State v. Dazen ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOSEPH ADAM DAZEN, Appellant.
No. 1 CA-CR 19-0339
1 CA-CR 19-0378
(Consolidated)
FILED 5-10-2022
Appeal from the Superior Court in Maricopa County
No. CR2017-152063-001
CR2018-106930-001
The Honorable Justin Beresky, Judge
The Honorable George H. Foster, Jr., Judge (Retired)
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Brian R. Coffman
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
STATE v. DAZEN
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.
C R U Z, Judge:
¶1 Joseph Adam Dazen appeals his conviction for misconduct
involving weapons in CR2018-106930-001, the resulting revocation of his
probation in CR2017-152063-001, and the sentences imposed. For the
following reasons, we affirm as modified.
FACTUAL AND PROCEDURAL HISTORY
¶2 Phoenix Police Officers DiCarlo and Carnahan were on patrol
when they observed Dazen in an alley standing close to and facing a wall.
The officers believed Dazen had been urinating in the alley, and decided to
investigate because the area was known for high incidents of criminal
activity. The officers confronted Dazen, who appeared nervous and was
shaking and sweating, and asked for his identification. Dazen told the
officers that he had not been urinating but had been adjusting his back
brace. The officers told Dazen they needed to run his identification before
he was free to leave.
¶3 When Officer DiCarlo left to run Dazen’s identification,
Carnahan observed Dazen fidgeting with the front of the waistband of his
pants, which led Carnahan to believe, based on his training and experience,
that Dazen had a weapon in his pants. Officer Carnahan patted Dazen
down and felt a handgun in his waistband. Dazen confirmed it was a gun,
and Carnahan removed the gun from Dazen’s waistband. After
determining that Dazen was a prohibited possessor the officers arrested
him.
¶4 The State charged Dazen with misconduct involving weapons
based on his status as a prohibited possessor and sought to revoke his
probation. Dazen subsequently moved to suppress evidence of the
handgun, arguing the encounter with Officers DiCarlo and Carnahan
violated his Fourth Amendment rights. Without conducting an evidentiary
hearing as requested by Dazen, the superior court denied the motion.
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Decision of the Court
¶5 The jury returned a guilty verdict. Because the verdict
automatically resulted in a violation of Dazen’s probation conditions, the
superior court revoked his probation and imposed consecutive sentences.
Dazen timely appealed.
¶6 In our memorandum decision filed in August 2020, we
vacated the superior court’s order denying Dazen’s motion to suppress,
stayed the appeal, and remanded to the superior court to allow the court to
hold a suppression hearing. State v. Dazen, 1 CA-CR 19-0339, 2020 WL
4782285, at *4, ¶ 18 (Ariz. App. Aug. 18, 2020) (mem. decision); see State v.
Gasbarri, 248 Ariz. 619, 622, ¶ 11 (App. 2020) (“[A] trial court must first have
evidence—not merely arguments of counsel—on which it can base its
ruling before it may rule on a motion to suppress.”). We did not address
the sentencing issues Dazen raised on appeal.
¶7 The superior court held an evidentiary hearing on Dazen’s
motion to suppress in February 2022. The State called Officers DiCarlo and
Carnahan as witnesses, and Dazen chose to testify. After the hearing, the
superior court denied the motion to suppress, finding that Dazen’s Fourth
Amendment rights had not been violated. Dazen and the State filed
supplemental briefs, and we have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 13-4033(A)(1).
DISCUSSION
I. Motion to Suppress
¶8 We defer to the superior court’s factual findings “including
findings on credibility and the reasonableness of the inferences drawn by
the officer.” State v. Moreno, 236 Ariz. 347, 350, ¶ 5 (App. 2014) (citation
omitted), and consider only the evidence that was presented at the
suppression hearing, State v. Garcia, 224 Ariz. 1, 7, ¶ 6 (2010). We view the
evidence in the light most favorable to upholding the superior court’s
ruling. State v. Teagle, 217 Ariz. 17, 20, ¶ 2 (App. 2007). We review de novo
the superior court’s legal determination of whether a search complies with
the Fourth Amendment, State v. Valle, 196 Ariz. 324, 326, ¶ 6 (App. 2000),
and will uphold the suppression ruling “if legally correct for any reason
supported by the record.” Moreno, 236 Ariz. at 350, ¶ 5.
¶9 The Fourth Amendment protects people from unreasonable
searches and seizures. Scott v. United States, 436 U.S. 128, 137 (1978).
“[W]henever a police officer accosts an individual and restrains his freedom
to walk away, he has ‘seized’ that person.” Terry v. Ohio, 392 U.S. 1, 16
(1968). However, the United States Supreme Court has recognized that
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STATE v. DAZEN
Decision of the Court
some seizures are significantly less intrusive than an arrest and may be
“reasonable,” thus withstanding scrutiny under the Fourth Amendment
without probable cause. Michigan v. Summers, 452 U.S. 692, 697-98 (1981).
¶10 As a result, if an officer has “reasonable suspicion” that a
person is engaged in criminal activity, the officer may investigate and
briefly detain the person to “effectuate the purpose of the stop [and] . . . the
investigative methods employed should be the least intrusive means
reasonably available to verify or dispel the officer’s suspicion in a short
period of time.” Florida v. Royer, 460 U.S. 491, 500 (1983). During such a
seizure, a “Terry pat-down” or “protective frisk” permits officers to conduct
a weapon search limited to the outside of clothing in order to protect
themselves and others in circumstances where they lack probable cause to
make an initial arrest. Terry, 392 U.S. at 27, 29-30, 34.
¶11 Whether a Terry pat-down is constitutionally valid further
turns on whether a police officer who reasonably suspects that criminal
activity is “afoot” encounters a person consensually. During a consensual
encounter, the officer may permissibly conduct a Terry pat-down if the
officer reasonably believes the person is both armed and dangerous. State
v. Serna, 235 Ariz. 270, 275, ¶¶ 21-22 (2014); see Gastelum v. Hegyi, 237 Ariz.
211, 213, ¶ 6 (App. 2015) (discussing Serna). If the encounter is non-
consensual, a Terry pat-down is constitutionally justified if the officer
reasonably believes only that the person is armed; whether he or she also
presents a danger is not required for Fourth Amendment purposes.
Gastelum, 237 Ariz. at 214, ¶ 11.
¶12 A defendant seeking to suppress evidence based on a
purported Fourth Amendment violation must initially establish a prima
facie violation. State v. Hyde, 186 Ariz. 252, 266 (1996); see also Ariz. R. Crim.
P. 16.2(b). Such a burden is preliminarily met when the defendant
establishes the evidence was seized pursuant to a warrantless search.
Rodriguez v. Arellano, 194 Ariz. 211, 215, ¶ 12 (App. 1999). If the defendant
successfully meets that burden, the State can avoid the exclusionary rule by
proving with a preponderance of the evidence that the seizure ultimately
comported with the Fourth Amendment through, for example, application
of a recognized exception to the warrant requirement such as a Terry stop.
Ariz. R. Crim. P. 16.2(b)(1); Gasbarri, 248 Ariz. at 621, ¶ 8.
¶13 Here, the superior court found that the State established by a
preponderance of the evidence that the seizure of the gun comported with
the Fourth Amendment because it complied with the Terry-stop exception.
We agree. Officers DiCarlo and Carnahan testified that they suspected
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STATE v. DAZEN
Decision of the Court
Dazen was committing the crime of public urination when they contacted
him. While investigating, Dazen was not free to leave and the encounter
was non-consensual. Officer Carnahan observed Dazen fidgeting with the
front of the waistband of his pants, which led him to believe that Dazen had
a weapon in his pants. Accordingly, the Terry pat-down was justified. See
State v. Watkins, 207 Ariz. 562, 568, ¶ 22 (App. 2004) (“Furtive movements
near the waist support the inference that a person may be armed.”). We
find no error in the superior court’s determination that the seizure was
constitutionally valid.
II. Sentencing Issues
¶14 Dazen argues he is entitled to have presentence incarceration
credit applied to his 4.5-year sentence in CR2018-106930-001 (1 CA-CR 19-
0378), the misconduct involving weapons case. The State concedes error
and additionally requests we amend the sentencing minute entry to
properly reflect the conviction is repetitive and the sentence is presumptive.
We agree.
¶15 First, it is clear from the court’s pronouncement at sentencing
that the one-year sentence in the probation revocation matter, CR2017-
152063-001 (1 CA-CR 19-0339), will be served first, followed by the 4.5-year
sentence for the misconduct involving weapons conviction. Second, the
parties agree the court determined Dazen was entitled to 468 days of
presentence incarceration credit. Of that credit, 365 days should be applied
to Dazen’s one-year sentence in the probation revocation matter. The
remaining 103 days should be applied to the consecutive sentence in the
weapons case. The superior court’s award of zero days credit in the
weapons case was therefore error. By awarding credit first to the probation
revocation matter and the remaining credit to the weapons conviction,
Dazen is not improperly receiving a “double credit windfall,” which is a
result the superior court wished to avoid, but rather he is properly receiving
credit for each day of confinement before sentencing. Cf. State v. McClure,
189 Ariz. 55, 57 (App. 1997).
¶16 It is similarly clear from the record that the court intended to
sentence Dazen in the weapons case to the presumptive 4.5-year term as a
class two repetitive offender. See A.R.S. § 13-703(B), (I). The amended
sentencing order, however, erroneously refers to the offense as non-
repetitive and the sentence as “greater than Aggravated[.]”
¶17 Accordingly, based on our authority under A.R.S. § 13-4037,
we modify the order of confinement and disposition hearing order in
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CR2017-152063-001 filed respectively on June 12 and 13, 2019, to reflect
Dazen’s presentence incarceration credit is 365 days. We also modify the
amended order of confinement and amended sentencing minute entry in
CR2018-106930-001 filed respectively on June 13 and 14, 2019, to reflect
presentence incarceration credit of 103 days, the offense is repetitive, and
that the sentence imposed is presumptive. See State v. Contreras, 180 Ariz.
450, 453 n.2 (App. 1994) (“When we are able to ascertain the trial court’s
intention by reference to the record, remand for clarification is
unnecessary.”).
CONCLUSION
¶18 For the foregoing reasons, we affirm as modified.
AMY M. WOOD • Clerk of the Court
FILED: AA
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