State v. Bryant
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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.
GARY BRYANT,
Appellant.
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DIVISION ONE
FILED: 09/27/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 11-0022
DEPARTMENT E
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Coconino County
Cause No. CR 2010-00410
The Honorable Dan Slayton, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Joseph T. Maziarz, Assistant Attorney General
Attorneys for Appellee
H. Allen Gerhardt, Coconino County Public Defender
Attorney for Appellant
Phoenix
Flagstaff
H A L L, Judge
¶1
Gary Bryant (defendant) appeals from his convictions
for two counts of aggravated driving under the influence (DUI)
(Count I – impaired driving with a suspended driver license,
Count II – driving with a blood alcohol concentration of 0.08 or
higher with a suspended driver license), class four felonies,
and the sentences imposed.
For the reasons that follow, we
affirm defendant’s convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2
suppress,
In reviewing a trial court’s ruling on a motion to
we
view
the
facts
in
upholding the court’s ruling.
the
light
most
to
State v. Teagle, 217 Ariz. 17,
20, ¶ 2, 170 P.3d 266, 269 (App. 2007).
We consider only the
evidence presented at the suppression hearing.
¶3
favorable
Id.
At approximately 9:30 a.m. on May 23, 2009, T.J. was
in the front of his home doing yard work when a large white van
stopped in front of his house.
A passenger-side door opened and
T.J. heard some “threatening talk,” with one occupant of the van
threatening
to
physically
assault
another
occupant.
A
occupant then emerged from the passenger-side of the van.
male
He
attempted to walk around the vehicle, but he was unable to do so
without holding on to the van to reach the driver-side door.
T.J. became concerned about the threats of violence and the
possibility
that
the
person
who
maneuvered
driver’s seat was heavily inebriated.
his
way
to
the
He went inside his home
and explained the situation to his wife, L.J., and she then
telephoned the police to report the incident.
While speaking
with the police, L.J. walked to the front of the house with the
2
telephone and was able to report the color, make, and license
plate number of the van as well as the direction the van was
headed as it drove away.
¶4
A few moments later, Officer Wayne Winsor, who was
conducting routine patrol, received a call from dispatch that a
full-size
Dispatch
white
van
provided
approximate
had
the
location
been
reported
vehicle’s
and
Officer
as
license
Winsor
a
plate
was
achieve “visual contact” with the vehicle.
suspected
able
number
to
DUI.
and
quickly
When Officer Winsor
first saw the van, it was “stopped” in the turn lane.
The van
was not yielding to traffic, as there was no other traffic at
that
time,
but
it
remained
“stopped”
in
the
turn
lane
for
approximately twenty seconds before making a “wide” left turn,
“almost hit[ting] the dirt where the asphalt and dirt meet as it
was entering the parking lot.”
Officer Winsor activated his
emergency lights and the van immediately came to a stop in the
parking lot.
¶5
After the van stopped, Officer Winsor approached the
driver’s side of the vehicle.
He recognized defendant from
“prior
to
contacts”
and
attempted
“get
his
attention,”
but
defendant “just stared at [Officer Winsor] through the window,
as if [he] wasn’t even there.”
A few moments later, defendant
apparently “realized” Officer Winsor was at the door, and he
attempted to roll down his window and open the door, but he was
3
unable to do so.
Officer Winsor then opened the driver-side
door.
provided
Defendant
Officer
Winsor
with
an
Arizona
identification card and the officer asked dispatch to perform a
driver license check and was informed that defendant’s driver
license had been suspended.
¶6
At that point, Officer Winsor asked defendant to exit
the vehicle.
watery,
alcohol.
Officer Winsor observed that defendant had red,
droopy
eyes,
slurred
speech,
and
a
strong
odor
of
When Officer Winsor asked defendant to perform several
field sobriety tests, he was unable to do so.
Officer Winsor
then placed defendant under arrest for DUI and secured him in
the back of his patrol car.
car
during
the
short
Defendant fell asleep in the patrol
drive
to
the
Coconino
County
Jail
and
Officer Winsor had to wake him and help him walk into the jail.
Defendant refused to submit to a breath test or blood draw, but
his blood was eventually drawn pursuant to a search warrant.
¶7
On May 13, 2010, defendant was charged by indictment
with two counts of aggravated DUI.
The State also alleged that
defendant had two prior felony convictions.
¶8
Before trial, defendant filed a motion to suppress all
the evidence the State obtained after Officer Winsor’s stop of
his
vehicle.
Defendant
argued
that
the
stop
was
unlawful
because he did not violate any traffic laws and the information
4
reported to the police from L.J. did not provide a legal basis
for the stop.
¶9
The trial court denied defendant’s motion to suppress
and the matter proceeded to trial.
The jury found defendant
guilty as charged and also determined that the State had proven
the aggravating circumstance of a previous felony conviction.
The trial court later found that defendant had two historical
prior felony convictions and sentenced him to a presumptive tenyear term of imprisonment for each count.
¶10
Defendant timely appealed, and we have 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), 13-4031, and -4033(A)(1) (2010).
DISCUSSION
¶11
the
As his sole issue on appeal, defendant contends that
trial
court
evidence.
erred
by
denying
his
motion
to
suppress
Specifically, defendant argues that the information
provided by L.J. to police “did not support an[] investigative
detention.”
¶12
suppress
“In reviewing a trial court’s decision on a motion to
evidence
based
on
an
alleged
Fourth
Amendment
violation,[1] we defer to the trial court’s factual findings,
1
Although, on appeal, defendant contends that the stop violated
the Arizona constitution, he failed to make this argument in the
trial court and has therefore forfeited that claim.
See State
5
including findings on credibility and the reasonableness of the
inferences drawn by the officer[.]”
¶ 19, 170 P.3d at 271.
Teagle, 217 Ariz. at 22,
We review de novo, however, the trial
court’s ultimate legal conclusion as to whether the totality of
the circumstances warranted an investigatory stop.
State v.
Gomez, 198 Ariz. 61, 62, ¶ 8, 6 P.3d 765, 766 (App. 2000).
¶13
The
Fourth
Amendment’s
“protection
against
unreasonable seizures ‘extends to brief investigatory stops of
persons or vehicles that fall short of traditional arrest.’”
Teagle, 217 Ariz. at 22, ¶ 20, 170 P.3d at 271 (quoting United
States
v.
Arvizu,
534
U.S.
266,
273
(2002)).
“[A]
police
officer may make a limited investigatory stop in the absence of
probable cause if the officer has an articulable, reasonable
suspicion, based on the totality of the circumstances, that the
suspect is involved in criminal activity.”
Teagle, 217 Ariz. at
22-23, ¶ 20, 170 P.3d at 271-72.
¶14
Defendant argues that L.J.’s report to police was not
sufficiently
reliable
to
provide
the
reasonable
suspicion
of
v. Martinez, 210 Ariz. 578, 580 n.2, ¶ 4, 115 P.3d 618, 620
n.2 (2005) (explaining that a defendant who fails to object at
trial does not “waive” the claim; rather, it is forfeited unless
defendant can prove fundamental error occurred).
Moreover,
“[e]xcept in cases involving ‘unlawful’ warrantless home
entries, the right of privacy afforded by Article 2, Section 8,
[of the Arizona Constitution] has not been expanded beyond that
provided by the Fourth Amendment.” Teagle, 217 Ariz. at 22 n.3,
170 P.3d at 271 n.3.
6
criminal activity necessary to justify an investigatory stop.
We disagree.
¶15
Generally, “[a] citizen’s report of unusual activity
is sufficient to give rise to reasonable suspicion.”
State v.
Kinney, 225 Ariz. 550, 555, ¶ 14, 241 P.3d 914, 919 (App. 2010).
In
an
analogous
criminal
case,
activity
“qualifie[s]
volunteered
for
by
a
we
made
the
held
from
that
a
enhanced
disinterested
a
citizen’s
traceable
home
reliability
private
caller places his credibility at risk.
report
of
citizen”
of
telephone
information
because
the
Gomez, 198 Ariz. at 63-
64, ¶¶ 15-18, 6 P.3d at 767-68.
¶16
Here, L.J. not only made the report to police from her
home phone, but she readily identified herself, explained that
her husband had observed a vehicle occupant threaten violence
and
then
take
over
driving
the
vehicle
in
an
apparent
intoxicated state, and then furnished very specific information
about the van’s make, model, license plate number, and location.
Thus,
L.J.’s
specific
to
police
provide
report
the
was
police
sufficiently
with
reasonable
reliable
suspicion
and
of
criminal activity and the trial court did not err by denying
defendant’s motion to suppress.
7
CONCLUSION
¶17
For
the
foregoing
reasons,
we
affirm
convictions and sentences.
/s/
PHILIP HALL, Judge
CONCURRING:
/s/
DIANE M. JOHNSEN, Presiding Judge
/s/
PATRICIA A. OROZCO, Judge
8
defendant’s
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