State of Arizona v. Esgardo Javier Nevarez

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
ESGARDO JAVIER NEVAREZ,
Appellant.
No. 2 CA-CR 2013-0065
Filed May 30, 2014
Appeal from the Superior Court in Pima County
No. CR20110420001
The Honorable Paul E. Tang, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Alex Heveri, Assistant Legal Defender, Tucson
Counsel for Appellant
OPINION
Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Eckerstrom concurred.
STATE v. NEVAREZ
Opinion of the Court
E S P I N O S A, Judge:
¶1 In early 2011, Esgardo Nevarez was charged with two
counts of aggravated driving under the influence of an intoxicant
(DUI). Prior to trial, he moved to suppress the evidence against him,
arguing it was obtained as the result of an unlawful stop. He also
moved to dismiss the charges or suppress evidence on grounds that
police officers had interfered with his right to counsel and to gather
exculpatory evidence. Both motions were denied and, following a
bench trial at which he stipulated to the facts underlying both
charges, Nevarez was convicted and sentenced to concurrent,
mitigated prison terms, the longest of which was 2.5 years. On
appeal, he renews his arguments concerning the constitutionality of
the stop and ensuing investigation.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to
sustaining the challenged conviction. See, e.g., State v. Sarullo, 219
Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). In January 2011,
around 1:00 a.m., Tucson Police Department Officer K. Wilson
pulled over a vehicle driven by Nevarez after being unable to see a
license plate on the car. As Wilson walked up to the vehicle, he saw
a temporary registration tag on the back window. After
transmitting the information on the tag over the radio he
approached the vehicle’s occupants. While doing so, Wilson
observed beer containers in the front and backseat. When he asked
Nevarez for identification, he noticed that Nevarez’s speech was
“very incoherent” and he appeared to have difficulty understanding
the officer’s request. Wilson then performed a records check, which
revealed Nevarez’s license had been suspended and revoked.
¶3 Nevarez was arrested for DUI and taken to the police
station, where a telephonic search warrant to perform a blood draw
was obtained. When advised of the blood draw, Nevarez stated he
wanted an attorney to “read [him] the warrant.” An officer told him
“it was not going to happen” but said he would be given an
opportunity to speak with an attorney later. Police drew a blood
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Opinion of the Court
sample, and subsequent testing revealed a blood alcohol
concentration (BAC) greater than .08. After initially invoking his
right to an independent blood draw, Nevarez “more or less . . . said
‘I’ll take care of it later; let’s just get this done.’”
¶4 As noted above, Nevarez filed an unsuccessful motion
to suppress “any evidence acquired as a result of the illegal seizure”
and dismiss the case based on his claim that the investigatory stop of
his vehicle was without reasonable suspicion. The trial court also
denied a second motion to dismiss or suppress, premised on alleged
violations of the right to counsel and right to exculpatory evidence
in the form of an independent blood draw. After Nevarez
unsuccessfully petitioned this court for special action relief, he
moved the trial court to reconsider its ruling on the investigatory
stop. That motion was denied, and Nevarez was convicted and
sentenced as outlined above. We have jurisdiction over his appeal
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
Investigatory Stop
¶5 Nevarez first argues the trial court erred in failing to
suppress all evidence gathered as a result of the traffic stop, which
included the results of the BAC test and Officer Wilson’s
observations regarding his impairment. He claims the stop was
invalid because Wilson “failed to look at the back window of the
vehicle for a temporary registration once he saw there was no plate
where a plate should be displayed.” See A.R.S. § 28-2156(D)
(temporary registration must be displayed “so that it is clearly
visible from outside the vehicle”). Arguing that the officer noticed
the registration affixed to the rear window “almost immediately”
after stopping his vehicle, Nevarez also challenges the continuation
of the investigation after “the reason for the stop had dissipated.”
¶6 The state does not dispute that a temporary registration
was properly affixed to the rear window of Nevarez’s vehicle, but
argues Officer Wilson’s initial conclusion concerning the absence of
a visible license was a “good faith mistake of fact” that supports a
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Opinion of the Court
finding of reasonable suspicion. Citing Wilson’s testimony that he
did not see the temporary registration tag until he approached
Nevarez’s vehicle on foot, the state contends that continued
investigation of the vehicle was authorized because “[a] stop does
not end . . . until an officer hands back documentation and/or issues
a warning or citation.” We review the trial court’s ruling on this
issue for an abuse of discretion, deferring to factual findings but
reviewing de novo the ultimate legal question—whether police had a
reasonable suspicion of criminal activity. See State v. Rogers, 186
Ariz. 508, 510, 924 P.2d 1027, 1029 (1996).
¶7 Under the Fourth Amendment of the United States
Constitution, an investigatory stop of a motor vehicle constitutes a
seizure. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776,
778 (1996). However, because a traffic stop is less intrusive than an
arrest, it requires only reasonable suspicion on the part of the
investigating officer. Id. at 118, 121, 927 P.2d at 778, 781. Thus,
while an officer needs “‘a particularized and objective basis’” for
suspecting an individual has violated the law, id. at 118, 927 P.2d at
778, quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981), he is
not required to determine if an actual violation has occurred prior to
stopping a vehicle for further investigation, State v. Vera, 196 Ariz.
342, ¶ 6, 996 P.2d 1246, 1247-48 (App. 1999).
¶8 Uncontroverted testimony at the suppression hearing
established that the temporary registration posted on Nevarez’s car
was not initially visible to Officer Wilson. As the trial court noted,
“it was not until after he had exited his vehicle, walked closer to
[Nevarez’s] vehicle, and had lights shining towards the rear of the
vehicle” that he saw the temporary registration. The court also
reviewed photographs of Nevarez’s vehicle showing the position
and size of the temporary registration. Based on this evidence, we
find no error in the court’s determination that Wilson had a
reasonable basis for suspecting Nevarez had violated the license
plate statutes.1 See A.R.S. §§ 28-2156(D), 28-2354.
1We disagree with Nevarez that State v. Fikes compels a
different conclusion. 228 Ariz. 389, 267 P.3d 1181 (App. 2011). As
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STATE v. NEVAREZ
Opinion of the Court
¶9 We next consider whether, as Nevarez claims, “[t]he
trial court erred in failing to suppress all evidence” based on a
finding that “the basis for the stop . . . dissipated” when the
arresting officer observed the temporary registration. An
investigatory stop cannot last “‘longer than is necessary to effectuate
the purpose of the stop.’” State v. Sweeney, 224 Ariz. 107, ¶ 17, 227
P.3d 868, 873 (App. 2010), quoting Florida v. Royer, 460 U.S. 491, 500
(1983). Once the purpose of the stop has been accomplished, the
officer must let the driver continue on his way “unless (1) the
encounter between the driver and the officer becomes consensual, or
(2) during the encounter, the officer develops a reasonable and
articulable suspicion that criminal activity is afoot.” Id. In
determining whether the scope of an investigatory stop is
reasonable, we give “‘careful consideration [to] the totality of the
circumstances.’” State v. Boteo-Flores, 230 Ariz. 105, ¶ 14, 280 P.3d
1239, 1242 (2012), quoting Royer, 460 U.S. at 500.
¶10 Officer Wilson testified he did not see Nevarez’s
temporary registration until he was at a point “[c]lose to the back of
[the] trunk.” While still in the vicinity of the trunk, Wilson
transmitted the temporary registration number over the radio “[t]o
identify the driver of the vehicle and identify that the registration is,
in fact, valid.” As the officer approached the car window, he
observed “a number of beer . . . bottles or cans scattered throughout
the backseat,” an “unopened beer in the center console,” and “some
additional empty beer cans or bottles up front.” Upon speaking
with Nevarez, Wilson noticed several physical signs of intoxication,
including “red, watery eyes” and “incoherent” speech. Based on
the state points out, that decision involved an officer’s mistaken
belief that Arizona law required all brake lights on a vehicle to be
maintained in working order. Id. ¶¶ 3, 11. Its holding is therefore
distinguishable from cases involving mistakes of fact. Moreover, in
Fikes, the state did not argue that a good-faith exception applied, and
the court expressly declined to reach that issue. Id. ¶ 16.
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Opinion of the Court
this evidence, the trial court determined the brief detention of
Nevarez did not violate his rights under the Fourth Amendment.
¶11 Although it appears there are no reported Arizona
decisions featuring analogous facts,2 we find United States v. Jenkins,
452 F.3d 207 (2d Cir. 2006), instructive here. In Jenkins, police
stopped a car that appeared to lack a rear license plate. Id. at 209.
Upon approaching the car, one of the officers noticed a temporary
plate “but did not focus on it because he was concentrating his
attention on the occupants of the [vehicle].” Id. As the officers
approached the driver’s and passenger’s side windows, they
detected the odor of marijuana. Id. They proceeded to investigate
the occupants, two of whom eventually were charged with unlawful
possession of firearms. Id. at 209-10. In upholding the search of the
vehicle, the court stated, “when police officers stop a vehicle on a
reasonable, albeit erroneous, basis and then realize their mistake,
they do not violate the Fourth Amendment merely by approaching
the vehicle and apprising the vehicle’s occupants of the situation.”
Id. at 213; see also United States v. Edgerton, 438 F.3d 1043, 1051 (10th
Cir. 2006) (acknowledging that brief encounter with driver to advise
of erroneous stop could independently give rise to reasonable
suspicion of criminal activity).
2The trial court’s reliance on State v. Reed, 927 P.2d 893 (Idaho
Ct. App. 1996), which Nevarez also has challenged on appeal, was
entirely proper on this basis. See State v. Patterson, 222 Ariz. 574,
¶ 20, 218 P.3d 1031, 1037 (App. 2009) (discussing trial court’s
inherent ability to evaluate case law from other jurisdictions in
absence of controlling Arizona law). However, because we affirm
the court’s admission of the challenged evidence on other grounds,
we do not express any opinion on Reed’s holding that an officer is
entitled to ascertain a driver’s identity by asking him to produce his
driver’s license and proof of insurance. See State v. Perez, 141 Ariz.
459, 464, 687 P.2d 1214, 1219 (1984) (appellate court may affirm trial
court’s ruling if correct for any reason). Nor do we address the
propriety of Officer Wilson’s verifying the vehicle’s registration by
radio.
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STATE v. NEVAREZ
Opinion of the Court
¶12 Here, as in Jenkins, 452 F.3d at 209, Officer Wilson’s
basis for the stop dissipated when, upon drawing closer to the
vehicle’s rear window, he observed a temporary registration from a
location where he was lawfully entitled to be. However, the
investigation was not concluded, for purposes of the Fourth
Amendment, until the occupants of the vehicle had been advised
they were free to leave. See, e.g., Arizona v. Johnson, 555 U.S. 323, 333
(2009) (roadside stop normally ends when police inform driver and
passengers they are free to go). It was during that step in the
investigation that Wilson observed circumstances that gave rise to a
new reasonable suspicion of a separate crime—i.e., the presence of
numerous alcohol containers in the car and Nevarez’s physical signs
of intoxication. These factors not only permitted, but arguably
required Wilson to lawfully proceed with a DUI investigation. Cf.
State v. Mendoza-Ruiz, 225 Ariz. 473, ¶ 9, 240 P.3d 1235, 1237 (App.
2010) (reasonableness standard arises from police officer’s status as
“‘jack-of-all-emergencies,’ who is ‘expected to . . . preserve and
protect community safety’”), quoting United States v. Rodriguez-
Morales, 929 F.2d 780, 784-85 (1st Cir. 1991). Accordingly, the trial
court did not err in finding the stop and ensuing investigation
reasonable and in denying Nevarez’s motion to suppress.
Right to Counsel
¶13 Nevarez also contests the denial of his motion to
dismiss based on alleged interference with his right to counsel,
challenging the trial court’s findings that his request for counsel was
either ambiguous or, in the alternative, an attempt to interfere with
the police officers’ criminal investigation. Citing the standard
enunciated by our supreme court in Kunzler v. Pima Cnty. Superior
Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987), he argues the state
failed to establish that his request for counsel would have hindered
the ongoing investigation of his crimes.3 The state, in turn, cites
3Nevarez also disputes the trial court’s statement in its ruling
that the remedy for such a violation “would be a suppression, . . .
not . . . a dismissal.” However, because we conclude the court did
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STATE v. NEVAREZ
Opinion of the Court
evidence presented at the hearing and argues the court’s findings
were legally correct. We defer to the trial court’s factual findings but
review legal questions de novo. See State v. May, 210 Ariz. 452, ¶ 4,
112 P.3d 39, 41 (App. 2005).
¶14 Rule 6.1(a), Ariz. R. Crim. P., recognizes the
constitutional right to counsel, and provides that “[a] defendant
shall be entitled to be represented by counsel in any criminal
proceeding, except . . . where there is no prospect of imprisonment
or confinement after a judgment of guilty.” “Not every reference to
an attorney must be construed by police as an invocation of the
suspect’s right to counsel,” however, and an officer must cease
questioning only where the defendant’s request for counsel is
unambiguous.4 State v. Ellison, 213 Ariz. 116, ¶ 26, 140 P.3d 899, 910
(2006). In other words, the defendant “‘must articulate his desire to
have counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a
request for an attorney.’” State v. Newell, 212 Ariz. 389, ¶ 25, 132
P.3d 833, 841 (2006), quoting Davis v. United States, 512 U.S. 452, 459
(1994). Where an appellant invokes the right to counsel for a
particular purpose, such limited invocation may not “operate as a
request for counsel for all purposes.” State v. Uraine, 157 Ariz. 21, 22,
754 P.2d 350, 351 (App. 1988).
¶15 Nevarez did not request counsel after being placed
under arrest and read his rights pursuant to Miranda v. Arizona, 384
U.S. 436 (1966), nor did he ask for an attorney upon arrival at the
police station. However, after the arresting officer read the search
warrant for the blood draw aloud to him in response to Nevarez’s
not abuse its discretion in finding that no violation occurred, we
need not reach this issue.
4Although officers are not required to stop questioning when
there is an equivocal request for counsel, it is nevertheless “‘good
police practice . . . to clarify whether or not [a suspect] wants an
attorney.’” State v. Ellison, 213 Ariz. 116, n.3, 140 P.3d 899, 910 n.3
(2006).
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STATE v. NEVAREZ
Opinion of the Court
statement that he was “both illiterate and dyslexic,” Nevarez stated,
“I want my attorney to read me the warrant.” One of the officers
told him “he was being provided a copy and he could [have it read
to him by counsel] at a later time.” Nevarez did not claim to have
made any subsequent requests for an attorney, and, as noted, the
trial court found his statement constituted an ambiguous request for
counsel.
¶16 On this record, we cannot say the trial court abused its
discretion in so ruling. Nevarez’s request was similar to the one
analyzed in State v. Uraine, where the defendant had unsuccessfully
moved to suppress statements made after he told officers he wanted
to see his attorney before taking a breath test. 157 Ariz. at 21, 754
P.2d at 350. We upheld the admission of the evidence, finding that
“appellant’s limited invocation of the right to counsel did not
operate as a request for counsel for all purposes.” Id. at 22, 754 P.2d
at 351, citing Connecticut v. Barrett, 479 U.S. 523 (1987) (oral
statements improperly suppressed where defendant asked to
consult counsel before making written statement); see also Bruni v.
Lewis, 847 F.2d 561, 564 (9th Cir. 1988) (finding partial waiver where
defendant stated he would not answer questions “without my
attorney” but would “answer those I see fit”); Stumes v. Solem, 752
F.2d 317, 320-21 (8th Cir. 1985) (no general invocation of right to
counsel where defendant refused to agree to polygraph test without
talking to counsel).
¶17 Here, Nevarez’s request for assistance was expressly
confined to a reading of the warrant. Cf. State v. Keyonnie, 181 Ariz.
485, 485-87, 892 P.2d 205, 205-07 (App. 1995) (right to counsel
violated where defendant stated, “Lawyer present today, right
now”); Kunzler, 154 Ariz. at 569, 744 P.2d at 670 (where defendant
initially requested that he be allowed to call an attorney, violation to
deny consultation if no interference with ongoing investigation).
After officers explained that Nevarez would be provided a copy of
the warrant that his attorney could read to him at another time, he
made no further requests for attorney assistance.
¶18 The trial court was not required to “disregard . . . the
ordinary meaning” of Nevarez’s statement in order to conclude he
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Opinion of the Court
had “invoked his right to counsel for all purposes.” Barrett, 479 U.S.
at 529-30. And any violation of his claimed right to have a search
warrant read aloud by counsel—a right for which he cites no
authority—would not warrant suppression here because Nevarez
has never disputed the validity of the warrant and therefore cannot
demonstrate the requisite nexus between the violation of the right
and the evidence obtained. See State v. Rumsey, 225 Ariz. 374, ¶ 16,
238 P.3d 642, 647-48 (App. 2010) (violation of right to counsel does
not automatically warrant suppression in DUI case). Accordingly,
we find no error in the denial of Nevarez’s motion to dismiss or
suppress based on a violation of his right to counsel.5
Interference with Right to Exculpatory Evidence
¶19 In a related claim, Nevarez contends the trial court
erred in denying his motion to dismiss or suppress based on a claim
that police interfered with his right to gather exculpatory evidence
in the form of an independent blood draw. He relies on a blood
draw report, introduced at the suppression hearing, that states,
“Yes[,] please” in the area of the form where responses to the
independent test notification are recorded. Nevarez also challenges
the reliability of testimony concerning his subsequent withdrawal of
that request, citing a decision in which the supreme court discussed
the prudence of tape-recorded interrogations. See State v. Jones, 203
Ariz. 1, ¶ 18, 49 P.3d 273, 279 (2002). The state argues the court’s
finding was correct because the evidence that Nevarez withdrew his
5Although we need not reach the issue of whether Nevarez’s
conduct unduly delayed the DUI investigation, see State v. Penney,
229 Ariz. 32, ¶ 13, 270 P.3d 859, 862 (App. 2012), we observe that the
trial court’s finding that Nevarez was “engaging in activity in order
to disrupt the collection of evidence,” does not appear to be
determinative on this point, see id. (state must prove that “allowing
the suspect to confer with counsel when requested would have
impeded the investigation”); see also Rumsey, 225 Ariz. 374, ¶ 11, 238
P.3d at 646 (finding of impediment involves showing of “exigent
circumstances” necessitating immediate blood draw).
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Opinion of the Court
request for an independent blood draw was undisputed. As with
the other claims raised by Nevarez on appeal, we defer to factual
findings but review de novo any legal determinations. See State v.
May, 210 Ariz. 452, ¶ 4, 112 P.3d 39, 41 (App. 2005).
¶20 As the state acknowledges, a DUI suspect has a due
process right to gather independent evidence of sobriety while it still
exists. See State v. Rosengren, 199 Ariz. 112, ¶ 12, 14 P.3d 303, 308
(App. 2000); see also McNutt v. Superior Court, 133 Ariz. 7, n.2, 648
P.2d 122, 125 n.2 (1982). Accordingly, the state “may not
unreasonably interfere with an accused’s reasonable attempts to
secure, at his own expense, a blood or other scientific test for the
purpose of attempting to establish evidence of his sobriety at or near
the crucial time under consideration.” Smith v. Cada, 114 Ariz. 510,
514, 562 P.2d 390, 394 (App. 1977). The arrangement of such a test is
the defendant’s responsibility, however, and any difficulties he
encounters in attempting to obtain a blood test must have been
created by the state in order to find unreasonable interference. Van
Herreweghe v. Burke, 201 Ariz. 387, ¶ 10, 36 P.3d 65, 68 (App. 2001).
¶21 The evidence at the suppression hearing established
that Nevarez initially requested an independent blood draw when
he was informed of his rights. But he subsequently declined, telling
the arresting officer that he would “take care of it later.” Nevarez
did not offer any testimony at the hearing, and on the basis of this
“uncontroverted” evidence that he had “change[d] his mind,” the
trial court found the right had been waived.
¶22 Contrary to Nevarez’s argument on appeal, that he
initially invoked his right to an independent blood draw does not
undermine the evidence that he ultimately waived that right.
Although the blood draw report itself documents only his initial
invocation, both the arresting officer and the officer who performed
the blood draw testified they had recorded Nevarez’s subsequent
waiver in their narrative reports of the incident. The trial court was
in the best position to evaluate these witnesses’ credibility, and we
see no reason to disturb its determination. See, e.g., State v. Olquin,
216 Ariz. 250, ¶ 10, 165 P.3d 228, 230 (App. 2007).
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Opinion of the Court
¶23 Nevarez also contends the arresting officer interfered
with his right to an independent draw by failing to inform him “he
would be booked into jail and held past the time that obtaining an
independent draw would be meaningful.” But this argument
mischaracterizes the law on unreasonable interference. In Van
Herreweghe, we rejected a similar claim on grounds that a
defendant’s “lack of knowledge is not a barrier erected by the State
in the defendant’s path to independent testing.” 201 Ariz. 387, ¶ 10,
36 P.3d at 68.
¶24 Nevarez’s claim that the state’s evidence of waiver
should have been rejected because “waivers that are not taped are
inherently suspicious,” is similarly unavailing. Although our
supreme court stated in Jones that a recording of the entire
interrogation process “provides the best evidence available” of
voluntary waiver, it also upheld the trial court’s discretionary
decision to admit statements based on a defendant’s unrecorded
waiver. 203 Ariz. 1, ¶¶ 18-19, 49 P.3d at 279. While we
acknowledge the preference for recorded interrogations, the
supreme court’s comments on best practices cannot be interpreted to
preclude the admission of unrecorded waivers. Accordingly, we
find no error in the denial of Nevarez’s motion.
Criminal Restitution Order
¶25 Finally, we address an issue that was neither raised
below nor briefed on appeal. Specifically, at the time of sentencing,
the trial court entered an order imposing multiple fees and
assessments and reducing “all fines, fees, assessments and/or
restitution” to a criminal restitution order (CRO). The imposition of
such an order prior to the expiration of Nevarez’s sentence
“‘constitutes an illegal sentence, which is necessarily fundamental,
reversible error.’” State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910
(App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207
P.3d 784, 789 (App. 2009).6 Accordingly, the CRO cannot stand.
6Section
13-805, A.R.S., has since been amended to permit the
entry of CROs for the unpaid balance of any court-ordered
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Opinion of the Court
Disposition
¶26 For the foregoing reasons, we affirm Nevarez’s
convictions and sentences for aggravated DUI but vacate the portion
of the trial court’s order containing an unauthorized CRO.
restitution. See 2012 Ariz. Sess. Laws, ch. 269, § 1; State v. Cota, 234
Ariz. 180, ¶ 1, 319 P.3d 242, 243 (App. 2014).
13