State v. Moses

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

DANIEL ADAM MOSES, Appellee.
_____________________________________________________

STATE OF ARIZONA, Appellant,

v.

KENNETH TUANHUY NGUYEN, Appellee.

______________________________________________________

Nos. 1 CA-CR 18-0115, 1 CA-CR 18-0116
(Consolidated)
FILED 12-6-2018

Appeal from the Superior Court in Mohave County
Nos. S8015CR201601431
S8015CR201601500
The Honorable Richard Weiss, Judge

AFFIRMED

COUNSEL

Mohave County Attorney’s Office, Kingman
By Daniel B. Noble
Counsel for Appellant
Law Offices of Shawn B. Hamp, Kingman
By Shawn B. Hamp, Virginia L. Crews, Troy Anderson
Counsel for Appellee Nguyen

Rideout Law P.L.L.C., Lake Havasu City
By Bradlee Rideout, Wendy Marcus
Counsel for Appellee Moses

MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Presiding Judge James P. Beene and Judge Michael J. Brown joined.

T H U M M A, Chief Judge

¶1 The State of Arizona appeals from an order granting Daniel
Moses’ and Kenneth Nguyen’s motions to suppress evidence obtained
following a stop of their car by Arizona Department of Public Safety
Trooper Dickinson. The dispositive issue in this appeal is whether the
superior court abused its discretion in finding, after an evidentiary hearing,
that the State failed to show the Trooper had reasonable suspicion for the
stop. As discussed below, because the State has shown no reversible error,
the order granting Defendants’ motions to suppress is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Because the ruling turned on the superior court’s assessment
of credibility, the testimony at the evidentiary hearing on the motion to
suppress is summarized in some detail. The evidence shows that, one
morning in September 2016, Trooper Dickinson and his drug-sniffing dog
were parked in a marked patrol car in the median of Interstate 40 in
northwestern Arizona. The Trooper was “just patrolling looking for drug
smugglers as well as people that are transporting weapons, credit card
fraud, large type[s] of criminal activity.” At about 9:20 a.m., he saw a grey
sedan, driven by Moses with Nguyen as the passenger, go eastbound past
where he was parked.

¶3 While the car drove past at or below the posted speed limit of
75 miles per hour, the Trooper saw the driver “ghost-driving. It’s anytime
we see a vehicle pass by and they’re leaning back so far where they’re

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hiding behind a B-pillar. . . . So that stuck out to me on this vehicle when it
passed by me.” The Trooper testified that

[If] any kind of criminal activity [occurs] when
somebody’s driving a vehicle, they don’t want
to look at cops. And if they do, they know the
cop can see right through them and see that
they’re guilty or see that they’re doing
something wrong.

....

It’s like when your parents find you and that
you’re not supposed to do something, and they
get that look upon your face. Same look. So it’s
the shocked expression that you look for these
people on their faces when they’re driving by.

¶4 After passing by the Trooper, the car moved into the right (or
slower) lane, slowed down and continued driving on I-40. The Trooper
testified that, “[f]or people that aren’t exiting the highway, this [moving to
the slower lane and slowing down] is not common behavior, unless they
are potentially involved in criminal activity. . . . [F]or this same type of
driving behavior, I’ve gotten numerous amounts of warrants, people with
warrants out for their arrest, suspended driver’s licenses, DUIs, as well as
trafficking of drugs.”

¶5 The Trooper “pulled out and caught up to” the car about four
miles later. After following for another three miles, the Trooper pulled the
car over for “following too close[ly]” in violation of Arizona Revised
Statutes (A.R.S.) section 28-730 (2018).1 The Trooper testified that, before
being pulled over, the car, while traveling at an estimated 75 miles per hour,
was about “two car lengths,” or 40 feet, behind a tractor-trailer, which was
traveling at an estimated 70 miles per hour.

¶6 The Trooper collected Defendants’ licenses, viewed the rental
car agreement on Moses’ phone and asked Moses “to exit the vehicle and
come back to my patrol vehicle.” Moses complied, and the Trooper “began
filling out a warning for the unsafe following distance” while he “engaged
[Moses] in conversation.”

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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¶7 The Trooper testified Moses and Nguyen appeared nervous.
The Trooper added it was odd that Nguyen, the passenger, asked why the
car was stopped. “This is very uncommon for a passenger to ever question
the reason for a stop. I could probably count on one hand how many times
it’s happened in my career. It’s typically somebody that’s involved in some
type of criminal activity.” The Trooper also testified to observing other
irregularities, including that given their stated destination,

the quickest route of travel would be on I-10, not
I-40. And I know that it’s a common practice for
people that are smuggling that they avoid I-10
because there is twice as many K-9s, and there’s
checkpoints along I-10 that would hinder being
able to move freely. And so I-40 sees an
abundance of traffic that should be on I-10 that’s
on I-40 because they’re trying to avoid the traffic
points as well as the criminal interdiction
officers.

¶8 After giving Moses a written warning, and returning the
driver’s licenses, the Trooper asked “if they picked up any drugs” or had
“anything illegal in the car.” The Trooper then asked to check his pulse, and
Moses agreed. Using a personal “pulse oximeter that you could buy online
that are like 15, 20 bucks,” the Trooper read his pulse at “129 beats per
minute, and this is extremely high . . . I was a drug recognition expert for
years and during that time, anything in excess of 90 beats per minute is
considered high.” After his request to search the car was denied, the
Trooper then “requested another unit to assist on the traffic stop” and asked
“Nguyen to step out of the vehicle and stand on the shoulder.”

¶9 When he asked permission to “run my K-9 around the
exterior of the vehicle,” Nguyen “said yeah.” The dog alerted, the Trooper
told Defendants the dog alerted and Moses said “his jacket had some
marijuana in it.”

I asked him if there was any pounds of marijuana
in the car, and he had the defeated look,
wouldn’t answer. I went up to Nguyen and
advise[d] him I was going to be searching the
vehicle. I asked if I was going to find anything,
and he said there was some oil in the vehicle.

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A search revealed “a jar containing marijuana” as well as marijuana in
duffel bags.

¶10 The State charged Defendants with possession of marijuana
for sale, transportation of marijuana for sale and possession of drug
paraphernalia. Defendants moved to suppress all evidence obtained as a
result of the traffic stop on three grounds: “insufficient reasonable
suspicion” for the stop; prolonged detainment in violation of Rodriguez v.
United States, 135 S. Ct. 1609 (2015); and insufficient probable cause for the
search because the K-9 was unreliable.

¶11 After an evidentiary hearing, where the Trooper was the only
witness, the superior court granted Defendants’ motions on the first two
grounds. In doing so, the court first noted the stop was “spurious. And I
think that this case shows it may be really no grounds for it.” Addressing
the testimony regarding the speed of the vehicles, the court noted: “so what
choice does a driver have with a truck that couldn’t be going 70 miles-an-
hour? Because if somebody is going 75, the physics of that equation is that
you’re driving ahead of the truck in absolutely no time.” The court also
noted “[t]here was no information” on what “the other traffic was.” Having
assessed the evidence and credibility, the court repeated that the stop was
“spurious” and granted the motion to suppress “on the basis of no
reasonable grounds to make a stop.” The court also granted the motion on
the independent ground of prolonged detainment.

¶12 The State successfully moved to dismiss the charges without
prejudice and appealed the suppression order. This court has jurisdiction
over the State’s timely appeals pursuant to Article 6, Section 9, of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-
4033(A).

DISCUSSION

¶13 As directed by the Arizona Supreme Court, this court
“review[s] a trial court’s ruling on a motion to suppress for abuse of
discretion, considering only the evidence presented at the suppression
hearing and viewing the facts in a light most favorable to sustaining the
trial court’s ruling.” State v. Adair, 241 Ariz. 58, 60 ¶ 9 (2016) (citing State v.
Butler, 232 Ariz. 84, 87 ¶ 8 (2013)). Evidence is not reweighed on appeal but,
instead, this court defers to the superior court’s factual findings, “including
findings on credibility and the reasonableness of the inferences drawn by
the officer.” State v. Teagle, 217 Ariz. 17, 22 ¶ 19 (App. 2007) (citing cases).

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This court reviews de novo questions of law and legal conclusion. State v.
Sweeney, 224 Ariz. 107, 111 ¶ 12 (App. 2010) (citing cases).

¶14 The dispositive issue is whether the car properly could be
stopped for “following too closely.” For that stop to be valid, the State had
to show, by sufficient evidence, that the Trooper had “reasonable
suspicion” that a violation of A.R.S. § 28-730 occurred. State v. Starr, 222
Ariz. 65, 69 ¶ 12 (App. 2009). Reasonable suspicion requires proof by the
State of “a particularized and objective basis for suspecting the person
stopped of criminal activity.” Ornelas v. U.S., 517 U.S. at 693, 696 (1996)
(citation omitted). Reasonable suspicion must be supported by “specific
and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant” the stop. Terry v. Ohio, 392 U.S. 1, 21 (1968).
It “must be more than an inchoate ‘hunch,’” but “only requires that police
articulate some minimal, objective justification.” Teagle, 217 Ariz. at 23 ¶ 25
(citation omitted).

¶15 The testimony at the evidentiary hearing summarized above,
and the parties’ briefs on appeal, address a variety of factual and legal
issues regarding reasonable suspicion. The State’s brief on appeal asserts,
with substantial force, that accepting the testimony as true, there was
reasonable suspicion to stop the car. But the record reveals that, based on a
credibility assessment, the superior court did not accept as true critical
aspects of the testimony. On that basis, the court concluded the State had
not met its burden to show reasonable suspicion for the stop.

¶16 The court started its ruling by stating that the stop was
“spurious,” which Defendants correctly note means “bogus, fake, false, . . .
misleading.” The court questioned the plausibility of the Trooper’s
estimates of speed and distance and found persuasive Defendants’
suggestion that the Trooper was “on [Defendants’] tail,” in their blind spot
and “following too close[ly]” to Defendants while driving near their car.
The court opined the tractor-trailer “couldn’t be going 70” miles per hour if
Defendants were traveling at 75 miles per hour as they approached it, given
the “physics of that equation.” The court concluded there might “be really
no grounds” for a violation of “following too close” where a “defendant . .
. is driving a vehicle and a cop is on [their] tail.” In the end, the court found
“the stop to be spurious” and granted the motion to suppress “on the basis
of no reasonable grounds to make a stop.”

¶17 It is for the superior court at the evidentiary hearing, not this
court on appeal, to weigh and assess witness credibility. Teagle, 217 Ariz. at
22 ¶ 19. Similarly, this court is directed to view the facts received at an

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evidentiary hearing on a motion to suppress “in a light most favorable to
sustaining the trial court’s ruling.” Adair, 241 Ariz. at 60 ¶ 9 (citing Butler,
232 Ariz. at 87 ¶ 8). On this record, applying these directives and given the
superior court’s credibility assessment that the stop was spurious, the State
has shown no abuse of discretion in that court granting the motions to
suppress.2

CONCLUSION

¶18 Because the State has shown no reversible error, the superior
court’s order granting Defendants’ motions to suppress is affirmed.

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

2As a result, this court does not address the additional grounds relied on
by the superior court or argued by the parties on appeal.

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