STATE v. BUSTILLOS

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NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. JESSE ANGEL BUSTILLOS, Appellant. No. 1 CA-CR 17-0197 FILED 2-27-2018 Appeal from the Superior Court in Maricopa County No. CR2016-002270-001 The Honorable David V. Seyer, Judge Pro Tempore AFFIRMED COUNSEL Maricopa County Public Defender's Office, Phoenix By Jesse Finn Turner Counsel for Appellant Arizona Attorney General's Office, Phoenix By Elizabeth B. N. Garcia Counsel for Appellee STATE v. BUSTILLOS Decision of the Court MEMORANDUM DECISION Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Kenton D. Jones joined. M O R S E, Judge: ¶1 Jesse Angel Bustillos ("Bustillos") appeals his conviction for possession of marijuana, a Class 6 felony. He challenges the superior court's ruling on his motion to suppress the marijuana on the grounds that it was obtained pursuant to an illegal seizure. For the following reasons, we affirm his conviction. FACTS AND PROCEDURAL HISTORY ¶2 We consider only the facts relevant to the suppression hearing, viewing the facts in the light most favorable to upholding the ruling. State v. Teagle, 217 Ariz. 17, 20, ¶ 2 (App. 2007). On March 23, 2015, at 2 a.m., a Glendale Police Officer observed a vehicle parked in a shopping center with one occupant, Bustillos, in the driver's seat. The officer was suspicious of the vehicle because the businesses were closed, and the shopping center was recently the subject of a rash of rooftop burglaries in which thieves had cut holes in roofs to enter businesses and steal merchandise and money. Thinking criminal activity may be afoot, the officer parked his vehicle and made contact with Bustillos. ¶3 The officer engaged in casual conversation with Bustillos and asked why he was sitting in an abandoned parking lot in the middle of the night. Bustillos was nervous, had difficulty making eye contact with the officer, and reached down and fumbled with something out of the officer's sight. Concerned that Bustillos may be reaching for a weapon, the officer asked him to step out of the vehicle to talk. The officer did not order Bustillos out of the car, nor did he draw his weapon or handcuffs, or call for backup. ¶4 Bustillos complied without argument, and acquiesced when the officer requested he take a seat on the curb. Following his usual protocol with suspicious individuals, the officer asked Bustillos "if there was anything on him that [he] should know about because he was acting so nervous." He also told Bustillos that he "needed to be honest." Bustillos 2 STATE v. BUSTILLOS Decision of the Court replied that he had some "weed" in his sock. The officer asked him to produce the "weed," and Bustillos complied without argument. Field testing confirmed the substance Bustillos possessed was marijuana, and the officer submitted charges against Bustillos for possession of marijuana. ¶5 Before trial, Bustillos moved to suppress the marijuana on the basis that it was obtained in violation of the Fourth Amendment to the United States Constitution and Article 2, Sections 2, 4, and 24 of the Arizona Constitution. Specifically, Bustillos argued he was seized when the officer asked him to step out of the vehicle, and the officer lacked reasonable suspicion for such a seizure. ¶6 Following an evidentiary hearing where the court heard uncontested evidence from the investigating officer, the superior court denied Bustillos' motion to suppress. The court found that under Terry v. Ohio, 392 U.S. 1, 19 (1968), the seizure was reasonable under the circumstances. The court stated that the officer's "conduct was not arbitrary or capricious; rather, it was specifically intended to deter unlawful activity around several closed businesses in the middle of the night." Thus, the court concluded that the officer had an articulable basis for suspecting illegal activity and the seizure was justified. ¶7 Finally, although not raised by Bustillos, the court found that the officer's question whether Bustillos possessed anything he should not have was justified as part of the public safety exception to Miranda.1 ¶8 Bustillos timely appealed his resulting conviction and sentence. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12120.21 (A)(1), 13-4031, and 13-4033. DISCUSSION ¶9 Bustillos argues the superior court erred when it denied his motion to suppress evidence. We review the superior court's ruling on a suppression motion for abuse of discretion, consider only the evidence presented at the suppression hearing, and view that evidence "in a light most favorable to sustaining the trial court's ruling." State v. Adair, 241 Ariz. 58, 60, ¶ 9 (2016). While we must defer to the superior court's factual findings, we conduct de novo review of its legal conclusions. Id. 1 Miranda v. Arizona, 384 U.S. 436 (1966). 3 STATE v. BUSTILLOS Decision of the Court I. Seizure. ¶10 Bustillos argues his initial conversation with the officer was a seizure rather than a consensual encounter because the officer lacked reasonable suspicion to approach him. Bustillos "did not object on this ground below, so we review only for fundamental, prejudicial error." State v. Robles (Robles I), 213 Ariz. 268, 274, ¶ 18 (App. 2006). Bustillos is entitled to relief only if he establishes that an error occurred, the error was fundamental, and the error caused him prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005). We review de novo mixed questions of law and fact in determining whether a seizure occurred. Teagle, 217 Ariz. at 22, ¶ 19; see In re Maricopa Cty. Juvenile Action No. JT30243, 186 Ariz. 213, 216 (App. 1996) (whether seizure occurred is a mixed question of fact and law). ¶11 Police may approach and question people without implicating the Fourth Amendment, provided the interaction is consensual. State v. Wyman, 197 Ariz. 10, 13, ¶ 7 (App. 2000) (citing Florida v. Bostick, 501 U.S. 429, 434 (1991)); see also State v. Hummons, 227 Ariz. 78, 80, ¶ 7 (2011) ("Law enforcement officers have wide latitude to approach people and engage them in consensual conversation."). An encounter is consensual "[s]o long as a reasonable person would feel free to disregard the police and go about his business." Bostick, 501 U.S. at 434 (citations and quotations omitted). An officer's conduct results in seizure when, "by means of physical force or show of authority," the officer restrains the liberty of the person. INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting Terry, 396 U.S. at 19 n.16). ¶12 Here, the officer did not stop Bustillos' car, display force, draw his weapon, turn on his car's lights, call for backup, or engage in a show of authority that would convert an otherwise consensual encounter into a seizure. Instead, the officer merely approached and asked questions, which Bustillos answered voluntarily. See State v. Watkins, 207 Ariz. 562, 566, ¶ 17 n.5 (App. 2004) ("[P]olice can always request to speak to a citizen. It is the command to stop that renders [a] situation a detention subject to constitutional scrutiny."); see also United States v. Drayton, 536 U.S. 194, 201 (2002) (explaining that, absent coercion, law enforcement officers may pose questions and ask for identification without implicating the Fourth Amendment). No evidence was presented to the superior court to support the conclusion that the initial encounter rose to the level of a seizure. See Wyman, 197 Ariz. at 13, ¶ 8 (no seizure occurred where officer did not draw a gun, physically compel a response, or demand in a “loud and forceful manner” that defendant speak with him. 4 STATE v. BUSTILLOS Decision of the Court ¶13 That Bustillos was in a vehicle does not change this analysis because he was parked at the time the officer approached him. See State v. Robles, 171 Ariz. 441, 443 (App. 1992) (no seizure where defendant parked his car voluntarily and not in response to the police). Thus, Bustillos failed to show fundamental error, and the officer's initial encounter and conversation with Bustillos was consensual. ¶14 The State concedes that this voluntary encounter eventually evolved into a seizure for purposes of the Fourth Amendment when the officer asked Bustillos to step out of his vehicle. See State v. Serna, 235 Ariz. 270, 272, ¶ 10 (2014) (police encounters with citizens are fluid in nature).2 A brief investigatory stop is permissible 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; State v. Blackmore, 186 Ariz. 630, 632-33 (1996) (citing Terry, 392 U.S. at 21). ¶15 Relying upon State v. Stricklin, 191 Ariz. 245 (1996), and Wyman, Bustillos argues the officer lacked reasonable suspicion to conduct an investigatory stop. The Stricklin court found that an officer did not have reasonable suspicion to stop and pat down a suspect because no crime had been reported or observed in the area, the record did not support the officer's contention that the suspect looked like he might be about to commit a crime, and no evidence showed that the officer feared for his safety. Stricklin, 191 Ariz. at 246. In Wyman, the court found no reasonable suspicion for a stop and frisk of two men observed acting nervous outside of a Wal-Mart. 197 Ariz. at 12, ¶¶ 1, 3.3 Because the State makes this concession, we will assume that this was a seizure. But see Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (finding that a suspicionless order to exit a vehicle is a de minimis intrusion that is permissible "when balanced against legitimate concerns for the officer's safety"); State v. Kjolsrud, 239 Ariz. 319, 323, ¶ 13 (App. 2016) ("Law enforcement officers are permitted to remove occupants from a vehicle as a safety precaution."). 2 Whether Wyman and Stricklin continue to be viable precedent in the reasonable suspicion context is unclear. See United States v. Arvizu, 534 U.S. 266, 274 (2002) (rejecting "divide-and-conquer analysis" to facts in support of reasonable suspicion); District of Columbia v. Wesby, --- S. Ct. ---, 2018 WL 491521, at *9 (Jan. 22, 2018) (criticizing lower court for engaging in "excessively technical dissection" of factors supporting innocent 3 5 STATE v. BUSTILLOS Decision of the Court ¶16 The facts in this case are markedly different than those in Wyman and Stricklin, however. Here, the officer was aware of recent rooftop burglaries at the shopping center where Bustillos was parked in the middle of the night in an otherwise empty parking lot. Moreover, once the officer approached, Bustillos appeared nervous, did not make eye contact, and made furtive movements with his hands below the officer's line of sight, which caused the officer to fear for his safety. Considering the totality of the circumstances, the officer had ample evidence to suspect and address possible criminal activity. Though all of these facts, when considered "in a piecemeal fashion from the whole," could be subject to an innocent explanation, the totality of the circumstances supports the superior court's finding that reasonable suspicion justified the investigatory stop. State v. Ramsey, 223 Ariz. 480, 485, ¶ 23 (App. 2010) (citations omitted). II. Miranda Does Not Apply Because Bustillos Was Not In Custody. ¶17 Bustillos next argues that the marijuana and his statements concerning marijuana should have been suppressed because he was interrogated while in custody without being read his Miranda rights. As Bustillos did not object on this ground below, we review only for fundamental, prejudicial error.4 Robles I, 213 Ariz. at 274, ¶ 18. ¶18 "Miranda's procedural safeguards apply only to custodial interrogation." State v. Smith, 193 Ariz. 452, 457, ¶ 18 (1999). Bustillos argues he was in custody when he admitted to possessing marijuana. However, "[n]ot all restraints on freedom of movement amount to custody for purposes of Miranda." Howes v. Fields, 565 U.S. 499, 509 (2012). Instead, once a suspect is not free to leave, "custody" turns upon "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." Id. The relevant factors in this analysis are "the location of the questioning, its duration, statements explanation instead of analyzing the totality of circumstances surrounding arrest). However, because the circumstances surrounding Bustillos' detention are easily distinguished from Wyman and Stricklin, we need not decide whether they continue to accurately reflect current Fourth Amendment jurisprudence. In his Reply in Support of Motion to Suppress Illegally Obtained Evidence filed in the superior court, Bustillos explicitly stated, "The defense is not arguing a Miranda violation here and therefore the State's arguments regarding Miranda are moot." 4 6 STATE v. BUSTILLOS Decision of the Court made during the interview, the presence or absence of physical restraints during the questioning, and whether the interviewee was released at the end of the questioning." State v. Waller, 235 Ariz. 479, 484, ¶ 10 (App. 2014). "[T]he ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Id. (quoting Stansbury v. California, 511 U.S. 318, 322 (1994)). ¶19 The facts do not support Bustillos' contention that he was in custody. First, Bustillos acknowledges there were no objective indicia of arrest. Second, the officer first questioned Bustillos while he was in his vehicle, and then in a public place just outside the vehicle; he was not moved to unfamiliar surroundings. See State v. Maciel, 240 Ariz. 46, 50-51, ¶¶ 18, 21-22 (2016) (noting "investigative stops conducted in public often do not constitute Miranda custody," and finding no custody where defendant was "not questioned in isolation or in unfamiliar surroundings" and "entire encounter occurred in public"); see also Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (holding that persons detained in a traffic stop were not in custody for purposes of Miranda). Third, the length of questioning and form of questions was not beyond what is reasonable to allay the officer's reasonable suspicion that Bustillos was engaged in criminal activity. See State v. Thompson, 146 Ariz. 552, 556 (App. 1985) (finding no Miranda violation where no protracted interrogation took place). Finally, the officer did not accuse Bustillos of participating in criminal activity. Instead, he asked neutral, non-accusatory questions in furtherance of an investigation, which are permissible under Miranda. State v. Pettit, 194 Ariz. 192, 195, ¶ 16 (App. 1998). ¶20 Bustillos argues the officer's use of the word "need" heightened the investigative focus on Bustillos, verifying he was in custody. Further, he argues the word "need" implied the questioning would continue until the officer found something incriminating. This argument is not persuasive, as even a defendant's post-arrest statements are not rendered involuntary by an officer advising or urging him to tell the truth. See State v. Miles, 186 Ariz. 10, 14 (1996) ("Advice to tell the truth, unaccompanied by either a threat or promise, does not make a confession involuntary."). 7 STATE v. BUSTILLOS Decision of the Court ¶21 Bustillos has not met his burden of establishing any error regarding his Miranda rights, much less fundamental error. CONCLUSION ¶22 For the foregoing reasons, we affirm Bustillos' conviction. AMY M. WOOD • Clerk of the Court FILED: AA 8