State v. Dennis

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

RICHARD LEE DENNIS, Appellant.

No. 1 CA-CR 17-0495
FILED 5-10-2018

Appeal from the Superior Court in Maricopa County
No. CR2015-155388-001
The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

Wendy L. Mays, Attorney at Law, Phoenix
By Wendy L. Mays
Counsel for Appellant

Arizona Attorney General's Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kenton D. Jones joined.

M O R S E, Judge:

¶1 Richard Lee Dennis ("Dennis") appeals his convictions and
sentences for possession of narcotic drugs, possession of drug
paraphernalia, and resisting arrest. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The evidence at trial, viewed in the light most favorable to
supporting the convictions,1 showed that at approximately 10:00 p.m. on
December 5, 2015, police officers on patrol in Phoenix stopped a car because
its insurance was suspended, and registration was expired. After the
officers activated their lights and sirens to indicate a traffic stop, the car
quickly pulled into the opposite lane against traffic and stopped in front of
a residence. As the officers were exiting their vehicle, the passenger door
of the stopped car opened, and Dennis attempted to get out. The officers
instructed him to remain in the car, and Dennis replied that he lived at the
residence and wanted to go inside. The officers told him to sit back down
and he would be allowed to leave "in a minute if [everything was] good."

¶3 The officers ran the occupants' drivers licenses to check for
outstanding warrants. The search returned no warrants or other violations,
and the officers handed the licenses back to the driver and Dennis. At that
point, one officer noticed a green leafy substance, which he believed to be
marijuana, in the center console cup holders. The officers then asked
Dennis and the driver to get out of the car so that the officers could
investigate the substance without risk of contamination or destruction.

¶4 When Dennis got out of the car, one officer asked if he had
anything illegal on him. Dennis said he did not. When the officer asked if
he could search, Dennis said "that's fine; I got nothing on me." The officer
searched Dennis and, in Dennis’s pants pocket, found a glass pipe
commonly used for smoking crack. Dennis said he had just put the pants

1 State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015).

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on and knew nothing about the pipe. The other officer continued the search
and found black tar heroin in Dennis's wallet.

¶5 After searching Dennis, the officers turned their attention to
the driver and searched the car. While the officers were distracted, Dennis
grabbed the evidence bags containing the pipe and heroin and ran to the
back of the house, shouting for help. After a pursuit and struggle, the
officers managed to handcuff and arrest him. While the officers were
chasing and struggling with Dennis, the driver got back in the car, drove
away, and was never arrested. Dennis was subsequently charged with two
counts of possession or use of narcotic drugs, two counts of possession of
drug paraphernalia, and one count of resisting arrest.

¶6 Before trial, Dennis moved to suppress the evidence
recovered from the search on the basis that it was obtained in violation of
the Fourth Amendment to the United States Constitution. Specifically,
Dennis argued he was illegally seized when the officer told him to sit back
in the car during the traffic stop, and that the subsequent search was illegal
because he did not voluntarily consent.

¶7 Following an evidentiary hearing in which one of the
investigating officers testified and Dennis introduced a stipulated
statement denying that he consented to the search, the superior court
denied Dennis's motion to suppress. The court found that Dennis was
legally seized as a passenger in a lawfully stopped vehicle. The superior
court further acknowledged Dennis's argument that he would not have
consented to a search given his prior experiences with the police. However,
the court was convinced by the credible testimony of the police officer and
found that Dennis consented to the search and that the consent was
voluntary.

¶8 Dennis timely appealed his resulting convictions and
sentences. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-
120.21(A)(1), 13-4031, and -4033.

DISCUSSION

¶9 Dennis argues the superior court erred when it denied his
motion to suppress the evidence. We review the superior court's ruling on
a suppression motion for abuse of discretion, consider only the evidence
presented at the suppression hearing, and view the evidence "in a light most
favorable to sustaining the trial court's ruling." State v. Adair, 241 Ariz. 58,

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60, ¶ 9 (2016). While we must defer to the superior court's factual findings,
we conduct de novo review of its legal conclusions. Id.

I. Seizure.

¶10 Dennis contends that the police did not have reasonable
suspicion to seize him during the traffic stop. However, Dennis does not
dispute that the officers witnessed a traffic violation. Therefore, the stop of
the car to investigate the suspected traffic violation was valid. Arizona v.
Johnson, 555 U.S. 323, 327 (2009); see also State v. Starr, 222 Ariz. 65, 69, ¶ 12
(App. 2009) (finding that reasonable suspicion is sufficient to justify a traffic
stop); A.R.S. § 28-1594 (providing that officers "may stop and detain a
person as is reasonably necessary to investigate an actual or suspected
[traffic] violation").

¶11 Because Dennis does not challenge the basis for the traffic
stop, he cannot complain of his detention. When officers stop a car for a
traffic violation, they may seize "everyone in the vehicle, the driver and all
passengers." Johnson, 555 U.S. at 327 (internal quotation marks omitted).
"[A] traffic stop of a car communicates to a reasonable passenger that he or
she is not free to terminate the encounter with the police and move about
at will." Id. at 333. Thus, the officers legally seized Dennis when they told
him to remain in the car.

¶12 Dennis argues the officers did not have the right to prolong
their investigation after witnessing marijuana in the vehicle because
Arizona allows medical marijuana. While a traffic stop must last "no longer
than is necessary to effectuate the purpose of the stop," officers may prolong
such stops if, "during the encounter, the officer develops a reasonable and
articulable suspicion that criminal activity is afoot." State v. Sweeney, 224
Ariz. 107, 112, ¶ 17 (App. 2010). The plain view of marijuana in the vehicle
established reasonable suspicion to extend the traffic stop. See State v.
Cheatham, 240 Ariz. 1, 3, ¶¶ 8-10 (2016) (despite the passage of the Arizona
Medical Marijuana Act, the smell of marijuana established probable cause
that a vehicle contained evidence of criminal activity); see also Maryland v.
Pringle, 540 U.S. 366, 371-72 (2003) (finding probable cause to arrest all three
occupants of a car when officers found $763 in the glove box and five
baggies of cocaine "behind the back seat armrest and accessible to all three
men"); State v. Sisco, 239 Ariz. 532, 553-54, ¶¶ 16-17 (2016) (sight of
marijuana is indicative of criminal activity).

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¶13 Here, Dennis was properly seized as part of a legal traffic stop
and the officers had reasonable suspicion to prolong the traffic stop after
they saw marijuana in the car.

II. Search.

¶14 Dennis argues that the superior court erred in denying his
motion to suppress because he did not give the officers permission to search
his pockets. Dennis also contends that any consent he gave the officers was
neither informed nor voluntary. Contrary to Dennis's arguments, the
record supports the superior court's decision to deny suppression of the
evidence obtained from the search of Dennis's person.

¶15 Pursuant to the Fourth Amendment of the United States
Constitution and Article 2, Section 8, of the Arizona Constitution, persons
are protected from unreasonable searches and seizures. State v. Allen, 216
Ariz. 320, 323, ¶ 9 (App. 2007). When a violation of the Fourth Amendment
or its state counterpart is determined to have occurred, the exclusionary
rule generally requires the suppression at trial of any evidence directly or
indirectly gained as a result of the violation. State v. Schinzel, 202 Ariz. 375,
382, ¶ 28 (App. 2002). "Although the Fourth Amendment generally
prohibits warrantless searches, they are permitted if there is free and
voluntary consent to search." State v. Valenzuela, 239 Ariz. 299, 301, ¶ 1
(2016).

¶16 Relying on United States v. Crapser, Dennis contends that the
factors to be considered in determining the voluntariness of consent are:
"(1) whether the defendant was in custody; (2) whether the arresting officers
had their guns drawn; (3) whether Miranda warnings were given; (4)
whether the defendant was notified that [he] had a right not to consent; and
(5) whether the defendant has been told a search warrant could be
obtained." 472 F.3d 1141, 1149 (9th Cir. 2007). However, this Court is not
bound by Ninth Circuit precedent, State v. Montano, 206 Ariz. 296, 297 n.1,
¶ 1 (2003), and the U.S. Supreme Court and the Arizona Supreme Court
have repeatedly held that "voluntariness of consent to a search must be
'determined from the totality of all the circumstances,'" Birchfield v. North
Dakota, 136 S. Ct. 2160, 2186 (2016) (quoting Schneckloth v. Bustamonte, 412
U.S. 218, 227 (1973)). See also State v. Butler, 232 Ariz. 84, 87, ¶ 13 (2013)
(same).

¶17 Under the consent exception to the warrant requirement, the
State must show a person's consent to search by a preponderance of the
evidence. Valenzuela, 239 Ariz. at 302-03, ¶ 11. Moreover, the consent must

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be intelligently and voluntarily given. Schnecklotch, 412 U.S. at 227, 235-36.
Consent must "not be coerced, by explicit or implicit means, by implied
threat or covert force." Id. at 228. The question is whether a reasonable
person in that specific circumstance would have felt free to refuse a search.
United States v. Drayton, 536 U.S. 194, 202 (2002).

¶18 Here, the court weighed the stipulated statement, in which
Dennis denied consenting to the search, against the officer's testimony that
Dennis agreed to his request to search. The superior court found that the
officer's testimony was more credible and nothing in the record provides
any reason to second guess that factual finding.

¶19 The record similarly supports the court's finding that Dennis's
consent was voluntary. The court considered evidence that Dennis was
cooperative with the officers and his demeanor was calm and confident.
Additionally, when Dennis consented to the search, he was not under arrest
or in handcuffs, and the officers had not drawn their guns. Deferring to the
court's factual findings and viewing the evidence in the light most favorable
to upholding the court's decision, we find that the court did not err in
finding Dennis voluntarily consented to the search. Adair, 241 Ariz. at 60,
¶ 9.

¶20 Therefore, the court did not abuse its discretion in denying
Dennis's motion to suppress.

CONCLUSION

¶21 For the foregoing reasons, we affirm Dennis's convictions and
sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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