State v. Condiff ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KIMBERLY CONDIFF, Appellant.
No. 1 CA-CR 14-0842
FILED 12-15-2015
Appeal from the Superior Court in Maricopa County
No. CR2014-102802-001
The Honorable Peter C. Reinstein, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Louise Stark
Counsel for Appellant
STATE v. CONDIFF
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in which
Judges Andrew W. Gould and Patricia K. Norris joined.
K E S S L E R, Judge:
¶1 Appellant Kimberly Condiff (“Condiff”) was tried and
convicted of false reporting to a law enforcement agency, a class 1
misdemeanor; possession or use of a dangerous drug, a class 4 felony; and
possession of drug paraphernalia, a class 6 felony. Condiff challenges the
trial court’s partial denial of her motion to suppress statements she made to
police and the search of her fanny pack. For the reasons stated below we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 At approximately 9:00 p.m. on January 16, 2014, police
officers C and P (collectively, the “Officers”) were on routine patrol in an
area known for drug activity and violent crime. They wore uniforms and
drove a marked patrol car. The Officers observed Condiff walking alone,
pulled up alongside the sidewalk where she was walking, and asked if she
was willing to speak with them. She said yes. The Officers asked Condiff
for her identifying information, and she provided a false name and
birthdate. Officer P ran a warrant check using the information Condiff
provided, then returned to where Condiff and Officer C were standing and
asked Condiff to respell her name. Condiff provided a different spelling
than she had originally provided. According to Officer C, while Officer P
went back to the patrol car, Officer C asked Condiff if she had any weapons.
Officer C testified that Officer P then came back a second time and said
Condiff’s identifying information did not show up in the system, and
Condiff then attempted to walk away from the Officers. Officer C walked
alongside Condiff as she attempted to walk away and asked her whether
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STATE v. CONDIFF
Decision of the Court
she had any weapons or drugs.1 She initially said no, then admitted she
had a drug pipe that did not belong to her. Officer C then stepped in front
of Condiff, putting his arm out to stop her, and the Officers arrested Condiff
for providing a false name. The Officers searched Condiff’s fanny pack
where they found methamphetamine and drug paraphernalia. The Officers
learned Condiff’s real name when they dropped Condiff’s possessions off
at her aunt’s house after the arrest.
¶3 The State charged Condiff with Count 1: false reporting to law
enforcement agency, a class 1 misdemeanor; Count 2: possession or use of
dangerous drugs, a class 4 felony; and Count 3: possession of drug
paraphernalia, a class 6 felony. Condiff plead not guilty to all charges and
moved to suppress evidence discovered as the result of an illegal stop. The
trial court granted Condiff’s motion in part, excluding any statements
Condiff made after being detained but before being advised of her rights
under Miranda.2 The court also found, however, that the first contact
between law enforcement and Condiff was consensual; that reasonable
suspicion and possible probable cause of an Arizona Revised Statutes
(“A.R.S.”) section 13-2907.01 (2010) violation existed after the Officers could
not find Condiff’s identifying information and she began to walk away;
and that discovery of the drugs and drug paraphernalia was not fruit of the
poisonous tree because the discovery was inevitable following the arrest for
the false information charge.
¶4 A jury found Condiff guilty of all three counts. The trial court
suspended imposition or execution of sentence and placed Condiff on
probation for one year for Count 1 and two years for Counts 2 and 3. It
required that probation for all three counts run concurrently.
¶5 Condiff timely appealed. We have jurisdiction pursuant to
A.R.S. § 13-4033(A)(1) (2010).
1 The Officers provided conflicting testimony as to whether Officer C
stopped Condiff before asking her about drugs and the number of times
Officer P ran a warrant check using the information Condiff provided. We
review the facts in the light most favorable to upholding the trial court’s
ruling on a motion to suppress, however, and therefore defer to the trial
court’s factual findings. State v. Huerta, 223 Ariz. 424, 425, ¶ 2 (App. 2010).
2 Miranda v. Arizona, 384 U.S. 436 (1996).
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DISCUSSION
¶6 When reviewing a motion to suppress, we evaluate
discretionary issues for an abuse of discretion but review legal issues de
novo. Huerta, 223 Ariz. at 426, ¶ 4. We look only at the evidence presented
to the trial court during the suppression hearing, State v. Brown, 233 Ariz.
153, 156, ¶ 4 (App. 2013), and view the facts in the light most favorable to
the trial court’s ruling, State v. Gerlaugh, 134 Ariz. 164, 167 (1982); State v.
Huerta, 223 Ariz. 424, 425, ¶ 2 (App. 2010).
¶7 “Law enforcement officers have wide latitude to approach
people and engage them in consensual conversation.” State v. Hummons,
227 Ariz. 78, 80, ¶ 7 (2011). A consensual encounter between a citizen and
a police officer “will not trigger Fourth Amendment scrutiny unless it loses
its consensual nature.” State v. Serna, 235 Ariz. 270, 272, ¶ 8 (2014) (quoting
Florida v. Bostick, 501 U.S. 429, 434 (1991)). Whether this occurred,
converting the encounter into a seizure, is a mixed question of law and fact.
Maricopa Cty. Juv. Action No. JT30243, 186 Ariz. 213, 216 (App. 1996). We
review questions of fact for “clear and manifest error” and questions of law
de novo. Id.¶8 A person is seized “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, 554 (1980).
“[T]he threatening presence of several officers, the display of a weapon by
an officer, some physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the officer’s
request might be compelled” may indicate a seizure. Id. An encounter that
ceases to be consensual may be extended only upon reasonable suspicion
of criminal activity. See State v. Sweeney, 224 Ariz. 107, 112, ¶ 17 (App. 2010)
(Brown, J., specially concurring).
¶9 Reasonable suspicion is less demanding than probable cause,
requiring “at least a minimal level of objective justification” for extension
of the encounter. Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing United
States v. Sokolow, 490 U.S. 1, 7 (1989)). Determination of reasonable
suspicion is based on “commonsense judgments and inferences about
human behavior,” id. at 125, “considering such objective factors as the
defendant’s appearance and conduct and the officer’s relevant knowledge,
experience, and training,” Sweeney, 224 Ariz. at 112, ¶ 22. The officer must
be able to point to more than an “inchoate and unparticularized suspicion
or ‘hunch’” of criminal activity. Wardlow, 528 U.S. at 123-24 (quoting Terry
v. Ohio, 392 U.S. 1, 27 (1968)).
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STATE v. CONDIFF
Decision of the Court
¶10 Condiff argues the initial stop was unlawful because there
were no articulable facts creating reasonable suspicion of criminal activity.
We disagree. Police officers do not need reasonable suspicion to approach
an individual and ask questions if the encounter is consensual. See Bostick,
501 U.S. at 434 (“[A] seizure does not occur simply because a police officer
approaches an individual and asks a few questions.”); Serna, 235 Ariz. at
272, ¶ 9 (holding an initial encounter in which two officers called to the
defendant from their patrol car and the defendant voluntarily answered
questions consensual). The facts in this case are very similar to those in
Serna, and we find the Serna holding instructive.3 In both Serna and the case
at hand, two officers patrolled a Phoenix neighborhood late at night, pulled
their patrol cars over, and called out to the defendant. See Serna, 235 Ariz.
at 271-72, ¶¶ 2-3. In both cases, the defendants agreed to speak with the
officers. See id. at 272, ¶ 9. The Arizona Supreme Court found that the
initial Serna encounter was consensual and we similarly find that the initial
encounter in this case was consensual. See id.
¶11 Condiff also argues that after she provided the name, the
encounter became nonconsensual because she tried to walk away but was
followed and questioned by Officer C. As the State correctly points out and
the trial court held in part, by that point the Officers had established
reasonable suspicion that Condiff had committed a crime because she had
3 Condiff cites State v. Winegar, 147 Ariz. 440 (1985), and State v. Rogers, 186
Ariz. 508 (1996), to support her argument that her acquiescence was not
consensual. See Winegar, 147 Ariz. at 447 (“The mere fact that a police officer
‘asks’ a citizen to accompany him rather than commands obedience does
not mean that a citizen can reasonably believe he is free to refuse.”). The
facts in Winegar and Rogers are distinguishable from the facts in this case,
however, and we accordingly find the holding in Serna to be more
instructive than those in Winegar and Rogers. In Winegar, the defendant
“was surrounded by six armed police officers, told to keep her hands away
from her body, and told to step away from [another suspect], who was then
frisked” before the police officers told her they wanted to talk to her. Id.None of these factors were present in this case. In Rogers, a police officer
approached the defendant, holding his badge in his hand and saying,
“police officers, we need to talk to you.” 186 Ariz. at 509. The defendant
attempted to run from the police officers but the officers chased him. Id.
Here, the Officers merely asked Condiff if she was willing to speak with
them, rather than ordering her to do so, and Condiff did not attempt to
leave until after the Officers had run a second unsuccessful warrant check.
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STATE v. CONDIFF
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provided false information and had attempted to walk away from them.4
Under these facts, Officer C’s pursuit and continued questioning
constituted a valid Terry stop.5 See Terry, 392 U.S. at 22-23.
¶12 Once the Officers arrested Condiff, the search of her fanny
pack was valid as a search incident to arrest. See United States v. Robinson,
414 U.S. 218, 235 (1973) (“[I]n the case of a lawful custodial arrest a full
search of the person is . . . a ‘reasonable’ search under [the Fourth]
Amendment.”).
CONCLUSION
¶13 For the foregoing reasons, we affirm.
:ama
4 Although a “refusal to cooperate, without more, does not furnish the
minimal level of objective justification needed for a detention or seizure,”
Bostick, 501 U.S. at 437, “nervous, evasive behavior is a pertinent factor in
determining reasonable suspicion,” Wardlow, 528 U.S. at 124; see also
Sokolow, 490 U.S. at 9-10 (stating that although one factor by itself may not
be proof of illegal conduct, multiple factors taken together can amount to
reasonable suspicion).
5 “An investigatory stop is permissible under the Fourth Amendment if
supported by reasonable suspicion.” Ornelas v. United States, 517 U.S. 690,
693 (1996).
6