State v. Aguilar-Gonzalez

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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. JESUS ALONZO AGUILAR-GONZALEZ, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06/17/10 PHILIP G. URRY,CLERK BY: JT 1 CA-CR 09-0106 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-131643-001 DT The Honorable F. Pendleton Gaines III, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee Brian F. Russo Attorney for Appellant Phoenix H A L L, Judge ¶1 Jesus Alonzo Aguilar-Gonzalez (defendant) appeals from his convictions and sentences for one count of possession of dangerous drugs for sale, two counts of possession of narcotic drugs for sale, and one count of misconduct involving weapons. He contends that the trial court improperly denied his motion to suppress evidence. For the reasons that follow, we reject this argument and therefore affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 The evidence presented at the suppression hearing is as follows.1 Phoenix On the morning of May 21, 2008, Officer D.W. of the Police Department was working prostitution and drug-related offenses. grocery store parking activity area. lot that he undercover, targeting He was parked in a regarded as a high drug At some point, the officer observed a white Buick driving around the parking lot and then eventually pulling up to a Chevy truck. The occupant of the Chevy truck exited his vehicle and reached through the passenger window of the white Buick. After momentarily reaching through the passenger window, the driver of the Chevy truck then returned to his vehicle and drove away. ¶3 Based on his experience, Officer D.W. believed that he had just observed a drug transaction and further believed that the driver of the Buick was the 1 drug dealer because those In reviewing a motion to suppress, we review only the facts presented to the superior court at the suppression hearing. State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996). We view those facts in the light most favorable to sustaining the superior court s decision. State v. Dean, 206 Ariz. 158, 161, ¶ 9, 76 P.3d 429, 432 (2003). 2 dealing drugs stay in their vehicles. The officer decided to follow the Buick as it left the parking lot. then Shortly after the Buick exited the parking lot, its driver failed to stop at a red light before making a right-hand turn. Because Officer D.W. was in plain clothes and an undercover vehicle, he contacted nearby patrol officers to make the traffic stop. Officer D.W. momentarily lost sight of the Buick, but quickly relocated it parked on the side of the road with the driver, alone, still seated in the vehicle. The officer drove around the corner and waited for the patrol officers to arrive. ¶4 When the patrol vehicle arrived shortly thereafter, Officer H. activated its overhead lights. then decided contained vehicle to three with approach the occupants. their weapons Buick, As the drawn, The three officers which, officers Officer by that time, approached H. gave the verbal commands ordering the occupants to keep their hands up on the dash. Despite the commands, the front passenger, defendant, repeatedly leaned forward and put his hands down, out of [] sight, and then put them up on the dash, and then back down, out of [] sight. ¶5 removed Because him from of the defendant s vehicle 3 movements, first, then Officer the other D.W. two occupants.2 The officers asked the driver of the vehicle if there were any guns or drugs in the car, and he responded that there were not. After the occupants were removed, however, Officer J.Z. peered through the car window and observed a gun sitting on the floorboard. At that point, Officer D.W. retrieved the loaded weapon and then looked under the passenger seat where [he] saw [defendant] reaching down to ensure there wasn t any other weapons inside the vehicle. The officer saw a plastic baggie containing methamphetamine under the passenger seat and then continued to cocaine in the glove box. search the car and found powder Defendant and the other occupants were then placed under arrest. ¶6 On June 13, 2008, defendant was charged by indictment with one count of possession of dangerous drugs for sale, a class two felony, two counts of possession of narcotic drugs for sale, class two felonies, and one count of misconduct involving weapons, a class four felony. On October 1, 2008, defendant filed a motion to suppress all of the evidence seized from the vehicle. On October 17, 2008, the trial court held a hearing on the motion. At the hearing, the State presented the testimony of Officers D.W. and J.Z. Defendant did not testify on his own 2 During his cross-examination at the suppression hearing, Officer D.W. testified that, after the vehicle s occupants were removed, they were positioned about ten feet away from the vehicle and secured by armed officers such that there was no longer any threat that the occupants may retrieve something from the vehicle and compromise the officers safety. 4 behalf or present any evidence. The trial court subsequently denied defendant s motion, finding there was probable cause to make the stop and search Defendant. ¶7 The matter defendant guilty defendant to proceeded as to charged. concurrent trial The terms that seven-year sentence of imprisonment. and trial the jury court effectively found sentenced result in a Defendant timely appealed, and we have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, sections and 12-120.21(A)(1) Arizona Revised (2003), Statutes 13-4031, and (A.R.S.) -4033(A)(1) (2010). DISCUSSION ¶8 denying Defendant his contends motion to that suppress the trial erred by Specifically, evidence. court he argues that: (1) there was no reasonable basis to conduct a traffic stop of the vehicle he occupied; (2) he was unlawfully detained; and (3) the officers search of the vehicle was unlawful. ¶9 In reviewing a motion to suppress, we defer to the superior court s determinations of the credibility of the officers and the reasonableness of the inferences they drew. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). We review, however, the superior court s legal decisions de novo. Id. We will not reverse a superior court s 5 decision error. on a motion to suppress absent clear and manifest State v. Dean, 206 Ariz. 158, 161, ¶ 9, 76 P.3d 429, 432 (2003) (internal quotation omitted). ¶10 The United States and Arizona Constitutions protect persons from unreasonable searches and seizures. See Const. amends. IV, XIV; Ariz. Const. art. II, § 8. U.S. [I]ts protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. v. Arvizu, 534 U.S. 266, 273 (2002). United States Pursuant to Terry v. Ohio, 392 U.S. 1, 30 (1968), a police officer may make a limited investigatory stop in the absence of probable cause if the officer has articulable, reasonable suspicion that the suspect is involved in criminal activity. We consider the totality of the circumstances, examining factors that might individually appear innocent, and consider them collectively. State O Meara, 198 Ariz. 294, 296, ¶ 10, 9 P.3d 325, 327 (2000). v. We evaluate the totality of the circumstances from the standpoint of an objectively reasonable police United States, 517 U.S. 690, 696 (1996). officer. Ornelas v. Whether an officer has an objective basis for reasonable suspicion that the suspect is involved in criminal activity, necessary for a traffic stop, is a mixed question of law and fact that we review de novo. See State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996). 6 I. Reasonable Basis for the Traffic Stop ¶11 Defendant contends that Officer D.W. had no reasonable basis to initiate a traffic stop3 of the Buick and claims that the officer s investigation hunch. only and basis gain for the access to stop this was to vehicle further based on his his We disagree. ¶12 According to the applicable traffic statutes, vehicular traffic facing a steady red signal alone shall stop before entering the intersection and shall remain standing until an indication to proceed is shown. (2004). to a The driver of a vehicle that is stopped in obedience red yielding signal, to however, pedestrians directed by the signal. ¶13 A.R.S. § 28-645(A)(3)(a) may and make other a right traffic turn after proceeding as A.R.S. § 28-645(A)(3)(b). At the suppression hearing, Officer D.W. testified, without equivocation, that the Buick he was following failed to stop at a red traffic light before making a right-hand turn. As the trial court noted, this testimony was not challenged by any other evidence presented at the suppression hearing. Thus, the record demonstrates that the police officer had an objective 3 Citing Florida v. Bostick, 501 U.S. 429, 434 (1991), the State contends that the police did not initiate a stop of the vehicle because it was already stopped on the side of the road. The officers testified that Officer H. activated his patrol vehicle s overhead lights and that the three officers approached the vehicle with their weapons drawn, ordering commands. We therefore find no merit to the State s argument that the encounter did not constitute a stop. 7 basis for reasonably suspecting that the driver of the vehicle had violated the traffic laws.4 II. Lawful Basis to Detain Defendant ¶14 Defendant contends that the police officers unlawfully seized his person by removing him from the vehicle and ordering him to remain against a fence while surrounded by armed law enforcement officials. ¶15 We disagree. For the duration of a traffic stop, . . . a police officer effectively seizes everyone in the vehicle, the driver and all passengers. Arizona v. Johnson, _ U.S. _, _, 129 S.Ct. 781, 784 (2009) (quoting Brendlin v. California, 551 U.S. 249, 255 (2007)). When the police have a lawful reason to detain an automobile and its occupants pending inquiry into a vehicular violation, . . . [they] need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. Id. Moreover, in such a situation, police officers may order the driver and passengers to exit the vehicle. Id. at 786 (explaining that the additional intrusion of requiring a 4 Contrary to defendant s appellate argument, Officer D.W. did not admit that the only reason he stopped the vehicle was to follow-up on a hunch. Rather, he unequivocally testified that he observed a traffic violation, but agreed with defense counsel s assessment that the driver s traffic violation provided a convenient legal reason to stop the car. See State v. Livingston, 206 Ariz. 145, 148, ¶ 13, 75 P.3d 1103, 1106 (App. 2003) ( [T]he subjective motives of an officer do not invalidate an otherwise lawful traffic stop. ) (citing Whren v. United States, 517 U.S. 806, 813) (1996)). 8 driver, already lawfully stopped, to exit the vehicle is de minimus) (citing Pennslyvania v. Mimms, 434 U.S. 106, 110-11 (1977)); see also Maryland v. Wilson, 519 U.S. 408, 415 (1997) ( [A]n officer making a traffic stop may order passengers to get out of the car pending completion of the stop. ). ¶16 At testified forward the that, and suppression after reach hearing, observing toward Officers defendant the floor of D.W. and repeatedly the J.Z. bend vehicle in contravention of the officers orders, they removed all of the occupants from the vehicle and ordered them to stand away from the car. The occupants were not placed under arrest or handcuffed but, as Officer D.W. testified at the suppression hearing, they were not free to leave. Nonetheless, because there was a reasonable basis for the traffic stop, the officers order that the occupants exit the vehicle was permissible under Wilson and its progeny. Moreover, defendant s refusal to follow the officers commands to keep his hands visible created an officer safety issue that necessitated his removal from the vehicle. III. Search of The Vehicle ¶17 Defendant contends that the police officers lacked probable cause to search the vehicle and that the vehicle s occupants were secured such that a search of the vehicle incident to arrest was unlawful under Arizona v. Gant, _ U.S. _, 9 _, 129 S.Ct. 1710, 1720 (2009). Because defendant made no showing that he had a legitimate expectation of privacy that was infringed by the search of the vehicle, he may not assert a Fourth Amendment violation. Therefore, we need not address the merits of his claim.5 ¶18 A defendant contesting a search must establish that his own constitutional rights were violated by the challenged search. Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978). To do so, the defendant must have a legitimate expectation of privacy in the invaded place. Id. at 143. To be considered legitimate, a person s subjective expectation of privacy must be one that society is prepared to recognize as reasonable. State v. Juarez, 203 Ariz. 441, 444, ¶ 12, 55 P.3d 784, 787 (App. 2002) (quoting Rakas, 439 U.S. at 143-44 n.12). Mere possession or ownership of a seized item is insufficient to create a legitimate searched. ¶19 that of privacy in the area Id. at 444, ¶ 12, 55 P.3d at 787. At the expectation the driver suppression hearing, was in alone the Officer Buick relocated the car parked along the road. 5 D.W. when the testified officer The officer then drove The State claimed defendant failed to demonstrate a legitimate privacy interest in the vehicle in both the trial court and on appeal. Although the trial court did not deny defendant s motion to suppress on this basis, we may affirm the trial court if it is correct for another reason. See City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985). 10 around the Shortly observed car and thereafter, that the another passenger. waited the driver for patrol officers had officers approached been joined by the to arrive. Buick and defendant and Thus, defendant was merely a brief occupant of a parked car and has failed to demonstrate that he had any reasonable privacy interest in the vehicle. He therefore failed to establish that the police officers search of the vehicle violated his personal Fourth Amendment rights. See Rakas, 439 U.S. at 148-49 (holding that passenger in getaway car had no legitimate expectation of privacy in vehicle s glove compartment or area under front passenger seat). Accordingly, the trial court did not abuse its discretion in denying his motion to suppress. CONCLUSION ¶20 Defendant s convictions and sentences are affirmed. /s/ PHILIP HALL, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ PATRICIA K. NORRIS, Judge 11

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