Opinion
No. 2 CA-CR 2019-0165
04-28-2020
THE STATE OF ARIZONA, Appellee, v. ADAM ROBERT NUNEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Harriette P. Levitt, 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201800308
The Honorable Jason R. Holmberg, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. EPPICH, Presiding Judge:
¶1 Adam Nunez appeals from his convictions for possession of methamphetamine and drug paraphernalia. He argues that evidence against him should have been suppressed because it was discovered only after the arresting officer improperly extended a traffic stop by investigating him for other, unrelated criminal activity without any reasonable suspicion. He also contends that his consent to the search was not voluntary. We affirm.
Factual and Procedural Background
¶2 In reviewing a trial court's denial of a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing it in the light most favorable to upholding the trial court's ruling. State v. Blakley, 226 Ariz. 25, ¶ 5 (App. 2010). Late one February night in 2018, a Pinal County Sheriff's Office deputy on patrol in Casa Grande saw Nunez walking in the right lane of a poorly lit street, in apparent violation of A.R.S. § 28-796(B). The deputy activated his emergency lights and stopped Nunez for the perceived offense. After advising Nunez of the reason for the stop and obtaining his identification, the deputy checked Nunez's status and learned that although Nunez had no outstanding warrants, he was suspected of being a new member of a criminal gang.
¶3 The deputy returned to Nunez and asked him two questions about whether he was affiliated with the gang. The deputy then returned Nunez's identification and asked if he would consent to a search. Nunez said yes and turned away from the deputy, raising his arms out from his sides. The deputy started his search of Nunez's person from the top down; when the deputy checked Nunez's back pocket and started moving to the front, Nunez said, "Whoa." The deputy stopped and asked Nunez for his consent to continue the search, and Nunez again said yes and remained with his arms out to his sides. The deputy resumed the search and found a bag of methamphetamine in Nunez's front pants pocket. He then placed Nunez under arrest.
The deputy did not issue Nunez a written warning or citation for the offense. He could not recall if he gave Nunez a verbal warning but testified that it was his usual practice to do so when he returned a detainee's identification.
¶4 After being charged with the above-noted drug offenses, Nunez filed a motion to suppress, arguing among other things that the officer had illegally stopped him, unlawfully prolonged the stop, and failed to obtain knowing, intelligent, and voluntary consent for the search. After an evidentiary hearing at which the arresting deputy testified, the trial court denied the motion, finding the deputy was credible, Nunez had been in the road, the questions the deputy had asked were reasonable given the information he had received concerning Nunez's possible gang affiliation, and the deputy had carefully verified that he had been given consent to search.
¶5 Following a two-day trial, a jury found Nunez guilty of possession of methamphetamine and paraphernalia. The trial court imposed ten years' imprisonment for the methamphetamine conviction, and a shorter, concurrent sentence for the paraphernalia conviction. Nunez timely appealed. We have jurisdiction under A.R.S. §§ 13-4031 and 13-4033(A)(1).
Discussion
¶6 Nunez concedes on appeal that the deputy legally stopped him, but argues the deputy unlawfully prolonged the stop by questioning him about his gang affiliation. Nunez maintains he was not free to leave when the deputy asked for his consent to the search and therefore his acquiescence was not voluntary. We review a trial court's ruling on a motion to suppress for abuse of discretion, but review purely legal and constitutional issues de novo. State v. Klos, 248 Ariz. 40, ¶ 10 (App. 2019). In reviewing a denial of a motion to suppress, we draw all reasonable inferences in favor of upholding the court's factual determinations. State v. Rojers, 216 Ariz. 555, ¶ 17 (App. 2007). We defer to the court's factual findings, Klos, 248 Ariz. 40, ¶ 10, and to its determination of an officer's credibility, State v. Mendoza-Ruiz, 225 Ariz. 473, ¶ 6 (App. 2010).
¶7 The Fourth Amendment and article II, § 8 of the Arizona Constitution prohibit unreasonable searches and seizures. State v. Allen, 216 Ariz. 320, ¶ 9 (App. 2007). Generally, a seizure via a traffic stop "is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810 (1996). Yet a traffic stop is more analogous to a Terry stop—which is based on mere reasonable suspicion—than a formal arrest based on probable cause. Rodriguez v. United States, 575 U.S. 348, 354 (2015); see Terry v. Ohio, 392 U.S. 1, 10-11, 30-31 (1968). A traffic stop may last no longer than to achieve its mission: to address the traffic violation that warranted the stop and to address any related safety concerns. Rodriguez, 575 U.S. at 354. Normally, a stop ends when the officer no longer needs to control the scene and informs the detainee he or she is free to leave. Arizona v. Johnson, 555 U.S. 323, 333 (2009).
Nunez mentions article II, § 8 in his brief but does not develop an argument under that provision independent of his argument under the Fourth Amendment. We therefore do not separately address the issues here under article II, § 8. See State v. Fisher, 226 Ariz. 563, n.3 (2011).
¶8 During a traffic stop, an officer may check the person's identification and determine if outstanding warrants exist. Rodriguez, 575 U.S. at 355. The officer may also ask questions unrelated to the stop, as long as the unrelated inquiries "do not measurably extend the duration of the stop." Id. (quoting Johnson, 555 U.S. at 333); see, e.g., Johnson, 555 U.S. at 327-28, 333-34 (investigation into detainee's gang affiliation, though unrelated to reason for stop, permissible where stop not prolonged). Also, a police officer may generally ask the detained person for consent to a search. See, e.g., United States v. Bernard, 927 F.3d 799, 805 (4th Cir. 2019) (police "can extend the duration of a routine traffic stop . . . if the driver gives consent"); United States v. Bracamontes, 614 F.3d 813, 816 (8th Cir. 2010) (during traffic stop, officer may ask detained motorist "routine questions such as the destination, route, and purpose of the trip, and whether the officer may search the vehicle"); see also generally Florida v. Bostick, 501 U.S. 429, 434-35 (1991) (police may generally ask for consent to search even when no basis exists to suspect person "as long as [they] do not convey a message that compliance with their requests is required"). Some courts have indicated, however, that an officer may not request permission to search after routine tasks associated with the stop have been completed, because such a request measurably extends the detention. See, e.g., United States v. Herrera, 733 F. App'x 821, 825 (6th Cir. 2018) (consent for search validly obtained because request occurred before record check completed and thus length of detention was not measurably extended); United States v. Nguyen, 553 F. App'x 391, 392 (5th Cir. 2014) (consent for search validly obtained because computer checks and citation writing had not yet been completed); State v. Scarberry, 72 N.E.3d 173, ¶¶ 38-39 (Ohio Ct. App. 2016) (consent invalid where sought after detainee was told he was free to go).
¶9 Finally, because a traffic stop is "especially fraught with danger to police officers," Rodriguez, 575 U.S. at 356 (quoting Johnson, 555 U.S. at 330), an officer may "take certain negligibly burdensome precautions in order to complete his mission safely." Id. In the circumstances here, the deputy was permitted to ask Nunez the two questions about his gang affiliation to protect himself. See United States v. Cone, 868 F.3d 1150, 1153 (10th Cir. 2017) ("If running a computer check of a driver's criminal history is justifiable as a 'negligibly burdensome' inquiry useful for officer safety, we fail to see how asking the driver about that history could be unreasonable under the Fourth Amendment."). The encounter was at night in a poorly lit area, and the deputy had just learned that Nunez was possibly a member of a criminal gang, justifying the minimal burden of brief questioning to better assess any possible threat posed by Nunez. See id. at 1153-54 (information relevant to safety may be gleaned from nervous or evasive response to question about prior criminal history). Although the questions may also have served a crime-investigation purpose, the existence of that alternate purpose did not extend the stop, and therefore no Fourth Amendment violation occurred. See Rodriguez, 575 U.S. at 355. Even if the officer's subjective intent for the questions was solely to investigate unrelated crime—as Nunez suggests, pointing out that the deputy was on a gang unit—no Fourth Amendment violation occurred, as we view the officer's actions objectively without considering any subjective intent. See Ohio v. Robinette, 519 U.S. 33, 38 (1996).
¶10 Likewise, taking a few seconds to ask Nunez for permission to search him was justifiable as a safety measure in these circumstances, as it provided a means of discovering whether Nunez was armed. See United States v. Palmer, 820 F.3d 640, 651 (4th Cir. 2016) (officer may take negligibly burdensome precautions "to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him" (quoting Terry, 392 U.S. at 23)). Indeed, Nunez concedes that "[a] search for weapons might have been logical given the suspicion of gang affiliation." Although the request occurred near the end of the stop, the precaution of requesting a search was still justifiable, as the officer was still at risk. See State v. Brown, 931 N.W.2d 890, ¶¶ 23-24 (Wis. Ct. App. 2019) (detainee's criminal history supported request for consent to search near the end of traffic stop because "risks remained while [the officer] returned to his vehicle"). Again, because the circumstances permitted the deputy to ask to search Nunez as a safety measure, any alternate crime-investigation purpose for the question did not prolong the stop. See Robinette, 519 U.S. at 38; Brown, 931 N.W.2d 890, ¶ 23 (where request for consent to search justifiable as negligibly burdensome safety measure, officer's subjective intent to uncover unrelated criminal conduct during search generally irrelevant). Because the stop was not prolonged by the question, no Fourth Amendment violation occurred. See Rodriguez, 575 U.S. at 355.
¶11 Finally, we reject Nunez's contention that his consent was involuntary because he was not free to leave when the deputy asked to search him. Police need not necessarily inform a detainee that he is free to leave before requesting consent to perform a search. See Robinette, 519 U.S. at 39-40 ("[I]t [would] be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary."). Rather, whether consent to a search is voluntary is evaluated under the totality of circumstances. Id. at 40. Consent is voluntary "if it was 'the product of an essentially free and unconstrained choice by its maker,' rather than 'the product of duress or coercion, express or implied.'" United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 227 (1973)).
¶12 Here, various circumstances indicate voluntary consent. Nunez's detention was brief—only about ten minutes passed from the beginning of the stop to the discovery of the drugs—and Nunez was only subjected to very brief questioning before permission for the search was sought. See Bustamonte, 412 U.S. at 226 ("length of detention" a factor in determining voluntariness); United States v. Calvetti, 836 F.3d 654, 664 (6th Cir. 2016) (consent valid where defendant subjected to only "relatively short length of questioning" before consent obtained). Nunez was not handcuffed nor held at gunpoint, and the deputy did not threaten Nunez or promise him anything. See State v. Angulo-Chavez, 247 Ariz. 255, ¶ 9 (App. 2019) (consent voluntary where "[t]here was no suggestion that the officer threatened, intimidated, or coerced" defendant). Finally, the deputy had returned Nunez's identification, an indication that the stop would soon conclude. Cf. Robinette, 519 U.S. at 35-36, 39-40 (1996) (reversing lower court's ruling of involuntariness where consent obtained after detainee's identification returned but before detainee told he was free to leave).
Though Nunez disputed this and other aspects of the deputy's testimony, we defer to the trial court's finding that the deputy was credible. See Mendoza-Ruiz, 225 Ariz. 473, ¶ 6. --------
¶13 In sum, the deputy did not impermissibly prolong the stop and obtained valid consent to search Nunez. The trial court did not err in denying Nunez's motion to suppress.
Disposition
¶14 We affirm Nunez's convictions and sentences.