State v. Mikl

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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. DARRIS F. MIKL, Appellant. DIVISION ONE FILED: 02/03/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 10-0040 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-129389-001 DT The Honorable Susan M. Brnovich, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Michael J. Mitchell, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Kathryn Petroff, Deputy Public Defender Attorneys for Appellant Phoenix K E S S L E R, Judge ¶1 for Darris F. Mikl ( Defendant ) appeals his conviction possession paraphernalia. of marijuana For the and reasons possession that of follow, marijuana we affirm Defendant s convictions and resulting imposition of probation. FACTUAL AND PROCEDURAL HISTORY ¶2 The State filed a complaint charging Mikl with possession of marijuana and possession of marijuana paraphernalia in May 2008. Defendant pled not guilty. ¶3 a Defendant filed motion to suppress evidence obtained during a police search of his person at the time of his arrest. illegal because Defendant also Defendant it was filed argued conducted a separate that the without motion search a was warrant. requesting suppression of statements he made to the officer which led to the search, arguing that they must be suppressed because the officer questioned Defendant without giving him Miranda warnings. 1 The State argued that Miranda warnings were not required because Defendant was merely subject to a traffic stop and not in custody. ¶4 At the suppression hearing, the State presented evidence that a Glendale police officer ( Officer ) made contact with Defendant after Defendant violated a crosswalk signal. A sergeant accompanied Officer during the contact and was present throughout the encounter. Officer obtained Defendant s identification and conducted a records check on 1 See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). 2 a police prior computer. arrests for paraphernalia. Defendant, Officer possession Without Officer learned then of Defendant marijuana providing asked that Miranda Defendant and had drug warnings whether to he had anything illegal such as marijuana or drug paraphernalia. ¶5 Defendant informed Officer that marijuana pipe in his left front pocket. he had a Officer reached into Defendant s pocket and retrieved the pipe. Officer retrieved a small baggy of marijuana from the same pocket. Officer then informed Defendant he was under arrest and read him the Miranda warnings. Officer did not place Defendant in handcuffs at that time. ¶6 After Officer reading continued subsequent to interview, Defendant interview the Miranda Defendant. Defendant stated warnings, During that he the knew marijuana was illegal but regularly uses about ten dollars worth per day. Officer informed Defendant that the case would be forwarded to the County Attorney for prosecution and released him. The entire encounter lasted approximately ten minutes. ¶7 The superior motions. The court reasoned that initially asking whether Defendant had any court contraband 3 denied was both of reasonable Defendant s because the situation was analogous to a Terry stop. 2 Once Defendant admitted possessing contraband, the search of Defendant s pockets was reasonable because Officer had probable cause to conduct it. ¶8 The superior court then conducted the trial and convicted Defendant on both charges. The court suspended sentencing and imposed a term of unsupervised probation and fined Defendant $750. appeal. Defendant filed a timely notice of This Court has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003) and 134032(6) (2010). ANALYSIS ¶9 On appeal, Defendant argues 1) that the superior court erroneously determined that Miranda warnings were not required prior to asking Defendant whether he was carrying contraband, and 2) other evidence was improperly admitted notwithstanding questioning. that it was the fruit of the improper We review the superior court s ruling on a motion to suppress for an abuse of discretion. State v. Sanchez, 200 Ariz. 163, 165, ¶ 5, 24 P.3d 610, 612 (App. 2001). 2 We view the evidence in the light most favorable to See Terry v. Ohio, 392 U.S. 1, 9 (1968). 4 sustaining the superior court s ruling. Id. superior court s conclusions of law de novo. We review the Id. I. The Superior Court Correctly Determined Defendant Was Not Entitled to Miranda Warnings. ¶10 did The not asking superior have him to a court give correctly Defendant question during held Miranda a that Officer warnings routine That before traffic stop. Miranda warnings are only required prior to interrogation if the subject is in custody. is in custody if his or 384 U.S. at 444. her freedom circumscribed in a significant way. Id. of A person movement is The mere fact of a traffic stop does not mean that a person is in custody. Berkemer v. McCarty, 468 U.S. 420, 437 (1984). questions asked during traffic stops are Typically, not custodial interrogations because 1) traffic stops are generally much shorter than interviews in a police station, and 2) traffic stops take place in public, rather than in an atmosphere that is police dominated. ¶11 Officer s Berkemer s stop. encounter paradigm for a with typical Defendant fits non-custodial within traffic This encounter, including the brief period in which Defendant minutes. and Id. at 437-40. only was under arrest, lasted approximately ten Further, the interrogation was on a public street two officers were 5 present. This case fits precisely within Berkemer s example of a typical traffic stop that does not trigger the Miranda requirement. ¶12 Defendant required because contends Officer that Miranda subjectively warnings desired to were obtain incriminating evidence when he questioned Defendant. disagree. We Defendant correctly cites State v. Finehout for the proposition that an officer s subjective mental state influences whether a particular officer is interrogation. 3 570, 574 (1983). statement or act by an 136 Ariz. 226, 230, 665 P.2d In Finehout the court considered whether officers improperly interrogated a defendant by exhorting him to tell the truth after the defendant invoked his right to remain silent. However, defendant an is Id. at 229-30, 665 P.2d at 573-74. interrogation in custody only during triggers the Miranda if interrogation. the See Berkemer, 468 U.S. at 441-42 (holding Miranda warning not required because defendant was not in custody, even though officer asked defendant questions during a traffic stop in an attempt to gather incriminating evidence and after officer had subjectively decided to arrest defendant). 3 Although the test for interrogation may be subjective, the test for whether a defendant is in custody is objective. See State v. Carter, 145 Ariz. 101, 105, 700 P.2d 488, 492 (1985). 6 ¶13 that Because Miranda correctly the superior warnings denied were court not Defendant s correctly required, motion to concluded the suppress court evidence that he told Officer the location of his marijuana pipe. II. The Superior Court Properly Admitted Obtained During Officer s Subsequent Search. ¶14 the Defendant s marijuana and only pipe challenge is that to the Officer Evidence admission found it of only because of questioning conducted without a Miranda warning. Because we find Officer s pre-arrest question did not violate Miranda, Defendant s argument that other evidence was the fruit of the poison tree fails. CONCLUSION ¶15 For the foregoing reasons, we affirm Defendant s convictions and the resulting imposition of probation. /s/ DONN KESSLER, Presiding Judge CONCURRING: /s/ DIANE M. JOHNSEN, Judge /s/ SHELDON H. WEISBERG, Judge 7

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