State of Arizona v. Asalia Guadalupe Alvarez-Soto

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

ASALIA GUADALUPE ALVAREZ-SOTO,
Appellant.

No. 2 CA-CR 2023-0200
Filed October 21, 2024

Appeal from the Superior Court in Pinal County
No. S1100CR201703501
The Honorable Jason R. Holmberg, Judge

VACATED AND REMANDED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Jacob R. Lines, Assistant Attorney General, Tucson
Counsel for Appellee

Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
 STATE v. ALVAREZ-SOTO
Opinion of the Court

OPINION

Judge Eckerstrom authored the opinion of the Court, in which Chief Judge
Staring concurred and Presiding Judge Gard dissented.

E C K E R S T R O M, Judge:

¶1 Asalia Alvarez-Soto appeals from her convictions and
sentences for possession and transportation of marijuana for sale.
Specifically, she contends the trial court erred in denying her motion to
suppress the evidence seized from the vehicle she was driving because law
enforcement lacked reasonable suspicion to conduct a traffic stop. For the
following reasons, we agree. We therefore vacate Alvarez-Soto’s
convictions and sentences and remand for further proceedings.

Factual and Procedural Background

¶2 On review of a trial court’s ruling on a motion to suppress, we
consider only evidence presented at the suppression hearing, viewing that
evidence “in the light most favorable to sustaining the ruling.” State v.
Naranjo, 234 Ariz. 233, ¶ 4 (2014); see also State v. Becerra, 239 Ariz. 90, ¶ 2
(App. 2016). In 2018, Arizona Department of Public Safety Trooper Ashton
Shewey saw a sedan driving in the Pinal County area that had a “newer”
license plate registered in the border city of Nogales. A check of the license
plate revealed that the sedan had recently crossed the United States-Mexico
border multiple times. Because these details, taken together, fit the profile
of a vehicle used to transport drugs across the border, Shewey “ma[d]e a
decision that [he was] going to attempt to conduct a traffic stop.”

¶3 Trooper Shewey began to follow the sedan, which
Alvarez-Soto was driving in the middle of three lanes on Interstate 10.
Shewey first observed the sedan traveling three miles per hour above the
posted speed limit of seventy-five miles per hour. After “several minutes,
several miles,” it “slowed down to 70.” When Alvarez-Soto slowed down,
a red SUV driving in the right-hand lane that she had been pacing overtook
her on the right. Because Arizona law requires slower traffic to remain in
the right-hand lane, Shewey determined he had sufficient grounds to stop
the sedan for a traffic violation.

¶4 Alvarez-Soto initially gave Trooper Shewey verbal consent to
search the sedan, but after reading the consent form she revoked her

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permission. Shewey then asked Alvarez-Soto if he could “run [his] canine
around the vehicle,” and she consented. The dog alerted to the presence of
a drug at the front driver’s side of the sedan. Officers subsequently
searched the vehicle and discovered a suitcase in the trunk that contained
bundles of marijuana.

¶5 The state charged Alvarez-Soto with one count of possession
of marijuana for sale and one count of transportation of marijuana for sale.
Before trial, she moved to suppress the evidence gathered during the search
of the sedan, arguing, among other things, that Trooper Shewey had lacked
reasonable suspicion to conduct a traffic stop. After holding a hearing, the
trial court denied the motion, reasoning that “the stop was justified.” The
court made no further factual findings as to the initial traffic stop.

¶6 In March 2019, at the conclusion of a two-day trial that
Alvarez-Soto did not attend, a jury found her guilty on both counts. She
was not sentenced until March 2022, nearly three years after her trial. At
that time, the trial court sentenced her to two concurrent, presumptive
terms of five years’ imprisonment. In August 2023, Alvarez-Soto filed a
delayed notice of appeal, as provided by Rule 31.2(a)(3), Ariz. R. Crim. P.
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and
13-4033(A)(1).

Discussion

¶7 On appeal, Alvarez-Soto contends the trial court erred in
denying her motion to suppress because Trooper Shewey had no
reasonable suspicion to initiate a traffic stop. In particular, she argues that
driving “at and around the speed limit in the middle lane of I-10” is not a
violation of A.R.S. § 28-721(B), which requires vehicles driving more slowly
than the surrounding traffic to drive in the right-hand lane. She thus
maintains the court erred in denying her motion to suppress the evidence
gathered as a result of that stop.

¶8 “We review the denial of a motion to suppress for an abuse of
discretion.” State v. Majalca, 251 Ariz. 325, ¶ 11 (App. 2021). This includes
our review of the trial court’s credibility determinations, State v.
Gonzalez-Gutierrez, 187 Ariz. 116, 118 (1996). However, “[w]hether there is
a sufficient legal basis to justify a stop of a vehicle is a mixed question of
fact and law,” and we review de novo the court’s legal determinations,
including its ultimate determination of whether reasonable suspicion
supported the stop. State v. Evans, 237 Ariz. 231, ¶ 6 (2015); see also State v.
Kjolsrud, 239 Ariz. 319, ¶ 8 (App. 2016).

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¶9 The Fourth Amendment prohibits unreasonable searches and
seizures. See U.S. Const. amend. IV; Terry v. Ohio, 392 U.S. 1, 8 (1968).
Because a traffic stop is a seizure within the meaning of the Fourth
Amendment, an officer must have “reasonable suspicion that a traffic
violation has occurred to initiate a stop.” State v. Sweeney, 224 Ariz. 107,
¶ 16 (App. 2010); see also Arizona v. Johnson, 555 U.S. 323, 326 (2009). We
evaluate whether such reasonable suspicion exists based on the totality of
the circumstances, taking into account the “factual and practical
considerations of everyday life on which reasonable and prudent [people],
not legal technicians, act.” Illinois v. Gates, 462 U.S. 213, 231 (1983) (quoting
Brinegar v. United States, 338 U.S. 160, 175 (1949)); see also Ornelas v. United
States, 517 U.S. 690, 695-96 (1996) (applying standard to reasonable
suspicion calculus).

¶10 “An officer who has observed a traffic violation has
reasonable suspicion to initiate a traffic stop.” Majalca, 251 Ariz. 325, ¶ 12;
see also Kjolsrud, 239 Ariz. 319, ¶ 9. 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. Teagle, 217 Ariz. 17, ¶ 20 (App. 2007). “We
assess the totality of the circumstances from the perspective of ‘an
objectively reasonable police officer’ in evaluating the validity of the stop.”
State v. Moreno, 236 Ariz. 347, ¶ 12 (App. 2014) (quoting Ornelas, 517 U.S. at
696). In so doing, we take into account “both ‘objective factors’ and
‘surrounding circumstances,’” including “the officer’s relevant experience,
training, and knowledge.” Id. (quoting State v. Fornof, 218 Ariz. 74, ¶ 6
(App. 2008)). In making these assessments, we defer to the inferences
drawn by the trial court and the officers on the scene. State v. Evans, 235
Ariz. 314, ¶ 8 (App. 2014). But, we conduct an independent review of any
video evidence because the trial court is in no better position to evaluate
such evidence than this court. Sweeney, 224 Ariz. 107, ¶ 12; see also State v.
Morris, 246 Ariz. 154, n.2 (App. 2019).

¶11 Our deference is not unlimited. The express terms of the
United States Constitution require our courts to vigilantly protect each
person’s right to be free from unreasonable governmental searches. Every
traffic stop is “subject to the constitutional imperative that it not be
‘unreasonable’ under the circumstances.” Whren v. United States, 517 U.S.
806, 810 (1996). Observations that do not reliably distinguish between
innocent and unlawful behaviors do not establish reasonable suspicion
because “they may cast too wide a net and subject all travelers to ‘virtually
random seizures.’” Sweeney, 224 Ariz. 107, ¶ 22 (quoting Reid v. Georgia, 448
U.S. 438, 441 (1980)). As we have previously held, “[w]hen officers make

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traffic stops based on facts that neither constitute a violation of the law nor
constitute reasonable grounds to suspect the driver has committed an
offense, they run afoul of the Fourth Amendment requirement that they
possess objectively reasonable grounds for the intrusion.” State v.
Livingston, 206 Ariz. 145, ¶ 9 (App. 2003).

¶12 At the suppression hearing, Trooper Shewey testified that he
had stopped Alvarez-Soto because a vehicle overtook her on the right. He
testified that traffic had been “medium to light,” with “several vehicles
around” Alvarez-Soto. He noted that Alvarez-Soto had been traveling
slightly above the posted speed limit of seventy-five miles per hour when
he began to pace her, but “just before” he stopped her, she slowed to
seventy miles per hour.1 Shewey later reiterated that he had decided he
had reasonable suspicion to conduct a traffic stop when he saw the red SUV
pass Alvarez-Soto on the right and because her speed “fluctuate[d] from 78
to about 70.”

¶13 The state avers that “the video evidence in this case”
corroborated Trooper Shewey’s testimony that Alvarez-Soto had violated
§ 28-721(B). That statute provides in relevant part:

On all roadways, a person driving a vehicle
proceeding at less than the normal speed of
traffic at the time and place and under the
conditions then existing shall drive the vehicle
in the right-hand lane then available for
traffic . . . except when overtaking and passing
another vehicle proceeding in the same
direction . . . .

1Although Trooper Shewey testified that Alvarez-Soto drove slightly

above the speed limit at various points, the evidence before the trial court
at the time of the suppression hearing made clear that the traffic stop was
not based on a violation of any statute mandating vehicles drive at or below
the posted speed limit. See A.R.S. § 28-702.04. The written warning lists
Alvarez-Soto’s speed at approximately seventy miles per hour and cites
only a violation of § 28-721(B), failure to drive on the right side of the road
while traveling at a slow speed. Likewise, in his post-incident report,
Shewey noted only that he “conducted a traffic stop . . . for slower traffic to
the right.”

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¶14 In essence, Trooper Shewey’s testimony provides one
plausible cue relevant to determining whether Alvarez-Soto violated this
provision: as she reduced her speed from seventy-eight miles per hour,
with a police vehicle approaching her on her left, a vehicle to her right,
which she had been pacing at that speed, surged ahead.2 Shewey offered
no testimony that he had witnessed any other vehicle pass Alvarez-Soto.
Nor did he testify any other vehicle had been impeded by her pace. Nor
does the dash cam video—which recorded both the entirety of
Alvarez-Soto’s pertinent driving and the surrounding traffic—show that
any other vehicle either passed her car or was impeded by her pace.

¶15 In the context of explaining his stop to Alvarez-Soto, Trooper
Shewey also noted she had reduced her speed to seventy miles per hour.
But, the state offered no testimony that traveling at seventy miles per
hour—just five miles an hour below the posted maximum speed limit—was
itself below “the normal speed of traffic” for the middle lane “under the
conditions then existing”: circumstances that included a marked police car
present among the nearby vehicles in traffic. § 28-721(B).

¶16 Therefore, the issue before us is a narrow one. We address
whether drivers on Arizona’s highways are compelled by § 28-721(B) to
move from the middle lane to the right lane if they are passed by a lone
vehicle on the right when the state has failed to elicit any testimony as to
the speed of that vehicle.

¶17 We have previously reasoned that our legislature intended to
provide some measure of flexibility in certain traffic statutes to account for
the variable contingencies drivers may face while on our roadways. For
example, in Livingston, we concluded that the language of A.R.S.
§ 28-729(1), requiring drivers to remain “as nearly as practicable” within a
single lane, reflects an “express legislative intent to avoid penalizing brief,
momentary, and minor deviations outside the marked lines.” 206 Ariz. 145,
¶ 10. Similarly here, the language of § 28-721(B) recognizes that what
constitutes “less than the normal speed of traffic” is contingent on “the time
and place” as well as “the conditions then existing” on the roadway, rather

2Trooper Shewey conceded that nearby drivers tend to slow down

when they see a marked patrol car. The video demonstrates that
Alvarez-Soto did not lose pace with the vehicle on her right until the front
of Shewey’s patrol car nearly paralleled her back bumper.

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than a determination based on rigid quantitative measures. No language
therein expressly penalizes a driver for having been passed on the right by
a single vehicle. Nor can our traffic laws be reasonably applied so that
compliance with one section of the traffic code requires the violation of
another. See State v. Sorensen, 255 Ariz. 316, ¶ 8 (App. 2023) (courts must
construe statutes and subsections consistently and harmoniously).

¶18 Trooper Shewey’s interpretation of § 28-721(B) violated both
of these principles. By stopping Alvarez-Soto solely because she had been
passed by one vehicle, he unreasonably required her to elevate one isolated
cue that she may have been driving slower than “the normal speed of
traffic” above the statutorily mandated assessment of all the surrounding
traffic conditions. Furthermore, to avoid being passed by that vehicle, the
record suggests Alvarez-Soto would have been required to exceed the
maximum posted speed. See § 28-702.04(B), (C) (traffic violation to exceed
maximum posted speed on interstate highways).

¶19 We decline to apply § 28-721(B) to affirmatively require
drivers to violate our speeding laws in order to assure themselves they are
proceeding at the “normal speed of traffic.”3 We likewise decline to read
the flow-of-traffic provisions in § 28-721(B) as overriding our maximum
speed laws, a construction that would grant travelers statutory permission
to speed merely because other travelers are doing so. Rather, our traffic
laws must be applied harmoniously and logically in the context of each
other. See Fleming v. State Dep’t of Pub. Safety, 237 Ariz. 414, ¶ 12 (2015)
(courts must construe separate statutory provisions related to same subject
matter together “as though they constitute one law”). We therefore
conclude that “the normal speed of traffic” pursuant to § 28-721(B)
necessarily refers to a speed not exceeding the maximum posted speed set
forth in § 28-702.04. Under this construction, the failure to pace a speeding

3 See also United States v. Plasencia, No. CR-14-01813-001-TUC-RM,

2015 WL 631277, at *3-4 (D. Ariz. Feb. 13, 2015) (suppressing evidence
gathered after traffic stop pursuant to § 28-721(B) because, among other
reasons, defendant traveled “close to or equal to the speed limit,” sole
vehicle to pass defendant traveled “only slightly faster than” defendant,
and driver’s obligation to move to right triggered only when proceeding
below normal speed of traffic, which “certainly cannot require a driver to
violate the speed limit in order to be in compliance”); Ariz. R. Sup. Ct.
111(c)(1)(C), (d) (extrajurisdictional decisions may be cited for persuasive
value); Ariz. R. Crim. P. 31.19(e).

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car can never be the sole basis for finding a failure to proceed at “the normal
speed of traffic” in violation of § 28-721(B). The state has articulated no
other basis for finding Alvarez-Soto in violation of § 28-721(B), the only
ground Trooper Shewey articulated for the stop.

¶20 The dissent correctly emphasizes that Trooper Shewey
needed only a “minimal, objective justification” for an investigative stop. It
then posits that Alvarez-Soto’s failure to pace the car on her right alone
constituted that justification. That reasoning overlooks that the state bore
the burden of presenting objective facts showing that such a justification
existed. Ariz. R. Crim. P. 16.2(b)(1) (state has burden of proving by
preponderance of evidence lawfulness of acquisition of evidence at
suppression hearing); State v. Hyde, 186 Ariz. 252, 266-68 (1996) (state has
burden of persuasion at suppression hearing). And, it had the burden of
doing so by the statutory criteria set forth for a violation of § 28-721(B).
Although relevant, a driver’s failure to match the speed of another vehicle
to one’s right is simply not the gravamen of that offense. Rather, the state
bore the burden of demonstrating by a preponderance of evidence that the
trooper had a sufficient objective basis for concluding that Alvarez-Soto’s
vehicle was proceeding below “the normal speed of traffic” under all of the
then-existing conditions.4 On the record before us, we merely conclude that
the state presented insufficient objective facts to carry that burden.

¶21 To the extent Trooper Shewey applied § 28-721(B) under
circumstances in which no driver could comply without violating other
traffic laws, he cast “too wide a net.” Sweeney, 224 Ariz. 107, ¶ 22. Such
applications of the law are not objectively reasonable because they “subject
all travelers to ‘virtually random seizures.’” Id. (quoting Reid, 448 U.S. at
441). For these reasons, the trial court erred in concluding that Shewey had
reasonably stopped Alvarez-Soto and in failing to suppress the evidence
collected during the resulting search.5

4The dissent also observes that Alvarez-Soto could have moved into

the right-hand lane—an action that could have prevented a violation of this
provision even under Trooper Shewey’s motivated scrutiny. But the Fourth
Amendment establishes a personal right to be free of unreasonable seizures
by the government. Its enjoyment should not require travelers to thread
behavioral needles to avoid the risk of unwanted intrusions.
5Alvarez-Soto also contends Trooper Shewey “unlawfully extended

the traffic stop” because he requested her permission to search and run his
dog around the vehicle after he had already issued the traffic violation

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Disposition

¶22 Because we conclude the traffic stop was conducted without
reasonable suspicion, we vacate Alvarez-Soto’s convictions and sentences
and remand this case to the trial court for further proceedings.

G A R D, Presiding Judge, dissenting:

¶23 The majority concludes that Trooper Shewey lacked
reasonable suspicion to stop Alvarez-Soto’s vehicle for violating A.R.S.
§ 28-721(B). That statute requires a driver “proceeding at less than the
normal speed of traffic at the time and place and under the conditions then
existing” to drive in the right-hand lane, or “as close as practicable” thereto,
unless passing another vehicle or making a left turn. Id. The majority
deems the officer’s application of § 28-721(B) objectively unreasonable
because, in its opinion, Alvarez-Soto could not have complied with that
statute without violating other traffic laws, and it cautions officers to apply
traffic laws in a flexible manner that accounts for the multiple variables
drivers face on the roadways. Because I believe the majority’s decision is
legally and factually erroneous, I respectfully dissent.

¶24 I begin by reviewing what reasonable suspicion is and is not
because, in my view, the majority loses sight of these contours. “If an officer
has ‘an articulable, reasonable suspicion, based on the totality of the
circumstances,’ that a traffic violation has occurred, he or she may conduct
a limited investigatory stop.” State v. Sweeney, 224 Ariz. 107, ¶ 16 (App.
2010) (quoting State v. Teagle, 217 Ariz. 17, ¶ 20 (App. 2007)). “Although
‘reasonable suspicion’ must be more than an inchoate ‘hunch,’ the Fourth
Amendment only requires that police articulate some minimal, objective
justification for an investigatory detention.” Teagle, 217 Ariz. 17, ¶ 25
(quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). And “[i]n reviewing
the totality of the circumstances, we accord deference to a trained law
enforcement officer’s ability to distinguish between innocent and
suspicious actions.” Id. ¶ 26; see State v. Evans, 235 Ariz. 314, ¶ 8 (App. 2014)
(“A reviewing court must consider whether the historical facts, along with
the inferences drawn by law enforcement officers and the trial court, satisfy
the constitutional standard.”). We also must defer to the trial court’s factual
findings, both express and implied. See State v. Zamora, 220 Ariz. 63, ¶ 7
(App. 2009) (in reviewing denial of motion to suppress, “[w]e will infer the

warning and returned her license and registration. Because we grant relief
on the issue of the traffic stop’s reasonableness, we need not reach this issue.

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necessary findings to affirm the superior court,” so long as “the implied
findings do not conflict with the court’s express findings”).

¶25 Reasonable suspicion is a relatively low bar. See State v. Serna, 235 Ariz. 270, ¶ 27 (2014) (describing reasonable suspicion as “a low
standard, readily established in many search settings”). In fact, the
standard for reasonable suspicion “is considerably less than proof of
wrongdoing by a preponderance of the evidence.” Sokolow, 490 U.S. at 7.
In other words, “[b]y definition, reasonable suspicion is something short of
probable cause.” Teagle, 217 Ariz. 17, ¶ 25 (quoting State v. O’Meara, 198
Ariz. 294, ¶ 10 (2000)). “It does not . . . ‘require solid proof, but rather an
objective basis to believe that criminal activity [or a traffic violation] might
be occurring sufficient to justify further investigation.’” Devlin v. Browning, 249 Ariz. 143, ¶ 10 (App. 2020) (quoting State v. Turner, 243 Ariz. 608, ¶ 7
(App. 2018)); see also State v. Nevarez, 235 Ariz. 129, ¶ 7 (App. 2014) (officer
need not “determine if an actual violation has occurred prior to stopping a
vehicle for further investigation”).

¶26 Applying these standards here, I would conclude that, in the
totality of the circumstances, Trooper Shewey had reasonable suspicion to
stop Alvarez-Soto’s vehicle. See Sokolow, 490 U.S. at 7; Teagle, 217 Ariz. 17,
¶ 25. At the suppression hearing, Shewey testified based on his training
and experience that, on a three-lane highway, the left-hand lane is
considered the fast lane, the middle lane is considered the travel lane, and
the right-hand lane is considered the slow lane. In general, on the interstate,
law-enforcement officers “try to keep traffic moving at the request[ed]
highway speed” of seventy-five miles-per-hour. Signs are posted every five
or six miles directing slower traffic to stay to the right. But Shewey often
sees drivers on the interstate use the right-hand lane to pass slower drivers
in the middle lane. In those instances, officers enforce § 28-721(B) because
collisions, sideswipes, and road rage occur when drivers pass on the right.

¶27 Trooper Shewey initially noticed Alvarez-Soto’s car after his
license-plate reader flagged it as a vehicle newly registered in Nogales,
Arizona, which had already crossed the border into Mexico multiple times.
Because these factors suggested the vehicle was associated with drug
trafficking, Shewey elected to follow it and conduct a traffic stop if the
driver gave him grounds. At points, the vehicle exceeded the maximum
posted speed of seventy-five miles per hour, which alone could have
justified a traffic stop. Eventually, while driving in the middle lane, the
vehicle reduced its speed to approximately seventy miles-per-hour. When
it did so, a car driving in the right-hand lane passed it. Shewey testified

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that the fluctuation in speed of Alvarez-Soto’s car, combined with another
vehicle passing it on the right, led him to conclude he had reasonable
suspicion for a traffic stop.

¶28 The two recordings from Trooper Shewey’s dashboard
camera, taken from different angles, corroborate his testimony. 6 They
depict Alvarez-Soto’s vehicle, while traveling in the middle lane, reduce its
speed and be overtaken by a car driving in the right-hand lane.
Alvarez-Soto continues driving in the middle lane; she does not activate her
turn signal or otherwise make an effort to move right until Shewey initiates
the traffic stop. As I view the recording, twenty-six seconds elapse between
the time the vehicle in the right-hand lane fully clears Alvarez-Soto’s car
and the time Shewey activates his emergency lights.

¶29 Viewed in the totality of the circumstances, Shewey’s
testimony, combined with the recordings, contains the minimal, objective
facts necessary to support a conclusion that Alvarez-Soto violated at least
one traffic law. See Sokolow, 490 U.S. at 7; Teagle, 217 Ariz. 17, ¶ 25. As set
forth above, the officer’s testimony established that drivers are generally
expected to travel the speed limit on the interstate; that Alvarez-Soto
reduced her speed below the speed limit while in the middle lane such that
traffic in the right-hand lane outpaced her; and that Alvarez-Soto then
failed to move right despite being able to do so safely. And from these facts,
the trial court could reasonably have concluded that Trooper Shewey had
reasonable suspicion to believe that Alvarez-Soto was driving slower than
the normal speed of traffic, and was doing so in the middle lane. See
§ 28-721(B). We owe deference to both the trooper and the court in this
context and, applying that deference, I would affirm the court’s ruling. See
Teagle, 217 Ariz. 17, ¶ 26; Zamora, 220 Ariz. 63, ¶ 7.

¶30 The majority, however, insists that Trooper Shewey should
not have viewed § 28-721(B) as a rigid directive but as a flexible guideline,

6The majority views these recordings independently and makes its

own factual findings. Although I agree the recordings speak for
themselves, we must nonetheless view them in the context of Trooper
Shewey’s testimony. In addition, the majority and I differ in interpreting
Alvarez-Soto’s driving behavior and the options available to her, as
captured on the recordings. That the recordings are subject to multiple
reasonable interpretations underscores the importance of deferring to
Shewey’s in-the-moment assessment of Alvarez-Soto’s driving. See Teagle,
217 Ariz. 17, ¶ 26; Evans, 235 Ariz. 314, ¶ 8.

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to be interpreted in view of the many other vehicular laws a driver must
navigate on the interstate. In the majority’s opinion, Alvarez-Soto could not
have complied with § 28-721(B) without exceeding the speed limit. But as
a factual matter, it seems to me that Alvarez-Soto had multiple ways to
adjust her driving in the minutes leading up to the stop to ensure
compliance with all laws including, at a minimum, by immediately falling
in behind the vehicle in the right-hand lane when it became obvious that its
speed exceeded hers. I do not agree with the majority that Alvarez-Soto
would have had to speed to comply with § 28-721(B).

¶31 Moreover, it is the law’s expectation that drivers will comply
with the multiple traffic laws governing them at any one time; when a
driver violates one of those laws, she may be cited. See A.R.S. § 13-3883(B)
(“A peace officer may stop and detain a person as is reasonably necessary
to investigate an actual or suspected violation of any traffic law committed
in the officer’s presence and may serve a copy of the traffic complaint for
any alleged civil or criminal traffic violation.”); cf. Whren v. United States, 517 U.S. 806, 818-19 (1996) (rejecting, in considering probable cause,
argument that search was improper because “the ‘multitude of applicable
traffic and equipment regulations’ is so large and so difficult to obey
perfectly that virtually everyone is guilty of violation, permitting the police
to single out almost whomever they wish for a stop”). A driver must
necessarily think multiple steps ahead, making proactive decisions to
ensure both safety and compliance with traffic laws. I am not persuaded
by the majority’s suggestion that officers must avoid conducting traffic
stops when a driver fails to effectively navigate all appliable laws and
thereby places herself in the type of Catch-22 situation the majority
perceives here.

¶32 The majority relies on State v. Livingston, 206 Ariz. 145, ¶ 10
(App. 2003), in which we concluded in the context of A.R.S. § 28-729(1)—
which requires drivers to drive “as nearly as practicable” in a single lane—
that drivers should not be penalized for brief and minor deviations from
the lanes of travel. The driver in Livingston had briefly crossed the road’s
right lane line with her passenger-side tires, but had otherwise driven
appropriately, and there was no surrounding traffic. Id. ¶¶ 4-5. In
comparison, I do not perceive Alvarez-Soto’s driving as a brief or
momentary deviation from the statutory requirements; rather, as I have
explained, I believe the testimony and the recording supports the
conclusion that, after Alvarez-Soto slowed to below the normal speed of
traffic as measured by the speed limit and the vehicle to her right, she had
ample time to correct course or change lanes. I thus view her conduct as

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more akin to a continued violation of § 28-721(B), rather than a brief and
momentary one. Moreover, unlike the driver in Livingston, Alvarez-Soto
also committed a speeding infraction during the time Trooper Shewey
observed her.

¶33 The majority further suggests that Trooper Shewey stopped
Alvarez-Soto based on “rigid quantitative measures” not supported by
§ 28-721(B)’s text. It observes that the statute does not expressly penalize a
driver for being passed on the right “by a single vehicle.” To be sure, the
statute does not prohibit being passed on the right, by one vehicle or
multiple ones. See § 28-721(B). But it requires slower traffic to stay to the
right, and the fact that a middle-lane driver is driving at a slower speed
than a right-lane driver is a data point appropriately considered in the
totality-of-the-circumstances analysis. And we must defer to the officer’s
training and experience in determining the normal speed of traffic for the
stretch of interstate at issue, at the time and place of the traffic stop.
See Evans, 235 Ariz. 314, ¶ 8; Teagle, 217 Ariz. 17, ¶ 26. The majority cites no
authority for its conclusion that an officer may not make that determination
by comparing a suspect’s vehicle to one other, particularly when traffic is
relatively light. As I have explained, the totality of the circumstances here—
including Alvarez-Soto’s reduction in speed while in the center lane and
her failure to move to the right-hand lane after being overtaken by a car
traveling there—establishes reasonable suspicion that Alvarez-Soto
violated § 28-721(B).

¶34 Departing from its emphasis on the statutory language, the
majority further observes that Trooper Shewey did not testify that
Alvarez-Soto’s vehicle had impeded any other. The majority also
speculates that Alvarez-Soto—who did not testify at the suppression
hearing—may have reduced her speed because she observed Officer
Shewey’s patrol car behind her. But a driver need not obstruct other traffic
in order to violate § 28-721(B)—the statute merely requires that a driver
traveling below the normal speed of traffic in light of the time, place, and
circumstances do so in the right-hand lane. Further, even if Alvarez-Soto
reduced her speed in reaction to the officer’s presence, that does not mean
she did not commit a traffic violation. And we may not, in deciding
whether reasonable suspicion exists, “parse out each individual factor,
categorize it as potentially innocent, and reject it”; we must instead “look at
all of the factors, (all of which would have a potentially innocent
explanation, or else there would be probable cause), and examine them
collectively.” Teagle, 217 Ariz. 17, ¶ 25 (quoting O’Meara, 198 Ariz. 294,
¶ 10); see Devlin, 249 Ariz. 143, ¶ 16 (rejecting argument that reasonable

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 STATE v. ALVAREZ-SOTO
Opinion of the Court

suspicion did not exist “because certain indications of intoxication were not
present,” and noting that “no Arizona statute or case has narrowed
reasonable suspicion to such an impracticable standard” (emphasis
omitted)).

¶35 For these reasons, I would conclude that Trooper Shewey had
reasonable suspicion to stop Alvarez-Soto’s vehicle for a traffic violation. I
therefore respectfully dissent from the majority’s decision.

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