State v. Robertson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LEON ROBERTSON, Appellant.

No. 1 CA-CR 23-0520
FILED 03-13-2025

Appeal from the Superior Court in Maricopa County
No. CR2023-104931-001
The Honorable Sunita Cairo, Judge

AFFIRMED

APPEARANCES

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Michael J. Dew, Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant

Leon Robertson, Eloy
Appellant
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Decision of the Court

MEMORANDUM DECISION

Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe
joined.

G A S S, Chief Judge:

¶1 Leon Robertson filed this appeal in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969).
Robertson’s counsel certified he found no arguable, non-frivolous question
of law. Counsel thus believes the appeal has no merit. See State v. Clark, 196
Ariz. 530, 537–38 ¶¶ 30–31 (App. 1999). Counsel asks the court to search the
record for any arguable issues. See Penson v. Ohio, 488 U.S. 75, 80 (1988);
State v. Thompson, 229 Ariz. 43, 45 ¶ 3 (App. 2012). The court accepted
Robertson’s supplemental brief.

¶2 Robertson’s conviction and sentence are affirmed without the
need for further briefing.

FACTUAL AND PROCEDURAL HISTORY

¶3 The court views the facts in the light most favorable to
sustaining the conviction and resolves all reasonable inferences against
Robertson. See State v. Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). The court
will not reweigh the evidence. State v. Lee, 189 Ariz. 590, 603 (1997).

¶4 An officer observed Robertson driving 60 miles per hour in a
35 mile-per-hour speed zone. The officer confirmed Robertson’s speed with
a radar gun. The officer activated his body-cam before interacting with
Robertson.

¶5 When the officer approached Robertson’s vehicle, Robertson
immediately told the officer he had a suspended license. The officer then
asked Robertson if he had any weapons. Robertson said he did not. The
officer then asked Robertson for his identification. Robertson told the officer
it was in his fanny pack in the back seat. When Robertson opened the fanny
pack to retrieve his identification, the officer saw a “silver colored object,”
which the officer suspected was a gun. The officer again asked Robertson if
he had a weapon. And this time, Robertson said he had a gun.

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¶6 As a result, the officer had Robertson exit the vehicle.
Robertson then told the officer he needed to make a phone call because he
was going to jail. When the officer asked why, Robertson told the officer he
was “an ex-con.” At that point, the officer told Robertson he could not leave
and advised Robertson of his Miranda rights. Robertson continued to talk
with the officer, saying he worked in security and needed the gun for
protection. Robertson also told the officer he bought the gun off the street.

¶7 After a second officer arrived, Robertson called his employer.
The second officer’s body-cam recording captured that conversation.
Robertson can be heard thanking his employer for giving him the
opportunity and telling his employer he was in trouble for being a
prohibited possessor.

¶8 The State charged Robertson with misconduct involving
weapons while being a prohibited possessor, a class 4 felony. See A.R.S.
§ 13-3102.A.4, .M. At trial, both officers testified, and the State, without
objection, introduced both body-cam recordings of the stop and the later
interactions at the scene. Robertson testified and acknowledged he was a
prohibited possessor. He also acknowledged having a gun in the car when
the officer stopped him. The jury found Robertson guilty.

¶9 Robertson has a significant criminal history. His past
convictions, beginning in 1991, include: possession of narcotic drugs for
sale, a class 3 felony; possession or use of narcotic drugs, a class 4 felony;
sale or transportation of narcotic drugs, a class 3 felony; sale or
transportation of narcotic drugs, a class 3 felony; and misconduct involving
weapons, a class 4 felony. The superior court sentenced Robertson as a
category 3 repetitive offender, imposing a less-than-minimum sentence of
7 years. The superior court imposed a term of community supervision, and
credited Robertson with 37 days presentence incarceration.

¶10 The court has jurisdiction over Robertson’s timely appeal
under Article VI, Section 9, of the Arizona Constitution and A.R.S.
§§ 13-4031 and -4033.A.1.

DISCUSSION

¶11 Robertson’s counsel says he diligently searched the record
and identified no arguable question of law. In his supplemental brief,
Robertson raises several issues:

1. Was the traffic stop for speeding unlawful because the officer did not
issue a citation?

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2. Was the officer’s search of Robertson’s vehicle unlawful?

3. Did the officer timely advise Robertson of his Miranda rights?

4. Does A.R.S. § 13-3102.B’s exception for weapons stored in luggage
apply to Robertson’s fanny pack, and is the term “luggage”
unconstitutionally vague?

¶12 Because Robertson’s trial counsel raised none of the issues
before the superior court, the court reviews for fundamental error. When a
defendant objects at trial, the court conducts a harmless error review in
which the State bears the burden “to prove beyond a reasonable doubt that
the error did not contribute to or affect the verdict or sentence.” State v.
Strong, ___ Ariz. ___, ___ ¶ 45, 555 P.3d 537, 553 (2024) (quoting State v.
Henderson, 210 Ariz. 561, 567 ¶ 18 (2005)). “Conversely, for issues not
properly objected to at trial, we review for fundamental error only.” Id.
(citing State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018)).

¶13 For fundamental error, “a defendant must establish both that
fundamental error occurred and that it caused [the defendant] prejudice
(though showing the former may establish the latter).” Id. (quoting State v.
Johnson, 247 Ariz. 166, 185 ¶ 41 (2019)). Fundamental error must go “to the
foundation of the case, take[] away from the defendant a right essential to
[the defendant’s] defense, or [be] of such magnitude that the defendant
could not have possibly received a fair trial.” Id. In assessing the alleged
prejudice, the court reviews “whether, without the error, a reasonable jury
could have reached a different result, even if substantial evidence of guilt
exists.” Id. (quoting Escalante, 245 Ariz. at 144 ¶ 34).

¶14 We address each issue in turn.

I. Reasonable suspicion supports the officer’s traffic stop, even if the
officer did not cite Robertson for the traffic violation.

¶15 Robertson argues the officer did not have probable cause to
stop him, in part because the officer did not cite him for speeding. His
arguments fail.

¶16 To begin, Arizona law does not require an officer to issue a
traffic citation during every traffic stop. Instead, officers have the authority
to stop a driver for an actual or suspected traffic violation. See A.R.S.
§ 13-3883.B. And once an officer stops the driver, the officer has the
discretion to decide whether to issue a citation. See id. For that reason, the

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State need not prove the officer cited Robertson as an element of showing
the officer had a basis to stop him. At best, an officer’s decision to refrain
from issuing a traffic citation is but one consideration to evaluate the
officer’s basis for the stop.

¶17 Next, the officer did not need probable cause to stop
Robertson. Instead, to make a stop, an officer must have “reasonable
suspicion” to believe an offense occurred. See State v. Starr, 222 Ariz. 65, 69
¶ 11 (App. 2009) (relying on Arizona v. Johnson, 555 U.S. 323, 326 (2009) and
Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). Robertson fails to argue the
officer did not have a reasonable suspicion to believe Robertson violated
the speed limit.

¶18 Even so, we address the officer’s reasonable suspicion.
Reasonable suspicion has no exact definition. Instead, as the Arizona
Supreme Court explained, it is a “commonsense, nontechnical concept[ ]
that deal[s] with ‘the factual and practical considerations of everyday life
on which reasonable and prudent men, not legal technicians, act.’” State v.
Rogers, 186 Ariz. 508, 511 (1996) (quoting Ornelas v. United States, 517 U.S.
690, 695 (1996)). “The officer must be able to articulate the reasons, ‘based
on the totality of the circumstances,’ that suggest a traffic violation has
occurred.” State v. Alvarez-Soto, ___ Ariz. ___, ___ ¶ 10, 559 P.3d 637, 640
(App. 2024) (quoting State v. Teagle, 217 Ariz. 17, 23 ¶ 20 (App. 2007)). From
the perspective of “an objectively reasonable police officer,” the court
considers “both objective factors and surrounding circumstances, including
the officer’s relevant experience, training, and knowledge.” Id. (cleaned up).

¶19 Here, sufficient evidence shows the officer had a reasonable
suspicion to stop Robertson. “An officer who has observed a traffic
violation has reasonable suspicion to initiate a traffic stop.” State v. Majalca, 251 Ariz. 325, 328 ¶ 12 (App. 2021) (citation omitted). The officer observed
Robertson speeding and stopped him. The officer’s radar gun showed
Robertson was traveling at 60 miles per hour in a 35 mile-per-hour speed
zone. It is a class 3 misdemeanor to exceed a posted speed limit by more
than 20 miles per hour. A.R.S. § 28-701.02.A, .B. And contrary to Robertson’s
argument, the officer was not required to cite Robertson for the alleged
traffic violation. See A.R.S. § 13-3883.B.

¶20 At bottom, the officer had reasonable suspicion to stop
Robertson for a routine traffic stop. The officer’s reasonable suspicion did

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not dissipate simply because the officer exercised his discretion and did not
issue a citation. Robertson’s arguments on these points do not suggest error,
let alone fundamental error.

II. The officer had reasonable suspicion to search the vehicle.

¶21 Robertson argues the officer did not have reasonable
suspicion to search his vehicle for weapons, violating his Fourth
Amendment rights protected under Terry v. Ohio, 392 U.S. 1 (1968). “The
Fourth Amendment protects against unreasonable searches and seizures,”
and “[a]n investigatory traffic stop is a seizure under the Fourth
Amendment.” Majalca, 251 Ariz. at 328 ¶ 12. Under Terry, an officer may
stop and search a vehicle if the officer has a reasonable suspicion the suspect
is armed with a deadly weapon. See 392 U.S. at 27. As above, the court
assesses the officer’s reasonable suspicion under a totality of the
circumstances as a “commonsense, nontechnical concept” and considers
everyday life’s “factual and practical considerations.” Rogers, 186 Ariz. at
511.

¶22 Robertson voluntarily told the officer he had a gun but only
after previously telling the officer he did not. His later admission, alone,
gave the officer reasonable suspicion. And the officer saw what he thought
was a gun in the fanny pack. Robertson gave the officer even more grounds
to be suspicious when Robertson acknowledged being a felon and a
prohibited possessor.

¶23 The officer acted in accordance with Terry by taking
“necessary measures to determine whether [Robertson was] in fact carrying
a weapon.” Terry, 392 U.S. at 24. This was not an impermissible Terry stop.
Robertson’s argument and the evidence establishes no error. Indeed, it
establishes the officer had reasonable suspicion to search Robertson’s
vehicle for a weapon.

III. Introduction of Robertson’s statements before he received a
Miranda warning did not violate his right against
self-incrimination.

¶24 Robertson argues the officer violated his right against
self-incrimination because the officer did not timely advise him of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966). The superior court, without
objection, allowed the State to introduce his statements to the officer before
the officer gave Robertson his Miranda warning.

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¶25 True enough, evidence obtained in violation of Miranda is
inadmissible. But police need not give a Miranda warning while performing
a routine traffic stop if the person being questioned is (1) briefly detained
and (2) in a public area that is not police dominated. See Berkemer, 468 U.S.
at 437–40; see also State v. Castellano, 162 Ariz. 461, 463 (App. 1989). In
assessing this argument, the court considers the testimony and evidence,
including the video evidence from the officers’ body-cams.

¶26 Here, the record shows Robertson made the statements
during a routine traffic stop. The officer detained Robertson for just over 20
minutes before the officer took Robertson into custody. During that time,
Robertson was in a public area, on the side of a road, without police
domination. Robertson was not entitled to a Miranda warning before the
officer told him he was not free to leave and taken into police custody. The
superior court did not err, let alone fundamentally err, when it allowed the
State, without objection, to admit his pre-Miranda statements. Robertson
made those statements without being coerced or prompted. Indeed, early
on, he quickly and voluntarily told the officer he was going to jail because
he was a prohibited possessor and asked to use the phone to call his
employer.

¶27 On this issue, Robertson again fails to identify error, let alone
fundamental error.

IV. Robertson does not dispute he was a prohibited possessor, so his
arguments about the luggage exception in Arizona’s misconduct
involving weapons statute do not affect his conviction and
sentence.

¶28 Robertson argues his conviction cannot stand because his
fanny pack falls under A.R.S. § 13-3102.B.3(d)’s luggage exception. He,
alternatively, argues the term is unconstitutionally vague and violates his
due process rights. But that exception applies just to violations under
paragraph A.2, which makes it unlawful for a person to “carry[] a deadly
weapon except a pocket knife concealed on his person or concealed within
his immediate control in or on a means of transportation if the person is
under twenty-one years of age.”

¶29 But Robertson was not charged and convicted under
paragraph A.2. Instead, Robertson was charged and convicted under
paragraph A.4, which applies to a person who is a prohibited possessor.
Robertson does not dispute he was a prohibited possessor. Indeed, the
evidence at trial shows he acknowledged his status as a prohibited

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possessor to the arresting officer and to his employer in a phone call at the
scene. And he took the stand and testified to that point before the jury.

¶30 Because the luggage exception does not apply to Robertson’s
offense, we do not address whether his fanny pack constituted “luggage”
under the exception or whether the exception’s terms are unconstitutionally
vague.

¶31 Even so, Robertson’s alternative argument—a fanny pack is
“luggage”—also fails on the merits. The court previously ruled the luggage
exception does not apply to fanny packs. See State v. McDermott, 208 Ariz.
332, 335 ¶ 10 (App. 2004). In McDermott, the court concluded the legislature
intended to exclude packs from the luggage exception. Id. at 335 ¶¶ 8–9.
And McDermott rejected similar void for vagueness arguments and
concluded the term luggage was constitutionally sound. Id. at 336
¶¶ 13–14.

V. Beyond the issues Robertson raised, the court read and considered
counsel’s brief, fully reviewed the record for arguable,
non-frivolous error and identified no such error.

¶32 All proceedings complied with the Arizona Rules of Criminal
Procedure. The superior court properly empaneled 8 jurors and 1 alternate.
See A.R.S. § 21-102.B. The record shows no evidence of jury misconduct. The
court properly instructed the jury on the elements of the charged offense,
the State’s burden of proof, and Robertson’s presumed innocence.
Robertson was present and represented by counsel at all stages of the
proceedings. See State v. Bohn, 116 Ariz. 500, 503 (1977); State v. Conner, 163
Ariz. 97, 104 (1990). The superior court held appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s unanimous verdict.

¶33 Robertson had a chance to speak at sentencing. See Ariz. R.
Crim. P. 26.9 (requiring defendant’s presence at sentencing); 26.10(c)(1)
(allowing defendant to speak). Robertson’s sentence falls within the range
prescribed by law, with proper credit given for presentence incarceration.

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CONCLUSION

¶34 We decline to order further briefing and affirm Robertson’s
conviction and sentence.

¶35 After the filing of this decision, defense counsel’s obligations
pertaining to Robertson’s representation in this appeal will end. Unless
counsel’s review reveals an issue appropriate for submission to the Arizona
Supreme Court by petition for review, defense counsel need only inform
Robertson of the outcome of this appeal and his future options. See State v.
Shattuck, 140 Ariz. 582, 584–85 (1984).

¶36 The court, of its own accord, grants Robertson 30 days from
the date of this decision to file an in propria persona motion for
reconsideration. But see Ariz. R. Crim. P. 31.20 (allowing 15 days to file a
motion for reconsideration). Robertson has 30 days from the date of this
decision to proceed, if he wishes, with an in propria persona petition for
review or, if Robertson files a timely in propria persona motion for
reconsideration, he has 15 days after the motion is decided. See Ariz. R.
Crim. P. 31.21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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