State v. Moses ( 2018 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellant,
    v.
    DANIEL ADAM MOSES, Appellee.
    _____________________________________________________
    STATE OF ARIZONA, Appellant,
    v.
    KENNETH TUANHUY NGUYEN, Appellee.
    ______________________________________________________
    Nos. 1 CA-CR 18-0115, 1 CA-CR 18-0116
    (Consolidated)
    FILED 12-6-2018
    Appeal from the Superior Court in Mohave County
    Nos. S8015CR201601431
    S8015CR201601500
    The Honorable Richard Weiss, Judge
    AFFIRMED
    COUNSEL
    Mohave County Attorney’s Office, Kingman
    By Daniel B. Noble
    Counsel for Appellant
    Law Offices of Shawn B. Hamp, Kingman
    By Shawn B. Hamp, Virginia L. Crews, Troy Anderson
    Counsel for Appellee Nguyen
    Rideout Law P.L.L.C., Lake Havasu City
    By Bradlee Rideout, Wendy Marcus
    Counsel for Appellee Moses
    MEMORANDUM DECISION
    Chief Judge Samuel A. Thumma delivered the decision of the Court, in
    which Presiding Judge James P. Beene and Judge Michael J. Brown joined.
    T H U M M A, Chief Judge
    ¶1            The State of Arizona appeals from an order granting Daniel
    Moses’ and Kenneth Nguyen’s motions to suppress evidence obtained
    following a stop of their car by Arizona Department of Public Safety
    Trooper Dickinson. The dispositive issue in this appeal is whether the
    superior court abused its discretion in finding, after an evidentiary hearing,
    that the State failed to show the Trooper had reasonable suspicion for the
    stop. As discussed below, because the State has shown no reversible error,
    the order granting Defendants’ motions to suppress is affirmed.
    FACTS AND PROCEDURAL HISTORY
    ¶2             Because the ruling turned on the superior court’s assessment
    of credibility, the testimony at the evidentiary hearing on the motion to
    suppress is summarized in some detail. The evidence shows that, one
    morning in September 2016, Trooper Dickinson and his drug-sniffing dog
    were parked in a marked patrol car in the median of Interstate 40 in
    northwestern Arizona. The Trooper was “just patrolling looking for drug
    smugglers as well as people that are transporting weapons, credit card
    fraud, large type[s] of criminal activity.” At about 9:20 a.m., he saw a grey
    sedan, driven by Moses with Nguyen as the passenger, go eastbound past
    where he was parked.
    ¶3            While the car drove past at or below the posted speed limit of
    75 miles per hour, the Trooper saw the driver “ghost-driving. It’s anytime
    we see a vehicle pass by and they’re leaning back so far where they’re
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    STATE v. MOSES
    Decision of the Court
    hiding behind a B-pillar. . . . So that stuck out to me on this vehicle when it
    passed by me.” The Trooper testified that
    [If] any kind of criminal activity [occurs] when
    somebody’s driving a vehicle, they don’t want
    to look at cops. And if they do, they know the
    cop can see right through them and see that
    they’re guilty or see that they’re doing
    something wrong.
    ....
    It’s like when your parents find you and that
    you’re not supposed to do something, and they
    get that look upon your face. Same look. So it’s
    the shocked expression that you look for these
    people on their faces when they’re driving by.
    ¶4              After passing by the Trooper, the car moved into the right (or
    slower) lane, slowed down and continued driving on I-40. The Trooper
    testified that, “[f]or people that aren’t exiting the highway, this [moving to
    the slower lane and slowing down] is not common behavior, unless they
    are potentially involved in criminal activity. . . . [F]or this same type of
    driving behavior, I’ve gotten numerous amounts of warrants, people with
    warrants out for their arrest, suspended driver’s licenses, DUIs, as well as
    trafficking of drugs.”
    ¶5            The Trooper “pulled out and caught up to” the car about four
    miles later. After following for another three miles, the Trooper pulled the
    car over for “following too close[ly]” in violation of Arizona Revised
    Statutes (A.R.S.) section 28-730 (2018).1 The Trooper testified that, before
    being pulled over, the car, while traveling at an estimated 75 miles per hour,
    was about “two car lengths,” or 40 feet, behind a tractor-trailer, which was
    traveling at an estimated 70 miles per hour.
    ¶6             The Trooper collected Defendants’ licenses, viewed the rental
    car agreement on Moses’ phone and asked Moses “to exit the vehicle and
    come back to my patrol vehicle.” Moses complied, and the Trooper “began
    filling out a warning for the unsafe following distance” while he “engaged
    [Moses] in conversation.”
    1Absent material revisions after the relevant dates, statutes and rules cited
    refer to the current version unless otherwise indicated.
    3
    STATE v. MOSES
    Decision of the Court
    ¶7             The Trooper testified Moses and Nguyen appeared nervous.
    The Trooper added it was odd that Nguyen, the passenger, asked why the
    car was stopped. “This is very uncommon for a passenger to ever question
    the reason for a stop. I could probably count on one hand how many times
    it’s happened in my career. It’s typically somebody that’s involved in some
    type of criminal activity.” The Trooper also testified to observing other
    irregularities, including that given their stated destination,
    the quickest route of travel would be on I-10, not
    I-40. And I know that it’s a common practice for
    people that are smuggling that they avoid I-10
    because there is twice as many K-9s, and there’s
    checkpoints along I-10 that would hinder being
    able to move freely. And so I-40 sees an
    abundance of traffic that should be on I-10 that’s
    on I-40 because they’re trying to avoid the traffic
    points as well as the criminal interdiction
    officers.
    ¶8            After giving Moses a written warning, and returning the
    driver’s licenses, the Trooper asked “if they picked up any drugs” or had
    “anything illegal in the car.” The Trooper then asked to check his pulse, and
    Moses agreed. Using a personal “pulse oximeter that you could buy online
    that are like 15, 20 bucks,” the Trooper read his pulse at “129 beats per
    minute, and this is extremely high . . . I was a drug recognition expert for
    years and during that time, anything in excess of 90 beats per minute is
    considered high.” After his request to search the car was denied, the
    Trooper then “requested another unit to assist on the traffic stop” and asked
    “Nguyen to step out of the vehicle and stand on the shoulder.”
    ¶9             When he asked permission to “run my K-9 around the
    exterior of the vehicle,” Nguyen “said yeah.” The dog alerted, the Trooper
    told Defendants the dog alerted and Moses said “his jacket had some
    marijuana in it.”
    I asked him if there was any pounds of marijuana
    in the car, and he had the defeated look,
    wouldn’t answer. I went up to Nguyen and
    advise[d] him I was going to be searching the
    vehicle. I asked if I was going to find anything,
    and he said there was some oil in the vehicle.
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    STATE v. MOSES
    Decision of the Court
    A search revealed “a jar containing marijuana” as well as marijuana in
    duffel bags.
    ¶10            The State charged Defendants with possession of marijuana
    for sale, transportation of marijuana for sale and possession of drug
    paraphernalia. Defendants moved to suppress all evidence obtained as a
    result of the traffic stop on three grounds: “insufficient reasonable
    suspicion” for the stop; prolonged detainment in violation of Rodriguez v.
    United States, 
    135 S. Ct. 1609
     (2015); and insufficient probable cause for the
    search because the K-9 was unreliable.
    ¶11           After an evidentiary hearing, where the Trooper was the only
    witness, the superior court granted Defendants’ motions on the first two
    grounds. In doing so, the court first noted the stop was “spurious. And I
    think that this case shows it may be really no grounds for it.” Addressing
    the testimony regarding the speed of the vehicles, the court noted: “so what
    choice does a driver have with a truck that couldn’t be going 70 miles-an-
    hour? Because if somebody is going 75, the physics of that equation is that
    you’re driving ahead of the truck in absolutely no time.” The court also
    noted “[t]here was no information” on what “the other traffic was.” Having
    assessed the evidence and credibility, the court repeated that the stop was
    “spurious” and granted the motion to suppress “on the basis of no
    reasonable grounds to make a stop.” The court also granted the motion on
    the independent ground of prolonged detainment.
    ¶12          The State successfully moved to dismiss the charges without
    prejudice and appealed the suppression order. This court has jurisdiction
    over the State’s timely appeals pursuant to Article 6, Section 9, of the
    Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-
    4033(A).
    DISCUSSION
    ¶13            As directed by the Arizona Supreme Court, this court
    “review[s] 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) (citing State v.
    Butler, 
    232 Ariz. 84
    , 87 ¶ 8 (2013)). Evidence is not reweighed on appeal but,
    instead, this court defers to the superior court’s factual findings, “including
    findings on credibility and the reasonableness of the inferences drawn by
    the officer.” State v. Teagle, 
    217 Ariz. 17
    , 22 ¶ 19 (App. 2007) (citing cases).
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    STATE v. MOSES
    Decision of the Court
    This court reviews de novo questions of law and legal conclusion. State v.
    Sweeney, 
    224 Ariz. 107
    , 111 ¶ 12 (App. 2010) (citing cases).
    ¶14            The dispositive issue is whether the car properly could be
    stopped for “following too closely.” For that stop to be valid, the State had
    to show, by sufficient evidence, that the Trooper had “reasonable
    suspicion” that a violation of A.R.S. § 28-730 occurred. State v. Starr, 
    222 Ariz. 65
    , 69 ¶ 12 (App. 2009). Reasonable suspicion requires proof by the
    State of “a particularized and objective basis for suspecting the person
    stopped of criminal activity.” Ornelas v. U.S., 517 U.S. at 693, 696 (1996)
    (citation omitted). Reasonable suspicion must be supported by “specific
    and articulable facts which, taken together with rational inferences from
    those facts, reasonably warrant” the stop. Terry v. Ohio, 
    392 U.S. 1
    , 21 (1968).
    It “must be more than an inchoate ‘hunch,’” but “only requires that police
    articulate some minimal, objective justification.” Teagle, 217 Ariz. at 23 ¶ 25
    (citation omitted).
    ¶15           The testimony at the evidentiary hearing summarized above,
    and the parties’ briefs on appeal, address a variety of factual and legal
    issues regarding reasonable suspicion. The State’s brief on appeal asserts,
    with substantial force, that accepting the testimony as true, there was
    reasonable suspicion to stop the car. But the record reveals that, based on a
    credibility assessment, the superior court did not accept as true critical
    aspects of the testimony. On that basis, the court concluded the State had
    not met its burden to show reasonable suspicion for the stop.
    ¶16             The court started its ruling by stating that the stop was
    “spurious,” which Defendants correctly note means “bogus, fake, false, . . .
    misleading.” The court questioned the plausibility of the Trooper’s
    estimates of speed and distance and found persuasive Defendants’
    suggestion that the Trooper was “on [Defendants’] tail,” in their blind spot
    and “following too close[ly]” to Defendants while driving near their car.
    The court opined the tractor-trailer “couldn’t be going 70” miles per hour if
    Defendants were traveling at 75 miles per hour as they approached it, given
    the “physics of that equation.” The court concluded there might “be really
    no grounds” for a violation of “following too close” where a “defendant . .
    . is driving a vehicle and a cop is on [their] tail.” In the end, the court found
    “the stop to be spurious” and granted the motion to suppress “on the basis
    of no reasonable grounds to make a stop.”
    ¶17          It is for the superior court at the evidentiary hearing, not this
    court on appeal, to weigh and assess witness credibility. Teagle, 217 Ariz. at
    22 ¶ 19. Similarly, this court is directed to view the facts received at an
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    STATE v. MOSES
    Decision of the Court
    evidentiary hearing on a motion to suppress “in a light most favorable to
    sustaining the trial court’s ruling.” Adair, 241 Ariz. at 60 ¶ 9 (citing Butler,
    232 Ariz. at 87 ¶ 8). On this record, applying these directives and given the
    superior court’s credibility assessment that the stop was spurious, the State
    has shown no abuse of discretion in that court granting the motions to
    suppress.2
    CONCLUSION
    ¶18           Because the State has shown no reversible error, the superior
    court’s order granting Defendants’ motions to suppress is affirmed.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    2As a result, this court does not address the additional grounds relied on
    by the superior court or argued by the parties on appeal.
    7
    

Document Info

Docket Number: 1 CA-CR 18-0115

Filed Date: 12/6/2018

Precedential Status: Non-Precedential

Modified Date: 12/6/2018