State v. Sweeney

• Decision Date: 30 March 2010
• Docket Number: No. 1 CA-CR 08-0775.,1 CA-CR 08-0775.
• Citation: 227 P.3d 868
• Parties: STATE of Arizona, Appellee, v. Alvin J. SWEENEY, Appellant.
• Court: Arizona Court of Appeals

227 P.3d 868

STATE of Arizona, Appellee, v. Alvin J. SWEENEY, Appellant.

No. 1 CA-CR 08-0775.

Court of Appeals of Arizona, Division 1, Department C.

March 30, 2010.

COPYRIGHT MATERIAL OMITTED

Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, And Katia Mehu, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Law Offices of Lee Phillips PC By Lee B. Phillips, Flagstaff, Attorneys for Appellant.

OPINION

SWANN, Judge.

¶ 1 Alvin J. Sweeney ("Appellant") was convicted of Transportation of Narcotic Drugs for Sale after the superior court denied a motion to suppress evidence seized from his car. We hold that after a lawful traffic stop has concluded, an officer must have reasonable cause to initiate a second detention of a suspect. In this case, we conclude that no such reasonable cause existed and the forcible detention of Appellant to facilitate a canine sniff constituted a violation of the Fourth Amendment. Accordingly, we reverse and remand.

FACTS AND PROCEDURAL HISTORY¹

¶ 2 On the morning of January 8, 2008, Arizona Department of Safety Officer Mace Craft initiated a stop after he observed Appellant following another vehicle at what he believed to be an unsafe distance. Officer Craft, a member of the canine unit, was traveling with his drug interdiction dog. Officer Craft used a stopwatch to determine that the "gap" time between the vehicles was.88 seconds. Thereafter, Officer Craft activated his lights and initiated the stop.²

¶ 3 When Officer Craft approached Appellant's car from the passenger side, he noticed that Appellant's vehicle was a rental, and he smelled deodorizer emanating from the vehicle. Officer Craft also testified that when Appellant handed him his Canadian driver's license and the car rental agreement,³ Appellant's hands were shaking and he was breathing heavily. Officer Craft asked Appellant to step back to his patrol vehicle, and, while filling out a warning citation, asked Appellant questions about his travels and the reason for his visit to Arizona.

¶ 4 During this exchange, Appellant told Officer Craft that he traveled from New York to Arizona in search of an old Chevrolet Camaro. Officer Craft found it unusual that someone would drive from New York to Arizona in search of a car and asked Appellant about the possibility of flying. Appellant responded that he enjoyed driving. When asked if he had found a Camaro online, Appellant responded that he had not. Officer Craft also asked Appellant where he stayed while in Arizona and Appellant responded, without elaboration, that he had stayed in a hotel.

¶ 5 After Officer Craft finished filling out the warning citation (a process that consumed eight minutes), he handed it to Appellant and wished him a safe trip. Appellant said "thank you very much," and Officer Craft responded "alright, be careful." When Appellant turned and began walking back to his vehicle, Officer Craft called out to Appellant and asked if he could speak with him again. In response, Appellant turned around and walked back to Officer Craft. Officer Craft asked Appellant whether he had anything illegal in his vehicle, and Appellant responded that he did not. Finally, Officer Craft asked for Appellant's consent to search the vehicle. Appellant replied, "No, you can't, cause I don't think it's in the law, is it?" Officer Craft responded, "No, it's not" and requested Appellant's consent to a narcotics dog sniff of the car. Appellant again declined.⁴

¶ 6 After this exchange, Appellant again turned to walk toward his car when the officer grabbed Appellant by the arm, turned him around and told him he was being detained. After ordering Appellant to stand in front of the patrol car, Officer Craft called for another unit to stand by Appellant while he took his dog out of his car and walked her around Appellant's vehicle. The dog indicated the presence of drugs. When Officer Craft searched the car, he found a black bag in the trunk containing five kilograms of cocaine. Appellant was placed under arrest and indicted on two counts: (1) Transportation of Narcotic Drugs for Sale and (2) Possession of Narcotic Drugs for Sale.

¶ 7 Appellant moved to suppress the evidence seized from the car, arguing that (1) the detention was illegal; (2) the stop was illegal; and (3) the detention went beyond the scope of the traffic stop. The court held two evidentiary hearings, separately addressing the legality of the stop and the detention.

¶ 8 In a May 27, 2008 minute entry, the trial court found that there was reasonable suspicion to initiate a stop. The court gave little weight to Officer Craft's testimony that the "gap" time between Appellant's car and the vehicle it was following was .88 seconds. Instead, the court based its ruling on a number of factors, including the icy condition of the roadway and expert testimony concerning traffic speed and safe following distances.

¶ 9 In a June 20 minute entry, the court found that (1) the length of the detention was reasonable; (2) the encounter between Officer Craft and Appellant was consensual after the warning citation was given; and (3) there was reasonable suspicion for the continued detention. With respect to the continued detention, the court noted Officer Craft's testimony that his suspicions were aroused by the following factors:

(1) Appellant stated that the purpose of his trip was to buy a vintage Camaro in the Phoenix area. The officer concluded that it was not plausible for a person to drive over 4,000 miles round-trip to buy a car sight unseen.

(2) Appellant displayed an overly nervous demeanor, even after the officer told him that he was to receive a warning and not a citation. Appellant's demeanor included a shaking hand, heavy breathing and twitching cheeks.

(3) Appellant gave vague answers to questions regarding his travel, and attempted to deflect the officer's questioning by trying to discuss the weather. One answer in particular was suspicious to the officer. In response to a question about where he had looked in Phoenix to buy the car, Appellant had replied with a general statement about "car lots and stuff" rather than a specific location.

(4) A strong smell of deodorant emanated from the passenger side of the front compartment when the officer first made contact with Appellant. The officer testified that many times deodorants are used to mask the odor of drugs.

(5) Appellant had started the trip that day from Phoenix. The car was clean inside and out. It had snowed in Flagstaff the night prior to the stop.

(6) There was an atlas on the passenger seat of the car.

(7) The car was a rental car with Massachusetts license plates. Appellant rented it in Syracuse, New York, for a round-trip.

(8) Appellant is a Canadian citizen.

(9) When the officer was driving near Appellant's car prior to the stop, Appellant appeared to the officer to be avoiding his sight by sitting far back in his seat.

The court gave little weight to factors 2, 5, and 6; some weight to factors 7, 8, and 9; and great weight to factors 1, 3, and 4.

¶ 10 After a three-day trial, a jury found Appellant guilty of Transportation of Narcotic Drugs for Sale, and found that Appellant possessed an amount of cocaine in excess of nine grams.⁵

¶ 11 Appellant timely appeals. We have jurisdiction under Article 6, Section 9 of the Arizona Constitution and pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A)(1) (Supp.2009).

DISCUSSION

¶ 12 We generally review the denial of a motion to suppress with deference to the trial court's factual determinations, including its evaluation of the credibility of witness testimony. State v. Box, 205 Ariz. 492, 495, ¶ 7, 73 P.3d 623, 626 (App.2003). But we review de novo mixed questions of fact and law, including whether the totality of the circumstances gave rise to reasonable suspicion to support an investigative detention and whether the duration of that detention was reasonable. See State v. Teagle, 217 Ariz. 17, 22, ¶ 19, 170 P.3d 266, 271 (App.2007). In this case, the trial court also admitted into evidence an audio/video recording of the entire encounter between Appellant and Officer Craft, and that recording is part of the record on appeal. Because the trial court is in no better position to evaluate the video than the appellate court, we have conducted an independent review of the video evidence. Cf. Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13, 36 P.3d 749, 754 (App.2001); State v. McCoy, 692 N.W.2d 6, 29 (Iowa 2005).

A. The Detention of Appellant After the Termination of the Initial Stop Was Not De Minimis.

¶ 13 As a preliminary matter, we address the trial court's legal finding that any additional period of detention after the issuance of the warning and termination of the traffic stop was de minimis. Citing $404,905.00 and Box, the court based its finding on the fact that there was reasonable suspicion for the continued detention, "especially given the strong governmental interest in preventing the transportation of illegal drugs on our roadways."⁶

¶ 14 In $404,905.00, the Eighth Circuit held that the Fourth Amendment was not violated when an officer conducted a dog sniff of the defendant's vehicle after the traffic stop was completed but before the defendant's license had been returned to him. 182 F.3d at 648-49. There, the driver did not object to a sniff of his car's exterior. The court reasoned that a two-minute delay to complete a dog sniff was a de minimis intrusion on the defendant's liberty. Id. at 649. In Box, this court held that a brief post-traffic-stop detention to accommodate a dog sniff was de minimis. 205 Ariz. at 499, ¶ 24, 73 P.3d at 630.

¶ 15 We cannot conclude that the post-traffic-stop detention in this case was de minimis. Unlike in $404,905.00 and Box, Officer Craft waited until the arrival of a second officer (whose presence he had not requested until after Appellant declined to consent to a...