State v. Witzig ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DREW MICHAEL WITZIG, Appellant.
No. 1 CA-CR 17-0006
FILED 12-5-2017
Appeal from the Superior Court in Mohave County
No. S8015CR201600090
The Honorable Billy K. Sipe, Jr., Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee
Legal Advocate Attorney’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.
STATE v. WITZIG
Decision of the Court
C R U Z, Judge:
¶1 Following a jury trial, defendant Drew Michael Witzig was
convicted of one count of possession of dangerous drugs for sale and one
count of possession of drug paraphernalia. Witzig appeals the superior
court’s denial of his motion to suppress evidence obtained at a traffic stop.
For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 On the night of January 17, 2016, Officer Holstrom was
parked parallel to a two-lane road in her marked patrol vehicle. The area
was dark, and, as Officer Holstrom was observing traffic, she saw a taxi
drive by within the 25 mile-per-hour speed limit. When the taxi was
“approximately 10 feet or less” past her position, Officer Holstrom could
not see its license plate because it did not appear to be lit. She then initiated
a traffic stop due to the unilluminated license plate. See Ariz. Rev. Stat.
(“A.R.S.”) § 28-925(C).
¶3 Prior to making the stop, Officer Holstrom had information
that a person with a felony warrant named “Drew” was “possibly in a
taxicab in the area,” but she testified she was not specifically looking for
taxis and did not intend to stop all taxis that passed her. When she
approached the vehicle, Officer Holstrom contacted the driver and noticed
a passenger was in the right-rear seat. She recognized the passenger as
Witzig. Her attention was drawn to Witzig because “[h]e was fidgeting his
feet” and “holding his right pocket of his pants.” Based on Witzig’s
conduct, Officer Holstrom searched the taxi and discovered drugs and drug
paraphernalia belonging to Witzig.1
¶4 As a result of evidence seized from the stop, Witzig was
indicted on felony drug-related charges. Officer Holstrom did not inspect
the taxi’s license plate light or issue the driver a citation. The taxi driver
testified she did not check the license plate light after the stop to see if it
was operational.
¶5 Witzig filed a motion to suppress the seized evidence on the
basis that the automobile stop was unlawful and in violation of his Fourth
Amendment rights. Witzig argued Officer Holstrom’s knowledge of
1 In his motion to suppress, Witzig challenged only the stop, not the
accompanying search.
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STATE v. WITZIG
Decision of the Court
someone with a warrant traveling in a taxi, along with her failure to inspect
the taxi or issue the driver a citation, demonstrated that she had stopped
the taxi on a pretext. The superior court denied the motion, finding Officer
Holstrom acted in a reasonable manner when she made the traffic stop after
she was not able to view the taxi’s license plate, pursuant to A.R.S. § 28-
925(C).
¶6 A jury convicted Witzig as noted above. The superior court
sentenced him to presumptive, concurrent prison terms as a repetitive
offender. Witzig timely appealed his convictions and sentences. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
DISCUSSION
¶7 Witzig challenges the superior court’s denial of his motion to
suppress, arguing Officer Holstrom lacked objectively reasonable suspicion
of a violation to perform the traffic stop. “We review the facts in the light
most favorable to sustaining the ruling on a motion to suppress[,]” and
confine our review to only those facts presented at the suppression hearing.
State v. Starr, 222 Ariz. 65, 68, ¶ 4 (App. 2009). We defer to the superior
court’s factual findings, “including findings on credibility and the
reasonableness of the inferences drawn by the officer[,]” but review its
conclusions of law de novo. State v. Moran, 232 Ariz. 528, 531, ¶ 5 (App.
2013).
¶8 An officer needs only reasonable suspicion of a traffic
violation to justify a traffic stop under the Fourth Amendment. Heien v.
North Carolina, 135 S. Ct. 530, 536 (2014); see also State v. Salcido, 238 Ariz.
461, 464, ¶ 7 (App. 2015) (holding a stop must be based on an officer’s
“articulable, reasonable suspicion that the person has committed a traffic
violation.”). Reasonable suspicion exists when the totality of the
circumstances provides a “particularized and objective basis” for
suspecting a person has violated the law. State v. Gonzalez-Gutierrez, 187
Ariz. 116, 118 (1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18
(1981)). An officer is not required to determine that an actual violation has
occurred before stopping a vehicle for investigation. State v. Nevarez, 235
Ariz. 129, 133, ¶ 7 (App. 2014).
¶9 As relevant here, A.R.S. § 28-925(C) requires that a lamp “be
constructed and placed in a manner that illuminates with a white light the
rear license plate and renders it clearly legible from a distance of fifty feet
to the rear.” Further, under A.R.S. § 28-1594, police may stop and detain a
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STATE v. WITZIG
Decision of the Court
person when reasonably necessary to investigate an actual or suspected
traffic violation.
¶10 The facts presented at the suppression hearing support the
conclusion that Officer Holstrom had at least reasonable suspicion
sufficient to initiate a traffic stop. Officer Holstrom testified she stopped
the taxi that night because, since the plate was not illuminated, she could
not read its license plate from approximately ten feet away and this
constituted a traffic offense. See A.R.S. § 28-925(C). The superior court
found the officer had reasonable suspicion of a traffic violation to justify the
stop. The court did not abuse its discretion in finding Officer Holstrom’s
testimony credible and denying Witzig’s motion to suppress evidence
obtained as a result of the traffic stop.
¶11 Witzig also argues that because Officer Holstrom received
information that a person named “Drew,” who had a felony warrant, would
be a passenger in a taxi in the area, her stated reason for the stop was
pretextual. Even if this was Officer Holstrom’s subjective reason for the
stop, her subjective intent does not invalidate the otherwise lawful traffic
stop. See Whren v. United States, 517 U.S. 806, 813 (1996) (holding the
reasonableness of traffic stops does not depend on the actual motivations
of the officers involved); see also Jones v. Sterling, 210 Ariz. 308, 311, ¶ 11
(2005) (“[E]vidence seized as a result of a traffic stop meeting ‘normal’
Fourth Amendment standards is not rendered inadmissible because of the
subjective motivations of the police who made the stop.”).
¶12 Lastly, Witzig argues the superior court “improperly based its
decision in part on its own experience” with traffic stops.2 We disagree.
2 After finding Officer Holstrom credible and the stop lawful, the
court stated:
...
It doesn’t matter to the Court that [Officer Holstrom]
didn’t issue an equipment repair order, a citation, or
contacted the cab owner. I’ve been stopped many times for
having supposedly license plates out and -- and taillights out
and headlights out, and I never had a written equipment
warning issued to me. Typically[,] it’s a traffic stop where the
officer simply taps me on the shoulder and says, [b]y the way,
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STATE v. WITZIG
Decision of the Court
The court properly found the stop lawful, as discussed supra ¶ 10, by
considering the circumstances that led Officer Holstrom to initiate the stop.
See Gonzalez-Gutierrez, 187 Ariz. at 118. The court’s comments recognizing
that an officer has discretion to issue a citation after executing a stop are
irrelevant to determining whether the stop was lawful. See, e.g., United
States v. Willis, 431 F.3d 709, 716-17 (9th Cir. 2005) (upholding a stop when
the officer issued no traffic citations but “could have relied on the traffic
violation as a justification” for the stop).
CONCLUSION
¶13 For the foregoing reasons, we affirm Witzig’s convictions and
sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
your right rear license -- your right rear taillight is out, get it
fixed.
So[,] I never received any sort of paperwork, so I don’t
think that’s probably a real common thing, if, again, an officer
is simply making a stop for an equipment violation.
5