State v. Falkenburry

NOTICE: NOT FOR PUBLICATION.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.
PATRICIA FALKENBURRY, Appellant.
No. 1 CA-CR 13-0805
FILED 12-04-2014
Appeal from the Superior Court in Yavapai County
No. P1300CR200901255
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL
Law Office of Nicole Farnum, Phoenix
By Nicole Farnum
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee
STATE v. FALKENBURRY
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.
P O R T L E Y, Judge:
¶1 Defendant Patricia M. Falkenburry appeals her convictions
for transportation of methamphetamine for sale and related charges, and
the resulting sentences. She argues that the trial court erred by denying her
motion to suppress evidence. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 After a traffic stop on the I-17 freeway in December 2009,
Defendant was indicted for transportation of dangerous drugs for sale
(methamphetamine), a class 2 felony; possession of a dangerous drug
(methamphetamine), a class 4 felony; possession of drug paraphernalia, a
class 6 felony; and misconduct involving weapons (a .22 caliber pistol), a
class 4 felony.
¶3 Before trial, Defendant and her co-defendant, Jessica Thorpe,
moved to suppress evidence seized from the car Defendant had been
driving alleging it was obtained in violation of the Fourth Amendment of
the United States Constitution and Article 2, Section 8 of the Arizona
Constitution.1 Specifically, Defendant argued that because the civil traffic
stop that resulted in a warning was completed and neither she nor Thorpe
consented to a “dog sniff,”2 the seized evidence was the “fruit[] of the
poisonous tree” since there were no other factors to support the search.
¶4 Following an evidentiary hearing, the trial court denied the
motion to suppress. The case proceeded to trial, and the jury found
Defendant guilty as charged. At sentencing, the parties stipulated to
1 The State agreed to dismiss the charges against Thorpe in exchange for her
testimony against Defendant.
2 At the evidentiary hearing, Defendant disputed the reliability of the dog
sniff. However, the trial court found that the dog sniff was reliable and it
is not an issue in this appeal.
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STATE v. FALKENBURRY
Decision of the Court
dismiss the possession of methamphetamine count for the drugs found in
her purse and Defendant was sentenced to concurrent prison terms that did
not exceed 7 years.
¶5 Defendant timely appealed. We have jurisdiction under
Article 6, Section 9 of the Arizona Constitution, and Arizona Revised
Statutes sections 12–120.21(A)(1), 13–4031, and –4033(A).3
DISCUSSION
I. Standard of Review
¶6 We review the denial of a motion to suppress for an abuse of
discretion, but give deference to the trial court's factual determinations,
including its evaluation of the credibility of witness testimony. State v. Box,
205 Ariz. 492, 495, ¶ 7, 73 P.3d 623, 626 (App. 2003). But, we review de novo
the application of the law to those facts, including whether under the
totality of the circumstances there was reasonable suspicion to support an
investigative detention, and whether the duration of that detention was
reasonable. See State v. Teagle, 217 Ariz. 17, 22, ¶ 19, 170 P.3d 266, 271 (App.
2007). We restrict our review to the evidence presented at the suppression
hearing and consider it in the light most favorable to upholding the ruling.
State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1349 (1996); State v.
Walker, 215 Ariz. 91, 94, ¶ 16, 158 P.3d 220, 223 (App. 2007).
II. Evidence Adduced at the Suppression Hearing
¶7 Defendant challenges the search of the car she was driving by
the drug-sniffing dog and contends it was a second and independent stop
unrelated to the traffic stop.4 She argues, as a result, that the police had no
legal basis for the search and the evidence should have been suppressed
pursuant to the Fourth Amendment. We disagree.
¶8 Ron Guert was busted for a drug offense and agreed to work
it off — act as an informant in order to try to avoid or minimize prosecution.
He told the Yavapai Sheriff’s Department Special Crimes Unit that he was
to meet a woman and she would be transporting methamphetamine. The
information was relayed to other deputies and Sergeant Phillip Rousselle
was asked to stop a 2006 white Hyundai that the woman would be driving.
Following the informant’s information, Sergeant Rousselle found the
3We cite to the current version of the statute unless otherwise noted.
4Defendant does not challenge the validity of the traffic stop. See Ariz. R.
Crim. P. 31.13(c)(1)(vi).
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STATE v. FALKENBURRY
Decision of the Court
suspected car at a barbeque restaurant outside of Black Canyon City and
followed it as the car drove north on the I-17 freeway. As the car was
approaching the Sunset Point exit, Rousselle testified it “made an abrupt
right turn onto the exit . . . and drove over the gore point.” He activated his
lights and stopped the car for driving across the gore point and failing to
use a turn signal. Defendant was driving the car.
¶9 Deputy Harry Schrum was nearby at the time of the stop.
Because he had also been informed that the car would likely have drugs in
it, he drove to the scene with his drug-detection dog. Then, “[a]s [Sergeant
Rousselle] was talking to [Defendant about] the warning[,] K-9 Deputy
Schrum asked to walk the dog around the car.” Sergeant Rousselle
responded that he was “finished” with Defendant and told her she was
“free to leave.”
¶10 Deputy Schrum told Thorpe, the car’s owner who was in the
passenger seat, to get out of the car, spoke “briefly” with both Thorpe and
Defendant, and then “ran the dog around the car.” After the dog alerted to
the passenger-side window area, Deputy Schrum searched the car and
discovered a substantial quantity of methamphetamine, drug
paraphernalia, and a .22 caliber semiautomatic pistol.
III. Constitutionality of Investigatory Detention
¶11 The Fourth Amendment prevents unreasonable searches and
seizures. Whren v. United States, 517 U.S. 806, 809 (1996). When the police
stop a car, it is a seizure for the purposes of the Fourth Amendment. State
v. Saez, 173 Ariz. 624, 627, 845 P.2d 1119 (App. 1992). However, given the
mobility of cars, the U.S. Supreme Court has stated that a car can be stopped
when the police reasonably suspect a person has committed a traffic
violation. See Arizona v. Johnson, 555 U.S. 323, 326 (2009) (permitting a traffic
stop “when the police officer reasonably suspects” a traffic violation). A
civil traffic stop is not tainted or undermined even though the law
enforcement has information that the car was transporting drugs or is
otherwise involved in criminal activity. State v. Swanson, 172 Ariz. 579, 582,
838 P.2d 1340, 1343 (App. 1992) (“Regardless of the officer’s underlying
motives, a stop is not invalid if there exists a valid, objective reason to make
the stop.”).
¶12 Here, the trial court determined that Defendant was properly
stopped for two traffic violations. After giving her a verbal warning, the
police temporarily detained Defendant to confirm or dispel the suspicion
that she was transporting illegal drugs. In order to determine whether the
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STATE v. FALKENBURRY
Decision of the Court
investigative detention was proper, we look at the totality of the
circumstance to determine whether there was reasonable suspicion that
Defendant was engaged in criminal activity. Teagle, 217 Ariz. at 23, ¶ 20,
170 P.3d at 272.
¶13 The totality of the circumstances justifies Defendant’s
investigative detention. The Yavapai Sheriff’s Department Special Crimes
unit received information from an arrested person, who was trying to avoid
prosecution, that a woman would be driving a car containing
methamphetamine and passed it along. Information provided by an
informant can be sufficiently reliable to create reasonable suspicion. See
Alabama v. White, 496 U.S. 325, 330 (1990) (stating that reasonable suspicion
is based on the totality of the circumstances).
¶14 Moreover, there are three reasons why the informant’s
information was reliable. First, the Yavapai Sheriff’s Office knew the
informant. See State v. Gomez, 198 Ariz. 61, 64, ¶ 17, 6 P.3d 765, 768 (App.
2000) (where information from citizen’s traceable 911 call provided police
with reasonable suspicion to conduct investigatory stop); Florida v. J.L., 529
U.S. 266, 270 (2000) (noting that when a tip is from a known informant, the
informant’s “reputation can be assessed and [she] can be held responsible
if her allegations turn out to be fabricated”). Second, although Defendant
testified that the informant asked her to deliver the backpack containing the
methamphetamine to him under the ruse he needed his probation papers,
the informant had a self-interest in providing accurate information even if
it indirectly implicated himself in further criminal activity. See United States
v. Harris, 403 U.S. 573, 584 (1971) (stating that information that tends to
implicate an informant in criminal activity is likely to be reliable, even if
“the informant may be paid or promised a ‘break’” for the information).
Finally, the information provided — that a four-door white car with dark
tinted windows driven by a female would have drugs and the driver would
leave from the Bad-Ass Barbeque and drive to the Sunset Point exit — was
corroborated because Sergeant Rousselle followed the car before the traffic
stop. See State v. Canales, 222 Ariz. 493, 496, ¶ 11, 217 P.3d 836, 839 (App.
2009); see also State v. White, 122 Ariz. 42, 43, 592 P.2d 1308, 1310 (App. 1979)
(“If the tip itself fails to reflect sufficient underlying circumstances
indicating reliability of the information, such reliability may in an
appropriate case be supplied by independent observations of the police
corroborating the information in the tip.”). Therefore, the information
provided by the informant, and Rouselle’s independent corroboration,
provided reasonable suspicion that Defendant was engaged in criminal
activity.
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STATE v. FALKENBURRY
Decision of the Court
¶15 Once the police have reasonable suspicion, they may detain a
suspect during an investigatory stop for as long as reasonably necessary to
“diligently pursue[] a means of investigation . . . likely to confirm or dispel
their suspicions quickly.” Teagle, 217 Ariz. at 26, ¶ 32, 170 P.3d at 275(citation omitted). Although Defendant cites to State v. Sweeney, 224 Ariz.
107, 227 P.3d 868 (App. 2010), to support her argument that the
investigatory detention was an unlawful second seizure, Sweeney is not
applicable here. In Sweeney, the appellant refused to allow the officer to
search the car and the officer “grabbed Appellant’s arm, told him he was
being detained and ordered him to stand in front of the patrol car.” Id. at
112, ¶ 20, 227 P.3d at 873 (internal quotation marks omitted). As a result,
we stated that “the continued detention of Appellant after he declined to
allow the search was an additional seizure under the Fourth Amendment.”
Id.¶16 Unlike Sweeney, the officers here had reasonable suspicion
that Defendant was transporting drugs in the car and neither acted in an
overbearing manner. See Box, 205 Ariz. at 499, ¶ 24, 73 P.3d at 630. Deputy
Schrum arrived before Sergeant Rousselle finished giving Defendant a
verbal warning, and the dog began sniffing the exterior of the vehicle very
soon after Rousselle completed the verbal warning. Because the time
between the warning and dog sniff was nominal, the post-traffic stop was
de minimus “and not unreasonable under the Fourth Amendment.” Id.Consequently, based on the evidence presented at the suppression hearing,
there was no constitutional violation and the trial court did not abuse its
discretion by denying Defendant’s motion to suppress.
CONCLUSION
¶17 For the above reasons, we affirm Defendant’s convictions and
sentences.
:gsh
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