State v. Garcia ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
SHAD PARIS GARCIA, Appellant.
No. 1 CA-CR 14-0580
FILED 11-19-2015
Appeal from the Superior Court in Maricopa County
No. CR2013-430839-001
The Honorable Virginia L. Richter, Judge Pro Tem
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee
Coppersmith Brockelman PLC, Phoenix
By Scott M. Bennett, D. Andrew Gaona
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
STATE v. GARCIA
Decision of the Court
G E M M I L L, Judge:
¶1 Defendant Shad Paris Garcia appeals his convictions and
sentences for one count of possession of dangerous drugs, a class 4 felony,
and one count of possession of drug paraphernalia, a class 6 felony. Garcia
argues that the trial court abused its discretion when it denied his motion
to suppress evidence on the basis that the police had illegally stopped his
vehicle. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On July 1, 2013, two Phoenix Police officers responded to a
call regarding a deceased dog at a residence on North 83rd Drive (“the
residence”). Upon arrival, Officers J.B. and J.T. met with the caller (“A.S.”),
who led both officers to the patio and the deceased dog. According to one
of the officers, A.S. told the officers about a police report he had filed on
June 28, 2013, regarding an altercation that happened while he was walking
the dog. The dog had scratched a small boy, and a man who was with the
boy became angry and pulled a gun on A.S.
¶3 After determining the dog had likely died from heat exposure
and dehydration, the officers returned to their patrol car parked near the
residence and contacted animal control. While the officers were inside their
car, A.S. came outside, pointed at a white car passing by, and told the
officers “that’s the guy who pointed the gun at me.”
¶4 Both officers saw the car A.S. pointed out as it made a right
turn onto 83 Avenue. The car appeared to Officer J.B. to be a white
rd
Cadillac. Although the officers lost sight of the car for approximately 30 to
60 seconds while making a U-turn to follow it, they quickly turned right
onto 83rd Avenue, heading south, and regained sight of what appeared to
be the same car traveling in the same direction. The officers did not see any
other cars nearby that matched the appearance of car they had seen. After
following the car for some distance, the officers got close enough to confirm
it was the car A.S. had pointed out, and Officer J.B. initiated a traffic stop.
After asking Garcia to get out of the vehicle, the officers conducted two
patdown searches to check for weapons. During the second patdown
search, the officers found a sunglasses case containing drug paraphernalia.
¶5 At an evidentiary hearing on Garcia’s suppression motion,
Garcia admitted he drove past the residence on July 1, 2013, saw the police
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STATE v. GARCIA
Decision of the Court
patrol car parked outside, and turned onto 83rd Avenue.1 After the hearing,
the trial court denied the motion and found the officers had reasonable
suspicion to conduct a lawful investigatory stop, because A.S.’s various
statements to the officers gave them an objective basis to believe that a
person in the white car had committed an assault on June 28, 2013.
¶6 Garcia waived his right to a jury trial and, following a bench
trial, the court convicted him of possession of dangerous drugs and
possession of drug paraphernalia. The trial court sentenced Garcia to
concurrent, presumptive sentences of 10 years for possession of dangerous
drugs and 3.75 years for possession of drug paraphernalia. Garcia timely
appeals. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031 and 13-4033.
DISCUSSION
¶7 Garcia argues that the trial court erred when it denied his
motion to suppress evidence based on an illegal stop. Specifically, he
asserts his constitutional rights were violated when the officers conducted
an investigatory stop of his vehicle without a “particularized and objective”
basis establishing reasonable suspicion because: (1) the officers had no
“identifying information” about Garcia’s car; (2) the officers lost sight of the
car for 30 to 60 seconds; and (3) Garcia’s car may not have been the only
white car traveling south on 83rd Avenue at that time. Garcia contends that
because the stop was unlawful, any evidence collected thereafter should
have been suppressed, and his drug-related convictions and sentences
should therefore be vacated.
¶8 Because the question of whether “there is a sufficient legal
basis to justify a stop of a vehicle is a mixed question of fact and law,” we
review de novo a trial court’s decision on a motion to suppress evidence,
and we review the trial court’s factual findings for an abuse of discretion.
State v. Evans, 237 Ariz. 231, 233, ¶6 (2015); see State v. Boteo-Flores, 230 Ariz.
105, 107, ¶11 (2012); State v. Teagle, 217 Ariz. 17, 22, ¶ 19 (App. 2007).
1 The prosecutor used the word “street” in a question that Garcia answered
affirmatively, according to the transcript. But based on the record as a
whole, we conclude it is clear that the prosecutor and Garcia meant 83rd
“Avenue” rather than 83rd “Street.”
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STATE v. GARCIA
Decision of the Court
¶9 The Fourth Amendment to the United States Constitution
provides that “the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated.” U.S. Const. amend IV; Teagle, 217 Ariz. at 22, ¶ 20. Because
an investigatory stop constitutes a seizure, it is protected by the Fourth
Amendment, and under Terry v. Ohio, 392 U.S. 1, 30 (1968), a police officer
may conduct an investigatory stop without probable cause only “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; see also United States v. Hensley, 469 U.S. 221, 229 (1985)
(holding that if the police have “a reasonable suspicion, grounded in
specific and articulable facts, that a person they encounter was involved in
or is wanted in connection with a completed felony, then a Terry stop may
be made to investigate that suspicion.”).
¶10 To determine whether there was reasonable suspicion
justifying a stop, reviewing courts assess law enforcement officers’ actions
based on “the totality of the circumstances—the whole picture” of what
occurred at the scene. United States v. Cortez, 449 U.S. 411, 417 (1981). In so
doing, the court gives consideration “’to the specific reasonable inferences
[that an officer] is entitled to draw from the facts in light of his experience.’”
Evans, 237 Ariz. 231, 234, ¶ 8 (quoting Terry, 392 U.S. at 27). Mere
“unparticularized suspicion[s] or hunch[es]” do not establish reasonable
suspicion, and “officers must derive a particularized and objective basis for
suspecting the particular person stopped of criminal activity.” Evans, 237
Ariz. at 234, ¶ 8 (internal quotations omitted). The reasonableness standard
requires that an officer “exercise common sense to determine whether the
facts justify an objectively reasonable suspicion.” Id. at 235, ¶ 13 (citing
Ornelas v. United States, 517 U.S. 690, 695–96 (1996)).
¶11 In the instant case, the officers who stopped Garcia had a
particularized and objective basis for suspecting that someone in the white
vehicle they stopped had been involved in criminal activity. Garcia does
not dispute that the officers were aware of the previously reported June 28,
2013, incident when A.S. pointed to the white vehicle passing by and yelled
out that the man who had assaulted him was in it. It is also undisputed that
the officers saw the white car A.S. pointed out, and that they saw the same
car turn southbound onto 83rd Avenue before losing sight of it for 30 to 60
seconds. After making a U-turn and then turning south onto 83rd Avenue,
the officers saw the only southbound car on 83rd Avenue in the “immediate
vicinity” that looked like the car A.S. had pointed out; and the officers
initiated the stop only after getting close enough to determine with
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STATE v. GARCIA
Decision of the Court
confidence that it was the same car they had seen initially. Officer J.B.
described it as a “white older boxy vehicle” that “appeared to have the rear
end of a Cadillac.”
¶12 Garcia argues that the officers did not have a particularized
and objective basis for reasonable suspicion because they did not know the
make, model, or license plate number of the vehicle they were looking for
when they first started following the white car on 83rd Avenue. Garcia relies
on State v. Gomez, 198 Ariz. 61, 62, ¶ 3 (App. 2000), in which the court found
that a 9-1-1 call identifying a vehicle engaged in criminal activity by its
“color, make, license plate number” and direction of travel established
reasonable suspicion to initiate a Terry stop. But in this case, those
descriptive details were not essential because the officers themselves saw
the vehicle A.S. had pointed out, and they reasonably believed they had
stopped that same vehicle, based on having seen it previously.
¶13 Finally, the possibility that there could have been other white
cars traveling south on 83rd Avenue does not negate the officers’
particularized and objective basis for suspecting someone in this specific
vehicle of criminal activity. The officers made reasonable inferences in light
of their experience, and the facts available to them at that time supported
an objectively reasonable suspicion based on the totality of the
circumstances.
¶14 Garcia also cites United States v. Jaquez, 421 F.3d 338, 340 (5th
Cir. 2005), to argue that the facts here were insufficient to support
reasonable suspicion. In Jaquez, a dispatcher indicated that a red vehicle
had been involved in an accident approximately 15 minutes earlier, in the
same area where the officer spotted the vehicle she ultimately stopped. 421
F.3d at 341. The court noted that the information about the car’s color, by
itself, was “sparse and broadly generic” and concluded that the information
was “insufficient to support a determination of reasonable suspicion, as
required under Terry” without “any particular information about the
vehicle, such as its make or model, or any description of its occupant(s).”
Id. This case is distinguishable from Jaquez, however. Unlike the dispatcher
in Jaquez who did not see the suspected red vehicle before relaying
information to the officers in the field, A.S. was with the officers when he
saw Garcia pass by and pointed out the white vehicle.
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STATE v. GARCIA
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CONCLUSION
¶15 Because the investigatory stop was supported by reasonable
suspicion, the trial court did not err in denying Garcia’s motion to suppress.
For this reason, we affirm Garcia’s convictions and sentences.
:ama
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