STATE v. LOPEZ

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: 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. ADAM WILLIAM LOPEZ, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 11-0743 DIVISION ONE FILED: 07/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. V1300CR201080490 The Honorable Tina R. Ainley, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Section Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee David Goldberg Attorney for Appellant Phoenix Fort Collins, CO N O R R I S, Judge ¶1 suspended Adam William Lopez timely appeals his conviction and influence. sentence for aggravated driving while under See Ariz. Rev. Stat. § 28-1383(A)(1) (2004). the Lopez argues the superior court should have suppressed the incriminating statements he made to the arresting officer before the officer advised him of his Miranda 1 rights. ¶2 To We disagree. Miranda only applies when a defendant is in custody. decide examine whether the a defendant circumstances is in custody, surrounding the a court must questioning, then determine whether, under the totality of those circumstances, a reasonable person would feel he or terminate the questioning and leave. she was at liberty to Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465, 133 L. Ed. 2d 383 (1995) (footnote omitted). the site of the Factors relevant to this analysis include questioning, the length and form of the questioning, and the presence of objective indicia of arrest. State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371 (1983). ¶3 Here, custody for the purposes arresting officer. did not superior abuse of court Miranda found when Lopez he was confessed not in to the On the record before us, the superior court its discretion in making this finding and, accordingly, in denying Lopez motion to suppress. See State v. Eastlack, 1007 180 (citation Ariz. omitted) 243, 251, 883 (appellate P.2d court 1 999, reviews (1994) denial of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2 suppression motion for abuse of discretion); see also State v. Fornof, 218 Ariz. 74, 76, ¶ 8, 179 P.3d 954, 956 (App. 2008) (citation omitted) (we review only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the trial court s factual findings ). ¶4 First, the arresting officer questioned Lopez outside of his home, in public, and in front of his patrol car so he could videotape the encounter. Lopez movement. The officer did not restrict Indeed, the officer left Lopez alone in front of his patrol car on two separate occasions and, on one of these occasions, Lopez mother approached him and they engaged in conversation. ¶5 Next, the questioning lasted less than eight minutes. The officer s questions were not accusatory, but investigatory in nature. See State v. Thompson, 146 Ariz. 552, 556, 707 P.2d 956, (App. 960 1985) accusatory questions). (distinguishing investigatory from Furthermore, the officer did not subject Lopez to or threaten him with any form of physical restraint or force. ¶6 Despite these circumstances, Lopez argues he was in custody because the questioning here was interrogation on the only suspect in this case. a focused But, as the State correctly notes, in Stansbury v. California, 511 U.S. 318, 323-25, 114 S. Ct. 1526, 1529-30, 128 L. Ed. 2d 293 (1994), the 3 United States Supreme Court confirmed the focus factor was not relevant to determining custody under Miranda. See also Berkemer v. McCarthy, 468 U.S. 420, 421-22, 104 S. Ct. 3138, 3141, 82 L. Ed. 2d 317 (1984) ( A policeman s unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time; the only relevant inquiry is how a reasonable man in the suspect s position would have understood the situation. ); accord Cruz-Mata, 138 Ariz. at 373, 674 P.2d at 1371 (rejecting focus of inquiry as indicia of custody). ¶7 court s For denial the of foregoing Lopez reasons, motion to we affirm suppress the and affirm conviction and sentence. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge _ /s/ LAWRENCE F. WINTHROP, Judge _ 4 superior his

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