State v. Swanson

• Court: Arizona Court of Appeals
• Writing for the Court: JACOBSON
• Citation: State v. Swanson, 172 Ariz. 579, 838 P.2d 1340 (Ariz. App. 1992)
• Decision Date: 14 April 1992
• Docket Number: No. 1,CA-CR,1
• Parties: STATE of Arizona, Appellee, v. Ronald SWANSON, Appellant. 90-1404.

Page 1340

838 P.2d 1340

172 Ariz. 579

STATE of Arizona, Appellee, v. Ronald SWANSON, Appellant.

No. 1 CA-CR 90-1404.

Court of Appeals of Arizona Division 1, Department B.

April 14, 1992.

Review Denied Nov. 3, 1992.

[172 Ariz. 581] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Daniel J. Kiley, Asst. Atty. Gen., Phoenix, for appellee.

A. Michael Espino, Navajo County Public Defender by Diana M. Squires, Deputy Public Defender, Holbrook, for appellant.

OPINION

JACOBSON, Presiding Judge.

Ronald Swanson appeals from his convictions for possession for sale and transportation of cocaine, in violation of A.R.S. § 13-3408(A)(2) and (7), both class 2 felonies. The only issue we need address on appeal is whether the trial court properly denied defendant's motion to suppress evidence obtained as the result of a search of the rental car defendant was driving. We hold that the trial court should have granted the motion to suppress evidence obtained in a search and seizure that exceeded the scope of defendant's consent and was otherwise unsupported by probable cause.

FACTS AND PROCEDURAL HISTORY

On the morning of November 8, 1989, Department of Public Safety Officers Rush and Hash stopped defendant and his passenger as they were driving eastbound on Interstate 40 near Holbrook. The officers were in their patrol car, facing west, when Rush first spotted defendant's car, which Rush believed was speeding in the passing lane. The officers crossed the median of the interstate, accelerated and followed the car.

Defendant was not speeding when the officers reached his car. However, the officers observed him change lanes without signaling. Officer Hash flashed the emergency lights and immediately pulled defendant over. Hash noticed that defendant's vehicle had California plates and observed a cellular phone, a citizen's band (CB) radio, a radar detector, and several pagers in the car.

Officer Hash asked defendant for his driver's license and the vehicle registration. Defendant produced his driver's license and rental car papers. Defendant then accompanied Hash back to the patrol car, where he remained for five to seven minutes, as Hash explained the reason for the stop and issued a warning. ¹ Defendant told Hash that he was going from Los Angeles to New York for a family reunion.

After giving defendant the warning, Officer Hash asked him if he had any guns, large sums of money, or drugs in the car; defendant said no. Hash then asked defendant to read and sign a consent to search form. Officer Rush also handed defendant a copy of a consent form and asked his consent to search the car. Although the officers asked him five or six times, defendant refused to sign the consent form. Defendant did, however, give verbal permission to the officers to "go in and look."

After defendant acquiesced in the search, Hash took out tools and he and Rush began to search the car. During the search, defendant and his passenger stood with Sergeant Lane, who had also arrived at the scene. Lane testified that defendant and his passenger were calm, open, and friendly during the search. In fact, Lane and defendant's passenger discussed their respective families and showed each other pictures of their children. However, Lane testified that the two men became "nervous" when one of the officers opened the right rear door of the rental car.

During the search, Officer Rush noticed that the screws on the left rear door panel had been tampered with. He testified that they looked "[l]ike someone had taken a screwdriver to them, loosened them up." He informed Hash. Hash, without asking defendant for additional permission, removed the door panel with a tool known as a "slim jim." There he discovered six kilograms of what appeared to be cocaine. Inside the right rear door the officers found six bottles of vitamin super B. ² The officers then arrested defendant and his passenger. This entire process between initial stop and arrest took approximately 45 minutes.

Before trial, defendant moved to suppress the state's evidence, arguing that the search of the vehicle was unconstitutional. After a hearing, the court denied the motion and defendant and his passenger were tried. The jury found defendant guilty of possession for sale and transportation of a narcotic drug. See A.R.S. § 13-3408(A)(2) and (7). He was sentenced to concurrent aggravated terms of ten years in prison and fined $150,000. Defendant timely appealed.

DISCUSSION

Contending that his fourth amendment ³ rights were violated by the search and seizure, defendant on appeal, asserts the following arguments in support of suppression: ⁴

1. The search was unconstitutional because it grew out of a pretextual stop;

2. He gave no valid consent to the search; and

3. The search exceeded the scope of consent, if any.

A. Pretext Stop

In reviewing a motion to suppress, this court will consider the facts in the light most favorable to sustaining the trial court's ruling. State v. Acosta, 166 Ariz. 254, 255, 801 P.2d 489, 490 (App.1990). Defendant first argues that the entire search and seizure was tainted from the start because the officers stopped him merely as a pretext to search for evidence of a more serious crime. He argues that no reasonable police officer would have taken the action the officers took in crossing the median, following, and then pulling him over. We disagree.

Regardless of the officer's underlying motives, a stop is not invalid if there exists a valid, objective reason to make the stop. Id. at 257, 801 P.2d at 492. See also State v. Jeney, 163 Ariz. 293, 296, 787 P.2d 1089, 1092 (App.1989); United States v. Garcia, 897 F.2d 1413, 1419 (7th Cir.1990). We have held that a violation of the traffic laws provides a sufficient objective ground to stop a vehicle. State v. Acosta, 166 Ariz. at 257, 801 P.2d at 492. See also State ex rel. Hyder v. Superior Court, 114 Ariz. 337, 340, 560 P.2d 1244, 1247 (1977). Here, defendant concedes that he committed an improper lane change. The officers therefore had an objectively valid reason to stop defendant. Even if the officers did suspect the two men of more serious crimes--a fact issue we need not reach-- this did not make the traffic stop unconstitutional. As we stated in Jeney, "[t]he fact that evidence of alleged drug offenses might come to the officers' attention when they effected the arrest does not make the officers' otherwise lawful conduct invalid because of an alleged subjective motivation." 163 Ariz. at 296, 787 P.2d at 1092. The fact that Officers Hash and Rush pulled defendant over for a minor traffic violation does not taint the stop with unconstitutionality.

B. Consent to Search

Defendant next argues that he gave no consent to search the vehicle. Alternatively, he argues that if any consent was given, it was invalid because it was procured after the stop had exceeded the time reasonably necessary to effectuate the traffic stop.

The trial court's factual determinations on the issue of giving consent will not be overturned unless clearly erroneous. See Acosta, 166 Ariz. at 257, 801 P.2d at 492 ("The validity of consent is determined by considering, in light of all the circumstances, whether the consent was voluntary"). Having reviewed the evidence, including a tape recording that Officer Rush made of his conversation with defendant prior to the search, we conclude that the trial court's determination that defendant voluntarily consented to the search was not clearly erroneous. We do not reach the issue whether the consent was invalid because it was obtained after an unreasonable duration, because the following discussion reveals the search and seizure were unconstitutional for other reasons.

C. Scope of the Search

Although the trial court concluded that defendant consented to the officers' search of the car, it also concluded that the officers' search exceeded the scope of defendant's consent:

An unqualified consent to search a vehicle does not give law enforcement officer's [sic] license, absent some further basis, to start ripping or tearing a car apart. This would, in the Court's mind, apply to removing door panels.

This holding is factually supported.

It is well established that "the scope of a consent search is limited by the breadth of the actual consent." United States v. Garcia, 897 F.2d 1413, 1419 (7th Cir.1990). Whether a consensual search remained within the bounds of the actual consent is a question of fact to be determined from the totality of circumstances; the trial court's finding will be affirmed unless clearly erroneous. United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986).

We agree with the trial court that the scope of the officers' search exceeded the breadth of defendant's actual consent in this case. To begin with, a consensual search is limited by the items about which the officer inquired as a predicate to the search. Garcia, supra. Here, similar to Garcia, Officer Hash asked defendant if he had any guns, large sums of money, or drugs in the car. The court in Garcia held that the consent to search the car for similar items did not include searching behind the door panels:

Without more, police can only search areas these items may reasonably be expected to be found. The opening of door panels is not normally included in this set of areas to be searched. Such a search is inherently invasive, and extends beyond the consent given under these circumstances.

897 F.2d at 1419-20.

Prior to asking for consent, Officer Rush activated a tape recorder hidden in his shirt pocket. The recorded conversation reveals that the officers repeatedly informed defendant that the scope of the search they wished him to consent to would involve "taking a look in the car." In explaining the consent form to defendant, the following exchanges took place:

OFFICER: Okay, what I need you to do is to go ahead and read this and then I need your signature right here.

[DEFENDANT]: What is...