State v. Tillmon
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NOTICE: THIS DESION 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. VERNON TILLMON, Appellant. 1 CA-CR 10-0265 DIVISION ONE FILED: 03/01/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. CR 130020070366 The Honorable Thomas B. Lindberg, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals Section and Sarah E. Heckathorne, Assistant Attorney General Attorneys for Appellee The Law Office of Emily Danies by Emily Danies Attorneys for Appellant W E I S B E R G, Judge Tucson ¶1 Vernon denying his Tillmon motion ( Defendant ) to dismiss or appeals from alternatively, an order motion to suppress, following an evidentiary hearing after a remand from this court. For reasons that follow, we affirm. PROCEDURAL HISTORY ¶2 On March 1, 2007, Officer Soto of the Department of Safety ( DPS ) initiated a traffic stop of a commercial truck driven by Defendant. along. The A DPS chaplain accompanied him for a ride- officer smelled marijuana while inspecting Defendant s truck. After Defendant consented to a full search of officer the truck, wrapped in the found plastic, Defendant documents. along was 1,569 with pounds of incriminating convicted of marijuana financial transportation of marijuana for sale, in an amount greater than two pounds, and possession of drug paraphernalia. mitigated prison terms of The court sentenced him to four years and nine-months respectively. ¶3 On appeal, Defendant, who is African-American, argued, among other things, that the trial court had erred by denying as untimely his motion to dismiss the charges or, alternatively, motion to suppress, based on a claim of racial profiling and selective enforcement. State v. Tillmon, Ariz. 452, 456, ¶ 16, 216 P.3d 1198, 1202 (App. 2009). court agreed. Finding no other 2 reversible error, 222 This we conditionally affirmed Defendant s convictions and sentences subject to the court s ruling on remand on defendant s motion. Id. at 457, ¶ 20, 216 P.3d at 1203. ¶4 On remand, the trial court held an evidentiary hearing at which Dr. Frederick Solop, an expert on racial profiling, and Defendant testified. Defendant s jurisdiction Following the hearing, the court denied motion. Defendant pursuant to Arizona timely appealed. Revised Statutes We have ( A.R.S. ) sections 120.21(A)(1)(2003), 13-4031, -4033(A)(3)(2010). DISCUSSION ¶5 Defendant contends that the trial court violated his due process rights to a fair hearing by taking judicial notice of trial testimony in denying his motion. We review a trial court s ruling on a motion to suppress evidence for an abuse of discretion. State v. Guillory, 199 Ariz. 462, 465, ¶ 9, 18 P.3d 1261, 1264 (App. 2001). In considering the evidence presented at the suppression hearing, we draw all reasonable inferences in favor of upholding the court s factual determinations. ¶6 The Equal Protection Clause of the Id. Fourteenth Amendment forbids race-based selective enforcement of the law. Jones v. Sterling, 210 Ariz. 308, 311, ¶ 13, 110 P.3d 1271, 1274 (2005). Even when a stop, search or seizure are otherwise lawful under the Fourth Amendment, a defendant may still have an independent defense to criminal 3 charges based on selective enforcement. Id. at 311-13, ¶ 15, 110 P.3d at 1274-75. See also Whren v. United States, 517 U.S. 806, 813 (1996) (Although the subjective motivations of police officers are not relevant to whether a stop is reasonable under the Fourth Amendment, Equal Protection Clause forbids selective enforcement based on race.). ¶7 Like other equal protection challenges, to establish selective enforcement, the claimant must demonstrate that state action had a discriminatory effect and that it was motivated by a discriminatory purpose. United States v. Armstrong, 517 U.S. 456, omitted). 465 (1996)(citation demonstrated for the defense to Both succeed. prongs Turner, 104 F.3d 1180, 1184 (9th Cir. 1997). be States United must v. See also State v. Munoz, 182 Ariz. 528, 529, 898 P.2d 477, 478 (App. 1994) (to succeed necessary on claim to of prove discriminatory disparate law enforcement, treatment of those it is who are be some similarly situated and impermissible motive). ¶8 To show discriminatory effect, there must evidence that similarly situated defendants of other races could have been [stopped], but were not. Thus, statistical evidence must Armstrong, 517 U.S. at 469. reveal, not that there is a disparity in the number of drivers of each race who are stopped by police, but that police treated those drivers differently than other similarly situated 4 drivers of another race; statistics claim. alone will rarely support a selective Jones, 210 Ariz. at 316, ¶¶ 33-34, 110 P.3d at 1279 (citations omitted). The standard required to prove selective enforcement claim is a demanding one. 463. enforcement Armstrong, 517 U.S. at And as in other equal protection challenges, the claimant must first make a prima facie showing of discriminatory purpose; then the burden shifts to the State to rebut the presumption by showing that state action was based on race-neutral criteria. Washington v. Davis, 426 U.S. 229, 241 (1976). ¶9 As background, reviewed DPS data participation in for Dr. Solop several Operation testified years that he had with its program for in a Pipeline, connection federal interdicting drugs on the nation s highways. had been linked to racial profiling. Operation Pipeline Multiple studies showed that at the relevant time, there was disparate treatment based on race as to who is being stopped on the highway, who is being searched, and detained. American searched, the He drivers given length of testified are more time that than similar that Hispanic, two times vehicle people Black more are and being Native likely to characteristics, be stop characteristics, and reasons for stops. ¶10 Dr. Solop testified that he had reviewed the original police report of Officer Soto s stop as well as an interview of Officer Soto conducted by defense 5 counsel prior to the evidentiary hearing. He stated that he could not give an opinion with scientific certainty of whether racial profiling [was] a factor in this case. He concluded, however, that at the time Officer Soto stopped Defendant s truck there [was] the presumption of racial profiling by DPS officers on Arizona highways. ¶11 On cross-examination, Dr. Solop agreed that to substantiate a racial profiling claim, the defendant must show that similarly situated people were treated differently and racial intent by the individual officer. asked whether Dr. Solop would agree When the prosecutor that that there is no evidence in this case that Officer Soto had any discriminatory intent, the doctor responded, I would agree at this time that evidence isn t profiling can available. Dr. occur a after Solop stop explained but agreed that racial that racial profiling would not be a factor in the stop if the officer did not know the driver s race before initiating it. When later asked, Would you agree that you have provided no data and no information that on March 1st, 2007, Officer Soto engaged in racial profiling?, he replied, Yes, I have not testified to that. ¶12 Defendant testified that after the stop, DPS officers did not treat him unprofessionally; did not use racial slurs; requested standard information, such as his driver s license, 6 proof of insurance and log book; and conducted the search in the same manner as had occurred when his truck had been inspected on prior occasions. ¶13 The prosecutor informed the court that Officer Soto and the DPS chaplain were available to testify. He stated, however, I think at this point the State doesn t even need to put them on because the defense hasn t even met their burden for the State going forward. They have shown no discriminatory intent . . . no discriminatory effect based on their conduct. ¶14 The court asked counsel whether he should consider the trial testimony in making his ruling. Defense counsel objected because the court would not have heard that testimony had the motion to dismiss/suppress progressed in a normal fashion. Remarking that nothing in this court s mandate suggested that the court should disregard proper valid testimony, the court took judicial notice of the testimony presented at trial. The prosecutor again offered to put on his witnesses but told the court that he was willing to submit the matter on the basis of testimony presented at trial and at the evidentiary hearing. ¶15 The court ruled that Defendant had not met his burden of making a prima facie case for racial profiling and selective enforcement. The court found that based on his trial testimony, Officer Soto did not know the Defendant s race when he stopped his truck. The court acknowledged that racial profiling can 7 take place at various stages of the process and that there is some evidence of racial profiling in general but found, however, that there has been no showing at all, nor do I think the defense can make a showing that Officer Soto or anyone else involved was motivated by racial profiling considerations in either the inspection, inclusive of viewing the load or in the stop itself. ¶16 make We agree with the trial court that Defendant did not a prima facie Defendant s race. case for selective enforcement based on Even assuming that the statistical evidence Defendant offered was sufficient to show discriminatory effect, Defendant presented no evidence whatsoever intent by Officer Soto or others. of discriminatory Dr. Solop testified that he had reviewed Officer Soto s interview in which the officer gave details about the basis for the stop and search of Defendant s truck. about In the interview, Officer Soto also provided information DPS policy that prohibited racial profiling, and his training in that area. Dr. Solop could not find any evidence that Officer Soto s conduct was based on impermissible racial motives. Also, Defendant s testimony at the evidentiary hearing did not support a finding of discriminatory purpose or intent. ¶17 DPS Further, the trial testimony of Officer Soto and the chaplain, Officer Soto upon made which in his the court interview, 8 relied, show and that statements the officer initiated the stop and made the decision to conduct an administrative inspection of inspect Defendant s truck before he knew that Defendant was African-American. And nothing in them reveals that the officer had a discriminatory intent or purpose at any stage of the process. ¶18 Defendant erred by taking contends, judicial however, notice of that the the trial trial court testimony of Officer Soto and the DPS chaplain because this evidence would not have been presented at a pretrial suppression hearing. He cites no authority for this argument and we have found none. 1 Because Officer Soto conducted the stop, search and seizure, he would have testified at a pretrial suppression hearing; there is nothing to suggest that such testimony would have been materially different from his trial testimony. ¶19 the Defendant argues that had the witnesses testified at evidentiary [them] in a hearing, completely the defense different 1 would fashion have at questioned trial asking The State cites a number of federal cases holding that in reviewing a district court s ruling on a motion to suppress evidence, the appellate court can consider not only evidence presented at the suppression hearing, but also evidence presented at trial. This, however, is not the law in Arizona. State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996); State v. Schinzel, 202 Ariz. 375, 378, ¶ 12, 45 P.3d 1224, 1227 (App. 2002). In any event, the issue here is not whether we can review the trial testimony in deciding whether the court erred in denying the motion to suppress but whether on remand the trial court could retrospectively consider the trial testimony at the suppression hearing. 9 specific questions about the racial profiling in the case. However, defense counsel conducted a lengthy, in-depth interview of Officer Soto in which about racial profiling. she essentially cross-examined him Defendant does not claim that Officer Soto s trial testimony conflicted with statements he made in his interview. And Defendant has not produced anything to suggest that the DPS chaplain would have testified at the evidentiary hearing in a manner inconsistent with his trial testimony if counsel had cross-examined him differently. Finally, nothing precluded defense counsel from calling these available witnesses and questioning them specifically about racial profiling in this case. There was no abuse of discretion by the trial court. CONCLUSION ¶20 For the foregoing reasons, we affirm the trial court s order denying Defendant s Motion to Dismiss or alternatively, Motion to Suppress Evidence. _____________________________ SHELDON H. WEISBERG, Judge CONCURRING: __________________________________ DONN KESSLER, Presiding Judge __________________________________ DIANE M. JOHNSEN, Judge 10
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