State v. Ribble ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
AMETHYST RIBBLE, Appellant.
No. 1 CA-CR 16-0726
FILED 11-14-2017
Appeal from the Superior Court in Maricopa County
No. CR2015-105193-001 SE
The Honorable Virginia L. Richter, Judge Pro Tem
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee
Maricopa County Public Defender, Phoenix
By Lawrence Blieden
Counsel for Appellant
STATE v. RIBBLE
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco 1 delivered the decision of the Court, in which
Presiding Paul J. McMurdie and Judge Peter B. Swann joined.
O R O Z C O, Judge:
¶1 Amethyst Starr Ribble appeals her conviction and probation
grant for possession of dangerous drugs. On appeal, she challenges the
denial of her motion to suppress. Discerning no error, we affirm.
FACTS 2 AND PROCEDURAL HISTORY
¶2 In August 2014, Officer Marchant, an officer with Tempe
Police Department, initiated a traffic stop of a vehicle driven by Ribble after
observing a traffic violation. During the stop, Officer Marchant noticed
Ribble moving around inside the vehicle and was “first leaning forward
and then kind of shifting in her seat. And then her right arm went behind
her back.” This behavior “sparked [his] suspicions” that there may have
been a weapon or contraband inside the vehicle. After completing a
records-check on Ribble and the vehicle, Officer Marchant approached the
vehicle to speak with her and the passenger. Ribble explained she had been
moving around in the vehicle because she was looking for her keys so
Officer Marchant would not think the vehicle was stolen. She further
explained that her “ignition was messed up” and “she didn’t have any keys
in the ignition” because “the key broke off inside of it.” Officer Marchant
then requested additional police assistance because he had decided he “was
going to ask them to exit the vehicle in order to perform a consensual search
or a canine sniff.” While waiting for assistance, Officer Marchant observed
1 The Honorable Patricia A. Orozco, retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3, of the Arizona Constitution.
2 We review the facts in the light most favorable to sustaining the trial
court’s ruling, State v. Hyde, 186 Ariz. 252, 265 (1996), and give deference to
the trial court’s factual findings. State v. Adams, 197 Ariz. 569, 572, ¶ 16
(App. 2000).
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STATE v. RIBBLE
Decision of the Court
additional movements including Ribble “picking something up, [and]
moving it.”
¶3 When a second officer arrived, Officer Marchant approached
the vehicle for a third time. During this interaction, Officer Marchant
noticed Ribble had her purse on her lap and “a multi-tool with the pliers
portion unfolded on one side and a knife unfolded on the other side.” He
also noticed Ribble had a fresh cut on her thumb. Ribble explained that she
had the tool out because she wanted to make sure she could start her
vehicle.
¶4 Officer Marchant believed the interactions were suspicious
because her stories were inconsistent—at one point she explained she used
pliers to start the car, and at a later point she said she used the knife to start
the car. The officers removed Ribble and the passenger from the vehicle for
“further investigation.” Officer Marchant sought consent to search the
vehicle, but Ribble declined. The officers then requested an “available
canine,” and a canine unit arrived approximately 20 minutes later.
¶5 The narcotics dog, Indy, alerted to the outside of the
driver’s-side door, but he did not alert when allowed inside the vehicle.
Indy and his handler, Officer Blank, are certified by the National Police
Canine Association in narcotic detection. Based on the initial alert, the
officers searched the car and retrieved a black bag containing
methamphetamine hidden between the bottom and back cushions of the
driver’s seat along with several other items that appeared to be drug
paraphernalia.
¶6 The State, by amended Information, charged Ribble with one
count of possession or use of dangerous drugs, a class four felony, and one
count of possession of drug paraphernalia, a class six felony.
¶7 Ribble filed a motion to suppress the evidence seized in the
warrantless search of her vehicle. After conducting an evidentiary hearing,
the superior court denied the motion, finding the State established by a
preponderance of the evidence (1) the stop was reasonable, (2) the extension
of the stop was reasonable based on suspected criminal activity, and (3) any
concerns as to the reliability of the dog sniff was for the jury to consider and
weigh.
¶8 The jury convicted Ribble of possession of dangerous drugs
and acquitted her of possession of drug paraphernalia. The superior court
suspended her sentence and imposed a two-year probation term. Ribble
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STATE v. RIBBLE
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filed a timely notice of appeal. We have jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) §§ 12-120.21.A.1., 13-4031, and 13-4033A. 3
DISCUSSION
¶9 Ribble argues the superior court abused its discretion in
denying her motion to suppress evidence seized in the warrantless search
of her vehicle because: (1) there was no reasonable suspicion for the traffic
stop; (2) there was no reasonable suspicion to prolong the traffic stop; and
(3) there was no probable cause to search the vehicle because the dog alert
was unreliable. We review evidentiary rulings that implicate a defendant’s
constitutional rights de novo, State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006),
considering only the evidence submitted at the suppression hearing. State
v. Blackmore, 186 Ariz. 630, 631 (1996).
¶10 Reasonable suspicion requires an objective, articulable basis
justifying an investigatory detention. State v. Primous, 242 Ariz. 221, 223,
¶ 11 (2017); State v. Sweeney, 224 Ariz. 107, 112, ¶ 21 (App. 2010); State v.
Teagle, 217 Ariz. 17, 23, ¶ 25 (App. 2007). 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). “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.” Teagle, 217 Ariz. at 24, ¶ 26 (citing United
States v. Arvizu, 534 U.S. 266, 273–74 (2002)).
¶11 Article 2, Section 8, of the Arizona Constitution, and the
Fourth Amendment provide protection from unreasonable searches and
seizures. U.S. Const. amend. IV; see State v. Gilstrap, 235 Ariz. 296, 297, ¶ 7
(2014). “An investigatory stop of a motor vehicle constitutes a seizure,” but
an officer “need only possess a reasonable suspicion that the driver has
committed an offense” to conduct a traffic stop. State v. Livingston, 206 Ariz.
145, 147, ¶ 9 (App. 2003).
¶12 Ribble acknowledges that she failed to signal before making
a right turn, but contends she did not violate A.R.S. § 28-754 because the
State failed to prove that other traffic may have been affected by the
unsignaled movement. To effectuate a legal traffic stop, Officer Marchant
3 Absent a change material to our decision, we cite to a statute’s most
current version.
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STATE v. RIBBLE
Decision of the Court
needed an articulable, reasonable suspicion that Ribble turned her vehicle
without giving an appropriate signal where “other traffic may [have been]
affected by the movement.” A.R.S. § 28-754.A. A police officer driving a
police vehicle can constitute “other traffic.” State v. Salcido, 238 Ariz. 461,
465, ¶ 13 (App. 2015).
¶13 Here, Officer Marchant testified that as he was driving
“within several car lengths” behind Ribble, he observed her stop at a stop
sign, and then turn right without signaling. His observation from within
his police vehicle, observed while he was driving on the same roadway,
may have affected his driving. See A.R.S. § 28–754; Salcido, 238 Ariz. at 466,
¶ 14 (holding “[t]he traffic maneuver need not actually affect other traffic,
‘it is enough that the move may influence the factors a driver would
consider in order to drive safely’”). The superior court did not err in finding
sufficient reasonable suspicion to justify the traffic stop.
¶14 Ribble next argues that Officer Marchant lacked reasonable
suspicion to prolong the traffic stop in order to conduct a dog sniff.
Stopping a car based upon a police-observed traffic violation “become[s]
unlawful if it is prolonged beyond the time reasonably required to complete
th[e] mission” of issuing a ticket for the violation. Illinois v. Caballes, 543
U.S. 405, 407 (2005). After an officer completes the traffic-related purpose
of the stop, the driver must be allowed to leave unless the encounter
becomes consensual or “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). The use
of a dog sniff after a routine traffic stop requires reasonable suspicion
independent of that justifying the initial seizure. Rodriguez v. United States,
135 S. Ct. 1609, 1616 (2015).
¶15 Here, Officer Marchant developed a reasonable suspicion that
Ribble was in possession of and attempting to conceal contraband. While
reviewing her license and registration, Officer Marchant observed her lean
forward from her seat and then move her right arm behind her back. He
explained that these movements “sparked” his suspicion that “something
inside the vehicle was being moved, whether it be a weapon or
contraband.” After speaking to Ribble about the movements he observed,
he continued to suspect that “she could have been moving something,
something of contraband inside the vehicle” because her explanation for
the movement—that she wanted to find her keys to prove that the car was
not stolen—was inconsistent with providing the vehicle’s registration,
which proved she was the registered owner. Officer Marchant’s suspicions
heightened when he went back to his patrol vehicle and saw “more shifting
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STATE v. RIBBLE
Decision of the Court
in the seat like, you know, picking something up, moving it.” He described
these observed movements as “furtive.”
¶16 When he returned to the vehicle again, this time with an
additional officer, he observed Ribble holding “a multi-tool with the pliers
portion unfolded on one side and a knife unfolded on the other side.” In
addition, he observed a fresh cut on her thumb. Officer Marchant noted
that although Ribble claimed that she had drawn the knife to start her car,
she had previously stated that she used the pliers function of the multi-tool
device to do so. This additional inconsistency in Ribble’s story caused
Marchant to call for a canine unit.
¶17 On this record, examining the totality of Officer Marchant’s
encounter with Ribble, we discern no error in the superior court’s finding
that there was reasonable suspicion to detain her until the narcotic dog
arrived. Although Ribble claims her explanation for her actions were
“entirely plausible,” “seemingly innocent behavior can form the basis for
reasonable suspicion if an officer, based on training and experience, can
perceive and articulate meaning in given conduct, which would be wholly
innocent to the untrained observer.” State v. Boteo-Flores, 230 Ariz. 105, 108,
¶ 12 (2012) (internal quotation marks and alteration omitted). Further,
“when determining whether reasonable suspicion exists, the police are not
required to rule out the possibility of innocent explanations for a
defendant’s conduct.” State v. Evans, 237 Ariz. 231, 235, ¶ 16 (2015). Because
Officer Marchant testified that based on his training and experience as a
police officer and as a “narcotics enforcement liaison,” Ribble’s continuous
furtive movements and her inconsistent story led him to suspect she was
concealing contraband, there was sufficient reasonable suspicion of
criminal activity to justify extending the detention in order to confirm or
dispel such suspicion. See id. at ¶ 14.
¶18 Finally, Ribble argues there was no probable cause to search
her vehicle because the canine’s alert was unreliable. Ribble does not
contest the legitimacy of Indy’s training or the presumption of reliability
that it creates, but instead claims that Indy was not reliable the night he
sniffed her car because he was sick.
¶19 An alert by a properly trained and reliable drug detection dog
can provide probable cause for a warrantless search of a vehicle. See Teagle,
217 Ariz. at 27 n.7, ¶ 36. In determining the reliability of a dog’s alert to
contraband, the inquiry “is whether all the facts surrounding the alert,
viewed through the lens of common sense, would make a reasonably
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STATE v. RIBBLE
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prudent person think that a search would reveal contraband or evidence of
a crime.” Florida v. Harris, 568 U.S. 237, 248 (2013).
¶20 Officer Blank, Indy’s handler, testified that Indy is trained to
detect the presence of a narcotic odor and not necessarily the drug’s precise
location within a vehicle. On the night of Ribble’s stop, Officer Blank had
not “recognize[d] any issues with Indy.” He did, however, notice
symptoms of a respiratory issue, including excessive sneezing, the day after
the stop during their routine training session. Officer Blank noted that
during the training session, it took Indy a little longer to alert and he
“seemed to be having a hard time locating the source odor.” Officer Blank
further testified that the difficulty Indy demonstrated during his training
the next day caused him to miss the presence of a narcotic odor, not to
falsely identify an odor. Officer Blank’s testimony regarding Indy’s
training and his behavior while suffering a respiratory illness, indicates that
Indy’s failure to alert while inside the car was not proof that his alert on the
outside of the car was unreliable.
¶21 On this record, the superior court properly considered
whether Indy may have been sick at the time of the sniff, and weighed that
information alongside Officer Blank’s testimony before concluding the dog
sniff provided probable cause for the warrantless search.
CONCLUSION
¶22 For the foregoing reasons, the superior court properly denied
Ribble’s motion to suppress and we affirm Ribble’s conviction and
sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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