Opinion
1 CA-CR 10-0267
10-04-2011
STATE OF ARIZONA, Appellee, v. CHRISTOPHER JOHN THOMPSON, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Angela Kebric, Assistant Attorney General Attorneys for Appellee Phoenix Stephen M. Johnson, Attorney for Appellant Phoenix
NOTICE: 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
MEMORANDUM DECISION
(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR 2009-116542-004 DT
The Honorable Edward O. Burke, Judge (Retired)
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Angela Kebric, Assistant Attorney General
Attorneys for Appellee
Phoenix
Stephen M. Johnson,
Attorney for Appellant
Phoenix
DOWNIE, Judge
¶1 Christopher John Thompson appeals from the denial of his motion to suppress and from his ensuing conviction. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On March 5, 2009, Detective Benson and other Phoenix police officers conducted surveillance of a suspected drug "stash house." Detective Benson followed a Dodge Charger ("Dodge Charger 1") driven by co-defendant Alfanso Saunders from the alleged stash house to a hotel, where Saunders parked across the street and entered a hotel room. Several people, including Thompson, were seen entering and leaving the room and sharing a cell phone. At one point, two females left the hotel room, crossed the street, and drove away in Dodge Charger 1. Officers followed the vehicle. Saunders then left the hotel room and got into a different Dodge Charger ("Dodge Charger 2"); detectives followed the vehicle, but lost it when Saunders made a u-turn.
¶3 Suspecting that Saunders may have gone back to the hotel, officers returned to the hotel and observed Dodge Charger 2 and two other vehicles leave the hotel parking lot at the same time and follow each other. All of the vehicles were rental cars. Officers stopped Dodge Charger 1 for a traffic violation and found 11 bales of marijuana (approximately 200 pounds) in the trunk. After receiving this information, Detective Benson ordered officers to stop the other caravanning vehicles.
The other two vehicles were a Pontiac and a Dodge Durango. Officers saw Saunders driving the Pontiac earlier that day from the suspected stash house. At that time, officers stopped the Pontiac and found $8000, but no drugs. Saunders and the passenger were released. Officers also recognized the Dodge Durango from earlier in the evening.
¶4 Thompson was driving Dodge Charger 2; co-defendant Ronald Glover was the passenger. Officers handcuffed the two men and sat them on the curb. Officers searched Dodge Charger 2 and found a FedEx package and two suitcases in the trunk, one of which contained a large amount of money. The FedEx package was addressed to Saunders and contained $25,000 in cash.
¶5 Thompson was charged with conspiracy to commit possession of marijuana for sale (count 1), sale or transportation of marijuana (count 2), possession of marijuana for sale (count 3), all class 2 felonies, and money laundering in the second degree (count 4), a class 3 felony. Thompson filed a motion to suppress evidence found in the vehicle, alleging it resulted from an unlawful traffic stop and unlawful search in violation of the Fourth Amendment. After briefing and an evidentiary hearing, the trial court denied the motion, finding the "traffic stops and subsequent vehicle searches and the search of the Fed Ex envelope were lawful."
¶6 After a jury trial, Thompson was convicted on counts 1, 3, and 4. The trial court sentenced him to two mitigated four-year terms of imprisonment on counts 1 and 3, and a mitigated 3.5 year term on count 4, all to run concurrently, with credit for 217 days of presentence incarceration. The trial court also fined Thompson $10,000.
¶7 Thompson filed a timely notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, -4033(A).
DISCUSSION
¶8 When reviewing a ruling on a motion to suppress, we defer to the trial court's factual determinations, but we review de novo its ultimate legal conclusions. State v. Box, 205 Ariz. 492, 495, ¶ 7, 73 P.2d 623, 626 (App. 2003). A trial court's ruling on a suppression motion will not be reversed on appeal absent clear and manifest error. State v. Gulbrandson, 184 Ariz. 46, 57, 906 P.2d 579, 590 (1995); see also State v. Jones, 203 Ariz. 1, 5, ¶ 8, 49 P.3d 273, 277 (2002) (clear and manifest error "is really shorthand for abuse of discretion"). The appellate court views the facts in the light most favorable to sustaining the trial court's ruling. State v. Stanley, 167 Ariz. 519, 525, 809 P.2d 944, 950 (1991); State v. Swanson, 172 Ariz. 579, 582, 838 P.2d 1340, 1343 (App. 1992). In reviewing the denial of a suppression motion, "we consider only the evidence presented at the suppression hearing and we view that evidence and reasonable inferences therefrom in the light most favorable to upholding the court's ruling." State v. May, 210 Ariz. 452, 454, ¶ 4, 112 P.3d 39, 41 (App. 2005).
I. Investigatory Stop: Reasonable Suspicion
¶9 The Fourth Amendment forbids unreasonable searches and seizures. U.S. Const. amend. IV; see also Terry v. Ohio, 392 U.S. 1, 9 (1968). Under the Fourth Amendment, an investigatory stop is permissible if supported by reasonable suspicion of criminal activity. State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996) (citations omitted). Evidence derived from an investigatory stop that is not based on reasonable suspicion is "fruit of the poisonous tree" and must be suppressed. State v. Richcreek, 187 Ariz. 501, 506, 930 P.3d
Searches without a warrant are "per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967).
1304, 1309 (1997) (citation omitted).
¶10 "[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." State v. Teagle, 217 Ariz. 17, 22-23, ¶ 20, 170 P.3d 266, 271-72 (App. 2007). Reasonable suspicion is a lower standard than probable cause. State v. Ramsey, 223 Ariz. 480, 484, ¶¶ 17-18, 224 P.3d 977, 981 (App. 2010) (citations omitted). In determining whether reasonable suspicion exists, we consider "such objective factors as the suspect's conduct and appearance, location, and surrounding circumstances, such as the time of day, and taking into account the officer's relevant experience, training, and knowledge." State v. Fornof, 218 Ariz. 74, 76, ¶ 6, 179 P.3d 954, 956 (App. 2008) (citations omitted); see also United States v. Arvizu, 534 U.S. 266, 273 (2002) (reasonable suspicion is based on the totality of the circumstances such that officers can demonstrate "a 'particularized and objective basis' for suspecting legal wrongdoing") (citation omitted).
¶11 In this case, the totality of circumstances gave rise to reasonable suspicion that the occupants of Dodge Charger 2, which Thompson was driving, were involved in illegal drug trafficking. Detective Benson, who had worked in narcotics for roughly seven years and investigated over 100 illegal drug cases, testified that characteristics of drug trafficking organizations generally include: (1) the involvement of multiple individuals with various roles; (2) the use of rental cars; and (3) large amounts of cash.
¶12 The detective knew co-defendant Saunders had been stopped after leaving the suspected stash house and that officers had found $8000 in the Pontiac. Later that day, detectives saw Saunders again at the suspected stash house, but in a different rental vehicle, Dodge Charger 1. Officers followed Saunders from the stash house to the hotel, where they observed more suspicious behavior. First, Saunders parked in a commercial parking lot across the street from the hotel, even though the hotel had available parking spaces. Next, two women seen with Saunders left the hotel, crossed the street, and drove away in Dodge Charger 1. Saunders left in his third rental vehicle of the day, Dodge Charger 2. See State v. O'Meara, 198 Ariz. 294, 296, ¶¶ 11-12, 9 P.3d 325, 327 (2000) (looking at the totality of the circumstances in evaluating reasonable suspicion and determining multiple car switching among other suspicious behavior creates reasonable suspicion). After officers found 11 bales of marijuana in Dodge Charger 1, they stopped the three caravanning vehicles, which included the Pontiac and Dodge Charger 2, both of which Saunders had driven earlier that day.
¶13 The fact that officers did not expressly identify Thompson as being involved in illegal activity earlier does not negate their reasonable suspicion that the car he was driving was involved in drug trafficking. Detective Benson testified that individuals involved in such activities typically do not include "non-participants" or people "just riding along for the fun of it." Additionally, officers had seen Thompson earlier that day in the hotel room used by the co-defendants.
¶14 Although Detective Benson did not personally stop Dodge Charger 2, reasonable suspicion established by the collective knowledge of all law enforcement personnel involved made this a lawful investigatory stop. See State v. Chavez-Inzunza, 145 Ariz. 362, 364, 701 P.2d 858, 860 (App. 1985) (officers could stop defendants under collective knowledge doctrine even when information was relayed by radio) (citations omitted); see also United States v. Sutton, 794 F.2d 1415, 1426
(9th Cir. 1986) (even if all of the information known to the law enforcement officers is not communicated to the officer who actually makes the stop, the court still looks to the collective knowledge of all the officers in the criminal investigation) (citation omitted).
II. Automobile Exception: Probable Cause
¶15 We next consider whether the officers had probable cause to search Dodge Charger 2. During an investigatory stop, officers may conduct a warrantless search of every part of the vehicle that might contain the object of the search, if they have probable cause to believe the vehicle contains contraband. See United States v. Ross, 456 U.S. 798, 807 n.9 (1982) (a warrantless search of a vehicle suspected of containing contraband is lawful because vehicles have a lowered expectation of privacy); Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009) ("If there is probable cause to believe a vehicle contains evidence of criminal activity," officers may search "any area of the vehicle in which the evidence might be found") (internal citation omitted); see also United States v. Johns, 469 U.S. 478, 484 (1985) (a search does not need to be contemporaneous with the vehicle's seizure so long as probable cause exists); State v. Reyna, 205 Ariz. 374, 378, ¶ 16, 71 P.3d 366, 370 (App. 2003) (because Article 2, Section 8, of the Arizona Constitution does not grant greater privacy rights concerning the automobile exception, exigent circumstances are not needed to authorize a warrantless search where probable cause exists).
¶16 Probable cause exists when, under the totality of circumstances, a reasonable person could believe there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). Here, there was probable cause to search Dodge Charger 2. Officers had already discovered a large quantity of marijuana in Dodge Charger 1 and substantial sums of cash in the Pontiac used by the same group of people. Viewing the totality of circumstances, it was reasonable to believe a search of Dodge Charger 2 would also reveal drugs and/or drug-related proceeds. Because officers had probable cause to search the car, they could also search items that could contain evidence of the crime, see Ross, 456 U.S. at 820-21, such as the suitcases and the FedEx envelope. Detective Benson testified that marijuana is often transported in vehicles and "parcel[s] through the mail."
CONCLUSION
Thompson also argued the search was unreasonable because it was an invalid search incident to arrest. Because the officers properly searched the vehicle under the automobile exception, we do not need to address whether other grounds existed for the warrantless search.
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¶17 We affirm the denial of Thompson's suppression motion and his ensuing conviction.
MARGARET H. DOWNIE,
Presiding Judge
CONCURRING:
PETER B. SWANN, Judge
DONN KESSLER, Judge