Opinion
2 CA-CR 2011-0221
12-21-2012
THE STATE OF ARIZONA, Appellee, v. DAVID LORENZO PEREZ, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Diane Leigh Hunt Attorneys for Appellee Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin Attorneys for Appellant
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Not for Publication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 Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20102365001
Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and Diane Leigh Hunt
Tucson
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin
Tucson
Attorneys for Appellant
ESPINOSA, Judge. ¶1 David Perez appeals his conviction following a jury trial of possessing a dangerous weapon while being a prohibited possessor and his enhanced, mitigated eight-year prison sentence. He challenges the trial court's ruling on his motion to suppress the handgun on the ground it was obtained pursuant to an illegal seizure. For the reasons set forth below, we affirm.
Factual Background and Procedural History
¶2 We consider only the evidence presented at the suppression hearing, viewing the facts in the light most favorable to upholding the ruling. State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App. 2007). While on patrol in late June 2011, Marana Police Department officer Neal Jordan noticed Perez sitting in the back seat of a vehicle parked in a retail parking lot. Perez was smoking and his feet were hanging out the open rear door. Jordan ran a records search of the license plate number and learned the car previously had been involved in a narcotics investigation. Jordan approached Perez and asked him why he was sitting in the car in such hot temperatures, and Perez responded that he was waiting for friends who were in the store. Jordan engaged Perez in some small talk about the upcoming holiday, and noticed that Perez became "more and more nervous," rubbing his head, removing his hat, and glancing toward the store. When Jordan asked him about his behavior, Perez repeated he was "just waiting for his friends inside," and Jordan reassured him they were "just having a conversation." At one point, Perez offered, "I haven't done anything wrong, Officer," and Jordan agreed. Jordan then asked "if there was a reason why [he was] so nervous" and when Perez did not immediately answer, asked if he had any outstanding warrants. He replied, "Yeah, I believe I have a warrant for driving on a suspended license." Jordan then asked if there were any weapons in the vehicle, to which Perez responded that there was a gun and gestured toward the floorboard of the car. Jordan asked Perez to exit the car, patted him down, and found an automotive tool in his back pocket. Perez then offered, "It's not in the car, it's on me," whereupon Jordan located a holstered gun under Perez's shirt. Backup officers arrived, a records check revealed a valid warrant under Perez's name, and he was arrested. ¶3 Before trial, Perez moved to suppress the handgun based on a violation of the Fourth Amendment and article II, § 8 of the Arizona Constitution. Jordan's testimony at the suppression hearing was uncontested and the trial court relied on Florida v. Bostick, 501 U.S. 429 (1991), to find there was no evidence Jordan had conveyed to Perez either by physical force or a show of authority that he was required to answer his questions. The court denied the motion, concluding the initial encounter had been consensual and became a seizure only after Perez admitted an outstanding warrant. Perez was tried and convicted as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
Warrantless Seizure ¶4 Perez contends the trial court erred in denying his motion to suppress the handgun, arguing Jordan's persistent questioning converted the consensual encounter into a warrantless seizure because no reasonable person would have felt free to conceal his warrant status in the face of such questioning. In reviewing the court's ruling, we defer to its factual findings unless clearly erroneous, including findings on credibility and the reasonableness of the inferences drawn by the officer. State v. Garcia, 224 Ariz. 1, ¶ 6, 226 P.3d 370, 376 (2010); Teagle, 217 Ariz. 17, ¶ 19, 170 P.3d at 271. "We review de novo mixed questions of law and fact and the trial court's ultimate legal conclusions" as to whether a seizure occurred. Teagle, 217 Ariz. 17, ¶ 19, 170 P.3d at 271; see In re Maricopa Cnty. Juv. Action No. JT30243, 186 Ariz. 213, 216, 920 P.2d 779, 782 (App. 1996) (whether seizure has occurred is mixed question of law and fact). ¶5 "Law enforcement officers have wide latitude to approach people and engage them in consensual conversation." State v. Hummons, 227 Ariz. 78, ¶ 7, 253 P.3d 275, 277 (2011). A police stop constitutes a seizure only when "by means of physical force or a show of authority, [a person's] freedom of movement is restrained," and "a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 553, 554 (1980). The inquiry does not vary with the state of mind of the suspect, and presumes a reasonable, innocent person. Maricopa Cnty. No. JT30243, 186 Ariz. at 217, 920 P.2d at 783; see also State v. Winegar, 147 Ariz. 440, 448, 711 P.2d 579, 587 (1985). ¶6 Perez asserts the conversation was not consensual because he "had no meaningful opportunity to walk away" while waiting for his friends to exit the store. Where, as here, it is argued freedom of movement was restricted by a factor independent of police conduct, the appropriate inquiry is "whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Bostick, 501 U.S. at 437, quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988); State v. Wyman, 197 Ariz. 10, ¶ 7, 3 P.3d 392, 395 (App. 2000). Asking questions and requesting consent to search does not constitute a seizure unless an officer "convey[s] a message that compliance with [his] requests is required." Bostick, 501 U.S. at 437. ¶7 Perez argues that the conversation became a seizure because Jordan used a "command[ing]," "demanding" demeanor to determine Perez's warrant status, and he felt "captive" and "uncomfortable." He asserts that "no reasonable person in [his] position would have felt free to not answer Officer Jordan's directive to divulge his warrant status," citing United States v. Williams, 615 F.3d 657 (6th Cir. 2010) (encounter not consensual when two uniformed officers approached suspect and immediately accused him of committing crime). ¶8 Although an officer's language and tone are factors that might indicate there has been a seizure, we must determine if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 554. The test is therefore an objective one, and Perez's claimed belief that he was not free to leave or decline to answer questions did not convert a casual encounter to a seizure. See Winegar, 147 Ariz. at 448, 711 P.2d at 587; see also Maricopa Cnty. No. JT30243, 186 Ariz. at 217, 920 P.2d at 783 ("arrested" as used in Winegar equivalent to "seized" as used in Mendenhall). So too, Jordan's testimony that Perez was free to leave until he admitted his warrant status, is likewise irrelevant to our analysis. See id. ¶9 At the suppression hearing, Jordan testified he stood "a little bit back" from the car while asking Perez why he was "being so nervous," whether he had any outstanding warrants, whether there were any weapons in the vehicle, and what kind. There is no evidence that Jordan displayed his gun, raised his voice, threatened Perez, or employed a commanding demeanor. His testimony was not controverted and supports the trial court's conclusion that Jordan did not order Perez to answer his questions or intimate that compliance was required. See Bostick, 501 U.S. at 437 (no seizure supported by, inter alia, lack of threats or pointing gun by officer); see also Wyman, 197 Ariz. 10, ¶¶ 3, 8, 197 Ariz. at 12, 13 (officer's initial request to speak with suspects consensual where he did not draw gun, physically compel response, or make demand but became seizure when officer "yelled" and repeated request after suspects continued walking away). ¶10 Perez further maintains that his conversation with Jordan was not consensual because he expressed his desire not to cooperate but the officer "ignored his clear signals to end the conversation," including his visible nervousness and irritation, unwillingness to tell the officer why he was nervous, and avoidance of the officer's question by answering, "I haven't done anything wrong." Nervousness and avoidance, however, do not constitute an "unequivocal expression" conveying an unwillingness to cooperate with police questioning. Cf. Morgan v. Woessner, 997 F.2d 1244, 1251, 1253 & n.5 (9th Cir. 1993) (defendant demonstrated unwillingness to comply with officer's requests by refusing to provide identification, stating he had not done anything, yelling at officer, resisting officer's request to accompany him to another location, gesturing wildly, and shouting "help"); Wyman, 197 Ariz. 10, ¶¶ 8, 12, 3 P.3d at 395, 396 (suspect demonstrated unwillingness to cooperate by walking away when officer asked to speak with him). ¶11 Perez also claims the encounter was compelled because Jordan did not inform him he could leave. But Perez cites no authority suggesting an officer has a duty to inform a defendant he need not remain or cooperate; to the contrary, the Supreme Court has concluded that a suspect's responses may be voluntary based on the totality of the circumstances, even if the suspect was not specifically informed of the right to decline to cooperate with police inquiries. Mendenhall, 446 U.S. at 555. ¶12 On this record, the trial court could conclude a reasonable person would not have believed Jordan's behavior and questioning compelled obedience or restricted his movement. Perez's argument that any reasonable person in his position would have felt compelled to divulge his warrant status is inapposite because the appropriate analysis presupposes a reasonable, innocent person with no outstanding warrants. See Bostick, 501 U.S. at 437-38 (rejecting similar argument); see also Maricopa Cnty. No. JT30243, 186 Ariz. at 217, 920 P.2d at 783 (seizure determination involves evaluation of all surrounding circumstances from objective view of reasonable person "'innocent of any crime'"), quoting Winegar, 147 Ariz. at 448, 711 P.2d at 587. Jordan did not stand over Perez or order him to answer his questions, and did not use any show of force to pressure Perez into disclosing the warrant and weapon. Indeed, it would appear he attempted to allay Perez's anxiety by assuring him they simply were having a casual conversation. Based upon the totality of the facts as found by the trial court, Jordan's questioning of Perez did not amount to a seizure. Cf. Winegar, 147 Ariz. at 448, 711 P.2d at 587 (defendant seized when police surrounded her, ordered her to step away from her companion, frisked her companion, and directed her to accompany them across the street for further questioning); Wyman, 197 Ariz. 10, ¶ 13, 3 P.3d at 396-97 (defendant seized when he "finally complied with the officer's shouting and went to talk to him at the patrol car"). Reasonable Suspicion ¶13 Perez argues that, even after he admitted, "I believe I have a warrant for driving on a suspended license," Jordan lacked reasonable grounds to detain and frisk him. Perez did not make this argument below; therefore, he has forfeited the right to seek relief for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error). ¶14 Fundamental error is that "'going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Id. ¶ 19, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). Perez is entitled to relief only if he establishes that an error occurred, the error was fundamental, and the error caused him prejudice. See id. ¶¶ 19-20. ¶15 Reasonable suspicion that a person is wanted in connection with a completed felony has been held to justify a brief stop. State v. Kinney, 225 Ariz. 550, ¶ 14, 241 P.3d 914, 919 (App. 2010). And a citizen's tip that an individual has an outstanding arrest warrant is enough to give rise to reasonable suspicion. See id. ¶ 15. In the case of a tip, police officers may detain a person only long enough to verify the existence of a warrant. Id. ¶ 18. ¶16 Perez asserts a valid warrant was necessary to ask questions and conduct a brief frisk, or, alternatively, that Jordan "abdicated" the ability to investigate Perez's warrant status because Perez's verbal admission did not constitute a valid warrant authorizing his arrest and no warrant check was run until after the gun had been found. Both claims lack merit. First, a valid warrant is not a prerequisite for reasonable suspicion for a brief stop and further investigation. See id. After Perez admitted the outstanding warrant, Jordan did not place him under arrest immediately, but properly conducted further investigation. See id. ¶ 14. Second, there is no evidence that Perez's detention, while the warrant was verified, was unreasonable. See State v. Blackmore, 186 Ariz. 630, 633, 925 P.2d 1347, 1350 (1996) (propriety of investigative stop supported by short duration, among other considerations); cf. Kinney, 225 Ariz. 550, ¶ 18, 241 P.3d 914, 920 (App. 2010) (detention lasted "much longer" than necessary to confirm warrant and was therefore illegal). Once Jordan learned of the possible warrant and weapon, he ordered Perez to step out of the car for safety purposes, frisked him, found a weapon on his person, and waited for backup to arrive before conducting a records check. ¶17 We conclude Perez has failed to carry his burden to show error, let alone fundamental error. See Henderson, 210 Ariz. 561, ¶¶ 23-24, 115 P.3d at 608. In response to Perez's admission to the outstanding warrant, Jordan inquired whether he had weapons, and when Perez said he did, only then did the officer ask him to step out of the car "to separate him from that gun." Perez's admission to the warrant permitted Jordan to investigate further, see Kinney, 225 Ariz. 550, ¶ 18, 241 P.3d at 920, and his admission to possessing a weapon provided reasonable suspicion that he was armed, therefore authorizing Jordan to conduct the frisk. See In re Roy L., 197 Ariz. 441, ¶ 16, 4 P.3d 984, 989 (App. 2000) (suspect's admission that he carried weapon justified frisk); see also State v. Aguirre, 130 Ariz. 54, 56, 633 P.2d 1047, 1049 (App. 1981) (frisk reasonable for protection of investigating officer, although suspect's behavior not threatening). Perez is therefore not entitled to relief under a fundamental error review.
Hummons, 227 Ariz. 78, ¶ 13, 253 P.3d at 278, upon which Perez relies, is distinguishable because Jordan's post-arrest verification of a valid, outstanding warrant was not justification for the seizure; instead, Perez's admission to an outstanding warrant and possession of a firearm prompted and justified the pat-down, and there was no evidence Jordan's initial, consensual conversation with Perez was pretextual.
Perez has withdrawn his alternative argument, not raised below, that the weapon should be suppressed because the safety frisk was unwarranted under In re Ilono H., 210 Ariz. 473, 113 P.3d 696 (App. 2005) (officer may conduct limited search for weapons if reason to believe suspect armed and dangerous). We therefore do not address it.
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Disposition
¶18 Based on the foregoing, Perez's conviction and sentence are affirmed.
_________________
PHILIP G. ESPINOSA, Judge
CONCURRING: _________________
GARYE L. VÁSQUEZ, Presiding Judge
_________________
VIRGINIA C. KELLY, Judge