State v. Mortemore ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ADAM LINDSAY MORTEMORE, Appellant,
CITY OF PHOENIX, Intervenor
No. 1 CA-CR 17-0135
FILED 12-5-2017
Appeal from the Superior Court in Maricopa County
No. CR2016-108907-001
The Honorable Warren J. Granville, Judge
AFFIRMED
COUNSEL
Maricopa County Public Defender’s Office, Phoenix
By Edward F. McGee
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee
Phoenix City Prosecutor’s Office, Phoenix
By Jennifer Booth
Counsel for Intervenor
STATE v. MORTEMORE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Kent E. Cattani joined.
B E E N E, Judge:
¶1 Adam Mortemore (“Mortemore”) appeals his conviction for
possession of marijuana, a class 1 misdemeanor. Mortemore contends that
the superior court erred in denying his motion to suppress marijuana found
in his pants pockets when it ruled that the police officers’ stop and
subsequent search did not violate the Fourth Amendment. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On the evening of February 24, 2016, two Phoenix police
officers saw Mortemore riding a bicycle in a residential alley. The officers
drove into the alley and approached him. When one officer asked
Mortemore if he had any weapons or illegal drugs, he answered he did not,
but then immediately reached toward a visible bulge in his pants pockets.
¶3 The officers asked Mortemore if they could search his pants
pockets, and he answered, “Okay, that’s fine, then go ahead.” The officers
searched his pockets and found two baggies that contained a substance
later determined to be marijuana. Mortemore was arrested and charged
with possession of marijuana.
¶4 The court held a consolidated bench trial on the possession of
marijuana charge and a hearing on Mortemore’s motion to suppress the
marijuana. At the hearing, the superior court (1) denied the motion to
suppress, (2) found Mortemore guilty of possession of marijuana, and (3)
imposed 12 months of unsupervised probation. Mortemore timely
appealed. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
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STATE v. MORTEMORE
Decision of the Court
DISCUSSION
¶5 Mortemore argues that the superior court erred in denying
his motion to suppress challenging the legality of the stop and search that
led to the discovery of marijuana.1
¶6 “We review a trial court’s ruling on a motion to suppress for
abuse of discretion, considering only the evidence presented at the
suppression hearing and viewing the facts in a light most favorable to
sustaining the trial court’s ruling.” State v. Adair, 241 Ariz. 58, 60, ¶ 9 (2016).
Although we generally defer to the court’s factual findings if the evidence
reasonably supports them, we review the court’s ultimate legal
determination that the search complied with the Fourth Amendment de
novo. State v. Evans, 237 Ariz. 231, 233, ¶ 6 (2015); State v. Davolt, 207 Ariz.
191, 202, ¶ 21 (2004). “We do not reweigh the evidence on appeal and will
overturn the trial court’s findings only if no substantial evidence supports
them.” State v. Rodriguez, 205 Ariz. 392, 397, ¶ 18 (App. 2003).
I. Reasonable Suspicion
¶7 Mortemore argues that his presence in an alley did not create
a reasonable suspicion that he was involved in criminal behavior.
¶8 Although the reasonable suspicion standard affords
flexibility, investigatory stops cannot be arbitrary: “[t]he Fourth
Amendment requires ‘some minimal level of objective justification’ for
making the stop.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting INS
v. Delgado, 466 U.S. 210, 217 (1984)). “Courts have struggled to articulate
when evidence rises to a level that satisfies the reasonable suspicion
1 Mortemore also argues that officers could not detain him based on
their suspicion that he had improperly used the alley as a thoroughfare in
violation of Phoenix City Code section 36-61 because the ordinance is
unconstitutionally vague and overbroad. However, Mortemore did not
raise this issue before the superior court, and we therefore do not address
it. See State v. Lefevre, 193 Ariz. 385, 389, ¶ 15 (App. 1998) (“Normally, failure
to raise a claim at trial waives appellate review of that claim, even if the
alleged error is of constitutional dimension.”). Further, the court did not
“find any factual or legal basis to invoke the city code” and instead
determined that the officers had a reasonable suspicion to approach and
contact Mortemore. “We are required to affirm a trial court’s ruling if
legally correct for any reason[.]” State v. Boteo-Flores, 230 Ariz. 551, 553, ¶ 7
(App. 2012). Therefore, we need not decide the constitutionality of § 36-61.
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STATE v. MORTEMORE
Decision of the Court
standard.” Evans, 237 Ariz. at 234, ¶ 8. “In determining whether reasonable
suspicion exists, officers and courts reviewing their actions take into
account the totality of the circumstances—the whole picture of what
occurred at the scene”—and “[f]rom that whole picture the officers must
derive a particularized and objective basis for suspecting the particular
person stopped of criminal activity.” Id. (internal citations and quotations
omitted). “Although a mere unparticularized suspicion or hunch does not
establish reasonable suspicion,” courts must give consideration “to the
specific reasonable inferences [that an officer] is entitled to draw from the
facts in light of his experience.” Id. (quoting Terry, 392 U.S. at 27); see State
v. Teagle, 217 Ariz. 17, 24, ¶ 26 (App. 2007) (“In reviewing the totality of the
circumstances, we accord deference to a trained law enforcement officer’s
ability to distinguish between innocent and suspicious actions.”); see also
U.S. v. Arvizu, 534 U.S. 266, 273-74 (2002) (reviewing reasonable-suspicion
determinations in view of the totality of the evidence, giving due weight to
officers’ experience and specialized training).
¶9 Here, the officer who saw Mortemore in the alley testified
about his experience investigating residential burglaries and stated that
these types of offenses commonly begin in an alleyway. Additionally, both
officers testified that Mortemore was stopped because of their suspicion
that he was engaging in a burglary. Based on this evidence, the superior
court found that the officers were not unreasonable in making an
investigative stop to determine the nature of Mortemore’s activities.
Reviewing the totality of the circumstances and giving weight to the
officers’ belief based on their experience, the court did not err in finding
that the officers lawfully stopped Mortemore because of their reasonable
suspicion that he was involved in criminal activity. Evans, 237 Ariz. at 234,
¶ 8; Arvizu, 534 U.S. at 273-74.
II. Mortemore Consented to the Search
¶10 Mortemore contends that the superior court erred in denying
his motion to suppress because he did not give the officers permission to
search his pockets, and what permission was ostensibly given only applied
to his left pocket, which did not contain any marijuana. He also argues that
any consent he gave the officers was the product of coercion and he had no
option but to consent.
¶11 Pursuant to the Fourth Amendment of the United States
Constitution and Article 2, Section 8, of the Arizona Constitution, persons
are protected from unreasonable searches and seizures. State v. Allen, 216
Ariz. 320, 323, ¶ 9 (App. 2007). When a violation of the Fourth Amendment
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STATE v. MORTEMORE
Decision of the Court
or its state counterpart is determined to have occurred, the exclusionary
rule generally requires the suppression at trial of any evidence directly or
indirectly gained as a result of the violation. State v. Schinzel, 202 Ariz. 375,
382, ¶ 28 (App. 2002). “Although the Fourth Amendment generally
prohibits warrantless searches, they are permitted if there is free and
voluntary consent to search.” State v. Valenzuela, 239 Ariz. 299, 301, ¶ 1
(2016).
¶12 Under the consent exception to the warrant requirement, the
State must show a person’s consent to search by a preponderance of the
evidence. Valenzuela, 239 Ariz. at 302, ¶ 11. Moreover, the consent must be
intelligently and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218,
227, 235-36 (1973). Whether consent to search has been voluntarily given is
a question determined by the totality of the circumstances. State v. Paredes,
167 Ariz. 609, 612 (App. 1991). Consent must “not be coerced, by explicit or
implicit means, by implied threat or covert force.” Schneckloth, 412 U.S. at
228. The question is whether a reasonable person in that specific
circumstance would have felt free to refuse a search. United States v.
Drayton, 536 U.S. 194, 196 (2002).
¶13 Here, although Mortemore denied that he consented, both
officers testified that he agreed to their request to search his pockets. Thus,
the record supports the superior court’s finding that Mortemore consented
to the search.
¶14 The record similarly supports the court’s finding that
Mortemore’s consent was voluntary. The court considered evidence that
Mortemore was cooperative with the officers and was willing to show them
what he had in his pockets. Deferring to the court’s factual findings and
viewing the evidence in the light most favorable to upholding the court’s
decision, we find that the court did not err in finding Mortemore
voluntarily consented to the search. Adair, 241 Ariz. at 60, ¶ 9.
¶15 Therefore, the court did not abuse its discretion in denying
Mortemore’s motion to suppress.
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Decision of the Court
CONCLUSION
¶16 For the foregoing reasons, we affirm Mortemore’s conviction
and sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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