State v. Hubbard

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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 DIVISION ONE FILED: 10/28/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) STATE OF ARIZONA, Appellee, v. JOHN LEE HUBBARD, Appellant. 1 CA-CR 09-0149 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. V-1300-CR-0820080632 The Honorable Warren R. Darrow, Judge AFFIRMED ________________________________________________________________ Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/ Capital Litigation Section and Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Phoenix Emily L. Danies Tucson Attorney for Appellant ________________________________________________________________ H A L L, Judge ¶1 Defendant, convictions for two John counts Lee of Hubbard, weapon appeals from his misconduct, class four felonies, one count of resisting arrest, a class six felony, one count of possession of marijuana, a class six felony, and one count of possession of drug paraphernalia, a class six felony, and the sentences imposed. For the reasons set forth below, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 M.S. On October 4, 2008, at approximately 1:30 a.m., Deputy of the Yavapai County Sheriff s patrol in a marked vehicle. Office was on routine He observed a blue SUV parked in front of a business on his patrol route. In the two years that he had patrolled that route, Deputy M.S. had never before seen a vehicle parked at that business at night. Deputy M.S. noticed that the interior dome light was on and the driver s door was open with a foot hanging out. ¶3 The deputy pulled his patrol vehicle behind the SUV. He could see a person hunched over in the driver s seat. Deputy M.S. exited the patrol vehicle and walked to the driver s side of the SUV. As he approached, the deputy looked inside the vehicle s windows and saw weapons in the back of the vehicle and defendant passed out in the driver s seat. The deputy tried to wake defendant by speaking to him in a loud voice, but to no avail. ¶4 Deputy M.S. then returned to his patrol car, asked for assistance over the police radio, and waited for another deputy 2 to arrive. Moments later, Deputy J.S. arrived and the deputies approached the vehicle together, with Deputy M.S. on driver s side and Deputy J.S. on the passenger s side. M.S. then shook defendant and he awoke. the Deputy Deputy M.S. ordered defendant to exit the vehicle and asked him what he was doing in the car. Defendant stated that he was sleeping. When Deputy M.S. asked defendant for identification, defendant stated that it was inside the vehicle and turned to re-enter the SUV. Deputy M.S. ordered defendant to remain outside the vehicle, informing defendant that he was aware there were weapons inside the SUV. Deputy M.S. offered to retrieve the identification for defendant, but defendant refused the offer and re-entered the SUV. ¶5 At that point, Deputy J.S. opened the passenger door so that he could have an unobstructed view of what defendant was doing inside the vehicle. immediately recognized the Upon opening the door, Deputy J.S. odor of burnt marijuana and the deputies placed defendant under arrest. ¶6 Deputy M.S. walked defendant to the patrol car and attempted to place him in the back seat when defendant began kicking his legs. was completely The deputy used his Taser on defendant but it ineffective. Defendant attempted to head butt the deputy and managed to take the deputy to the ground. 3 Eventually, however, the deputies were able to gain control of defendant and place him in the patrol car. ¶7 During his search of the vehicle subsequent to defendant s arrest, Deputy J.S. found, in plain view on the passenger seat, an open film container with marijuana inside and rolling papers. He also found a metal pipe in the center console and various weapons in the back of the vehicle. ¶8 Defendant misconduct, two was counts charged of with aggravated two counts assault, of one weapon count of resisting arrest, one count of possession of marijuana, and one count of alleged possession that of drug defendant paraphernalia. had two The historical State prior also felony convictions. ¶9 pro After waiving his right to counsel, defendant filed a per motion vehicle. to Defendant suppress argued the that evidence there seized was no from his evidence of criminal activity that supported the officers search of his car. After hearing argument and taking the matter under advisement, the trial court denied defendant s motion. ¶10 guilty The matter proceeded to trial and defendant was found of two counts of weapon misconduct, one count of resisting arrest, one count of possession of marijuana, and one count of possession of drug paraphernalia. 4 The trial court found defendant had two historical prior felony convictions and sentenced him to an 8 year term of imprisonment on each count of weapon misconduct, a 4.5 year term of imprisonment on the count of resisting arresting, a 3 year term of imprisonment on the count of possession of marijuana, and a 3 year term of imprisonment on the count of possession of drug paraphernalia. Each of the sentences is concurrent to the others. ¶11 Defendant timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12120.21(A)(1) (2003), 13-4031, and -4033 (2010). DISCUSSION I. ¶12 Denial of Motion to Suppress Defendant contends that the trial court erred by denying his motion to suppress the evidence seized from his vehicle. Specifically, defendant argues that the officers did not have a reasonable suspicion that criminal activity was afoot and therefore had no authority to ask him questions or order him to exit his vehicle. He also argues that their subsequent of motion search of his vehicle was illegal. ¶13 We review a trial court s denial a to suppress for an abuse of discretion. State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). In conducting our review, 5 we defer to the trial court s findings of fact underlying its ruling including its determinations of the credibility of the officers and the reasonableness of the inferences they drew. State v. Lopez, 198 Ariz. 420, 421, ¶ 7, 10 P.3d 1207, 1208 (App. 2000); State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, articulated 778 specific (1996). If we findings, the trial will infer court has those not factual findings reasonably supported by the record that are necessary to support the trial court s ruling. State v. Russell, 175 Ariz. 529, 533, 858 P.2d 674, 678 (App. 1993). however, the superior court s legal We review, conclusions Gonzalez-Gutierrez, 187 Ariz. at 118, 927 P.2d at 778. de novo. We view the evidence presented at the suppression hearing in the light most favorable to upholding the trial court s ruling. State v. Rosengren, 199 Ariz. 112, 116, ¶ 9, 14 P.3d 303, 307 (App. 2000). ¶14 The United States and Arizona Constitutions prohibit all unreasonable searches and seizures. IV, XIV; Ariz. Const. art. II, § 8. See U.S. Const. amends. Warrantless searches are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions. State v. Dean, 206 Ariz. 158, 161, ¶ 8, 76 P.3d 429, 432 (2003) (citation omitted). 6 ¶15 Under the community caretaker doctrine, evidence discovered without a warrant is admissible when it was obtained while law enforcement engaged in community functions intended to promote public safety. caretaking State v. Organ, 225 Ariz. 43, 46, ¶ 12, 234 P.3d 611, 614 (App. 2010) (citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). functions because are of states. lawful the Id. with extensive respect to regulation These caretaking automobiles of motor in part vehicles by This function justifies a warrantless entry if the intrusion is suitably circumscribed to serve the exigency which prompted it. Id. at 47, ¶ 14, 234 P.3d at 615 (citation omitted). ¶16 review In the conduct, determining whether reasonableness that is, of whether a the evidence law prudent is admissible, enforcement and we officials reasonable officer [would] have perceived a need to act in the proper discharge of his or her community caretaking functions[.] Id. at 47, ¶ 15, 234 P.3d at 615 (quoting People v. Ray, 981 P.2d 928, 937 (Cal. 1999)). The officer s expected prevent reasonableness status to aid potential as a those hazards standard arises from a jack-of-all-emergencies, in distress, from combat materializing, actual and police who is hazards, provide an infinite variety of services to preserve and protect community 7 safety. State v. Mendoza-Ruiz, 1 CA-CR 09-0560 at ¶ 9 (Ariz. App. Jul. 29, 2010) (citation omitted). ¶17 The community caretaking function permits a warrantless intrusion on privacy interests when the intrusion is: [S]uitably circumscribed to serve the exigency which prompted it. . . . The officer s . . . conduct must be carefully limited to achieving the objective which justified the [search] the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance [or property is at risk] and to provide that assistance [or to protect that property.] Organ, 225 Ariz. at quotations omitted). officer s conduct, 47, ¶ 14, 234 P.3d at 615 (internal When assessing the reasonableness of the due weight must be given not to his unparticularized suspicions or hunches, but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary. Id. at 47, ¶ 15, 234 P.3d at 615 (internal quotations omitted). ¶18 Deputy M.S. testified that in the two years he had been assigned to his night-time patrol route he had never before seen a car parked at the business where defendant s SUV was located. As he approached the vehicle, he observed that the 8 driver s side door was ajar with a foot dangling outside and the interior dome light was on. As the trial court found, [i]t was entirely appropriate for the deputy to stop and check on the welfare of [defendant] and briefly investigate given the very unusual circumstances. 1 ¶19 Defendant contends, however, that the trial court erred in finding that the deputies continued contact with him after waking him, including ordering him out of the vehicle and requesting that he produce identification, was a violation of his constitutional rights to privacy. ¶20 We disagree. Deputy M.S. testified that he initially attempted to wake defendant by talking to him very loudly, but to no avail. Eventually, after Deputy J.S. arrived at the scene, Deputy M.S. was able to rouse defendant by shaking him. asked defendant to exit the vehicle. it was reasonable for Deputy M.S. The deputy then As the trial court found, to speak briefly with [defendant] to see if some significant health problem or other possible because emergency the deputy or had need for observed 1 assistance existed. weapons the in SUV, Also, it was The trial court also found that the very unusual circumstances provided reasonable suspicion of possible criminal activity until the point Deputy M.S. realized that defendant was either asleep or passed out. 9 reasonable for the Deputy to order [defendant] out of the vehicle. ¶21 Once defendant exited the SUV, Deputy M.S. asked him what he was doing here. The trial court concluded, and we concur, that asking this general question . . . is consistent with the purpose of determining whether there was a health problem, a vehicle problem, or some other emergency or need for assistance of some kind. ¶22 The Deputy M.S. then asked defendant for identification. deputy did not testify to his purpose in requesting identification, but we conclude, as did the trial court, that the request for identification was reasonable in this case. Both deputies testified that Deputy M.S. requested identification from defendant and did not command him to produce it, and there is no evidence in opposed this request in any way. the record that defendant More importantly, although defendant was being detained at this point, the intrusion into his privacy by the request for identification was both brief and minor. See State v. Ellenbecker, 464 N.W.2d 427, 428 (Wis. App. 1990) (holding a police officer who reasonably initiates a stop pursuant to the community caretaker function may request identification the public interest in permitting an officer to request a driver s license and run a status check during a 10 lawful police-driver contact outweighs the minimal intrusion on the driver ); O Donnell v. State, 409 S.E.2d 579, 582 (Ga. 1991) ( [C]onsidering [the driver] had voluntarily stopped in a public rest area, parked, and laid down in the vehicle late at night, causing [the] Trooper to have a legitimate concern primarily regarding his medical status . . . it was not unreasonable within the meaning of the Fourth Amendment for [the] Trooper thereafter to initiate promptly a routine and limited inquiry to determine the [driver] s identity. ); State v. Brunelle, 766 A.2d 272, 274 (N.H. 2000) (holding that an officer s request for the driver s license and vehicle registration of the driver of a disabled vehicle was part of a limited community caretaking exception, and that such request was reasonable in the event that any questions about the vehicle or [the trooper s] contact with the owner subsequently arose); Coffia v. State, 191 P.3d 594 (Okla. App. 2008) (concluding that an officer acting in the community caretaking capacity may request identification [W]e find the conducting public a interest status check in asking for [a] license outweigh[s] the minimal and intrusion involved. ); but see State v. DeArman, 774 P.2d 1247, 1249-50 (Wash. App. caretaking 1989) capacity (holding officer had reasonable no 11 acting basis in to community request identification once he determined the driver did not require assistance). ¶23 Defendant also argues that the deputies search of his vehicle following his arrest was in contravention of the Fourth Amendment s prohibition against unreasonable searches and seizures. Again, we disagree. ¶24 When defendant re-entered his vehicle, contrary to Deputy M.S. s order, Deputy J.S. opened the passenger s side door to that that conclude ensure defendant Deputy J.S. did acted dangerous officer-safety situation. not reach a reasonably weapon. to We prevent a Once Deputy J.S. smelled the odor of burnt marijuana wafting out of the vehicle and saw the open container of marijuana and rolling papers in plain view, the officers possessed probable cause to place defendant under arrest. vehicle They also had probable cause to believe that the permitted contained to evidence search any evidence might be found. (2009). of area criminal of the activity vehicle in and were which the Arizona v. Gant, 129 S.Ct. 1710, 1721 We therefore conclude that the trial court did not abuse its discretion in denying defendant s motion to suppress. II. ¶25 Denial of Motion for New Trial Defendant contends that denying his motion for a new trial. 12 the trial court erred by Specifically, he contends that Deputy M.S. s trial testimony, elicited in a response to a juror s question, that he had attempted to obtain a warrant to draw defendant s blood as part of a DUI investigation was inadmissible, undisclosed evidence. ¶26 We review a trial court s ruling on a motion for new trial for an abuse of discretion. State v. Hall, 204 Ariz. 442, 447, ¶ 16, 65 P.3d 90, 95 (2003). An improper reference to facts not properly before the jury must have a probable impact on the jury s verdict to warrant a new trial. See State v. Williams, 169 Ariz. 376, 380, 819 P.2d 962, 966 (App. 1991); see also State v. Marshall, 197 Ariz. 496, 500, ¶ 13, 4 P.3d 1039, 1043 (App. 2000) ( A mistrial based upon a claim of evidentiary error is improper warranted evidence only and when the the error jury has might been have exposed affected to the verdict. ). ¶27 for In its order tentatively denying defendant s motion new trial, the court ordered the State to produce any documentation to defendant of any recorded or written statement regarding deputy s attempts to obtain a blood draw warrant. Thereafter, the State filed a notice that it was unable to find any written or recorded materials pertaining to Deputy M.S. s search warrant request and the trial court then proceeded to sentence defendant. 13 ¶28 As noted by the State, the trial court implicitly accepted the State s avowal and found that the State had not committed a discovery violation, and within the trial court s discretion. this finding was well See State v. Roque, 213 Ariz. 193, 205, ¶ 21, 141 P.3d 368, 380 (2006). Moreover, defendant has not explained, and our review of the record has not revealed, statements any regarding basis a affected the verdict. to conclude potential DUI that Deputy investigation M.S. s may have Defendant was not operating a vehicle at the time of the stop and none of the crimes for which he was convicted involved the elements of driving under the influence. See A.R.S. § 28-1381 (Supp. 2009). Therefore, we conclude the trial court did not abuse its discretion by denying defendant s motion for a new trial. 14 CONCLUSION ¶29 For the foregoing reasons, we affirm defendant s convictions and sentences. PHILIP HALL, Presiding Judge CONCURRING: SHELDON H. WEISBERG, Judge PETER B. SWANN, Judge 15

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