State v. Meeden

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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. DANIELLE MEEDEN, Appellant. DIVISION ONE FILED: 08/20/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0636 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200801449 The Honorable Larry Kenworthy, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Suzanne M. Nicholls, Assistant Attorney General Attorneys for Appellee Phoenix Michael A. Breeze, Yuma County Public Defender By Edward F. McGee, Deputy Public Defender Attorneys for Appellant Yuma K E S S L E R, Presiding Judge ¶1 Appellant Danielle Meeden ( Meeden ) appeals the superior court s order denying her motion to suppress evidence which resulted in her convictions for possession of a dangerous drug and possession of drug paraphernalia. For the following reasons, we affirm the superior court s ruling. FACTUAL AND PROCEDURAL HISTORY ¶2 When reviewing a ruling on a motion to suppress, we consider only the evidence presented at the suppression hearing and view that evidence in the light most favorable to upholding the court s ruling. State v. Caraveo, 222 Ariz. 228, 229 n.1, ¶ 1, 213 P.3d 377, 378 n.1 (App. 2009) (citation omitted). ¶3 On undercover November for the 9, 2008, Narcotics Officer Task A. was Force, working dressed in civilian clothing and driving an unmarked patrol car with the lights and siren concealed within the grill. ¶4 At 4:00 a.m. Officer A. noticed a vehicle leaving a small apartment complex in a known drug area. testified that suspicious, believe activity. nor that at did the Officer the he time he have any passengers A. did not notice knowledge or had explained Officer A. engaged that he anything reason to in illegal often follows vehicles leaving areas associated with narcotics with the purpose of conducting investigations, confirming reported information, and uncovering drug related activity. ¶5 Officer A. followed the vehicle for two blocks, at which point it pulled into a trailer park community and 2 parked next to a residence. Meeden and her friend J.H. exited the vehicle and were walking toward a trailer when Officer A. pulled in to park offset behind them. ¶6 As the area was dark and known for violence, Officer A. briefly initiated his red and blue grill lights to identify himself as a law enforcement officer. He then exited his patrol car and asked if he could speak with them. Although answered him Officer verbally, A. he could stated not remember that Meeden if they and J.H. responded by approaching him in a friendly manner. He also testified that had they refused to speak with him, he would have driven away. ¶7 Officer A. began the conversation them that they had done nothing wrong. by informing He then asked them if they had any weapons, and when Meeden responded in the negative, asked if he could confirm with a pat-down search. Officer A. testified that he received permission from Meeden, 1 and proceeded to conduct an open hand pat-down of the areas where weapons are generally most accessible. During the pat-down a methamphetamine pipe dropped to the 1 Officer A. testified that he did not ask Meeden to sign a consent form as it was not a customary practice to do so with the Narcotics Task Force. Officer A. also testified that he did not record his contact with Meeden at any time for safety reasons. 3 ground. 2 Officer A. then asked Meeden if he could search her pockets. Meeden again consented, and Officer A. found a bindle containing a crystalline substance consistent with methamphetamine. ¶8 for Officer A. placed Meeden under arrest and called assistance from a marked unit. When Officer M. arrived, Officer A. turned Meeden over to him and continued his investigation with J.H. 3 Officer M. placed Meeden in the back of his patrol vehicle and conducted a subsequent search of her person, which yielded another bindle of a crystalline substance. Officer M. then transported Meeden to the Sheriff s Office, where Officer A. Mirandized and interviewed her. Meeden stated that only the smaller bindle of methamphetamine was hers, and the rest of the contraband belonged to J.H. ¶9 Officer A. processed the evidence collected from Meeden by conducting substance. Further tests It a field tested by a test positive Substance on for the crystalline methamphetamine. Criminalist from the Department of Public Safety confirmed Officer A. s results. 2 Although Officer A. testified that the pipe fell to the ground, both his report and prior interviews state that the pipe was found in Meeden s pocket. Officer A. explained that the report was not meant to be a verbatim recitation of the events as they occurred, but was intended to be used as a tool to refresh his recollection. 3 No contraband was found on J.H. 4 Both bags, one containing 0.23 grams and the other 58 milligrams, were considered to be usable quantities. ¶10 Meeden was charged with possession of a dangerous drug, a class four felony, and paraphernalia, a class six felony. possession of drug Two days before trial, Meeden filed a motion to suppress, arguing that the stop, pat-down, and subsequent unconstitutional. search incident to arrest were After an evidentiary hearing, the court denied Meeden s motion. The trial court found that Officer A. did not convey a message that compliance was required and the seizure was consensual. Meeden absentia and found guilty on both counts. was tried in The court placed Meeden on intensive probation for 36 months. ¶11 31.3. Meeden timely appealed. See Ariz. R. Crim. P. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, as well as Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13- 4031 (2010), and -4033(A)(1) (2010). STANDARD OF REVIEW ¶12 court On erred allegedly appeal, in seized Meeden denying in contends her motion violation of to her that the superior suppress evidence rights under Fourth Amendment of the United States Constitution. the We review rulings on motions to suppress evidence for a clear 5 abuse of discretion. 165, ¶ 5, discretion 24 P.3d exists State v. Sanchez, 200 Ariz. 163, 610, when 612 the (App. 2001). reasons given An abuse for a of court s decision are clearly invalid, legally incorrect, or result in a denial of justice. State v. Childress, 222 Ariz. 334, 338, ¶ 9, 214 P.3d 422, 426 (App. 2009) (citing State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983)). the On review, we examine the evidence presented at suppression hearing in the light most favorable sustaining the superior court s factual findings. review the court s legal conclusions de novo. to Id. Id. We We will uphold the 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)). DISCUSSION ¶13 The Fourth Amendment guarantees against unreasonable searches and seizures. protection Terry v. Ohio, 392 U.S. 1, 9 (1968) (quoting Elkins v. United States, 364 U.S. 206, 222 (1960)). Those conducted without a warrant are considered per se unreasonable absent an established exception to the warrant requirement. States, 389 U.S. 347, 357 (1967). 6 Katz v. United I. INVESTIGATORY STOP ¶14 A suspect may be stopped and detained for investigatory purposes if law enforcement officers develop a reasonable suspicion that the person is engaged or about to engage in illegal activity. In re Steven O., 188 Ariz. 28, 29, 932 P.2d 293, 294 (App. 1997) (citation omitted). To establish the constitutional validity of an investigatory stop, the officer must point to specific and articulable inferences facts from with The Officer reasonably rational that that facts, together warrant concedes those taken Id. (quoting Terry, 392 U.S. at 21). intrusion. State which, A. lacked the reasonable suspicion required to conduct an investigatory stop, but argues the encounter was consensual and thus exempt from the requirements of a warrant, probable cause, or suspicion of criminal wrongdoing. II. CONSENSUAL ENCOUNTER ¶15 The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with security of individuals. 446 U.S. 544, 553-54 the privacy and personal United States v. Mendenhall, (1980) (quoting United Martinez-Fuerte, 428 U.S. 543, 554 (1976)). 7 States v. Obviously, not all personal intercourse between policemen and citizens involves seizures of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. Terry, 392 U.S. at 19 n.16. ¶16 The Fourth Amendment is not violated when law enforcement officers approach and question people, State v. Wyman, 197 Ariz. 10, 13, ¶ 7, 3 P.3d 392, 395 (App. 2000) (citation omitted), provided that the police do not convey a message that compliance with their requests is required. Florida v. Bostick, 501 U.S. 428, 435 (1991). encounter may become a detention when, A consensual based on the totality of the circumstances, a reasonable person would not have encounter. felt free to leave or otherwise terminate the Mendenhall, 446 U.S. at 554; see also United States v. Drayton, 536 U.S. 194, 201 (2002); Childress, 222 Ariz. at 338, ¶ 11, 214 P.3d at 426 (citation omitted). The reasonable person inquiry is objective and presupposes an innocent person. Childress, 222 Ariz. at 338, ¶ 11, 214 P.3d at 426 (citation omitted). Examples of conditions that suggest a seizure include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the 8 use of language or tone of voice indicating that compliance with the officer s request Mendenhall, 446 U.S. at 554. might be compelled. If there is no detention no seizure within the meaning of the Fourth Amendment then no constitutional rights have been infringed. Florida v. Royer, 460 U.S. 491, 498 (1983). ¶17 Meeden contends that she was seized within the meaning of the Fourth Amendment as the encounter was not consensual. She specifically asserts that Officer A. communicated his authority through the activation of his grill lights and the placement of his patrol car. Meeden argues that under these circumstances, no reasonable person would have felt free to terminate the encounter. We disagree. ¶18 Viewing the evidence in the light most favorable to upholding the factual findings, Childress, 222 Ariz. at 338, ¶ 9, 214 P.3d at 426, there was sufficient evidence for the superior court to conclude that Officer A. did not convey that compliance with his request was required. Officer A. was alone, wore no uniform, drove an unmarked patrol car, and at no time did he display or brandish his weapon. Although he blocked the ultimately Meeden had already parked in suspect s exited and 9 such a vehicle was way from walking that it leaving, toward a residence. As a result, Officer A. s actions in no way immobilized her or made it impossible for her to terminate the encounter. See Mendenhall, 446 U.S. at 554 ( As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person s liberty or privacy as would under the Constitution require some particularized objective justification. ); State v. Robles, 171 Ariz. 441, 443, 831 P.2d 440, 442 (App. 1992) ( Given the fact that [he] had parked his car voluntarily and not in response to any action on the part of the police, we are unable to discern from the officers actions . . . anything which would lead a reasonable person to conclude that he was not free to leave or to terminate the encounter . . . . ). ¶19 In addition, Officer A. did not threaten Meeden, nor did he use language or a tone of voice that may have indicated compliance was required. See State v. Gonzalez Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996) (explaining that deference is given to the trial court s factual findings, including the determination of credibility). He did not issue any commands or orders, but 10 instead identified himself, explained that Meeden had done nothing wrong, and asked permission to speak with her. 4 ¶20 Meeden further argues that Officer A. s initiation of his front grill lights amounted to a display of authority requiring compliance: When the blue lights on the patrol car begin to flash, the person being followed does not feel free to ignore them and drive on. State v. Richcreek, 187 Ariz. 501, 505, 930 P.2d 1304, 1308 (1997). However, Officer A. testified that he flashed his front grill lights for only seconds as a safety precaution. He explained that given the area s reputation for violence, his action was meant to identify himself as a police officer and not someone approaching to conduct a criminal act. Although courts have identified the absence of overhead lights as a factor indicating an encounter was consensual, see Washington v. Nettles, 855 P.2d 699, 702 (Wash. App. 1993); Idaho v. Page, 103 P.3d 454, 457 (Idaho 4 We find this case to be distinguishable from both State v. Rogers, 186 Ariz. 508, 509, 924 P.2d 1027, 1028 (1996) (where officers approached the defendant and stated, police officers, we need to talk to you. ) (emphasis added) and Childress, 222 Ariz. at 337, ¶ 3, 214 P.3d at 425 (where officer yelled, the occupants in the black truck, pull in front of me and pointed to a designated area). In both cases, the language and any accompanying movement implied commands that could not be ignored. Here, nothing in the officer s language ( You ve done nothing wrong. Can I talk to you? ) or movement indicated that compliance was required. 11 2004); California v. Bouser, 32 Cal.Rptr.2d 163, 167 (Cal. App. 1994), we are not persuaded given the context and totality of the circumstances that the activation of grill lights for only seconds turned the encounter into seizure within the meaning of the Fourth Amendment. a See Commonwealth v. Evans, 764 N.E.2d 841, 844 (Mass. 2002) (activation community of lights caretaking as a safety inquiry did measure not during transform a the encounter into a seizure); State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993) ( A reasonable person would know that while flashing lights may be used as a show of authority, they also actions serve were not other purposes. ). justified under While a community function, the brief activation of with statement explaining Meeden the Officer lights in had A. s caretaking combination done nothing wrong, support the court s finding that the encounter was ultimately not a seizure. ¶21 the In reviewing the totality of the circumstances, court had sufficient evidence to find that the situation was not so intimidating that a reasonable person would not have felt free to leave. Thus, no reasonable suspicion was needed, and the request to speak with Meeden was well within the constraints of a consensual encounter. 12 III. PRIVATE PROPERTY ¶22 Meeden contends that as the stop occurred in the driveway of a residence in a trailer park, consent does not apply as the stop occurred on private property. See Bostick, 501 U.S. at 434 ( [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place . . . . ) (emphasis omitted). Fourth added) (citation We disagree. Amendment and internal quotations Although the protections of the extend to the curtilage of a home, [r]esidents generally do not have a legitimate expectation of privacy in a path across their driveway to and including their front implicitly porch open and front to the door, because public, thereby that area is necessarily negat[ing] any reasonable expectancy of privacy in regard to observations made there. State v. Olm, 223 Ariz. 429, 433, 249 ¶ 13, 224 P.3d 245, (App. 2010) (citation omitted); see id. ( [N]o Fourth Amendment violation occurs when an officer, without a warrant, crosses the curtilage to knock resident. ) on the front (citation door to omitted). ask In questions any event, of the Meeden s encounter was not even within the curtilage of a home, but on a dirt access road to multiple residences in a trailer park. This area was publicly 13 accessible, and nothing suggested that the property was private. [N]one of the traditional markers of privacy appeared: no wall or fence obstructed entry onto [the] property, and no signs alerted the officer[] that such entry was prohibited. State v. Guillen, 658, 223 Ariz. 314, 318, ¶ 19, 223 P.3d 662 (2010). IV. PAT-DOWN SEARCH ¶23 We now turn to the question of whether Meeden was subjected to an unreasonable search of her person. Prior case law does not authorize a pat down search as part of a mere consensual encounter. In re Ilono H., 210 Ariz. 473, 476, ¶ 11, 113 P.3d 696, 699 (App. 2005). [P]olicemen have no more right to pat down the outer clothing of passers-by, or persons questions, than does to any whom other they citizen address . . . casual . Id. (quoting Terry, 392 U.S. at 32 (Harlan, J., concurring)). However, if an officer obtains consent to the neither a warrant nor probable cause is needed. 222 Ariz. at search, Caraveo, 233, ¶¶ 22-23, 213 P.3d at 382 (finding that Ilono does not stand for the proposition that officers may not frisk frisk. ). an individual who voluntarily consents to a As with consensual encounters, the voluntariness of a consent to search is determined based on the totality 14 of the circumstances. State v. Acinelli, 191 Ariz. 66, 70, 952 P.2d 304, 308 (App. 1997). ¶24 of In situations such as these, where the question voluntariness inquiries, facts. the pervades both respective the analyses Drayton, 536 U.S. at 206. search turn on and seizure very similar As discussed above, Officer A. did not convey at any time that compliance with his requests was required. He never brandished a weapon, made threats, or used aggressive language. Additionally, [t]he Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking warrantless consent search. ¶25 Accordingly, in permission to conduct a Drayton, 536 U.S. at 206. reviewing the totality of the circumstances, there was sufficient evidence for the trial court to have found that Meeden voluntarily consented to the search of her person. 5 5 We find this case to be distinguishable from In re Ilono H., 210 Ariz. at 474, ¶ 2, 113 P.3d at 697 (where the officer initiated a consensual encounter and then immediately conducted a search without any further questions) because Officer A. asked for additional consent before conducting the pat-down search. 15 CONCLUSION ¶26 For the above reasons, we affirm the superior court s order denying Meeden s motion to suppress evidence and affirm her conviction and sentence. /S/ DONN KESSLER, Presiding Judge CONCURRING: /S/ DANIEL A. BARKER, Judge /S/ SHELDON H. WEISBERG, Judge 16

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