State of Arizona v. Michael Anthony Salcido

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

MICHAEL ANTHONY SALCIDO,
Appellant.

No. 2 CA-CR 2015-0008
Filed November 16, 2015

Appeal from the Superior Court in Gila County
No. S0400CR201400106
The Honorable Monica Stauffer, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee

Emily Danies, Tucson
Counsel for Appellant
 STATE v. SALCIDO
Opinion of the Court

OPINION

Judge Howard authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Kelly1 concurred.

H O W A R D, Judge:

¶1 Following a jury trial, appellant Michael Salcido was
convicted of possession of drug paraphernalia, possession of
dangerous drugs, possession of dangerous drugs for sale, and
transportation or importation of dangerous drugs for sale. On
appeal, Salcido argues the trial court erred by denying his motion to
suppress evidence obtained at a traffic stop because the officer
lacked reasonable suspicion of a traffic violation. Because the state
concedes that two of Salcido’s convictions violate double jeopardy,
and we agree, we vacate Salcido’s convictions for possession and
possession for sale of dangerous drugs, but otherwise affirm.

Factual and Procedural Background

¶2 In reviewing a trial court’s ruling on a motion to
suppress, “we consider only the evidence presented at the
suppression hearing and view the facts in the light most favorable to
sustaining the . . . ruling.” State v. Gonzalez, 235 Ariz. 212, ¶ 2,
330 P.3d 969, 970 (App. 2014).

¶3 In March 2014, Detective Danny Rice of the Gila County
Sheriff’s Department received an anonymous tip from a “concerned
citizen” that Salcido and another person would be driving through
Miami, Arizona in a particular vehicle with a large quantity of
methamphetamine. Based on this information, Rice began
surveillance along the route that the informant had stated Salcido
would be taking. Within four hours, Rice spotted Salcido’s vehicle

1The Hon. Virginia C. Kelly, a retired judge of this court, is
called back to active duty to serve on this case pursuant to orders of
this court and our supreme court.

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Opinion of the Court

and began to follow it. Salcido was in the number one, or fast lane,
and Rice was in the number two, or slow lane, about a car length
behind him. Salcido immediately moved unsafely from the number
one into the number two lane without signaling, cutting off Rice,
and rode on the shoulder over the fog line for ten to twelve seconds
before driving back across lane two into lane one. Rice then stopped
Salcido for the violations.

¶4 Shortly thereafter, other detectives arrived on the scene,
one of whom was accompanied by a drug canine. Rice asked
Salcido to consent to an open air sniff of his vehicle by the drug
canine, and Salcido agreed. During the sniff, the canine alerted to
the presence of narcotics in the vehicle, and the officers conducted a
follow-up search. They discovered several items used to ingest
drugs—a plastic straw and pieces of aluminum foil with a “burnt
residue” on them. Rice consequently arrested Salcido for possession
of drug paraphernalia. During the search incident to that arrest,
Rice found approximately three ounces of methamphetamine and
$905 cash in Salcido’s pockets.

¶5 Before trial, Salcido moved to suppress the drug
evidence, arguing it was the fruit of an illegal traffic stop. The trial
court denied the motion. The jury convicted Salcido of the
possession and transportation counts, but found him not guilty of
money laundering. The court sentenced him to mitigated,
concurrent prison terms, the longest of which is five years. We have
jurisdiction over Salcido’s appeal pursuant to A.R.S. §§ 12-
120.21(A)(1) and 13-4033(A)(1).

Legality of the Traffic Stop

¶6 Salcido first argues the trial court erred by denying his
motion to suppress evidence because, even assuming Rice’s
testimony regarding Salcido’s driving was accurate, his conduct did
not constitute a traffic violation. “We review a denial of a motion to
suppress for an abuse of discretion, but review constitutional issues
de novo,” Gonzalez, 235 Ariz. 212, ¶ 7, 330 P.3d at 971, and
“[i]nterpretation of a statute is a question of law, which we review
de novo,” State v. Starr, 222 Ariz. 65, ¶ 14, 213 P.3d 214, 218
(App. 2009).

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¶7 A traffic stop must be based on an officer’s articulable,
reasonable suspicion that the person has committed a traffic
violation. Id. ¶ 11. As relevant here, A.R.S. § 28-754 states:

A. A person shall not . . . move right or left
on a roadway unless and until the
movement can be made with
reasonable safety. A person shall not
so turn any vehicle without giving an
appropriate signal in the manner
provided by this article in the event any
other traffic may be affected by the
movement.

B. A signal of intention to turn right or left
when required shall be given
continuously during not less than the
last one hundred feet traveled by the
vehicle before turning.

¶8 The phrase “‘other traffic [that] may be affected by the
movement’” means that although “§ 28-754 does not require drivers
to signal every time they [change lanes,]” they must signal
whenever they perform a movement that “could reasonably be
considered a part of the [other] driver’s decision-making calculus.”
Starr, 222 Ariz. 65, ¶¶ 19-20, 25, 213 P.3d at 219-21 (first alteration in
Starr). The state need not show that the failure to signal a lane
change caused “an actual change in movement” by other traffic.
Id. ¶ 24. In Starr, we explicitly left open the question whether the
police officer’s vehicle could constitute “other traffic,” but cited
People v. Logsdon, 79 Cal. Rptr. 3d 379, 381 (Ct. App. 2008), for the
proposition that “California courts hold that the presence of the
patrol car itself, traveling behind the target vehicle, is enough.”
Starr, 222 Ariz. 65 ¶¶ 23, 25, 213 P.3d at 221; see also People v.
Miranda, 21 Cal. Rptr. 2d 785, 792 (Ct. App. 1993).

¶9 Salcido contends Rice’s vehicle could not constitute
“other traffic” because the legislature knew that the officer’s car
must be present in order to effectuate the traffic stop. “In
determining the legislature’s intent, we initially look to the language
of the statute itself.” Bilke v. State, 206 Ariz. 462, ¶ 11, 80 P.3d 269,
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271 (2003). If the language of a statute is clear, “the court must
‘apply it without resorting to other methods of statutory
interpretation,’ unless application would lead to impossible or
absurd results.” Id., quoting Hayes v. Cont’l Ins. Co., 178 Ariz. 264,
268, 872 P.2d 668, 672 (1994).

¶10 Here, the statute applies when “other traffic may be
affected.” § 28-754. Section 28-601(28), A.R.S., defines “traffic” as
“pedestrians, ridden or herded animals, vehicles and other
conveyances either singly or together while using a highway for
purposes of travel.” The plain meaning of the phrase “other traffic”
does not exclude a specific class of vehicle—law enforcement or
otherwise. The inclusion of law enforcement vehicles into the
phrase would not bring about “impossible or absurd results.”
Bilke, 206 Ariz. 462, ¶ 11, 80 P.3d at 271.

¶11 A survey of other traffic laws bolsters a plain meaning
interpretation. The legislature has used the phrase “other traffic” in
other statutes which must have been intended to include police
vehicles. See A.R.S. § 28-645(A)(1)(b) (“Vehicular traffic shall yield
the right-of-way to pedestrians lawfully within an adjacent
crosswalk and to other traffic lawfully using the intersection.”);
A.R.S. § 28-701 (driver’s speed shall be “reasonable and prudent”
with regard to conditions, including “with respect to pedestrians or
other traffic”); A.R.S. § 28-873 (“Except if necessary to avoid conflict
with other traffic or if in compliance with law or the directions of a
police officer or traffic control device, a person shall not stop, stand
or park a vehicle in” any of the listed places.); A.R.S. § 28-891 (“The
driver of a vehicle shall not back the vehicle unless the movement
can be made with reasonable safety and without interfering with
other traffic.”); A.R.S. § 28-905 (“A person shall not open a door on a
motor vehicle unless it is reasonably safe to do so and can be done
without interfering with the movement of other traffic.”). We can
discern no reason the legislature would have intended these safety
regulations to apply to protect the general driving public but not to
protect police officers.

¶12 Finally, a review of case law from other jurisdictions
further suggests that the plain meaning of “other traffic” includes
law enforcement vehicles. As mentioned in Starr, it is a settled
proposition in California that a law enforcement vehicle can
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constitute “other traffic.” 222 Ariz. 65, ¶ 2, 213 P.3d at 221;
see Logsdon, 79 Cal. Rptr. 3d at 381. Other courts have reached the
same conclusion. See State v. Seavey, 564 A.2d 388, 389 (Me. 1989)
(finding a police vehicle to constitute other traffic); State v. Heisler,
29 A.3d 320, 328 (N.J. Super. Ct. App. Div. 2011) (“‘Other traffic’ can
include a police vehicle.”); State v. Hubble, 206 P.3d 579, ¶ 12 (N.M.
2009) (finding a police vehicle to constitute other traffic); United
States v. Burkley, 513 F.3d 1183, 1187 (10th Cir. 2008) (finding a police
vehicle to constitute other traffic); but cf. United States v. Mariscal,
285 F.3d 1127, 1132 (9th Cir. 2002) (holding that parked police
vehicle could not constitute other traffic).

¶13 In sum, based on the plain meaning of the statute, a
review of the overall statutory scheme for traffic law, and a review
of other jurisdictions’ interpretations of similar traffic laws, we find
no legislative intent to exclude certain classes of vehicles from the
definition of “other traffic.” Therefore, we now answer the question
we left open in Starr: a police officer’s vehicle, including Rice’s
vehicle, can constitute “other traffic” under § 28-754.

¶14 Salcido further argues he did not change lanes unsafely
and no traffic violation occurred. We disagree for several reasons.
First, § 28-754 only requires that other traffic “may be affected.”
See Starr, 222 Ariz. 65, ¶ 25, 213 P.3d at 221. The traffic maneuver
need not actually affect other traffic, “it is enough that the move may
influence the factors a driver would consider in order to drive
safely.” Id. ¶ 24. And, making an unsignaled lane change “deprives
other drivers of a warning that a change of course is about to take
place. To the extent that information enters into the decision-
making calculus of a nearby driver, that driver ‘may be affected.’”
Id. ¶ 24.

¶15 Second, Rice testified that Salcido had changed lanes
without signaling, had “cut [Rice] off,” and had been “all over the
road.” We thus cannot say the trial court abused its discretion in
finding Rice observed a violation of § 28-754 which provided

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reasonable suspicion to initiate a traffic stop. § 28-754; see Starr,
222 Ariz. 65, ¶ 25, 213 P.3d at 221.2

¶16 Salcido additionally appears to argue the trial court
erred in denying his motion to suppress because his detention was
illegally prolonged and amounted to an illegal arrest. Salcido failed
to raise these arguments below, and therefore has forfeited review
except for fundamental, prejudicial error. See State v. Henderson, 210
Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). And because he has not
argued the error was fundamental, and we find no fundamental
error occurred, he has waived review of this issue. See State v.
Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008);
see also State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App.
2007) (appellate court will not ignore fundamental error if found).

Double Jeopardy

¶17 The state, in its answering brief, notes that two of
Salcido’s convictions violate the prohibition against double jeopardy
because both possession of dangerous drugs and possession of
dangerous drugs for sale are lesser-included offenses of
transportation or importation of dangerous drugs. We agree.
See State v. Cheramie, 218 Ariz. 447, ¶ 22, 189 P.3d 374, 378 (2008)
(possession lesser-included offense of transportation for sale);
see also State v. Price, 218 Ariz. 311, ¶ 5, 183 P.3d 1279, 1281 (App.
2008) (“For double jeopardy purposes, a lesser-included offense and
the greater offense of which it is a part constitute the same offense,
and multiple punishments for the same offense are not
permissible.”); State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 13, 965 P.2d
94, 97 (App. 1998) (possession for sale lesser-included offense of
transportation). Although Salcido did not raise this issue in his
opening brief, violations of the prohibition against double jeopardy
in sentencing constitute fundamental, prejudicial error, and
violations of the prohibition against double jeopardy are not waived
by failure to raise them below. See Price, 218 Ariz. 311, ¶ 4, 183 P.3d

2 Because we conclude that Rice had reasonable suspicion
based on the illegal lane change, we do not reach the issues of
whether either Salcido’s violation of A.R.S. § 28-729(1), or the
concerned citizen tip, also justified the stop.

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at 1281; State v. Siddle, 202 Ariz. 512, n.2, 47 P.3d 1150, 1153 n.2 (App.
2002).

Disposition

¶18 For the foregoing reasons, we vacate Salcido’s
convictions and sentences for possession and possession for sale of
dangerous drugs, but otherwise affirm his convictions and
sentences.

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