Opinion
No. 2 CA-CR 2017-0297
09-14-2018
THE STATE OF ARIZONA, Appellee, v. FREDERICO JESUS ESPINOZA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee James L. Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20151139001
The Honorable Kenneth Lee, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee James L. Fullin, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred. EPPICH, Judge:
¶1 Following a jury trial, Frederico Espinoza was convicted of possession of a deadly weapon by a prohibited possessor and sentenced to an enhanced, presumptive term of ten years' imprisonment. He now appeals, arguing the trial court erred by denying his motion to suppress evidence. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We consider only the facts presented at the suppression hearing, see State v. Blackmore, 186 Ariz. 630, 631 (1996), viewing them in the light most favorable to affirming the trial court's ruling, see State v. Adair, 241 Ariz. 58, ¶ 9 (2016). On March 11, 2015, the Tucson Police Department was alerted to a series of criminal incidents occurring in a forty-five minute timespan within "close proximity to each other." The first occurred at 9:22 p.m., when dispatch received a 9-1-1 call in reference to an attempted armed carjacking. The caller described the carjacker as a Hispanic male in his twenties, with a red sweater, and a handgun.
Espinoza filed two motions to suppress evidence obtained as the result of his seizure, both of which were denied by the trial court. Because his appeal appears to involve only the second of those motions, we limit our review to the evidence presented at the second hearing. --------
¶3 Five minutes later dispatch received a second 9-1-1 call, referencing suspicious activity, and ten minutes after that, a third call about "somebody messing with a vehicle at the residence." The final 9-1-1 call came in at 10:07 p.m., alerting police to a "Hispanic or Native American" male, wearing a red or orange shirt, sitting on a generator in the parking lot of a nearby retailer, and playing with a gun.
¶4 When law enforcement officers responded to the parking lot, they encountered Espinoza, a Hispanic male appearing to be in his twenties and wearing a red shirt, who began walking away from the generator as they approached. The officers drew their weapons and ordered Espinoza to the ground, face down, with his hands behind his back. Espinoza complied and was placed in handcuffs. As he was being handcuffed, Espinoza stated he had a gun, which the officers took from his front waistband, and that he was a convicted felon who had just been released from prison. Espinoza was arrested and subsequently indicted for the instant offense.
¶5 Before trial Espinoza moved to suppress all evidence obtained following the stop, arguing the stop was a de facto arrest, and that law enforcement had lacked the requisite probable cause. The trial court denied his motion following the suppression hearing, and he was subsequently convicted and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶6 "We review the denial of a motion to suppress for an abuse of discretion." State v. Manuel, 229 Ariz. 1, ¶ 11 (2011). "An abuse of discretion includes an error of law." State v. Burgett, 226 Ariz. 85, ¶ 1 (App. 2010). "Whether an illegal arrest occurred is a mixed question of fact and law." Blackmore, 186 Ariz. at 632. We thus defer to the trial court's factual determinations, but "review the ultimate question de novo." Id.
¶7 To be lawful, a warrantless arrest of a person must be based on probable cause the person committed a crime. A.R.S. § 13-3883(A). However, "[u]nder Terry v. Ohio, a police officer with a reasonable and articulable suspicion that a person is involved in criminal activity may make a limited investigatory stop." Blackmore, 186 Ariz. at 632-33; see also Terry v. Ohio, 392 U.S. 1, 21 (1968). Reasonable suspicion is "a justifiable suspicion that the particular individual to be detained is involved in criminal activity." State v. Canales, 222 Ariz. 493, ¶ 9 (App. 2009) (quoting State v. Graciano, 134 Ariz. 35, 37 (1982)). A Terry stop is valid if "a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger." Blackmore, 186 Ariz. at 633 (alteration in Blackmore) (quoting Terry, 392 U.S. at 27).
¶8 Espinoza has not challenged the trial court's determination that the information available to law enforcement was sufficient to support a Terry stop. Rather, his sole argument on appeal is that law enforcement ordering him to the ground at gunpoint and handcuffing him "was too excessive to be considered an investigative detention," and was therefore a de facto arrest unsupported by probable cause.
¶9 A valid Terry stop can later become a de facto arrest. State v. Boteo-Flores, 230 Ariz. 105, ¶ 11 (2012). "Although '[t]here is no bright line that distinguishes a valid Terry stop' from a de facto arrest, 'Terry stops must be tailored to fit the exigencies of particular situations. [W]hether the scope of an investigatory stop is reasonable demands careful consideration of the totality of the circumstances.'" Id. ¶ 14 (alterations in Boteo-Flores) (citation omitted) (quoting United States v. Pontoo, 666 F.3d 20, 30 (1st Cir. 2011)). "[I]n assessing the reasonableness of a detention, courts should 'consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.'" Id. ¶ 15 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)). Factors considered in evaluating the propriety of a Terry stop include, but are not limited to: (1) the proximity of the crime and the location of the stop; (2) the amount of time between the crime and the stop; (3) the duration of the stop; (4) the risk of flight by the subject to be detained; and (5) concerns about officer safety. Blackmore, 186 Ariz. at 633-34.
¶10 In Blackmore, a police officer responded to a burglary call where the victims had heard, but not seen, someone leave their residence through an open window leading to an adjacent alleyway. Id. at 631. The officer discovered Blackmore squatting behind a dumpster in the alley, and, at gunpoint, ordered him face down on the ground. Id. Blackmore was handcuffed, searched, and placed in the back of a patrol car, where he was "detained for only a few minutes" while the officer conducted his investigation. Id. at 631, 634. Our supreme court held that this conduct constituted a valid Terry stop that did not rise to the level of a de facto arrest, noting that the officer "detained defendant in a manner sufficient to protect the officer's safety until he had concluded his initial investigation," and explaining "it was reasonably prudent to detain defendant as if he were armed and dangerous" because "[t]he burglary victims had not seen the perpetrator and therefore did not know if he or she was armed." Id. at 634.
¶11 In the instant case, law enforcement had reasonable suspicion to believe that Espinoza, who was reportedly sitting in a parking lot playing with a handgun, was the person who had attempted a carjacking at gunpoint less than an hour earlier, at a location a short distance away. Just as in Blackmore, Espinoza was detained "in a manner sufficient to protect the officer's safety until he had concluded his initial investigation," and that investigation instantly bore fruit, as Espinoza immediately admitted he was in possession of a firearm as a felon who had just been released from prison, giving the officers probable cause to place him under arrest. Id. It was "reasonably prudent to detain [Espinoza] as if he were armed and dangerous," id., and in such circumstances we do not "require[] that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter." Id. (quoting Michigan v. Long, 463 U.S. 1032, 1051 (1983)).
¶12 Law enforcement "must be permitted to take reasonable measures to assure their safety and they should not be expected 'to await the glint of steel' before doing so." Id. (quoting People v. Allen, 538 N.E.2d 323, 324 (N.Y. 1989)). Their use of force in the instant case was "reasonable in order to preserve [their] own safety and to prevent defendant from fleeing." Id. We therefore conclude the investigatory stop was not a de facto arrest, and the trial court did not abuse its discretion in denying Espinoza's motion to suppress.
Disposition
¶13 Espinoza's conviction and sentence are affirmed.