State v. Malloy ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
SUZANNE JEANNETTE MALLOY, Appellant.
No. 1 CA-CR 19-0295
FILED 6-1-2021
Appeal from the Superior Court in Yavapai County
No. P1300CR201700264
The Honorable Tina R. Ainley, Judge
REVERSED AND REMANDED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
The Zickerman Law Office, PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
STATE v. MALLOY
Decision of the Court
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Michael J. Brown joined. Judge D. Steven Williams
dissented.
S W A N N, Chief Judge:
¶1 Suzanne Jeannette Malloy agreed during a traffic stop to
allow law enforcement to conduct a dog sniff of the exterior of her vehicle.
After the dog alerted, law enforcement searched the vehicle and discovered
illegal drugs and drug paraphernalia. Malloy was charged with and
convicted of multiple drug possession counts. She appeals, contending that
the physical evidence was obtained via an illegal detention and consent
extracted by duress. We reverse and remand because we conclude that the
detention was unlawfully prolonged, which tainted her consent.
FACTS AND PROCEDURAL HISTORY
¶2 On the evening of February 18, 2017, Trooper Aguilera of the
Arizona Department of Public Safety stopped a vehicle for exceeding the
speed limit on the I-17. Trooper Aguilera approached the stopped vehicle
on the passenger side and made contact with the driver, Jeffrey Shaw, and
the front-seat passenger, Malloy.
¶3 After informing Shaw that he had been speeding, Trooper
Aguilera asked for Shaw’s driver’s license as well as the vehicle’s
registration and proof of insurance. Shaw provided his license, Malloy
provided the registration (which was in her name), and Malloy informed
Trooper Aguilera that she was looking for the insurance information on her
cell phone. As Malloy manipulated her phone, Trooper Aguilera spoke to
the pair. They told him that they were traveling to Phoenix from Arkansas,
where they had gone to look at a 1938 coupe. Trooper Aguilera observed
that Malloy’s hand was shaking and thought that she appeared nervous;
indeed, Shaw jokingly told Malloy to relax. After Malloy located the
insurance information on her phone and showed the screen to Trooper
Aguilera, the trooper asked Malloy for her identification. As Malloy located
her driver’s license, Shaw again told her to relax. Trooper Aguilera took
their licenses and the registration back to his patrol vehicle.
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¶4 In his patrol vehicle, Trooper Aguilera checked the stopped
vehicle’s information. He learned it had no lien and had been registered
within the previous six months—which he viewed as significant because
“[a] lot of times with criminal activity or potential drug trafficking, vehicles
are fairly newly registered and they don’t have liens.” He also learned the
vehicle had crossed over the Mexican border a few times, as recently as the
month before. After concluding the checks, Trooper Aguilera prepared a
traffic warning.
¶5 Trooper Aguilera returned to Shaw and Malloy, informed
them that he was issuing a warning, and asked Shaw to step out of the
vehicle to sign the warning—the only task left for its completion. As Shaw
exited, Malloy asked Trooper Aguilera how old he was. Trooper Aguilera
answered that question and then asked Malloy several questions about the
pair’s trip to Arkansas. In response, Malloy stated that she and Shaw had
stayed “two or three days” in Arkansas and that the trip had taken “a
while.” She further stated that Shaw had gone to look at the 1938 coupe
with his friend. In Trooper Aguilera’s opinion, Malloy still appeared to be
nervous.
¶6 Trooper Aguilera left Malloy and walked back to Shaw, who
was waiting by the patrol vehicle along with one uniformed and two plain-
clothes law enforcement officers. After removing his computer from the
patrol vehicle, Trooper Aguilera spoke to Shaw, first telling him the basis
for the traffic warning and next asking him several questions about the trip
to Arkansas. In response, Shaw stated that they had traveled to see a 1932
coupe, that they had stayed in a hotel and he thought it was a Super 8 but
was not sure, and that they had no friends or family in Arkansas.
¶7 Trooper Aguilera then handed Shaw the computer and
directed him to sign the warning on the screen. After Shaw signed and
returned the computer, Trooper Aguilera manipulated it while telling Shaw
that he would print the warning. Trooper Aguilera then asked Shaw if
there was anything illegal in the vehicle. Shaw said no. Trooper Aguilera
asked Shaw for consent to search the vehicle, and Shaw responded the
trooper would have to talk to Malloy. Shaw did, however, consent to a
search of his own bags within the vehicle. At this point, approximately
eleven minutes had elapsed since Trooper Aguilera initiated the roadside
stop.
¶8 Trooper Aguilera left Shaw at the patrol vehicle and
approached Malloy, who was still sitting in the stopped vehicle. He asked
her if there was anything illegal in the vehicle, and she said no. He then
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asked her for consent to search the vehicle, and she said no. He next asked
if she would allow him to “just run a dog around it,” and she agreed.
¶9 Trooper Aguilera returned to his vehicle and radioed for a
canine officer. He then informed Shaw, who was still waiting by the patrol
car, that Malloy had consented to a dog sniff and that he had a dog coming.
Shaw asked if he could return to his vehicle, and Trooper Aguilera agreed
but advised him, “Don’t drive off or nothing, ‘cause I still got your ID and
all that.” Trooper Aguilera then promptly collected the warning printout,
the registration, and the driver’s licenses, and returned them to Shaw and
Malloy in their vehicle. As he did so, he advised Shaw and Malloy that he
had a dog coming.
¶10 Approximately fifteen minutes later, a canine officer arrived.
Less than two minutes later, the dog sniff began. The dog ultimately alerted
to the presence of drugs. Law enforcement searched the vehicle and
discovered that a purse in the front passenger seat held multiple syringes
as well as substances consistent with illegal drugs.
¶11 Malloy moved to suppress the physical evidence on the
ground that Trooper Aguilera’s request that Shaw exit his vehicle
unlawfully prolonged the traffic stop beyond the time reasonably required
for its completion. The superior court denied the motion, concluding that
Malloy freely and voluntarily consented to the dog sniff. In so concluding,
the court found, contrary to the record, that Trooper Aguilera had “handed
back the paperwork” before asking Shaw for consent.
DISCUSSION
¶12 We review the denial of a motion to suppress with deference
to the superior court’s factual findings, including its findings on credibility,
but we review de novo mixed questions of law and fact and the court’s
ultimate legal conclusion as to whether an investigative detention was
warranted and of reasonable duration. State v. Teagle, 217 Ariz. 17, 22, ¶ 19
(App. 2007). We independently review the body-camera footage of the
encounter that Malloy provided at the suppression hearing. See State v.
Sweeney, 224 Ariz. 107, 111, ¶ 12 (App. 2010).
¶13 Law enforcement may detain a vehicle and its occupants
pending inquiry into a traffic violation. Arizona v. Johnson, 555 U.S. 323, 327
(2009). “Like a Terry stop, the 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 attend to related safety
concerns.” Rodriguez v. United States, 575 U.S. 348, 354 (2015). As part of
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the mission of the stop, an officer may perform such tasks as “checking the
driver’s license, determining whether there are outstanding warrants
against the driver, and inspecting the automobile’s registration and proof
of insurance.” Id. at 355. But the officer’s authority for the stop “ends when
tasks tied to the traffic infraction are—or reasonably should have been—
completed.” Id. at 354. So though the officer “may conduct certain
unrelated checks during an otherwise lawful traffic stop,” he or she “may
not do so in a way that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.” Id. at 355. “The
seizure remains lawful only ‘so long as unrelated inquiries do not
measurably extend the duration of the stop.’” Id. (quoting Johnson, 555 U.S.
at 355). Once the mission of the traffic stop is or reasonably should be
completed, the officer must allow the vehicle’s occupants to continue on
their way unless the encounter becomes consensual or the officer has
developed a reasonable and articulable suspicion of criminal activity. State
v. Kjolsrud, 239 Ariz. 319, 322–23 (App. 2016) (citing Sweeney, 224 Ariz. at
112, ¶ 17).
¶14 Here, Trooper Aguilera’s observation that Shaw was
speeding justified his detention of Shaw and Malloy and his requests for
Shaw’s driver’s license, the vehicle’s registration, and the vehicle’s
insurance information. His questions as he collected Shaw’s driver’s license
and the vehicle information did not prolong the stop, and his request that
Malloy provide her identification—a request with which she voluntarily
complied—did not cause unreasonable delay. As Trooper Aguilera
checked the vehicle’s information, he learned that it had some
characteristics consistent with drug trafficking: it had no liens; it was
recently registered; and it had crossed the Mexican border several times,
including the month before. He then prepared a traffic warning and asked
Shaw to exit his vehicle to sign it.
¶15 Malloy contends that “[o]nce [Trooper Aguilera] ordered Mr.
Shaw from the vehicle, it is clear that the Trooper was no longer attending
to the original ‘mission’ of the traffic stop.” On this record,1 we must
1 We note the incompleteness of the body-camera footage provided at
the suppression hearing—there is an unexplained absence of audio in the
footage during the entirety of the approximately six-minute period during
which Trooper Aguilera sat in his patrol car, accompanied by an off-duty
detention officer, conducting the checks on the stopped vehicle and
preparing the warning. In view of the incomplete audio, the footage gives
an incomplete picture of the circumstances surrounding Trooper Aguilera’s
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Decision of the Court
disagree. Explaining the warning and obtaining Shaw’s signature was
essential to the purpose of the stop. And though nothing in the record
suggests that Trooper Aguilera could not have accomplished those tasks
while Shaw remained seated, we detect no illegality in his decision to
request that Shaw exit the car. Trooper Aguilera testified that during most
stops he will ask the driver to exit, because:
[I]t gets them out so that I can have them sign my computer.
It’s a very expensive computer which I don’t like handing into
vehicles with a potential of somebody -- it getting dropped or
somebody dragging off with it, and then it allows me to talk
to the occupants a little bit more while we’re back there.
Contrary to the state’s contention, Trooper Aguilera’s testimony does not
support the conclusion that he asked Shaw to exit as a human safety
measure as permitted under Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977).
But the testimony does establish other grounds for Trooper Aguilera’s
request, and we cannot say that those grounds were unreasonable. To be
sure, we view Trooper Aguilera’s stated concern about the computer being
dropped with some skepticism—after all, the body-camera footage shows
that he permitted Shaw to independently handle the computer over the
roadside in light rain. And we are mindful that “removing the driver from
the car to undertake further questioning falls into the category of a ‘detour’
from the mission of the underlying traffic stop.” Kjolsrud, 239 Ariz. at 323,
¶ 14. But we must conclude that Trooper Aguilera’s concern that the
computer could be “dragg[ed] off” if handed into the stopped vehicle was
not unreasonable.
¶16 As Shaw exited the vehicle, Malloy asked Trooper Aguilera
his age. Malloy’s spontaneous question invited any delay occasioned by
Trooper Aguilera’s answer. Trooper Aguilera, however, did not stop at
answering Malloy’s question—he continued to engage her in unrelated,
albeit brief, conversation by asking her further questions about her trip. But
even if Malloy’s inquiry could be said to have opened the door to Trooper
Aguilera’s questions, we detect no justification for Trooper Aguilera’s
request that Shaw exit the vehicle. Audio of the conversation—or the
absence of conversation—between Trooper Aguilera and his companion
would permit the court to more accurately evaluate the trooper’s
motivation in his subsequent interactions with Shaw and Malloy. But
Malloy, who offered the footage at the suppression hearing, appears never
to have challenged its incompleteness. We therefore evaluate this case
based on the record before us.
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Decision of the Court
subsequent questioning of Shaw—which, tellingly, he later admitted he
had planned to engage in before she asked his age, “[j]ust to get a quick story
of where they were coming from.” See Rodriguez, 575 U.S. at 356
(recognizing that on-scene investigation into other crimes detours from the
mission of the traffic stop).
¶17 Trooper Aguilera testified that by the time he exited his patrol
vehicle: “The warning was completed. I just needed a signature at that
point.” Upon joining Shaw by the patrol vehicle, Trooper Aguilera
removed his computer and told Shaw the basis for the warning. Explaining
the warning was, of course, central to the mission of the stop. After Trooper
Aguilera completed that explanation, however, the only stop-related tasks
that remained were to obtain Shaw’s signature and provide him with the
warning and his documents. There existed no further justification to delay
those easily accomplishable administrative tasks. But instead of
immediately pursuing those tasks, Trooper Aguilera asked Shaw further
questions about his trip. To be sure, those questions were brief and did not
significantly extend the duration of what was, until that point, not an
unreasonably long encounter. But the body-camera footage and the
trooper’s testimony establish that there was no reason the stop should not
have been completed when Trooper Aguilera explained the warning. We
hold that the questioning “measurably” and therefore unlawfully extended
the stop. And the extension of the stop was no more consensual in this case
than it was in Rodriguez. See 455 U.S. at 355; see also Kjolsrud, 239 Ariz. at
322–23, ¶¶ 11–12, 14 (holding that when officer conceded that he could have
concluded traffic stop after conducting records check, but nonetheless
asked driver to exit vehicle for sole purpose of facilitating further
investigatory conversation, officer took “detour” within meaning of
Rodriguez that “amount[ed] to an additional seizure”).
¶18 Further, after Trooper Aguilera ultimately obtained Shaw’s
signature—at which point the state concedes the mission of the traffic stop
was complete—he immediately asked Shaw for consent to search. But he
did not first provide the warning or return the driver’s licenses and
registration—a critical fact that the superior court misapprehended. By
retaining the licenses and registration while asking for Shaw and Malloy’s
consent, Trooper Aguilera ensured that they were not free to leave and
continued their detention beyond the scope of the traffic stop.
¶19 The continued detention was not supported by consent or
independent reasonable suspicion of criminal activity. Malloy’s consent to
the dog sniff (which was not even required) did not amount to consent to
prolonged detention. Though “[r]easonable suspicion is something short
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of probable cause, . . . it must be more than an ‘inchoate and
unparticularized suspicion or “hunch.”’” Sweeney, 224 Ariz. at 112, ¶ 21
(quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). An officer must have
“some minimal, objective justification for the detention.” Id. Though we
must consider the totality of the circumstances, including the officer’s
knowledge, experience, and training, “circumstances that do not reliably
distinguish between suspect and innocent behaviors are insufficient to
establish reasonable suspicion because they may cast too wide a net and
subject all travelers to ‘virtually random seizures.’” Id. at 112–13, ¶ 22.
¶20 The state places great weight on Malloy’s nervousness as
supporting a reasonable suspicion of criminal activity. Though the state
concedes that “[o]ften a person’s nervousness is not a particularly weighty
factor in determining whether a reasonable suspicion exists,” it contends
that Shaw’s comments during the stop about Malloy’s nervousness
“confirmed that Malloy was exceptionally nervous.” We cannot agree with
the state’s contention.
¶21 Trooper Aguilera’s assessment that Malloy was “nervous” is
supported by the body-camera footage, which shows that her hand was
shaking and that Shaw told her jokingly twice to calm down. But we detect
no objective indicia of “exceptional” nervousness in the footage. Next, with
respect to the information that Trooper Aguilera learned during the records
check—i.e., that the vehicle had some characteristics consistent with drug
trafficking—the state concedes, and we agree, that the information is of
“minimal weight.” The fact that a paid-off vehicle recently registered in
Arizona has crossed the Mexican border several times is not a reliable
indicator of criminal activity. Similarly, despite the state’s contention to the
contrary, the fact that a person has chosen to drive rather than fly when
taking a short, limited-purpose trip to a distant destination is not a reliable
indicator of criminal activity. The state finally points out that Shaw
stammered when Trooper Aguilera first asked the couple where they were
traveling from, and that Malloy was vague when she later described the
trip’s duration and travel time. But though these facts, combined with the
totality of the other circumstances, may have been sufficient to support
some level of unparticularized suspicion of criminal activity, we hold that
they were insufficient to establish reasonable suspicion.2 Cf. Sweeney, 224
2 We further note that even if we considered the information obtained
during the unlawful questioning of Shaw at the patrol car, the facts were
insufficient to create reasonable suspicion. The additional information was:
Shaw identified the vehicle the couple claimed to have traveled to see by a
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Ariz. at 113, ¶ 24 (“A reasonably prudent person’s suspicions would not be
raised after observing a foreign national driving a clean, deodorized rental
car with an atlas on the passenger seat, who upon being stopped and
questioned outside in the three-degree weather by the police, failed to
articulate with specificity the places he had visited while staying in an
unfamiliar city. A holding to the contrary would subject nearly everyone
to a continued, intrusive detention following a routine traffic stop.”).
¶22 It was in the context of the unlawful detention that Trooper
Aguilera obtained Shaw’s consent to a search of his bags and Malloy’s
consent to a dog sniff of the vehicle. We therefore must decide whether the
unlawful detention invalidated the consent. “Evidence seized following
consent to a search must be suppressed if the consent is tainted by a prior
constitutional violation.” State v. Guillen, 223 Ariz. 314, 317, ¶ 13 (2010); see
also Florida v. Royer, 460 U.S. 491, 507–08 (1983) (“Because we affirm the . . .
conclusion that Royer was being illegally detained when he consented to
the search of his luggage, we agree that the consent was tainted by the
illegality and was ineffective to justify the search.”). “Even assuming
voluntary consent, ‘the evidence found as a result of that consent must be
suppressed if the unconstitutional conduct . . . is not sufficiently attenuated
from the subsequent seizure.’” State v. Monge, 173 Ariz. 279, 281 (1992).
Attenuation is measured by: “(1) the time elapsed between the illegality and
the acquisition of the evidence; (2) the presence of intervening
circumstances; and (3) ‘particularly, the purpose and flagrancy of the
official misconduct.’” Guillen, 223 Ariz. at 317, ¶ 14 (quoting Brown v.
Illinois, 422 U.S. 590, 603–04 (1975)). The third factor is the most important.
See State v. Hummons, 227 Ariz. 78, 81, ¶ 14 (2011). “Factors such as an
officer’s regular practices and routines, an officer’s reason for initiating the
encounter, the clarity of the law forbidding the illegal conduct, and the
slightly different year than previously stated; Shaw said the couple had no
family or friends in Arkansas, whereas Malloy had said Shaw viewed the
vehicle with a friend; and Shaw could not remember the name of the hotel
where the couple had stayed. Innocent travelers may well misstate a
vehicle model year and fail to recall the name of a hotel, and Shaw’s
statement that the couple had no family or friends in Arkansas was not
necessarily inconsistent with Malloy’s statement that he had seen the
vehicle with a friend. Moreover, even viewing the vagueness and
inconsistencies in Shaw’s statements as creating further grounds to suspect
criminal activity, we cannot say that the totality of the facts supported
reasonable suspicion.
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objective appearance of consent may all be important in this inquiry.” Id.
at 82, ¶ 14.
¶23 We hold that even if Shaw and Malloy’s consent was
voluntary, their consent was tainted by the unlawful detention because the
detention was not sufficiently attenuated from the seizure. The time
elapsed was short, and there were no intervening circumstances.
Moreover, though the incomplete record prevents a fulsome evaluation of
Trooper Aguilera’s motives, the law clearly forbade his extension of the
detention both when he asked further questions of Shaw and when he
asked for the consent. Further, his testimony tends to support the
conclusion that he deliberately extended the detention for the purpose of
conducting an investigation separate from the traffic stop—he testified that
his customary request that drivers exit their vehicles is at least partially
based on his desire to “talk to the occupants a little bit more,” and he
testified that he intended to ask Malloy questions about her trip even before
she asked his age.
¶24 Contrary to the dissent’s view, we do not adopt a novel
standard here about precluding officers from talking to drivers when they
are issuing a warning or citation. Instead, we apply well-established
principles that (1) a driver must be allowed to leave when the mission for
the stop has, or should have been, completed; and (2) after that point, the
stop cannot be prolonged unless the encounter becomes consensual or
reasonable suspicion of criminal activity justifies continued detention. See
Kjolsrud, 239 Ariz. at 322–23, ¶ 10. Similar to the dissent, the state attempts
to justify the continued detention because it was brief and not
unreasonable, essentially asking us to conclude that any excessive delay
caused by Trooper Aguilera’s questions that occurred after the stop should
have been completed was de minimis. We decline to do so because that
position was rejected in Rodriguez. See Rodriguez, 455 U.S. at 355 (holding
that “a police stop exceeding the time needed to handle the matter for which
the stop was made violates the Constitution’s shield against unreasonable
seizures”).
CONCLUSION
¶25 Trooper Aguilera unlawfully prolonged the detention
occasioned by the traffic stop both when he questioned Shaw about
unrelated matters before permitting him to sign the warning and when he
asked Shaw and Malloy for consent to search after obtaining Shaw’s
signature but before returning the couple’s driver’s licenses and the vehicle
registration. Both Shaw and Malloy’s consents were tainted by the
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unlawful detention. We therefore reverse the superior court’s denial of
Malloy’s motion to suppress, and we remand for all necessary further
proceedings.
W I L L I A M S, Judge, dissenting:
¶26 The majority summarizes nicely the facts in the record before
us, and accurately notes, supra ¶ 12, that this court gives “deference to the
superior court’s factual findings,” so long, of course, as they are
“reasonably supported by the evidence.” State v. Adair, 241 Ariz. 58, 60, ¶ 9
(2016). Relying upon State v. Sweeney, 224 Ariz. 107, 111, ¶ 12 (App. 2010),
the majority also states that this court “independently review[s] the body-
camera footage of the encounter that Malloy provided at the suppression
hearing.” And while I don’t disagree with that statement, I think it is worth
noting, for clarity, that this court only does so, as with all record evidence,
to determine whether the superior court’s factual findings are, again,
“reasonably supported by the evidence.” Adair, 241 Ariz. at 60, ¶ 9. In other
words, nothing about Sweeney addressed, or changed, our review of video
evidence from deferential to de novo.
¶27 The dispositive issue before us is whether the Trooper’s
actions impermissibly extended the traffic stop beyond the time needed to
reasonably complete his mission. See Rodriguez v. United States, 575 U.S. 348,
357 (2015); Illinois v. Caballes, 543 U.S. 405, 408 (2005). The majority’s view is
that, up until the Trooper asked Shaw to exit Malloy’s vehicle and sign the
warning while standing outside of the Trooper’s vehicle, the traffic stop had
“not [been] an unreasonably long encounter.” I agree. And I agree with the
majority that the Trooper’s “further questions about [Shaw’s] trip” after
signing the warning “did not significantly extend the duration” of the
traffic stop. But I disagree with the majority’s view that the traffic stop
became unlawful when the Trooper questioned Shaw after Shaw had
signed the warning because the Trooper did not “first provide the warning
or return the driver’s licenses and registration” before asking for consent to
search the vehicle.
¶28 A review of the video recording shows that the Trooper first
made contact with Shaw and Malloy seventeen seconds after initiating the
traffic stop. Ten minutes and twenty seven seconds later, Shaw signed the
warning on the Trooper’s handheld computer. But the warning still needed
to be printed and given to Shaw, and the licenses and registration needed
to be returned to Shaw and Malloy. As the warning was being printed, the
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Trooper began asking Shaw a few more questions. It is not clear from the
video recording, nor from other record evidence, at what point the warning
had finished printing and was ready to be handed to Shaw. Indeed, the
court does not make any factual finding regarding the same. But it is clear
that the Trooper’s questions to Shaw lasted a matter of seconds, not
minutes, and began to be asked while the warning was printing. Shaw
voluntarily answered those questions. Thirty seconds after signing the
warning, when the Trooper asked to search the vehicle, Shaw directed the
Trooper to inquire of Malloy. Ten seconds later, Shaw consented to a search
of his belongings. Malloy, similarly, within seconds of being asked,
consented to a K-9 exterior sniff of her vehicle.
¶29 The court found that once Shaw signed the warning, “[Shaw]
was asked for consent to search,” and “did give the [Trooper] consent to
search [his] belongings within the car.” Shaw also directed the Trooper to
Malloy, “who was the owner of the car . . . for permission to search [the
car].” These findings are reasonably supported by the record. The court also
found that “the body cam video clearly shows that consent was freely and
voluntarily given, without any illegal show of force.” That finding is also
reasonably supported by the record evidence and, in my view, one this
court should give deference to. See, e.g. Teagle, 217 Ariz. at 22, ¶ 19; see also
State v. Rodriguez, 1 CA-CR 18-0127, 2019 WL 1785298, at *3, ¶ 14 (Ariz. App.
Apr. 23, 2019) (mem. decision) (“But an officer’s brief questioning after
issuing a traffic violation warning can be a permissible consensual
encounter if the driver agrees to answer questions.”).
¶30 It is also well settled that there is no hard and fast limit for
gauging the reasonableness of length of the detention. United States v.
Sharpe, 470 U.S. 675, 686 (1985) (noting United States v. Place, 462 U.S. 696(1983) “expressly rejected the suggestion that we adopt a hard-and-fast time
limit for a permissible Terry stop.”). In my view, the majority’s approach
promotes a standard that law enforcement officers are now somehow
precluded from continuing to converse with a driver once the driver has
signed a warning if the printed warning, license, and registration have not
first been returned to a driver. This is novel. And the majority’s conclusion
that the Trooper “measurably” extended an otherwise “not [] unreasonably
long encounter” by asking a few, brief follow up questions, which began
while the warning was being printed, that lasted a matter of seconds, and
which were voluntarily answered, is, in my view, at odds with
longstanding caselaw defining Fourth Amendment violations as those
which are prolonged beyond the time reasonably required to complete a
traffic mission. See Rodriguez, 575 U.S. at 349 (2015) (“Authority for the
seizure ends when tasks tied to the traffic infraction are—or reasonably
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Williams, J., dissenting
should have been—completed.”) (emphasis added); see also Caballes, 543 U.S.
at 408 (2005) (holding that a traffic stop “become[s] unlawful if it is
prolonged beyond the time reasonably required to complete th[e] mission”
of the traffic stop) (emphasis added). While I agree that questions lasting
only seconds, as were asked here, can be “measured” in time, I do not
believe the superior court’s factual findings that the encounter became
consensual should be so easily set aside by this court on this record.
¶31 In my view, the superior court’s order denying Malloy’s
motion to suppress should be affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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