State v. Montague

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) ) Appellee, v. ANTWOINE LAMONTE MONTAGUE, Appellant. 1 CA-CR 09-0585 DIVISION ONE FILED: 10-07-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-113650-009 DT The Honorable Paul J. McMurdie, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Sarah E. Heckathorne, Assistant Attorney General Attorneys for Appellee O. Joseph Chornenky, P.C. By O. Joseph Chornenky Attorney for Appellant Phoenix W A R N E R, Judge ¶1 Antwoine Lamonte Montague ( Defendant ) appeals his conviction and sentence for possession of narcotic drugs for sale. He challenges the denial of a motion to suppress evidence obtained during a warrantless search of his vehicle. challenges the conviction. sufficiency of the evidence He also supporting his We affirm. BACKGROUND 1 ¶2 In February 2008, police were investigating potential narcotics trafficking from a residence on West Glendale Avenue (the Glendale Residence ). Following surveillance of the Glendale Residence, police stopped a gray Pontiac that had been there. Defendant was driving the Pontiac and police detained him while a drug-sniffing dog was brought to the scene. the dog alerted, officers searched the car and found After a box possession of containing cocaine in the trunk. ¶3 The State charged Defendant with narcotic drugs for sale, a class 2 felony. Defendant moved to suppress all evidence seized from the car, but the trial court denied the motion after a suppression hearing. ¶4 The parties stipulated to a bench trial based on the police reports. The court found Defendant guilty and sentenced him to a four-year mitigated term of imprisonment and ordered him to pay a fine. This appeal followed, and we have jurisdiction pursuant to the Arizona Constitution, Article 6, 1 Additional facts are discussed in the context of the issues addressed below. 2 Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12120.21(A)(1) (2003), 13-4031 and -4033 (2010). DISCUSSION I. Motion to Suppress A. Reasonable Suspicion for Stop ¶5 Defendant sniffing dog does alerted not on challenge the car, that, probable searching it and seizing the cocaine. Ariz. 492, 496, ¶ 14, 73 P.3d 623, once cause the drug- supported See State v. Box, 205 627 (App. 2003) (dog s alerting on trunk provided probable cause to search the car). Rather, he argues the police did not have reasonable suspicion to stop him, so the evidence seized should have been suppressed. ¶6 Police may, consistent with the Fourth Amendment, conduct an investigatory stop if there is reasonable suspicion that criminal activity is afoot. State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996) (citing Ornelas v. United States, 517 U.S. 690, 693 (1996)). Reasonable suspicion considers the totality of circumstances to see whether police have a particularized and objective basis for suspecting legal wrongdoing, but need not rise to the level of probable cause. United States v. Arvizu, 534 U.S. 266, 273-74 (2002) (internal quotation omitted). investigatory stop Police for as may long detain as a suspect reasonably during an necessary to diligently pursue[] a means of investigation . . . likely to 3 confirm or dispel their suspicions quickly. State v. Teagle, 217 Ariz. 17, 26, ¶ 32, 170 P.3d 266, 275 (App. 2007) (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)). ¶7 Construing the evidence at the suppression hearing in a light most favorable to sustaining the trial court s ruling, and applying de novo review, Ornelas, 517 U.S. at 699; State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (1996), we conclude there was reasonable suspicion to stop Defendant. ¶8 The detective evidence K.L. shows received that in February information from 2008, a Glendale confidential informant that a person named Chewy was trafficking narcotics from the Glendale Residence. The informant provided K.L. with vehicle descriptions and the location of a possible client. ¶9 On February 27 and 28, 2008, the Glendale Police Department conducted surveillance of Chewy, other individuals, and various vehicles. Officers observed a number of vehicles, including a gray Pontiac and a truck driven by Chewy, coming and going locations. to and One from of the the Glendale vehicles under Residence and surveillance, a other green Jeep, was described as probably a load vehicle . . . [that was] possibly Lower involved Buckeye. Glendale Residence activity occurred. in a drug transaction Further, officers and other the For example, 4 at 106th observed locations after Avenue Chewy where officers at and the suspicious observed a possible drug transaction involving the green Jeep, Chewy and others were truck, an observed activity swapping one the officer green termed Jeep an and Chewy s indicator[] of narcotics activity. ¶10 On February 28, police officers observed the gray Pontiac backing into the garage of the Glendale Residence around 12:05 p.m., after which the garage door closed. Although an officer admitted that closing a garage door after backing in is not itself indicative of drug trafficking, he testified that such behavior is an indicator[] and typical of drug couriers who want to conceal narcotics activity in the car. ¶11 Around 4:40 p.m., J.P., a DEA agent assisting in the surveillance, saw the gray Pontiac leave the Glendale Residence and followed it westbound on Glendale Avenue. As he followed, the Pontiac entered a park, slowly made a U-turn, and exited eastbound on Glendale. J.P. explained that drug couriers typically use this driving behavior to detect and evade police. ¶12 J.P. initiated a traffic stop and told Defendant to exit the Pontiac. Defendant was handcuffed, told he was being detained for a narcotics investigation, and read his Miranda rights. Before invoking his right to counsel, Defendant stated that the Pontiac was his. ¶13 Around 30 minutes later, a K-9 unit arrived to conduct a air free sniff of the Pontiac. 5 The drug-sniffing dog alerted to the vehicle s trunk and back seat area. searched the trunk and discovered a sealed Its handler cardboard box containing three pounds of cocaine. ¶14 Based including vehicles on facts information observed at officers from the the had before informant, Glendale the Residence, the -- conduct the stop of fact that Defendant s rented Pontiac was backed into the garage where it remained behind a closed door for several hours, and Defendant s evasive driving -- they had reasonable suspicion that Defendant was involved in illicit drug trafficking. While some of these facts taken alone could be considered innocuous, together they justified an investigatory stop. See State v. O'Meara, 198 Ariz. 294, 296, ¶ 11, 9 P.3d 325, 327 (2000) ( [L]ooking at the whole picture in this case, the car switching, the U-turns, and the fabric softener, there is no doubt that [the police officer] had reasonable suspicion to detain [defendant] . . . . ). B. ¶15 Arrest Defendant next argues that even if the stop were valid, it escalated into a de facto arrest requiring probable cause because of the restraints placed on him and the duration of the detention. We review de novo whether the stop constituted a de facto arrest, viewing the facts in a light most favorable to sustaining the trial court s ruling. In re Roy L., 197 Ariz. 441, 444, ¶ 7, 4 P.3d 984, 987 (App. 2000). 6 ¶16 Neither the manner detention made it an arrest. stop supported individual by for a the length of suspicion, they may period time to of Teagle, 217 Ariz. at 26, ¶ 32, 170 P.3d at 275. Defendant for approximately Defendant s When police make an investigatory reasonable reasonable nor 30 minutes arrival of the K-9 unit was reasonable. detain the investigate. Here, detaining while awaiting the See id. at 26, ¶ 35, 170 P.3d at 275 (detention of one hour and 40 minutes is not necessarily unreasonable while waiting for K-9 unit). ¶17 suspect Officers may also use reasonable force to secure the and protect investigatory stop. themselves and the public during an State v. Blackmore, 186 Ariz. 630, 634, 925 P.2d 1347, 1351 (1996). Here, Defendant was recently observed participating in suspected drug trafficking and was believed to be transporting drugs. J.P. was therefore justified for safety and investigatory reasons in searching Defendant and placing him in handcuffs while waiting for the K-9 unit to arrive. See, e.g., id. at 631, 634, 925 P.2d at 1348, 1351 (detention of burglary officer suspect drew did his not gun amount and to ordered a de facto defendant to arrest lie where on the ground, then handcuffed him, helped him to his feet, walked him to the patrol car, and searched him ); State v. Aguirre, 130 Ariz. 54, 56, 633 P.2d 1047, 1049 (App. 1981) (suspect who was detained, frisked, handcuffed, and placed in a patrol car was 7 not under arrest). The circumstances of Defendant s detention did not turn it into an arrest. II. Sufficiency of Evidence ¶18 Defendant was convicted under A.R.S. § 13-3408(A)(2) (2010), 2 which makes it a crime to knowingly possess a narcotic drug for sale. to permit a Defendant claims there was insufficient evidence finding that found in the Pontiac. he knowingly possessed the cocaine We review claims of insufficient evidence de novo and affirm if, viewing the evidence in a light most favorable to the State, a rational trier of fact could have found the State v. elements Cox, 217 of the Ariz. crime 353, beyond 357, ¶ 22, a reasonable 174 P.3d doubt. 265, 269 (2007); State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). ¶19 The police reports submitted into evidence show that Defendant flew from Baltimore to Phoenix February 28 and rented the gray Pontiac. in the morning of Before Defendant was stopped later that day, police observed his gray Pontiac back into the garage of the Glendale Residence, whereupon the garage door closed and the vehicle did not emerge for four and a half hours. 2 We cite a statute s current version when no material revisions have occurred since the date of the offense. 8 ¶20 When a search warrant was executed at the Glendale Residence, police discovered it was a stash house. approximately three pounds of methamphetamine, Police found 200 pounds of marijuana, $168,000 in cash, two assault rifles, a ledger, and scales. ¶21 When Defendant left the Glendale Residence in Pontiac, he drove in a manner to detect surveillance. the Once stopped, a package containing three pounds of cocaine was found in Defendant s trunk. The package was addressed to a Maryland residence, and Defendant intended to fly back to Baltimore that evening. ¶22 These conviction. facts The are amount sufficient and to packaging support Defendant s of cocaine the in Defendant s rental vehicle, Defendant s manner of driving, the fact that he spent time at a stash house, and the fact that he flew to Phoenix inference sale. that from Baltimore Defendant for knowingly the day possessed all the support cocaine an for See, e.g., State v. Olson, 134 Ariz. 114, 118-19, 654 P.2d 48, 52-53 (App. 1982) (amount of drugs, together with other factors, is sufficient evidence possession of marijuana for sale). 9 to support convictions of CONCLUSION ¶23 For the foregoing reasons, we affirm Defendant s conviction and sentence. _____________/S/__________________ RANDALL H. WARNER, Judge* CONCURRING: _________________/S/_________________ LAWRENCE F. WINTHROP, Presiding Judge _________________/S/_________________ PATRICK IRVINE, Judge *Pursuant to Article 6, Section 3 of the Arizona Constitution, the Arizona Supreme Court designated the Honorable Randall H. Warner, Judge of the Arizona Superior Court, to sit in this matter. 10

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