State v. McCartney

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STACEY ANN MCCARTNEY, Appellant.

No. 1 CA-CR 18-0724
FILED 3-3-2020

Appeal from the Superior Court in Maricopa County
No. CR2016-030308-001
The Honorable Marvin L. Davis, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.

C A T T A N I, Judge:

¶1 Stacey Ann McCartney appeals her convictions and sentences
for possession or use of dangerous drugs and possession of drug
paraphernalia. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 While on patrol, a Mesa Police officer stopped McCartney
after seeing her crossing the street against a “don’t walk” traffic signal. The
officer noticed that McCartney was holding a brown paper bag and asked
her to show him the contents of the bag. McCartney agreed and removed
a torch lighter and two pipes. The officer then asked McCartney if she had
any other contraband in her possession and if she would show him the
contents of her pockets. McCartney removed several dollar bills, loose
change, and a small bag containing a crystal substance that the officer
identified as methamphetamine. McCartney admitted that the substance in
the bag was methamphetamine and that she planned on smoking it later
that day with the pipes she had purchased.

¶3 The officer issued McCartney a citation for a civil traffic
violation, and the State later charged her with possession or use of
dangerous drugs and possession of drug paraphernalia.

¶4 Before trial, McCartney moved to suppress her statements to
the officer, as well as the pipes and methamphetamine he discovered. She
argued that the officer lacked reasonable suspicion to initiate the stop and
that her statements were involuntarily obtained due to the officer’s show of
force. McCartney thus asserted that any evidence obtained as a result of
the stop was inadmissible as “fruit of the poisonous tree.” See Wong Sun v.
United States, 371 U.S. 471, 487–88 (1963).

¶5 The superior court held an evidentiary hearing and denied
McCartney’s motion. After a three-day trial, the jury found McCartney
guilty as charged. McCartney timely appealed, and we have jurisdiction
under A.R.S. § 13-4033(A).

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DISCUSSION

¶6 McCartney argues that the superior court erred by denying
her motion to suppress because the stop was not based on reasonable
suspicion, the superior court relied on a factual determination unsupported
by the record, and the officer’s search was tainted by an illegal seizure.

¶7 We review the denial of a motion to suppress for an abuse of
discretion, viewing the facts in the light most favorable to upholding the
superior court’s ruling and considering only the evidence presented at the
suppression hearing. State v. Cornman, 237 Ariz. 350, 354, ¶ 10 (App. 2015);
State v. Teagle, 217 Ariz. 17, 20, ¶ 2 (App. 2007). “[W]e review de novo mixed
questions of fact and law, including whether the totality of the
circumstances gave rise to reasonable suspicion to support an investigative
detention.” State v. Sweeney, 224 Ariz. 107, 111, ¶ 12 (App. 2010). “We defer
to the trial court’s factual findings that are supported by the record and not
clearly erroneous.” State v. Rosengren, 199 Ariz. 112, 116, ¶ 9 (App. 2000).

¶8 A police officer may make an investigatory stop “if the officer
has an articulable, reasonable suspicion, based on the totality of the
circumstances, that the suspect is involved in criminal activity.” Teagle, 217
Ariz. at 22–23, ¶ 20. Here, the record supports the superior court’s
conclusion that there was reasonable suspicion for the stop.

¶9 Under A.R.S. § 28-646(A)(2),

A pedestrian shall not start to cross the roadway in the
direction of [a “don’t walk”] signal, but a pedestrian who has
partially completed crossing on the walk signal shall proceed
to a sidewalk or safety island while the don’t walk signal is
showing.

¶10 The officer testified that he observed McCartney walking
against a “don’t walk” signal. He further testified that he saw the traffic
signal behind McCartney, had no reason to believe it was not synchronized
with the traffic signal she was facing, and concluded that in his opinion,
“technically [McCartney] should not have been crossing the street.” This
unrefuted testimony provided a reasonable basis for the officer to suspect
McCartney was crossing the street in violation of A.R.S. § 28-646(A)(2).
McCartney emphasizes that the officer did not specifically testify to seeing
her enter the street against the traffic signal or seeing the traffic signal facing
her and that consequently, the officer could not say with certainty that
McCartney was disobeying the traffic signal at the time of the stop. But
reasonable suspicion requires only a minimal, objective justification for an

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Decision of the Court

investigatory detention, not absolute certainty that a crime has occurred.
See Teagle, 217 Ariz. at 23, ¶ 25. And here, the officer’s observations met that
standard.

¶11 McCartney correctly points out that the prosecutor misspoke
by stating that the officer testified that he specifically saw her enter the
street against the traffic signal. She argues that the court improperly relied
on this incorrect factual assertion to find reasonable suspicion. But the
reasonable suspicion finding is supported by the record independent of the
misstatement by the prosecutor.

¶12 Reviewing the record de novo and ignoring the prosecutor’s
misstated summary of the evidence, see Rosengren, 199 Ariz. at 116, ¶ 9, we
conclude that although the evidence may not have been sufficient to
establish beyond a reasonable doubt that McCartney committed a traffic
violation, the officer’s testimony established reasonable suspicion of such a
violation. The officer’s lack of certainty regarding when the signal changed
would have been an issue to resolve at trial and was not fatal to a finding
of reasonable suspicion.

¶13 Given the existence of reasonable suspicion, there was no
illegal seizure to taint McCartney’s subsequent consent to the search. See
State v. Hummons, 227 Ariz. 78, 80, ¶ 9 (2011). Moreover, the court’s denial
of the suppression motion was based not only on reasonable suspicion, but
also on the unrefuted consensual nature of the search:

The search that followed, from everything that I
understand, was consensual. The officer asked some
questions, the items were produced voluntarily. The items
were seized once there was suspicion confirmed—once the
officer’s suspicions were confirmed that they were what he
believed them to be, it turned out—my understanding that
they were, in fact, drugs. That’s something for the jury to
decide. It’s something that would be proved up later.

For now, there is enough to allow the case to proceed
forward because the stop was good, the search was good. I’m
not hearing anything that indicates anything otherwise. I
understand the arguments, but based on the laws, it sounds
to me as though the stop and the subsequent search were
legal.

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Decision of the Court

¶14 Because the record supports a finding of reasonable suspicion
for the stop and the finding that the search was consensual, we affirm the
superior court’s denial of McCartney’s motion to suppress.

CONCLUSION

¶15 For the foregoing reasons, we affirm McCartney’s convictions
and sentences.

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

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