State v. Paul ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BENNY PAUL, Appellant.
No. 1 CA-CR 16-0262
FILED 5-23-2017
Appeal from the Superior Court in Yavapai County
No. P1300CR201400061
The Honorable Jennifer B. Campbell, Judge
The Honorable Patricia A. Trebesch, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Adele Ponce
Counsel for Appellee
David Goldberg Attorney at Law, Fort Collins, CO
By David Goldberg
Counsel for Appellant
STATE v. PAUL
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
C A T T A N I, Judge:
¶1 Benny Paul appeals his convictions and sentences for
transportation of marijuana for sale and possession of drug paraphernalia.
Paul argues the superior court erred by denying his motion to suppress the
evidence discovered after a traffic stop and subsequent canine search of his
car. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In May 2013, Yavapai County Sheriff’s Deputy Lopez, a
canine handler assigned to a narcotics task force, was stopped in the median
of I-40, observing eastbound traffic. He watched as Paul, driving
approximately 75 mph, caught up to a semi truck travelling about 65 mph
in the slow lane. When Paul passed Deputy Lopez, he was in the slow lane
following about one car length behind the truck, and he stayed at that
distance for several hundred yards. Deputy Lopez then pulled out onto the
interstate and, driving in the fast lane, began to catch up. When the deputy
was within about four or five car lengths, Paul changed lanes into the fast
lane without signaling. After Paul passed the truck, Deputy Lopez pulled
him over.
¶3 While a passenger waited in the rental car, Paul gave Deputy
Lopez a Georgia driver’s license and, at the deputy’s request, got out of the
car to talk while the deputy ran his information. Paul told the deputy that
he was coming from the Los Angeles area, where he had been living for
several months, and was going to Oklahoma to visit his sick grandmother
and drive her back to Los Angeles. The deputy observed that Paul was
“overly nervous” to the point that an artery in his neck was “pulsating
rapidly,” and Paul seemed to have to think about his answers to relatively
simple questions.
¶4 The rental agreement stated that the car had been rented in
San Francisco the day before and was due to be returned in Georgia the next
day. When Deputy Lopez asked Paul about the discrepancies between his
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statements and the rental agreement, Paul became more nervous and he
began to stutter. He mentioned the possibility of extending the rental
agreement and said something about his aunt, but then immediately denied
mentioning his aunt.
¶5 Deputy Lopez then spoke briefly with the passenger, who
said she and Paul were driving home to Georgia, and were just stopping on
the way to visit Paul’s grandmother in Oklahoma. The deputy told Paul he
could give him a warning for traffic infractions (but did not in fact issue a
warning), then asked whether there was anything illegal in the car, which
Paul denied. But when the deputy explained that he was part of a narcotics
task force looking for drug smugglers, Paul became even more nervous and
began to shake visibly.
¶6 Deputy Lopez then asked Paul for consent to search the car,
and Paul refused. By this time, approximately 8 to 10 minutes into the stop,
another deputy had arrived, and Deputy Lopez got his drug-detection dog
from his car. The dog quickly alerted on the trunk, which held a duffle bag
and a trash bag containing packages of marijuana. Paul was then arrested.
Approximately 15 minutes had passed since Deputy Lopez pulled him
over.
¶7 The State charged Paul with transportation of marijuana for
sale and possession of drug paraphernalia.1 Alleging a Fourth Amendment
violation, Paul moved to suppress the evidence discovered during the
traffic stop, arguing that the deputy lacked reasonable suspicion to justify
the stop or to justify prolonging the stop to conduct the canine search. The
superior court conducted an evidentiary hearing on the motion at which
Deputy Lopez testified and described the facts surrounding the stop.
Deputy Lopez also testified that a traffic stop (without further
investigation) would generally last between 5 and 10 minutes, that I-40 is a
known drug corridor, that drugs generally move east and north (and
money in the opposite direction) in this part of the country, and that San
Francisco is a known source city (particularly for marijuana) and Georgia a
known destination for drug shipments.
¶8 The superior court denied the motion to suppress, finding
that the deputy had reasonable suspicion of traffic violations to justify the
stop and reasonable suspicion of criminal activity to justify extending the
1 The indictment also alleged first degree failure to appear, but the
court later granted Paul’s motion for a judgment of acquittal as to that
charge.
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Decision of the Court
stop for a canine search, and alternatively that the extension of the stop was
de minimis. Paul was convicted of the drug offenses after a jury trial, and
the court sentenced him as a repetitive offender to concurrent terms of
imprisonment, the longest of which is 14 years.
¶9 Paul timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) § 13-4033.2
DISCUSSION
¶10 We review the denial of a suppression motion for an abuse of
discretion, considering only the evidence presented at the suppression
hearing and deferring to the superior court’s factual findings and credibility
assessments. State v. Sweeney, 224 Ariz. 107, 111, ¶ 12 (App. 2010); see also
State v. Salcido, 238 Ariz. 461, 463, ¶ 2 (App. 2015). We review de novo the
court’s ultimate legal conclusion as to constitutionality of the seizure and
search. Sweeney, 224 Ariz. at 111, ¶ 12.
¶11 Paul first argues that the deputy lacked reasonable suspicion
of a traffic violation as required to justify the traffic stop. An officer may
make a limited investigatory stop of a vehicle based on an “articulable,
reasonable suspicion” of criminal activity, including commission of a traffic
violation. Salcido, 238 Ariz. at 464, ¶ 7; see also A.R.S. § 28-1594; State v.
Teagle, 217 Ariz. 17, 23, ¶ 20 (App. 2007).
¶12 Under A.R.S. § 28-730(A), “[t]he driver of a motor vehicle
shall not follow another vehicle more closely than is reasonable and
prudent and shall have due regard for the speed of the vehicles on, the
traffic on and the condition of the highway.” Here, Deputy Lopez testified
that Paul was following one car length behind the truck for several hundred
yards. Deputy Lopez explained that this was an unsafe distance at highway
speeds because it would be difficult for Paul to stop in time if the truck
slowed, and because it reduced Paul’s ability to see around the truck to the
traffic ahead.
¶13 Paul argues that the deputy’s testimony did not establish a
traffic violation because he did not describe other traffic or driving
conditions, or provide a specific calculation of the gap time between the
truck and Paul’s car. See Sweeney, 224 Ariz. at 116, ¶ 38 (Brown, J., specially
concurring) (reasonable suspicion based on defendant following 0.88
seconds behind another vehicle at 70 mph after a snowfall, in conjunction
2 Absent material revisions after the relevant date, we cite a statute’s
current version.
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STATE v. PAUL
Decision of the Court
with testimony that a minimum safe distance required a 2-second gap). But
the deputy observed the distance between Paul’s car and the truck ahead
and described how the one-car-length distance was unsafe—that is, not
“reasonable and prudent”—under the circumstances. And the court
expressly found Deputy Lopez to be credible, an assessment to which we
defer. See Teagle, 217 Ariz. at 22, ¶ 19.
¶14 Accordingly, the record reflects that the deputy had
reasonable suspicion that Paul had violated § 28-730, and the superior court
did not abuse its discretion by denying Paul’s motion to suppress on this
basis. Because we resolve this issue based on § 28-730, we need not address
other traffic violations alleged by the State.
¶15 Paul next argues that Deputy Lopez impermissibly extended
the duration of the traffic stop to conduct the canine search. “[A]n
investigative detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S.
491, 500 (1983). After an officer completes the traffic-related purpose of the
stop, the driver must be allowed to leave unless (1) the encounter becomes
consensual or (2) “during the encounter, the officer develops a reasonable
and articulable suspicion that criminal activity is afoot.” Sweeney, 224 Ariz.
at 112, ¶ 17 (citing Teagle, 217 Ariz. at 23, ¶ 22). Although Arizona
previously recognized a rule that a de minimis extension of a traffic stop was
not unreasonable under the Fourth Amendment, see State v. Box, 205 Ariz.
492, 499, ¶ 24 (App. 2003), the United States Supreme Court has clarified
that any extended detention—even if de minimis—beyond the duration
required to complete the traffic-related purpose of the stop is
unconstitutional unless independently supported by reasonable suspicion.
Rodriguez v. United States, 135 S. Ct. 1609, 1615–16 (2015).
¶16 Reasonable suspicion requires an objective, articulable basis
justifying investigatory detention. Sweeney, 224 Ariz. at 112, ¶ 21; Teagle,
217 Ariz. at 23, ¶ 25. It requires something less than probable cause, but
more than an unparticularized hunch. Id. Existence of reasonable suspicion
is assessed in light of the totality of the circumstances, taking into account
the officer’s training and experience, and considering collectively all
criteria, even those that in isolation might have innocent explanations.
Sweeney, 224 Ariz. at 112–13, ¶ 22; State v. Fornof, 218 Ariz. 74, 76, ¶ 6 (App.
2008). To establish reasonable suspicion in a case such as this, the
combination of factors must serve to “distinguish between suspect and
innocent behaviors” and eliminate a “substantial portion of innocent
travelers,” so as not to “cast too wide a net and subject all travelers to
‘virtually random seizures.’” See Sweeney, 224 Ariz. at 113, ¶ 22 (quoting
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Teagle, 217 Ariz. at 24, ¶ 25, and Reid v. Georgia, 448 U.S. 438, 441 (1980) (per
curiam)).
¶17 Here, the short period of detention required to conduct the
canine search was supported by reasonable suspicion of drug trafficking.
Several discrepancies between Paul’s explanation of his trip, the
passenger’s account, and the rental agreement, suggested deception. See
United States v. Baron, 94 F.3d 1312, 1319 (9th Cir. 1996), overruled on other
grounds by United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc);
State v. Sheko, 146 Ariz. 140, 142 (App. 1985). Paul claimed to be coming
from Los Angeles, but the rental agreement noted the car had been picked
up in San Francisco. Paul claimed that he was going to pick up his sick
grandmother in Oklahoma “and give her a ride back to Los Angeles,” but
the rental agreement stated the car was due to be returned in Georgia the
next day. Consistent with the rental agreement (and inconsistent with
Paul’s statement of his destination), the passenger stated they were just
visiting Paul’s grandmother in Oklahoma on their way to Georgia. And
while the passenger said they were heading “home” to Georgia, Paul had
claimed to be living in Los Angeles.
¶18 These inconsistencies—as well as the deputy’s observation
that Paul seemed to have to think about his answers to straightforward
questions—provided an objective basis to suspect deception. Although
Paul argues this questioning occurred after the deputy had completed the
traffic-related purpose of the stop, the deputy’s testimony was clear that he
reviewed the rental agreement and spoke with Paul and the passenger even
before indicating that the traffic violations could result in a warning. And
while Paul suggests an innocent explanation to resolve some of the
inconsistencies—e.g., that, consistent with the passenger’s statement, they
were planning to visit the grandmother on the way to Georgia and only
might, consistent with his statement, take the grandmother to Los Angeles
before continuing to Georgia—the court could reasonably draw a different
conclusion. See State v. O’Meara, 198 Ariz. 294, 296, ¶ 10 (2000).
¶19 Accordingly, the superior court did not abuse its discretion
by denying Paul’s motion to suppress. Because we resolve the case based
on reasonable suspicion, we need not consider the parties’ alternative
arguments regarding the good faith exception.
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Decision of the Court
CONCLUSION
¶20 Paul’s convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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