State v. Urrea

• Decision Date: 30 May 2017
• Docket Number: No. 2 CA-CR 2015-0416,2 CA-CR 2015-0416
• Citation: 398 P.3d 584
• Parties: The STATE of Arizona, Appellee, v. Francisco Miguel URREA, Appellant.
• Court: Arizona Court of Appeals

398 P.3d 584

The STATE of Arizona, Appellee,

v.Francisco Miguel URREA, Appellant.

No. 2 CA-CR 2015-0416

Court of Appeals of Arizona, Division 2.

Filed May 30, 2017

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, Phoenix, By Amy Pignatella Cain, Assistant Attorney General, Tucson, Counsel for Appellee

Gallego Law Firm, P.C., Tucson, By Rafael F. Gallego, Counsel for Appellant

Judge Espinosa authored the opinion of the Court, in which Presiding Judge Staring concurred and Judge Miller dissented.

OPINION

ESPINOSA, Judge:

¶ 1 After a jury trial, Francisco Urrea was convicted of transportation of a narcotic drug for sale and sentenced to a presumptive five-year prison term. On appeal, he renews arguments rejected by the trial court that the drugs found in his vehicle should have been suppressed and that the court imposed an inadequate sanction after finding a Batson¹ violation. He also alleges, for the first time, that the court erroneously admitted improper "profile testimony" at trial. Finding no error, we affirm.

Factual and Procedural Background

¶ 2 We view the evidence in the light most favorable to upholding Urrea's conviction. State v. Welch , 236 Ariz. 308, ¶ 2, 340 P.3d 387, 389 (App. 2014). In June 2014, a sheriff's deputy stopped Urrea's vehicle for a traffic violation. After Urrea consented to a search, the deputy found a package containing over sixty grams of cocaine hidden in the rear cargo area of Urrea's vehicle.

¶ 3 Urrea was indicted on one count of possession of a narcotic drug for sale and one count of transportation of a narcotic drug for sale. He sought suppression of the drugs before trial, arguing the "stop, seizure, search, [and] arrest" had been illegal and sought to preclude a police detective from testifying as an expert for the state. The trial court denied the suppression motion after an evidentiary hearing and heard arguments regarding the state's expert immediately before Urrea's trial began. The court ultimately allowed the expert to testify but precluded him from explaining the significance of a baseball cap in Urrea's car and a tattoo on Urrea's arm allegedly depicting a "Narco Saint."

¶ 4 During jury selection, Urrea raised a Batson challenge, arguing the state had improperly struck from the venire jurors with "Hispanic ethnic background[s]." After directing the prosecutor to identify the reasons for its strikes, the trial court denied three strikes for which it found the state had failed to provide adequate race-neutral reasons and reinstated the prospective jurors. Two of the reinstated jurors sat on the jury, which convicted Urrea of both charges after a two-day trial. The state subsequently dismissed the possession count, and the court sentenced Urrea as described above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A)(1).

Motion to Suppress

¶ 5 Urrea first contends the trial court erred in denying his motion to suppress evidence obtained from the warrantless search of his vehicle. We review the court's rulings on a suppression motion for an abuse of discretion, deferring to factual findings but reviewing de novo constitutional and purely legal issues. State v. Snyder , 240 Ariz. 551, ¶ 8, 382 P.3d 109, 112 (App. 2016). We consider only evidence presented at the suppression hearing and view that evidence in the light most favorable to upholding the court's ruling. State v. Caraveo , 222 Ariz. 228, n.1, 213 P.3d 377, 378 n.1 (App. 2009).

¶ 6 At a hearing in July 2015, Deputy Nikola Zovko testified he had stopped Urrea's vehicle after he observed it "merge[ ] over into the right-hand lane without its turn signal, causing another vehicle to abruptly slam on its brakes." After obtaining Urrea's license, registration, and insurance documents, the deputy asked Urrea to step out and wait at his patrol car while he conducted a records check, "[p]rimarily [as] a safety issue." Urrea complied and throughout the stop was cooperative and friendly.

¶ 7 Before completing the traffic stop, the deputy approached Urrea's vehicle a second time to check the Vehicle Identification Number (VIN) against the registration documents and a report he had received "from dispatch." While doing so, he observed items in the car that suggested to him Urrea might be transporting drugs, including multiple air-fresheners and symbols on a baseball cap and tattooed on Urrea's arm associated with drug trafficking, and he asked Urrea if there were any drugs in the car. Urrea said there were not and told the deputy he "c[ould] check." Urrea then signed a "consent to search" form and was placed in the back of the deputy's vehicle while the deputy and another officer searched Urrea's car. The package of cocaine was found concealed behind the spare tire.

¶ 8 Urrea argued to the trial court that the initial stop was invalid, that Deputy Zovko illegally had "extended the detention to check federal [VIN] stickers," and that the search of his vehicle had exceeded the scope of his consent. Ruling from the bench, the court concluded the traffic stop was valid, the subsequent "inspection of a VIN number [wa]s within the normal discretion of an officer in a routine traffic stop," and Urrea had consented to a search which "encompasse[d] all voids within the vehicle." Although the court found "no unreasonable detention," it noted it was "admitting the evidence as a consent search and not on any other basis." On appeal, Urrea renews his arguments that the deputy impermissibly " ‘detour[ed]’ from the mission of the underlying traffic stop" and the subsequent search of his vehicle was not based on "valid consent." He does not challenge the validity of the traffic stop.

¶ 9 Regarding the duration of the stop, Urrea contends it was illegally prolonged not when the deputy returned to Urrea's vehicle to check the VIN numbers, as he argued at the suppression hearing, but when he asked Urrea to "step out of the car and walk back to [the deputy's] vehicle." Because Urrea did not make this argument to the trial court, we review only for fundamental error. State v. Brown , 233 Ariz. 153, ¶ 12, 310 P.3d 29, 34 (App. 2013) ; see also State v. Lopez , 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008) (objection on one ground does not preserve issue on another ground). But Urrea has not argued fundamental error, and although we will not ignore such error if we see it, see State v. Fernandez , 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007), Urrea has failed to show error of any kind occurred here. See also State v. Moreno–Medrano , 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (fundamental error waived if not argued).

¶ 10 First, Urrea has not explained how his being directed to exit his vehicle while the deputy conducted a records check illegally prolonged the stop. As we have consistently held, "[l]aw enforcement officers are permitted to remove occupants from a vehicle as a safety precaution." State v. Kjolsrud , 239 Ariz. 319, ¶ 13, 371 P.3d 647, 651 (App. 2016), citing Pennsylvania v. Mimms , 434 U.S. 106, 117 n.6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) ; Newell v. Town of Oro Valley , 163 Ariz. 527, 529, 789 P.2d 394, 396 (App. 1990). And, as noted in Arizona v. Johnson , 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), "[a]n officer's inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the duration of the stop." Although the "[a]uthority for the seizure ... ends when tasks tied to the traffic stop infraction are—or reasonably should have been—completed," Rodriguez v. United States , ––– U.S. ––––, ––––, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015), Urrea has provided nothing to support that either the records check or check of the VIN number illegally prolonged his detention. In fact, Rodriguez specifically permits "ordinary inquiries incident to" traffic stops, which include "checking the driver's license" and "inspecting the automobile's registration and proof of insurance." Id. at ––––, 135 S.Ct. at 1615, quoting Illinois v. Caballes , 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). A check of a VIN number is a permissible inquiry sufficiently related to a traffic stop. See New York v. Class , 475 U.S. 106, 118–19, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (upholding VIN number checks in both windshield and doorjamb); United States v. Ramos , 194 F.Supp.3d 1134, 1167 (D.N.M. 2016) (concluding VIN inspection is lawful part of traffic stop).

¶ 11 Moreover, even had Deputy Zovko illegally prolonged the traffic stop when he asked Urrea to "step back to his patrol vehicle in order to discuss the reason for the stop," the ensuing conversation appears to have been entirely consensual. Kjolsrud , 239 Ariz. 319, ¶ 10, 371 P.3d at 650 ("Once the time needed to complete this mission has passed, an officer ‘must allow a driver to continue on his way unless ... the encounter between the driver and the officer becomes consensual.’ "), quoting State v. Sweeney , 224 Ariz. 107, ¶ 17, 227 P.3d 868, 873 (App. 2010). Not only did the sheriff's deputy describe Urrea as "overly friendly" during the encounter and "extremely eager to answer the questions," but he testified Urrea had answered questions even before they could be asked.

¶ 12 Urrea nevertheless argues his consent was not voluntary because he had not been read his rights pursuant to Miranda ,² he had been told other law enforcement officers were on their way, and there was a lack of any sort of intervening circumstance to break the causal connection between the illegal detention and his consent. In support, Urrea reviews considerable search and seizure law and cites factors the Supreme Court has identified as relevant in determining whether the taint of illegal conduct is sufficiently attenuated from evidence subsequently obtained by voluntary means. See ...