchez was acquitted on a manslaughter charge resulting from the child's death, but convicted of DUI, a class-one misdemeanor. At sentencing, Sanchez asked for a jail sentence rather than probation because she had served 312 days before sentencing, a period exceeding the statutory maximum sentence for the crime. Notwithstanding her request, the court suspended sentencing and placed her on an eighteen-month term of probation. The sentencing order states, "IT IS ORDERED, suspending the imposition of sentence and placing the defendant on Unsupervised Probation for a period of eighteen (18) months, commencing June 19, 2017." This appeal followed, and we have jurisdiction under A.R.S §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶11 On appeal, Sanchez argues the trial court erred when it denied her motion to suppress all evidence obtained after her arrest because there was no probable cause for the arrest. "We review the denial of a motion to suppress evidence for an abuse of discretion." State v. Brown,233 Ariz. 153, ¶ 4 (App. 2013); see also State v. Crowley, 202 Ariz. 80, ¶ 7 (App. 2002) (). And, in doing so, "we consider only the evidence presented at the [suppression] hearing, which we view in the light most favorable to upholding the trial court's order." State v. Carlson, 228 Ariz. 343, ¶ 2 (App. 2011). However, while we defer to the court's determination of facts and witness credibility, we review de novo its legal conclusions. Id. "Whether an illegal arrest occurred is a mixed question of fact and law." State v. Blackmore, 186 Ariz. 630, 632 (1996).
¶12 "A police officer has probable cause [to arrest] when reasonably trustworthy information and circumstance would lead a person of reasonable caution to believe that a suspect has committed an offense." State v. Moran, 232 Ariz. 528, ¶ 10 (App. 2013) (quoting State v. Hoskins, 199 Ariz. 127, ¶ 30 (2000), vacated in part on other grounds, 204 Ariz. 572, ¶ 8 (2003)). "Probable cause is something less than the proof needed to convict and something more than suspicions." State v. Aleman, 210 Ariz. 232, ¶ 15 (App. 2005) (quoting State v. Howard, 163 Ariz. 47, 50 (App. 1989)). In the DUI context, "probable cause does not require law enforcement 'to show that the operator was in fact under the influence'; '[o]nly the probability and not a prima facie showing of intoxication is the standard for probable cause.'" Id. (alteration in Aleman) (quoting Smith v. Ariz. Dep't of Transp., 146 Ariz. 430, 432 (App. 1985)).
¶13 Before Sanchez's arrest, Rodriguez concluded it was probable that she was "impaired to the slightest degree" due to the influence of "intoxicating liquor." A.R.S. § 28-1381(A)(1). Sanchez, while driving in a parking lot, hit a child who died as a result. Rodriguez noted the odor of alcohol coming from Sanchez, which he characterized as "strong" and "punge...
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