State v. Perez ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JULIE PEREZ, Appellant.
No. 1 CA-CR 20-0047
FILED 5-18-2021
Appeal from the Superior Court in Maricopa County
No. CR2018-0145466-002
The Honorable Julie A. LaFave, 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 Jesse Finn Turner
Counsel for Appellant
STATE v. PEREZ
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop joined.
B A I L E Y, Judge:
¶1 Julie Perez appeals her convictions and sentences for
possession of dangerous drugs (methamphetamine) and possession of drug
paraphernalia. For the following reasons, we affirm.
FACTS 1 AND PROCEDURAL HISTORY
¶2 While patrolling an area near a casino around 2:00 a.m.,
Scottsdale Police Officer Maki saw a car traveling with only one working
headlight. Maki followed the car, observed it weaving within its lane, then
initiated a traffic stop. At the stop, Maki approached the car and spoke with
its two occupants: Christine Peters, the driver, and Perez, the front-seat
passenger. Maki acquired their driver’s licenses, along with the car’s
registration and insurance information. The car was registered to Peters’
son. In conducting a record check from his patrol car, Maki learned that
both Peters and Perez had prior convictions, some of which were for drug-
related offenses.
¶3 Following the record check, Maki asked Peters if he could
search the car. Peters declined, explaining the car belonged to her son. She
permitted Maki to search her purse, however, and he found no contraband
inside. Meanwhile, Officer English arrived at the scene to conduct a
driving-under-the-influence (“DUI”) investigation, based on Maki’s
observations of Peters’ driving behavior and her bloodshot, watery eyes.
1 Because the superior court’s denials of two suppression motions are the
only issues raised on appeal, “[w]e restrict our review to consideration of
the facts the trial court heard at the suppression hearing[s],” State v.
Blackmore, 186 Ariz. 630, 631 (1996), viewing the evidence in the light most
favorable to upholding the court’s suppression orders, State v. Weakland, 246
Ariz. 67, 69, ¶ 5 (2019).
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Decision of the Court
Peters agreed to perform field sobriety tests, and English ultimately
concluded that Peters was not impaired.
¶4 Once English had completed the DUI investigation, Maki
informed Peters that the officers had determined she was not impaired but
further told her that he still suspected that “something else is going on here
tonight.” Maki asked Peters if she was aware of anything in the car that he
“should be concerned about.” She replied that her son smokes marijuana
and that she was not sure what he kept in the car. Maki soon told Peters he
believed there might be a pipe or marijuana inside the car, then continued,
“I’m not going to take you to jail. It’s not worth my time. It’s not worth
your time. But I do want you to be honest with me about it.” Peters
responded that there might be a marijuana pipe in the car.
¶5 After approximately three minutes had passed in this
exchange, Peters invited Maki to search her backpack, retrieved it from the
car, and handed it to Maki. Maki’s search revealed three pipes commonly
used to smoke methamphetamine and a scale coated with apparent
methamphetamine residue. Having discovered the contraband, the officers
conducted a warrantless search of the car and its contents, including Perez’s
purse. In Perez’s purse, the officers found methamphetamine and a pipe.
¶6 A grand jury indicted Perez on one count each of possession
of dangerous drugs (methamphetamine) and possession of drug
paraphernalia. The grand jurors charged Peters in the same indictment
with possession of methamphetamine for sale and possession of drug
paraphernalia. 2
¶7 Before trial, codefendant Peters moved to suppress all
evidence seized during the traffic stop, asserting that Maki had improperly
coerced her consent to search the backpack and that the illegal backpack
search required suppression of the evidence gathered in the subsequent car
search as “fruit of the poisonous tree.” In denying Peters’ suppression
motion, the superior court found that, based on its review of video from
Maki’s body-worn camera (“BWC”), 3 the State had established that Peters
“volunteer[ed]” her backpack through a “validly obtained consent.”
2 Peters eventually entered a plea agreement with the State resolving the
charges before trial.
3 The BWC video was the only evidence the superior court considered at
the hearing. No witnesses testified.
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Decision of the Court
¶8 Perez never sought to join her codefendant’s motion, nor did
she otherwise challenge the constitutionality of the backpack search before
the superior court. Instead, citing Rodriguez v. United States, 575 U.S. 348
(2015), Perez separately moved to suppress the drug evidence seized from
the car, arguing Maki impermissibly prolonged the detention. The court
held an evidentiary hearing on Perez’s motion at which Maki testified, and
the State introduced into evidence both Maki’s BWC video and a copy of
his police report.
¶9 At the suppression hearing, Maki explained why he
suspected Peters and Perez were engaging in criminal activity. Maki
testified that the first “red flag” he noticed was the area in which they were
traveling:
I’ve dealt with individuals coming from and going to the
[casino], which is east of that location. . . . There’s a high, high
concentrated drug area where there’s a lot of drug
transactions, a lot of drug dealers, as well as drug users who
will frequently go to the casino to either pick up or to sell
different types of various drugs.
¶10 Another factor drawing Maki’s suspicion was “the criminal
history for both subjects, [because] both indicated drug[-]related history.”
He also observed that their behavior was “odd” and “very nervous.” Maki
additionally cited the “time of night, being that it was roughly 2:00 in the
morning. There’s very few cars on the road, this is a time of night that we
also experience a lot of other criminal activities.” Maki further noted “the
fact that . . . [they had] driven past other gambling facilities to go to this
facility . . . [when] they lived on the other side of the valley.”
¶11 Finally, Maki described that “their relationship was kind of
unclear of how they actually know each other . . . [and] was a little odd.”
Maki explained that such a relationship suggested drug-related activity
because in his “prior contact with individuals that might be in the area
either to commit various criminal related activities or . . . partake in drug
use together, they don’t necessarily know each other that well . . . they know
very little about each other.”
¶12 The superior court found Maki’s testimony credible and
denied Perez’s motion. In so doing, the court concluded that extending the
detention was reasonable because Maki “has the criminal history, he has
the information, and he starts asking questions that go hand in hand with
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STATE v. PEREZ
Decision of the Court
the reasons he articulated to continue the stop.” The court further
explained its decision as follows:
The initial reasons, headlight, I think that’s a decision that he
could have made. And before he testified that’s why I said,
don’t tell me he was just waiting around to decide whether or
not to do the headlight and, in the interim, do all these things.
Well, it turns out he didn’t. That’s a decision he hadn’t made
yet. But, in the interim, he allocated all of those other bases to
believe there’s something afoot here, given the location, the
criminal activities, experience in the past, combined with the
criminal history and what he gains from the driver, Ms.
Peters.
¶13 A jury found Perez guilty as charged. The superior court
sentenced Perez as a category-three repetitive offender to concurrent terms
of imprisonment for each conviction, the length of which was six years. We
have jurisdiction over Perez’s timely appeal pursuant to Article 6, Section
9, of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) §§
12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶14 On appeal, Perez challenges the superior court’s denials of the
two suppression motions. Supra ¶¶ 7-8. The Fourth Amendment to the
United States Constitution protects individuals against unreasonable
searches and seizures, and evidence seized in violation of its protection is
generally excluded from a criminal trial.4 State v. Peoples, 240 Ariz. 244, 247,
¶¶ 8-9 (2016). “We review for abuse of discretion the trial court’s factual
findings on [a] motion to suppress, but review de novo the trial court’s
ultimate legal determination that the search complied with the Fourth
Amendment.” State v. Gilstrap, 235 Ariz. 296, 297, ¶ 6 (2014).
4Because Perez neither cites the Arizona Constitution nor presents separate
argument based on it, we analyze the issue only under the federal
constitution. State v. Dean, 206 Ariz. 158, 161, ¶ 8 n.1 (2003); see State v.
Juarez, 203 Ariz. 441, 444, ¶ 14 (App. 2002) (“[E]xcept in cases involving
‘unlawful’ warrantless home entries, Arizona courts have not yet applied
Article 2, Section 8 to grant broader protections against search and seizure
than those available under the federal constitution.”); see also State v.
Sanchez, 200 Ariz. 163, 166, ¶ 8 (App. 2001) (waiving issue because
defendant failed to develop argument on appeal).
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STATE v. PEREZ
Decision of the Court
I. Perez lacks standing to challenge the constitutionality of the
backpack search.
¶15 For the first time on appeal, Perez argues that Peters’ consent
to search the backpack was involuntary, thereby invalidating the
subsequent car search and rendering inadmissible the evidence seized.
Because Perez did not raise this issue before the superior court, we apply
fundamental-error review. See State v. Newell, 212 Ariz. 389, 398, ¶ 34 (2006)
(reviewing for fundamental error a suppression argument first raised on
appeal); see also State v. Marahrens, 114 Ariz. 304, 305-06 (1977) (waiving
suppression issue when defendant neither joined codefendant’s motion nor
raised the issue at trial). To show fundamental error, a defendant carries
the burden to demonstrate (1) the superior court committed error, (2) the
error was fundamental under the circumstances of the case, and (3)
resulting prejudice. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).
¶16 “Fourth Amendment rights . . . may not be vicariously
asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (quotation omitted).
Consequently, “[i]t has long been the rule that a defendant can urge the
suppression of evidence obtained in violation of the Fourth Amendment
only if that defendant demonstrates that his Fourth Amendment rights were
violated by the challenged search or seizure.” United States v. Padilla, 508
U.S. 77, 81 (1993).
¶17 Although “[o]ur courts have sometimes referred to this
requirement as ‘standing’ for the sake of brevity,” the inquiry turns on
“whether a defendant possessed a legitimate expectation of privacy
applying Fourth Amendment principles rather than traditional standing
principles.” Peoples, 240 Ariz. at 247, ¶ 8 (citations omitted). “To have a
legitimate expectation of privacy protected by the Fourth Amendment, a
person must show both ‘an actual (subjective) expectation of privacy’ and
that the expectation is one that society is prepared to recognize as
‘justifiable’ under the circumstances.” State v. Allen, 216 Ariz. 320, 323, ¶ 13
(App. 2007) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)).
¶18 Applying these principles here, Perez does not argue, much
less demonstrate, that she maintained any expectation of privacy in Peters’
backpack. To the contrary, the uncontested evidence shows that the
backpack belonged exclusively to Peters and that Perez never asserted a
privacy or property interest in it. See State v. Tarkington, 218 Ariz. 369, 370,
¶ 7 (App. 2008) (“In order to challenge a search, a person must first show
he had a legitimate expectation of privacy in the area searched.”).
Accordingly, Perez has not met her burden to establish standing to
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STATE v. PEREZ
Decision of the Court
challenge the backpack search as unconstitutional. See Rakas, 439 U.S. at 134
(“A person who is aggrieved by an illegal search and seizure only through
the introduction of damaging evidence secured by the search of a third
person’s premises or property has not had any of his Fourth Amendment
rights infringed.”).
¶19 Nevertheless, for the first time in her reply brief, Perez 5 cites
United States v. Perez, 689 F.2d 1336 (9th Cir. 1982), to argue she “should be
able to challenge misconduct which directly led to the search” because her
purse was in the car and searched. Her reliance on Perez is misplaced. In
Perez, several codefendants had hired “a man named Sanchez” 6 to transport
heroin for them, using his truck. Id. at 1337. The codefendants hid four
pounds of heroin in the truck’s gas tank, and one defendant traveled as a
passenger in Sanchez’s truck while the other codefendants followed closely
in another vehicle to conduct surveillance. Id. Customs officers asked
Sanchez if they could search his truck, and Sanchez consented to a search
of the truck. Id. A narcotics dog alerted to the gas tank, and officers found
four pounds of heroin in the subsequent search. Id.
¶20 The Ninth Circuit held that the codefendants had a legitimate
expectation of privacy in Sanchez’s truck because (1) the codefendants had
made a “formalized arrangement” with Sanchez to transport the heroin and
(2) the codefendants “kept the truck under close surveillance” for
approximately 160 miles to ensure “no one interfered with the carrying out
of their plan and the delivery of their property.” Id. at 1338. Perez thus
supports the proposition that a defendant “may have a legitimate
expectation of privacy in a place or object he does not own” only if the
defendant first shows a formal arrangement indicating joint control and
supervision over the place searched or item seized. Id.; see, e.g., United States
v. Taketa, 923 F.2d 665, 671 (9th Cir. 1991).
¶21 Unlike in Perez, no evidence in this case indicates, nor does
Appellant assert, that the codefendants had entered a formal arrangement
of joint control and supervision related to Peters’ backpack. And Appellant
points to no evidence that she “took reasonable precautions to maintain [a]
privacy interest” in the backpack, as the defendants in Perez did. Perez, 689
5We refer to Perez as Appellant in ¶¶ 19-21 to avoid confusion with the
defendant of the same surname in the Ninth Circuit case.
6 The opinion does not provide Sanchez’s full name, also stating that he died
before trial.
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STATE v. PEREZ
Decision of the Court
F.2d at 1338. Therefore, Appellant’s argument based on Perez is without
merit.
¶22 Moreover, even if we were to conclude that Perez has the
requisite standing, other circumstances support the superior court’s finding
that Peters’ consent was voluntary. See State v. Valenzuela, 239 Ariz. 299,
301-03, ¶¶ 1, 11 (2016) (explaining that “[a]lthough the Fourth Amendment
generally prohibits warrantless searches, they are permitted if there is free
and voluntary consent to search,” which “[t]he [S]tate must prove by a
preponderance of the evidence”). Voluntariness is a factual question
determined from the totality of circumstances involved. State v. Butler, 232
Ariz. 84, 88, ¶ 19 (2013); see also Valenzuela, 239 Ariz. at 302, ¶ 11.
¶23 Consistent with the superior court’s ruling, the BWC video
shows Peters expressly offered her backpack to Maki, and did so absent any
question, instruction, or prompt from the officer. See State v. Sweeney, 224
Ariz. 107, 111, ¶ 12 (App. 2010) (explaining appellate court may
independently review video evidence). That she immediately retrieved the
backpack from the car and handed it to Maki further bolsters the superior
court’s conclusion. See, e.g., State v. Hernandez, 244 Ariz. 1, 5, ¶ 17 (2018)
(noting conduct may communicate consent). That Peters granted consent
for the backpack search while steadfastly refusing to permit the car search
also supports the court’s conclusion. See Schneckloth v. Bustamonte, 412 U.S.
218, 227 (1973) (considering the knowledge of the right to refuse consent as
one factor in determining voluntariness).
¶24 Furthermore, Peters never withdrew or limited her consent.
See State v. Becerra, 239 Ariz. 90, 92, ¶ 9 (App. 2016) (“Even after a person
initially consents to a search, she nevertheless remains free to withdraw or
narrow the scope” of consent). She was not handcuffed, nor had the officers
drawn their weapons. See State v. Laughter, 128 Ariz. 264, 266-67 (App.
1980). And there is no evidence showing the officers used threats or force
to gain her consent. Id. at 266.
¶25 Perez counters that Maki coerced Peters’ consent by telling
her he would not take her to jail, asserting the comment constituted an
impermissible promise of leniency. But Maki’s comment was made while
the two discussed whether the car contained her son’s marijuana or his
pipe. Perez thus fails to show that Maki’s statement improperly induced
Peters’ consent, given that Maki never mentioned the backpack and learned
of its existence only when Peters disclosed it.
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STATE v. PEREZ
Decision of the Court
¶26 To the extent the isolated comment suggests possible
coercion, it did not alone compel the superior court to conclude that Peters’
will had been overcome, given the context and the totality of the
circumstances. Schneckloth, 412 U.S. at 225-26 (describing the test for
voluntariness as whether “defendant’s will was overborne”). Therefore,
assuming arguendo Perez has standing to assert her challenge, the superior
court did not err in denying Peters’ suppression motion.
II. Maki had developed reasonable suspicion to justify extending the
detention.
¶27 Perez next argues the superior court erred in denying her
suppression motion. Specifically, she asserts that “everything after Officer
English completed his investigation was an illegal detention under
Rodriguez” because the State failed to establish additional reasonable
suspicion. We note that she does not challenge the propriety of the initial
traffic stop, nor does she contend the delay from the DUI investigation was
unconstitutional. Furthermore, she concedes “the car was searched via a
proper application of the automobile exception and incident to arrest.”
¶28 “[T]he tolerable duration of police inquiries in the traffic-stop
context is determined by the seizure’s ‘mission’—to address the traffic
violation that warranted the stop,” and “[a]uthority for the seizure thus
ends when tasks tied to the traffic infraction are—or reasonably should
have been—completed.” Rodriguez v. United States, 575 U.S. 348, 354 (2015).
At that point, “the driver must be permitted to proceed on his way without
further delay or questioning” unless: (1) the encounter becomes consensual,
or (2) during the encounter, the officer develops “a reasonable and
articulable suspicion that the driver is engaged in illegal activity.” State v.
Teagle, 217 Ariz. 17, 23, ¶ 22 (App. 2007). If the police unjustifiably prolong
a detention, even if the intrusion is de minimis, the seizure violates the
Fourth Amendment. Rodriguez, 575 U.S. at 354-56.
¶29 Reasonable suspicion requires “some minimal, objective
justification for an investigatory detention,” a standard that is “something
short of probable cause” but more than a mere hunch. Teagle, 217 Ariz. at
23-24, ¶ 25 (quotations omitted). In assessing whether reasonable suspicion
exists, courts examine all relevant factors collectively, even when each in
isolation may have an innocent explanation. Id. A trained and experienced
officer may be “able to perceive and articulate meaning in given conduct
which would be wholly innocent to the untrained observer.” Brown v.
Texas, 443 U.S. 47, 52 n.2 (1979); see Teagle, 217 Ariz. at 24, ¶ 26 (deferring to
an officer’s ability to distinguish between innocent and suspicious actions).
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STATE v. PEREZ
Decision of the Court
“[A] suspect’s criminal history is part of the ‘totality of the circumstances’
that informs an officer’s reasonable suspicion of criminal activity.” State v.
Woods, 236 Ariz. 527, 530, ¶ 12 (App. 2015).
¶30 As a threshold matter, we find unpersuasive the State’s
contention that “this case is not a Rodriguez extension” because, when Peters
consented to the backpack search, Maki had not yet decided whether to
issue a warning for the headlight violation. The record shows the officers
had detained the codefendants for approximately twenty-two minutes
before Peters granted consent. In that amount of time, Maki reasonably
should have decided whether to issue a warning for such a traffic violation.
See Rodriguez, 575 U.S. at 354. Because the State does not argue the
encounter became consensual, and Maki extended the detention to question
Peters on matters unrelated to the traffic violation, we must determine
whether he had reasonable suspicion to do so.
¶31 Here, Maki articulated several objective reasons for
suspecting that Peters and Perez may have been involved in transporting
illegal drugs: (1) they had recently visited a casino located in a high-drug-
crime area at a time when such criminal activity is prevalent; (2) they had
traveled a significant distance from where they lived, passing other casinos
on their way; (3) their criminal histories, which included drug-related
crimes; (4) their nervous behavior; and (5) their unclear relationship, which,
by Maki’s account, resembled a trait he had observed among groups of
drug users in the area.
¶32 Although each reason alone may have an innocent
explanation, we do not “parse out each individual factor, categorize it as
potentially innocent, and reject it.” State v. O’Meara, 198 Ariz. 294, 296, ¶ 10
(2000). Instead, “[t]here is a gestalt to the totality of the circumstances test.”
Id. Considered in the aggregate and properly deferring to the officer’s
training and experience, it was reasonable for Maki to infer from the cited
factors that the codefendants were involved in criminal activity.
¶33 Perez nonetheless relies on Sweeney to argue that Maki failed
to demonstrate reasonable suspicion because the “factors [he identified]
would not serve to eliminate a substantial portion of innocent travelers.”
We find Sweeney to be distinguishable. In Sweeney, at a traffic stop, an
officer initially gave the defendant a warning, informed him he was free to
go, and “wished him a safe trip” before engaging him in further, consensual
conversation. 224 Ariz. at 109, 113, ¶¶ 3-5. The officer soon requested
consent to search the car and to conduct a dog sniff. Id. at 109-10, ¶ 5. The
defendant declined both requests and attempted to leave. Id. at ¶¶ 5-6. At
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STATE v. PEREZ
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that point, the officer grabbed the defendant, detained him, and ordered
him to stand in front of the patrol car until another officer arrived. Id. at
110, ¶ 6. The police eventually searched the vehicle and discovered cocaine.
Id.
¶34 On appeal, this court concluded that the second seizure was
unlawful because it was ultimately triggered by the defendant’s refusal to
consent, reasoning “the invocation of one’s constitutional rights cannot
constitute a circumstance that gives rise to reasonable suspicion.” Id. at 115,
¶ 32. The record does not reflect, and Perez does not assert, that such
circumstances are present here. Accordingly, because Maki had developed
reasonable independent suspicion that the codefendants were committing
drug-related crimes, we detect no error in the superior court’s ruling.
CONCLUSION
¶35 For the foregoing reasons, we affirm the superior court’s
denials of the suppression motions and Perez’s convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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