State v. Caban

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) ) Appellant, v. JAVIER CABAN, Appellee. DIVISION ONE FILED: 12/01/2009 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0728 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-109684-001 DT The Honorable Larry Grant, Judge AFFIRMED Andrew P. Thomas, Maricopa County Attorney By James P. Beene, Deputy County Attorney Lisa Marie Martin, Deputy County Attorney Attorneys for Appellant Phoenix James J. Haas, Maricopa County Public Defender By Edith M. Lucero, Deputy Public Defender Attorneys for Appellee Phoenix K E S S L E R, Judge ¶1 The suppressing State appeals evidence of from burglary the superior tools and court s order identification documents. For the reasons stated below, we affirm the superior court s order suppressing the evidence. FACTUAL AND PROCEDURAL HISTORY The ¶2 State charged Javier Caban ( Caban ) with two counts of taking the identity of another in violation of Arizona Revised Statutes ( A.R.S. ) section 13-2008 (Supp. 2008). 1 pled not guilty to both counts. Caban filed a Caban motion to suppress evidence uncovered by a police search of his bags on the night of his arrest, alleging that the State obtained that evidence in violation of the Fourth Amendment. The superior court conducted a suppression hearing. The ¶3 evidence at the hearing indicated that Phoenix police officers T. and W. first noticed Caban when he exited the passenger compartment of a vehicle which had just committed a civil traffic violation by swerving into an oncoming traffic lane while vehicle turning. and The immediately officers executed were a U-turn, lights and sirens, and honked the horn. the driver and walking away. two passengers exited in a marked activated patrol their After the car stopped, the vehicle and began The driver was traveling separately from the two passengers. 1 We cite the current version of the statute because the statute has not changed materially as to the issues on appeal. See State v. Zamora, 220 Ariz. 63, 66 n.4, ¶ 5, 202 P.3d 528, 531 (App. 2009). 2 Officer T. twice shouted an order that Caban and the ¶4 other passenger return to the site of the vehicle. After the second order, Caban and his companion complied and returned to Officer T. When Caban returned, the officers searched him for weapons, told him to place the two bags he was carrying on the ground, and sit on the curb. Officer ¶5 outstanding vehicles. W. arrested warrants and the placed driver them and in passenger separate for patrol By that time, three other officers had also arrived at the scene. After determining that Caban had no outstanding warrants, Officer W. questioned Caban about the two bags. Caban stated that one bag belonged to Caban and the other to Caban s friend. Caban Officer W asked Caban if he could search the bags and consented to the search. During the search, police discovered a screwdriver, black gloves, a crowbar, and a coin collection security in card, one bag. birth and The other death bag contained certificates, and a social sensitive personal financial information belonging to persons other than Caban. The officer admitted that without Caban s consent, there would have been no reason to search the bags and prior to the search the officers had no reason to further detain Caban. 3 Caban argued the encounter amounted to a seizure of ¶6 Caban, the stop was not a valid Terry 2 stop because there was no reasonable suspicion Caban was involved in criminal activity and the consent was invalid because it was tainted by the illegal stop. not At the suppression hearing, the State argued there had been a stop and the search voluntarily consented to it. was valid because Caban However, it did not argue that if there was a stop, it was a valid Terry stop. granted the motion to suppress. The superior court The court held the encounter was a stop given the repeated orders to Caban to return to the police. It also held that since the officer had conceded there was no reason to search the bags there was no reason to ask Caban for permission to search the bags. The State successfully moved to dismiss the indictment ¶7 without prejudice. The State filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. § 12-120.21(A)(1) (2003) and § 13-4032(6) (Supp. 2008). ANALYSIS On ¶8 appeal, the State contends the superior court committed legal error by failing to apply the correct test to determine whether Caban was in custody and finding that officers need a reason to request a consent search. 2 See Terry v. Ohio, 392 U.S. 1 (1968). 4 For the first time in its reply brief, the State argues the search was reasonable under the Fourth Amendment without regard to consent because Caban was a passenger in a vehicle stopped for a civil traffic violation. ¶9 We review suppress evidence superior for an court abuse of rulings on motions to discretion. State v. Childress, 222 Ariz. 334, 338, ¶ 9, 214 P.3d 422, 426 (App. 2009). Although we view the evidence in the light most favorable to upholding any factual findings, we review de novo the legal conclusions on which the ruling rests. We will Id. affirm the superior court s ruling if legally correct for any reason supported by the record. Id. (citing State v. Canez, 202 Ariz. 133, 151, ¶ 51, 42 P.3d 564, 582 (2002)). I. The Superior Court Did Not Err By Finding Officers Seized Caban Because ¶10 the Fourth Amendment prohibits only unreasonable seizures, the first step in analyzing an alleged Fourth Amendment occurred. violation is determining whether a seizure Childress at 338, ¶ 10, 214 P.3d at 426 (citing Terry, 392 U.S. at 16). A seizure occurs when a police officer restrains a citizen's liberty by means of physical force or show of authority. We examine the Id. (quoting Terry, 392 U.S. at 20 n.16). totality of the whether a stop is consensual. circumstances when analyzing Id. at 338, ¶ 11, 214 P.3d at 5 426. [T]he use of language or tone of voice indicating that compliance with the officer s request might be compelled shows authority sufficient to demonstrate the lack of consent. States police v. 446 Mendenhall, officers, we U.S. need to 544, talk 554-55 to you (1980). is an United Saying appeal to authority sufficient to permit a finding that the stop is not consensual. State v. Rogers, 186 Ariz. 508, 510-11, 924 P.2d 1027, 1029-30 (1996). ¶11 The superior court encounter was nonconsensual. did not err in holding the The officers admitted that Caban was attempting to leave and returned only when the officers shouted Hey, come back. I want to talk to you. second command, Caban returned. After the The police also admitted that they directed him to place his bag on the ground, submit to a search of his person, and sit on a curb. Just as in Rogers in which a seizure was found when police told a person we need to talk to you, the stop here was not consensual. 510, 924 P.2d at 1029. 186 Ariz. at That a person would not feel free to leave and thus the encounter is nonconsensual is especially true when the police have to issue multiple orders to the person to return so the police could question him. State v. Wyman, 197 Ariz. 10, 13-15, ¶¶ 8-13, 3 P.3d 392, 395-97 (App. 2000). ¶12 The State argues the superior court should have found no seizure occurred under State v. Carter, 145 Ariz. 101, 700 6 P.2d 488 (1985). determining We disagree. whether a Carter describes the test for defendant is interrogation for Miranda 3 purposes. 492. undergoing a custodial Id. at 105, 700 P.2d at The proper test for determining whether a person has been seized for Fourth Amendment purposes is whether a reasonable person would have felt free to leave. Childress, 222 Ariz. at 338, ¶ 11, 214 P.3d at 426 (citing Mendenhall, 446 U.S. at 55455). In this case, the superior court properly determined a reasonable person commanded twice in a loud voice to return to a police officer, then ordered to sit on the curb and set his bags down would not feel free to leave. II. The Seizure Was Illegal ¶13 The State argues for the first time in its reply brief the seizure of Caban was legal because Caban was a passenger in a vehicle subject to a legitimate traffic stop. This Court will not consider an argument not raised in the trial court or raised for the first time in a reply brief. State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335, 344 (1981) (appellate court will not consider arguments not raised in trial court); State v. Larson, 222 Ariz. 341, 346, ¶ 23, 214 P.3d 429, 434 (App. 2009) (appellate court will not consider arguments first raised in 3 See Miranda v. Arizona, 384 U.S. 436, 444 (1966). 7 reply brief on appeal). Accordingly, we treat Caban s seizure as illegal. 4 III. The Bags The Illegal Seizure Tainted Caban s Consent to Search When consent follows an illegal act by the police- ¶14 whether seizure requirement that of a person consent be or search voluntary is of property-the supplemented by a second distinct requirement: that the consent be purged of the taint of the earlier illegal act. United States v. Goodrich, 183 F.Supp.2d 135, 145 (D.Mass. 2001) (citing United States v. Navedo-Colon, 996 F.2d 1337, 1338 (1st Cir. 1993)). State fails to show that the 4 taint has been If the purged, then The dissent points out that the superior court did not find that the seizure was illegal. The lack of such a finding is not surprising since Caban argued in the trial court that the seizure was unlawful and the State did not dispute that. We may affirm the superior court on any grounds supported by the record and may infer factual findings supported by that record which support the trial court s order. Childress, 222 Ariz. 334, 338, ¶ 9, 214 P.3d 422, 426 (App. 2009) (citation omitted); Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11, 967 P.2d 1022, 1025 (App. 1998) (citation omitted). Moreover, in Arizona v. Johnson, the Supreme Court held that seizure of a passenger of a vehicle is reasonable incident to a valid traffic stop, but a frisk of the passenger is valid only if supported by independent reasonable suspicion. 129 S.Ct. 781, 784, 787 (2009) (citations omitted); see also United States v. Childs, 277 F.3d 947, 952 (7th Cir. 2002) ( A person stopped on reasonable suspicion must be released as soon as the officers have assured themselves that no skullduggery is afoot. ). In this case, the officers admitted that they had no independent reason to detain Caban and no independent reason to frisk him or search his bags. Thus the record supports a legal conclusion the officers exceeded the scope of a permissible traffic stop detention by frisking Caban when they admitted they had no reasonable suspicion to do so. 8 evidence the police obtain as a result of the seizure is subject to the exclusionary rule. Goodrich, 183 F.Supp.2d at 145 (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)). See also State v. Flannigan, 194 Ariz. 150, 153, ¶ 16, 978 P.2d 127, 130 (App. 1998) ( When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given . . . . ) (quoting Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)). The State failed to prove the taint of the illegal ¶15 seizure had been purged by any intervening force. The consent to search the bags was obtained soon after the illegal seizure because Caban was surrounded by officers and his two companions had just been vehicles. The arrested and superior placed court in correctly the back of determined reasonable person would have felt under police control. patrol that a Because the taint of the illegal seizure was not purged, the consent was invalid. See Wong Sun, 371 U.S. at 488; Goodrich, 183 F.Supp.2d at 145. ¶16 The State argues the superior court erred because officers may freely request consent to search and a defendant s merely being in custody does not per se invalidate a consent. We disagree. Police may request that a person consent either to answer questions or to a search provided the totality of the 9 circumstances do not convey to the person that he must comply with the request. Florida v. Bostick, 501 U.S. 429, 434-35 (1991) (request to consent to search); Wyman, 197 Ariz. at 13, ¶ 7, 3 P.3d at 395 (request to talk to suspect). However, if the seizure of the person is illegal, the constitutional violation may taint a consent to search. Goodrich, 183 F.Supp.2d at 145 In this case, the State failed to prove that the taint of the illegal seizure was purged. ¶17 The State also argues that police officers may ask questions unrelated to a traffic stop after the traffic stop has ended. defendant While this is true, the evidence must show that the had reason to believe the stop had ended or the defendant was otherwise free to leave without permission of the police. Johnson, 129 S.Ct. at 788. In this case, the court found that a reasonable person in Caban s situation would not have felt free to go. Furthermore, the cases on which the State relies involve lawful stops and do not consider whether the consent to search was tainted by illegal police activity. In this case, the tainted consent was procured as a result of an illegal seizure. CONCLUSION ¶18 For the foregoing reasons, the superior court did not err in finding that the search of Caban s bags violated the 10 Fourth Amendment. Accordingly, we affirm the superior court s order suppressing the evidence. __________________________________ DONN KESSLER, Judge CONCURRING: _____________________________________ PATRICIA A. OROZOCO, Judge H A L L, Presiding Judge, dissenting. The trial court did not find that Caban was either ¶1 illegally seized or detained for an unreasonable amount of time. Rather, the court based its suppression order on two findings: (1) that Caban had been arrested ; and (2) that the police officer had no reason to look into the backpacks that Caban was carrying with him and, therefore, there would have been no reason to request that this defendant consent to a search. Although Caban argued that he was unlawfully seized by the police after he tried to walk away from the scene of the traffic stop, the court did not so find. 5 Johnson, 129 S.Ct. 781 (2009), 5 in Indeed, given Arizona v. which the United States Because the trial court did not find that Caban was unlawfully seized, I do not fault the State for not arguing in its opening brief that any Fourth Amendment seizure of Caban that may have occurred was lawful. 11 Supreme Court held that police may detain a passenger in a motor vehicle stopped for a traffic violation, such a finding would have been incorrect. 6 The only finding that Caban was illegally detained is made by the majority for the first time on appeal. The majority then relies on this appellate determination to hold that the consent later obtained from Caban was therefore tainted. I disagree. ¶2 First, it is clear that the police initially acted lawfully in detaining Caban. Id. at 784. Second, contrary to the trial court s apparent belief, the Fourth Amendment does not require police to have a reason person to consent to a search. to ask a lawfully detained See Muehler v. Mena, 544 U.S. 93, 100-01 (2005) (holding that police are not required to have independent reasonable suspicion before questioning a detainee about matters unrelated to the stop); see also Florida v. Bostick, 501 U.S. 429, 434-35 (1991) ( [E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage. (citations omitted)). Finally, the trial court never made a finding whether Caban consented to the search. 6 The evidentiary hearing was held before the Court s decision in Johnson was announced on January 26, 2009. The State s opening brief on appeal was filed three days after Johnson. 12 Because the trial court misapplied the law and failed to make necessary factual findings, I would vacate the suppression order. __________________________________ PHILIP HALL, Presiding Judge 13

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.