State of Arizona v. Billie Marie Fornof ( 2008 )

FILED BY CLERK
IN THE COURT OF APPEALS MAR 25 2008
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2007-0091
Appellee, ) DEPARTMENT B
)
v. ) OPINION
)
BILLIE MARIE FORNOF, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20061071
Honorable Howard Fell, Judge Pro Tempore
Honorable Edgar B. Acuña, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General
By Randall M. Howe and David A. Sullivan Tucson
Attorneys for Appellee
Law Office of Thomas E. Higgins
By Thomas E. Higgins Tucson
Attorney for Appellant
V Á S Q U E Z, Judge.
¶1 A jury found appellant Billie Marie Fornof guilty of possession of a narcotic
drug for sale and possession of drug paraphernalia. On appeal, Fornof argues that police
lacked sufficient basis to stop the car in which she had been riding as a passenger and the
trial court therefore erred when it denied her motion to suppress the evidence officers found
on her person. She also contends the court erred by permitting an expert to testify that he
believed the drugs she had possessed were for sale, rather than personal use. For the reasons
discussed below, we affirm.
Facts and Procedural Background
¶2 We view the evidence presented in the light most favorable to sustaining the
convictions. State v. Cropper, 205 Ariz. 181, ¶ 2, 68 P.3d 407, 408, supp. op., 206 Ariz.
153, 76 P.3d 424 (2003). At approximately 11:40 p.m. on March 19, 2006, Tucson Police
Sergeant Tony Kadous was driving a marked patrol car north towards the intersection of
12th Avenue and President Street when he noticed a red car that had stopped on President
Street, just east of the intersection on the right side of the road. A pedestrian was reaching
into the passenger side of the vehicle and exchanging something with the female passenger.
Kadous slowed down and turned onto President, coming up behind the car. The pedestrian
looked at him and walked quickly away. As the red car drove away, Kadous activated his
emergency flashing lights, and the red car stopped after traveling about another hundred feet.
Kadous asked the driver of the car and the passenger for their names and, after further
investigation, discovered an outstanding arrest warrant for Fornof, who was the passenger.
2
Kadous arrested Fornof and, searching her incident to the arrest, found a torn-off corner of
a sandwich bag in her pocket, containing a pea-sized quantity of what appeared to be
powder cocaine. A female police officer assisted Kadous, and after a more thorough search,
found a number of rocks of crack cocaine in Fornof’s underwear.
¶3 Fornof was charged with possession of a narcotic drug for sale and possession
of drug paraphernalia. A jury found Fornof guilty on both charges, and the trial court
sentenced her to a mitigated, three-year prison term on the possession for sale charge and
a concurrent, presumptive, one-year prison term on the paraphernalia charge. This appeal
followed; we have jurisdiction under A.R.S. § 13-4033(A).
Discussion
Reasonable suspicion for vehicle stop
¶4 Fornof challenges the trial court’s denial of her motion to suppress evidence,
claiming the search incident to her arrest violated the Fourth Amendment to the United
States Constitution. Specifically, she contends Sergeant Kadous lacked reasonable
suspicion to stop the vehicle in which she had been riding as a passenger before he
conducted that search.
¶5 An investigatory stop of a vehicle constitutes a seizure under the Fourth
Amendment. State v. Richcreek, 187 Ariz. 501, 505, 930 P.2d 1304, 1308 (1997) (“When
the blue lights on the patrol car begin to flash, the person being followed does not feel free
to ignore them and drive on.”). Thus, an officer may only conduct such a stop if the totality
3
of the circumstances “raise[s] a justifiable suspicion that the particular individual to be
detained is involved in criminal activity.” State v. Graciano, 134 Ariz. 35, 37, 653 P.2d
683, 685 (1982). This “reasonable suspicion” requirement for an investigatory stop, first
articulated in Terry v. Ohio, 392 U.S. 1, 21-22 (1968), falls short of the probable cause
required for an arrest. As the United States Supreme Court stated in Adams v. Williams:
In Terry this Court recognized that “a police officer may
in appropriate circumstances and in an appropriate manner
approach a person for purposes of investigating possibly
criminal behavior even though there is no probable cause to
make an arrest.” The Fourth Amendment does not require a
policeman who lacks the precise level of information necessary
for probable cause to arrest to simply shrug his shoulders and
allow a crime to occur or a criminal to escape. On the contrary,
[T]erry recognizes that it may be the essence of good police
work to adopt an intermediate response. A brief stop of a
suspicious individual, in order to determine his identity or to
maintain the status quo momentarily while obtaining more
information, may be most reasonable in light of the facts known
to the officer at the time.
407 U.S. 143, 145-46 (1972), quoting Terry, 392 U.S. at 22 (internal citations omitted).
Although we review de novo whether the police had reasonable suspicion to justify an
investigatory stop, State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996), we
defer to the trial court’s findings of fact and “give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers,” Ornelas v. United States, 517
U.S. 690, 699 (1996). Evidence derived from a stop not based on reasonable suspicion is
“fruit of the poisonous tree” and must be suppressed. Richcreek, 187 Ariz. at 506, 930 P.2d
at 1309.
4
¶6 Our assessment of reasonable suspicion is based on the totality of the
circumstances, considering such objective factors as the suspect’s conduct and appearance,
location, and surrounding circumstances, such as the time of day, and taking into account
the officer’s relevant experience, training, and knowledge. See United States v. Arvizu, 534
U.S. 266, 275 (2002); Graciano, 134 Ariz. at 37, 653 P.2d at 685; see also United States
v. Brignoni-Ponce, 422 U.S. 873, 884 (1975) (“Officers may consider the characteristics of
the area in which they encounter a vehicle.”); Illinois v. Wardlow, 528 U.S. 119, 139
(2000) (time of day a factor).
¶7 Although Fornof acknowledges this totality of the circumstances test, she also
contends we should follow the reasoning of the Tenth Circuit Court of Appeals in United
States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997). There the court, quoting Karnes v.
Skrutski, 62 F.3d 485, 496 (3rd Cir. 1995), stated “it is ‘impossible for a combination of
wholly innocent factors to combine into a suspicious conglomeration unless there are
concrete reasons for such an interpretation.’” But, this reasoning conflicts with the totality
of the circumstances test articulated by our supreme court, because it invites the type of
piecemeal evaluation of the innocence of each individual factor rejected by the United States
Supreme Court. See Arvizu, 534 U.S. at 274; Graciano, 134 Ariz. at 37-38, 653 P.2d at
685-86. Thus, we decline to follow it. See State v. Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d
1006, 1009 (App. 2003) (court of appeals may not disregard decisions of supreme court);
see also U.S. Const. art. VI, cl. 2.
5
¶8 In reviewing a motion to suppress, we consider only the evidence presented
at the suppression hearing and view it in the light most favorable to upholding the trial
court’s factual findings. In re Ilono H., 210 Ariz. 473, ¶ 2, 113 P.3d 696, 697 (App. 2005).
Here, Kadous testified at the suppression hearing that he had stopped the car after seeing a
pedestrian “standing next to the passenger side of the vehicle. The vehicle was stopped and
he was reaching in. They were doing an exchange. The [female] passenger . . . was also
handing [him] something. I didn’t know what it was at the time.” He stated that his initial
suspicion that illegal activity was taking place was confirmed when the pedestrian looked
at him and walked off quickly.
¶9 At the time of the exchange, around 11:40 p.m., the car was about one
hundred feet from the intersection of 12th Avenue and President Street, which Kadous
further testified, “had a history of drug and prostitute problems with loitering and drug sales
and usage,” and that based on his training and experience, the activity he observed was
“indicative of . . . a possible drug exchange.” Taking into account Kadous’s nineteen years
of police experience, the court found the exchange he observed, late at night, in an area
known for drug transactions, “coupled with the individual leaving in a quick manner as soon
as he sees a police officer,” was sufficient grounds for reasonable suspicion. It therefore
denied Fornof’s motion to suppress.
¶10 Fornof argues “[a]t best all . . . Kadous had was a suspicion or hunch that the
individuals were involved in criminal activity.” She quotes Graciano for the proposition
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that “[t]o uphold the stop in question on the basis of these observed circumstances would
subject many innocent individuals to just the type of intrusions prohibited by the [F]ourth
[A]mendment.” Id. at 38, 653 P.2d at 686.
¶11 Our inquiry into whether an officer possessed reasonable suspicion is fact
specific. State v. Valle, 196 Ariz. 324, ¶ 17, 996 P.2d 125, 130 (App. 2000), citing Ohio
v. Robinette, 519 U.S. 33, 39 (1996). Neither party cites any case involving similar facts
that resolves the issue of whether an officer’s observation of an apparent hand-to-hand
exchange between two people in a specific location known for drug activity is sufficient to
give rise to a reasonable articulable suspicion of illegal activity.1
¶12 We note that in the cases the trial court cited in denying Fornof’s motion to
suppress, the grounds for reasonable suspicion were arguably more substantial than in the
current case. Arvizu, 534 U.S. 266, State v. O’Meara, 198 Ariz. 294, 9 P.3d 325 (2000),
and State v. Riley, 196 Ariz. 40, 992 P.2d 1135 (App. 1999), involved reasonable suspicion
grounded in cumulative information that had been gathered from an extended period of
observation or investigation and/or based on a clear-cut violation of traffic laws.2
1
Fornof relies primarily on United States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997),
for the proposition that such an exchange does not give rise to reasonable suspicion.
However, that case is distinguishable because the officer could see the hands of two men
huddled together in a car and had observed that they were neither exchanging nor concealing
anything. Id. at 617.
2
A fourth case mentioned, but without citation, by the trial court at the suppression
hearing, State v. Killian, was not cited by the parties, and there appears to be no Arizona
case of that name addressing the issue of reasonable suspicion.
7
¶13 In both O’Meara, 198 Ariz. 294, ¶ 5, 9 P.3d at 326, and Riley, 196 Ariz. 40,
¶¶ 11, 15, 992 P.2d at 1139, 1140, traffic violations provided reasonable suspicion for the
initial stop. In O’Meara, prior to the stop, officers had also observed a number of men
loitering in front of a store, switching back and forth from one car to another, driving away,
and making several U-turns, consistent with the behavior of a narcotics buyer giving his car
to the seller to take it to the “stash house” for loading. 198 Ariz. 294, ¶¶ 2-4, 11, 9 P.3d at
326-27. After stopping one of the cars for speeding, officers noticed a strong odor of fabric
softener coming from the trunk, again consistent with the practice of drug traffickers who use
such products to mask the odor of drugs. Id. ¶ 4. The court concluded that “looking at the
whole picture in this case, the car switching, the U-turns, and the fabric softener, there is no
doubt that [the officer] had reasonable suspicion to detain O’Meara while they were waiting
for the drug detection dog.” Id. ¶ 11.
¶14 And in Riley, this court found that a police officer had reasonable suspicion
to continue his investigation after the initial stop following a high-speed chase. 196 Ariz.
40, ¶¶ 11, 15, 992 P.2d at 1139-40. There, the driver was “unable to provide the vehicle
owner’s name or phone number, claimed not to know his passenger’s last name, possessed
questionable identification, was sweating despite the winter temperature, and claimed to be
going home, but was headed in the opposite direction from the address on his temporary
license.” Id. ¶ 15. The officer asked the driver to step out of the vehicle and, when he
ignored instructions to keep his hands out of his pockets, “patted him down” and found two
8
large bundles of cash in bank wrappers. Id. ¶ 12. The officer requested Riley, a passenger
in the vehicle, to step out and asked whether he was carrying anything that would hurt the
officer. Id. ¶ 13. When Riley reached for his waistband, the officer pushed him against the
car, conducted a pat-down search, and found two handguns. Id. Under these circumstances,
we concluded the officer’s reasonable concern for his safety justified the pat-down searches
and the trial court did not err in denying the motion to suppress the evidence. Id. ¶ 16.
¶15 Similarly, in Arvizu, 534 U.S. at 272-73, a total of ten factors were involved
in an officer’s decision to make an investigatory stop in the area of the United States-Mexico
border. These included the fact that a minivan containing two adults and three children was
on a back road that took it around a vehicle checkpoint at a time when the area was regularly
unpatrolled due to a Border Patrol shift change; its route was not taking it to or from any
known recreation areas; the children’s knees were unusually high as if their feet were on top
of some cargo on the floor of the van; and the van’s occupants were behaving oddly, with
all three children waving in a strange, mechanical manner for four or five minutes after the
officer began following them in his patrol vehicle. Id.
¶16 Conversely, the cases cited by Fornof in support of her contention that
Arizona courts have found no reasonable suspicion under more suspicious circumstances
contain less suspicious facts. In State v. Rogers, 186 Ariz. 508, 509, 924 P.2d 1027, 1028
(1996), officers merely observed two men emerge from behind some bushes in a darkened
residential area, walk down the middle of the street, and stare at them, while in State v.
9
Stricklin, 191 Ariz. 245, 246, 955 P.2d 1, 3 (App. 1996), an officer observed a man
standing next to a closed gas station and peering around the corner. In neither case was the
suspicious conduct as well defined as the exchange observed in the current case.
¶17 The circumstances in the present case fall somewhere in the middle of the
cases relied upon by the trial court on the one hand and Fornof on the other. Courts in
other jurisdictions have concluded that “[a]n officer’s observation of hand-to-hand
movements between persons in an area known for narcotics transactions, without more, does
not provide a founded suspicion of criminal activity.” Belsky v. State, 831 So. 2d 803, 804
(Fla. App. 2002); see State v. Ellington, 495 N.W.2d 915, 919-20 (Neb. 1993) (collecting
cases from Alabama, California, Florida, Georgia, Louisiana, and Texas); State v. Kuhn, 517
A.2d 162, 165 (N.J. Super. 1986) (collecting New Jersey cases).3 But when, as in the
current case, an officer observes items changing hands, when the transaction takes place in
a specific location known for drug-related activity, and when it takes place late at night, an
officer’s otherwise unparticularized suspicions may be elevated to the level of reasonable
suspicion. See State v. Singleton, 128 P.3d 28, 31 (Utah App. 2005) (“observation of a
hand-to-hand exchange in [a particular trailer park] known for drug trafficking . . . formed
a sufficient and independent basis for reasonable suspicion”); Lambright v. State, 487
S.E.2d 59, 61 (Ga. App. 1997) (“[officer]’s suspicions became articulable the moment he
3
Cases from other jurisdictions may be persuasive in our determination of reasonable
suspicion. See In re Ilono H., 210 Ariz. 473, ¶ 12, 113 P.3d 696, 700 (App. 2005).
10
saw the hand-to-hand exchange . . . at a known [drug-dealing] location”); see also United
States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993) (“area’s propensity toward criminal
activity [and] . . . lateness of the hour . . . may raise the level of suspicion”). In addition, a
suspect’s hasty departure from the scene, although falling short of flight, may further support
an officer’s reasonable suspicion. See State v. Butler, 415 S.E.2d 719, 722-23 (N.C. 1992)
(defendant’s immediately walking away after making eye contact with officers an additional
factor).4
¶18 The trial court acknowledged that this was “not a strong case by the State, but
it’s strong enough . . . to rule that the stop was based on a reasonable suspicion.” We agree
this is a close case, and absent any single factor in the totality of the circumstances giving
rise to reasonable suspicion in this case, we cannot say our decision would be the same.
However, “[t]he intrusion upon privacy associated with this stop was limited and was
‘reasonably related in scope to the justification for [its] initiation.’” United States v. Cortez,
449 U.S. 411, 421 (1981), quoting Terry, 392 U.S. at 29. Thus, giving due weight to the
court’s factual findings, we concur with its conclusion.
¶19 We therefore find that the officer’s observation of items changing hands, late
at night, at a specific intersection he knew had high levels of drug-related activity, and the
4
On appeal, the state attempts to bolster the trial court’s findings by arguing that the
pedestrian had been behaving “furtively” and by construing the car’s movements as “evasive”
or even as “attempted flight.” However, we find no evidence to support the state’s argument
and, indeed, the court made no such findings.
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precipitous departure of one of the parties to the transaction when he saw the officer, was
sufficient to justify the vehicle stop that led to Fornof’s arrest and the discovery of cocaine
on her person.5
Expert testimony
¶20 Fornof next argues the trial court erred by permitting an expert to testify that
he believed the quantity of drugs she had possessed were for sale, rather than personal use.6
At trial, the state called Tucson Police Department Detective Lonnie Bynum as an expert
witness on the sale and use of cocaine base, commonly referred to as crack cocaine. He
testified that the cocaine base possessed by Fornof had a street value of $4,360, that cash
found on Fornof—predominantly $20 bills—was consistent with denominations used in
drug transactions, and that if the crack cocaine were for personal use he would also expect
5
We assign less weight than the trial court to the “subjective element” of Sergeant
Kadous’s law enforcement experience as a factor supporting reasonable suspicion here. See
State v. Gonzalez-Gutierrez, 187 Ariz. 116, 119, 927 P.2d 776, 779 (1996) (totality of
circumstances analysis includes “evaluat[ing] subjective elements, such as agent’s training
and experience). Although an officer’s level of experience may well add to the totality of
objective circumstances justifying a stop in many cases, see Brown v. Texas, 443 U.S. 47,
52 n.2 (1979) (experienced officer may be able to “perceive significance to conduct which
would be wholly innocent to the untrained observer”), the state failed to introduce any
evidence or elicit specific testimony relating Officer Kadous’s considerable years of
experience to the suspicious conduct he observed.
6
We are not persuaded by the state’s argument that Fornof forfeited this issue because
she objected at trial that the opinion “call[ed] for a legal conclusion and [invaded] the
purview of the jury” but on appeal “urges [us] to overturn long-established Arizona
precedent and forbid police officers from opining about such matters in all cases.” “An
objection is sufficiently made if it provides the judge with an opportunity to provide a
remedy.” State v. Fulminante, 193 Ariz. 485, ¶ 64, 975 P.2d 75, 93 (1999).
12
to see some means of smoking it such as a “glass pipe or altered can”; no such item was
found on Fornof. Finally, over Fornof’s objection, he stated his opinion that the forty-three
grams of cocaine base involved in this case were possessed for sale.
¶21 In support of her argument, Fornof relies solely on Connecticut cases and
concedes that her argument would require us to make a ruling contrary to State v. Carreon,
151 Ariz. 615, 729 P.2d 969 (App. 1986). In that case, Division One of this court rejected
the defendant’s contention that the admission of an officer’s expert opinion that the drugs
were possessed for sale constituted reversible error. Id. at 616, 729 P.2d at 970. The court
noted Rule 704, Ariz. R. Evid., provides that opinion testimony “is not excludable merely
because it embraces an ultimate issue of fact” but may be admitted if it assists the jury in
understanding the evidence and that “[a] police officer’s expert testimony concerning
whether drugs were possessed for sale has long been admissible in this state.” Id. at 617,
729 P.2d at 971. “[W]e generally consider ‘decisions of coordinate courts as highly
persuasive and binding.’” State v. Romero, 216 Ariz. 52, n.2, 162 P.3d 1272, 1273 n.2
(App. 2007), quoting Castillo v. Indus. Comm’n, 21 Ariz. App. 465, 471, 520 P.2d 1142,
1148 (1974). Furthermore, as the state points out, Fornof’s argument is also contrary to the
same holding reached by our supreme court in State v. Keener, 110 Ariz. 462, 520 P.2d 510
(1974), which we have no authority to disregard. See State v. Newnom, 208 Ariz. 507, ¶ 8,
95 P.3d 950, 951 (App. 2004) (court of appeals has no authority to overrule or disregard
13
supreme court). The trial court therefore did not err in admitting Bynom’s opinion
testimony.
Disposition
¶22 For the reasons stated above, we affirm.
____________________________________
GARYE L. VÁSQUEZ, Judge
CONCURRING:
____________________________________
PETER J. ECKERSTROM, Presiding Judge
____________________________________
PHILIP G. ESPINOSA, Judge
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