State v. Notice ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
CHRISTOPHER ALEXANDER NOTICE, Appellant.
No. 1 CA-CR 13-0196
FILED 10-28-2014
Appeal from the Superior Court in Maricopa County
No. CR2012112160
The Honorable William L. Brotherton, Jr., Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee
Kimerer & Derrick, P.C., Phoenix
By Michael D. Kimerer
And Rhonda Elaine Neff
Counsel for Appellant
STATE v. NOTICE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Diane M. Johnsen and Judge Kenton D. Jones joined.
T H O M P S O N, Judge:
¶1 Christopher Alexander Notice (defendant) appeals from his
convictions and sentences for one count of possession of marijuana for sale,
a class 2 felony, and one count of sale or transportation of marijuana, a class
2 felony. For the following reasons, we affirm defendant’s convictions and
sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 In March 2012, Phoenix Police responded to an emergency
call about an aggravated assault in progress at a Phoenix post office. Upon
arriving, police officers spoke with defendant’s girlfriend, who had placed
the 911 call. She told the officers that she, defendant and his nine year old
son pulled into the parking lot of the post office where defendant was going
to mail a package that he had just picked up from a friend. Two men
wearing black shirts and hats with the word “Narcotics” written on them
and badges that witnesses believed to be false approached defendant,
pushed him against the back of his vehicle, took the package and started
running to their own vehicle. Defendant chased the two men and managed
to retrieve the package before they sped away from the scene. The
girlfriend stated that defendant went straight into the post office to mail the
package after the incident, without checking on her welfare or the welfare
of his child.
¶3 Two police officers entered the post office to attempt to locate
defendant, whom they understood at the time to be the victim of an
attempted robbery. Officers noticed a man matching the description of
defendant already at the counter mailing a package, but the man failed to
acknowledge the police officers. The officers waited in the lobby of the post
office until defendant exited. Shortly after, defendant headed out the door,
walked past the officers waiting in the lobby, and only after passing them
turned and stated, “Were you guys looking for me?” The officers asked if
he was the victim of a crime, and defendant replied that he was but
continued walking out the door.
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¶4 The officers followed defendant to the parking lot. Officers
asked defendant twice what was in the package. Both times defendant said
that he did not know what was in the package because he was mailing it for
a friend. He then stated that he did not know the name or phone number of
that friend. The officers asked defendant if he would go inside to retrieve
the package so they could check it for the robbers’ fingerprints or DNA,
because the post office refused to give it to the officers without defendant’s
permission. Defendant told the officers that the robbers “never touched the
package,” contrary to what his girlfriend told police. When the officers told
him of the conflicting stories, defendant agreed to retrieve the package.
Defendant accompanied one police officer inside, identified the package
and gave the officer oral permission to take the package back from the mail
counter.
¶5 The officer brought the package, which “looked like it was a
computer box . . . [with] a little handle on top,” to the parking lot. Through
the openings of the handles, officers noticed what looked like a computer
tower with its hardware missing. Officers also noted a smell of dryer sheets
coming from the package. Based on the totality of the circumstances,
officers called a K-9 officer to conduct a sniff of the package. The dog
sniffed the package and did not alert. During that time, an officer checked
defendant’s record and discovered that he had been arrested for possession
of marijuana in 2007, even though defendant stated he had never been
arrested.
¶6 Officers then returned to defendant, who appeared very
nervous. An officer told defendant that “the gig was up” because officers
knew what was in the box and they were going to x-ray it. Defendant
continued to maintain that the package was not his. Pressed again by the
officers, defendant eventually agreed that police could open the box.
¶7 Inside the box, officers found three bricks of marijuana
wrapped in wet dryer sheets and multiple layers of cellophane. Officers
arrested defendant. As they were walking to the patrol vehicle, defendant
stated to an officer that he wanted to see a drug detective.
¶8 The state charged defendant with one count of possession of
marijuana for sale, a class 2 felony, one count of sale or transportation of
marijuana, a class 2 felony, and conspiracy to commit sale or transportation
of marijuana, a class 2 felony. Defendant filed a motion to suppress the
contents of the package as fruit of an unlawful and unreasonable detention,
and the trial court held a hearing. The court denied the motion to suppress
the package, finding that defendant was not unlawfully detained until the
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officer said “the gig is up,” and that defendant lacked standing because he
disavowed ownership of the package.
¶9 After a jury trial, defendant was convicted of one count of
possession of marijuana, a class 2 felony (count one), and one count of sale
or transportation of marijuana, a class 2 felony (count two). The trial court
sentenced defendant to concurrent sentences of five years for count one and
five years on count two, with credit for 152 days of presentence
incarceration. Defendant timely appealed. We have jurisdiction pursuant
to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) (2003), 13-4031
(2010), and -4033(A) (2010).
DISCUSSION
¶10 On appeal, defendant argues that the trial court abused its
discretion in denying his motion to suppress. He argues that his Fourth
Amendment rights were violated because officers unlawfully detained him
when they asked him to go back into the post office to retrieve the package
without probable cause to do so. Additionally, defendant argues that the
search of the package was the “fruit” of his unlawful detention, and that the
trial court incorrectly concluded that defendant lacked standing to contest
the search. Finally, defendant argues that the trial court erred in applying
the inevitable discovery doctrine to deny his motion to suppress.
A. Standard of Review
¶11 We review the trial court’s denial of a motion to suppress
evidence for an abuse of discretion. State v. Peterson, 228 Ariz. 405, 407, ¶ 6,
267 P.3d 1197, 1199 (App. 2011). We defer to the trial court’s factual
findings, but review the court’s ultimate legal determination de novo. State
v. Wyman, 197 Ariz. 10, 13, ¶ 5, 3 P.3d 392, 395 (App. 2000). “[W]e look only
to the evidence presented at the suppression hearing and view it in the light
most favorable to sustaining the court’s ruling . . . .” State v. Brown, 233
Ariz. 153, 156, ¶ 4, 310 P.3d 29, 32 (App. 2013) (citation omitted).
B. Defendant Was Not Unlawfully Detained When Officers Asked
Him to Retrieve the Package From the Post Office
¶12 The Fourth Amendment of the United States Constitution
guarantees “[t]he right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. It is well established that not every stop by a law
enforcement officer is a violation of this right. See State v. Childress, 222 Ariz.
334, 338, ¶ 10, 214 P.3d 422, 426 (App. 2009) (“the Fourth Amendment
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prohibits only unreasonable seizures”); State v. Hutton, 110 Ariz. 339, 341,
519 P.2d 38, 40 (1974) (“Only unreasonable searches and seizures are
proscribed by the commands of the [Fourth] [A]mendment.”) (citation
omitted). Police encounters which are consensual do not implicate the
Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434 (1991). However,
what is initially a consensual encounter between a police officer and a
citizen can turn into an unlawful seizure under the Fourth Amendment.
Wyman, 197 Ariz. at 14, ¶ 12, 3 P.3d at 396 (“[A] consensual encounter with
an uncooperative subject can become a Fourth Amendment seizure when
the subject’s participation is ultimately gained through more than one
request for ‘voluntary’ cooperation.”).
¶13 When asked to decide if an encounter went beyond consent
and became an unlawful seizure, we first must determine if and when a
seizure occurred. Childress, 222 Ariz. at 338, ¶ 10, 214 P.3d at 426 (citing
Terry v. Ohio, 392 U.S. 1, 16 (1968)). A seizure occurs when officers restrain
the liberty of a citizen by means of physical force or a show of authority.
United States v. Mendenhall, 446 U.S. 544, 552 (1980); Terry, 392 U.S. at 19,
n.16. Therefore, we must determine if, by a totality of the circumstances,
police conduct would communicate to a reasonable person, innocent of any
crime, that he or she is not free to ignore the police presence. State v.
Winegar, 147 Ariz. 440, 448, 711 P.2d 579, 587 (1985); Wyman, 197 Ariz. at 13,
¶ 7, 3 P.3d at 395.
¶14 Defendant argues that he was unlawfully seized under the
Fourth Amendment when officers asked him to go into the post office to
retrieve the package. Specifically, defendant argues that officers displayed
a show of authority by asking him to move from the parking lot to the post
office, by repeating their request after defendant stated that the robbers did
not touch the package, and by the presence of at least four uniformed
officers and a K-9 officer. In order for defendant’s argument to succeed, we
would need to find the trial court abused its discretion in concluding that
this evidence did not demonstrate a show of authority that a reasonable
person would not feel free to ignore. See State v. Guillory, 199 Ariz. 462, 465,
¶ 10, 18 P.3d 1261, 1264 (App. 2001). We decline to do so.
¶15 In Mendenhall, the United States Supreme Court held that
some of the factors in considering whether an illegal seizure has occurred
include the “threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the citizen, or the use of
language or tone indicating that compliance with the officer’s request might
be compelled.” 446 U.S. at 554. See also Bostick, 501 U.S. at 437 (no seizure
occurs when police ask a person questions or even request consent to search
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their luggage, as long as the officers do not convey a message that
compliance with their request is required). Without such evidence,
otherwise inoffensive contact between a citizen and an officer cannot, as a
matter of law, constitute a seizure. Mendenhall, 446 U.S. at 555. In addition
to these factors, the Arizona Supreme Court has also taken into
consideration whether a person watched their companion be frisked, and
whether police requested that a person accompany them to another location
across the street for further questioning. Winegar, 147 Ariz. at 448, 711 P.2d
at 587. See also Florida v. Royer, 460 U.S. 491, 501 (1983) (when police officers
retained the identification and airline ticket of the defendant, told him he
was suspected of transporting narcotics, and asked him to accompany
officers to an airport police room, he was effectively seized under the
Fourth Amendment).
¶16 Here, defendant’s initial encounter with the officers was
consensual because he was first to engage in conversation with officers by
asking “Were you guys looking for me?” The fact that officers followed
defendant out after he confirmed he was a victim of the crime they were
investigating did not change the consensual nature of this encounter. At
that point, the officers still needed more information about the men
impersonating police who had attempted to rob defendant.
¶17 Defendant argues this situation became an unlawful seizure
when another officer approached him outside and asked if he would
retrieve the package from the post office. We find that it did not. The
officers’ conduct did not amount to a show of authority that would have
made a reasonable person, innocent of crime, believe he was unable to
leave. At the time, there were two police officers speaking with defendant
about the robbery when a third officer approached asking about retrieving
the package. While all of the officers were armed, none had their weapons
drawn, nor did they block defendant from leaving. No evidence was
presented at the evidentiary hearing showing that officers used forceful
tones in speaking with defendant or that there was any use of physical force
that would indicate mandatory compliance. No coercive statements were
made to defendant. It is true that defendant and his girlfriend were kept
separate, but unlike the defendant in Winegar, defendant did not observe
his girlfriend being frisked. See Winegar, 147 Ariz. at 448, 711 P.2d at 587.
Further, unlike Winegar, officers did not ask defendant to accompany them
to another location for the purpose of further questioning. See id. Finally,
unlike the facts of Royer, officers did not retain any of defendant’s
belongings when they asked him to retrieve the package, nor did they ask
him to accompany them to a police office. See Royer, 460 U.S. at 501.
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¶18 Although the state argues that the officers “simply asked”
defendant if he would retrieve the package and therefore there was no show
of authority, we have held that just because officers make a request does
not necessarily mean they have not shown authority. See Winegar, 147 Ariz.
at 447, 711 P.2d at 586 (“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.”). Instead, we must also
look to see if the circumstances surrounding the question supplied an
inevitable answer. Id. Here, after defendant initially denied that the
robbers touched the box, officers pointed out the discrepancy between that
statement and that of defendant’s girlfriend. They did not accuse defendant
of lying, or directly refute defendant’s story. At that point, officers were
still investigating an attempted robbery that had just occurred and now had
differing statements. After defendant said nothing, officers asked again if
he would retrieve the package. Defendant did not refuse, walk away or in
any way show that he no longer wanted to cooperate with officers. No
unlawful seizure occurred. Defendant’s acquiescence was not “acceptance”
of an inevitability.
¶19 Because we find that defendant was not seized under the
Fourth Amendment when he retrieved the package, we do not need to
determine whether probable cause to detain him existed at the time. We
also need not address defendant’s arguments that he had standing to object
to the search, that his consent was invalid because it flowed from an
unlawful detention, and that the doctrine of inevitable discovery did not
apply.
CONCLUSION
¶20 Police did not show authority or physical force that would
make a reasonable person, innocent of crime, believe that he was not free to
leave when they asked defendant to retrieve the package as part of their
investigation of the robbery, and the trial court did not abuse its discretion
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in denying defendant’s motion to suppress. We affirm defendant’s
convictions and sentences.
:gsh
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