State v. Thompson ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOHN HYRAM THOMPSON, JR., Appellant.
No. 1 CA-CR 18-0609
FILED 5-28-2019
Appeal from the Superior Court in Yavapai County
No. P1300CR201501038
The Honorable Patricia A. Trebesch, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee
M. Alex Harris PC, Chino Valley
By M. Alex Harris
Counsel for Appellant
STATE v. THOMPSON
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.
B R O W N, Judge:
¶1 John Hyram Thompson, Jr. appeals from his convictions and
sentences for transportation of a narcotic drug for sale (heroin) and
possession or use of drug paraphernalia. He argues the superior court
erred in denying his motion to suppress evidence obtained from a
warrantless search of his car. For the following reasons, we affirm.
BACKGROUND
¶2 On May 6, 2015, Detective Scott received word from a
confidential informant (“CI”) that Thompson would be traveling toward
Yavapai County with heroin. The CI told Detective Scott that Thompson
had a “regimented . . . routine” of driving to Phoenix every Friday to
purchase between one and one-and-one-half ounces of heroin from a
supplier named “Donny” and would return to Yavapai County the same
day before traffic became heavy. According to the CI, Thompson was
known as a “machine” because his activity was so regimented. The CI had
seen Thompson at the supplier’s house on prior occasions. The CI planned
to be at the “drug house” on Friday, May 8, and would contact Detective
Scott when Thompson appeared. On May 8, the CI indeed notified
Detective Scott that Thompson was at the house with a woman, who police
later learned was his wife. The CI told Detective Scott that Thompson
would be traveling back to Yavapai County between 10 a.m. and 3 p.m. in
a grey passenger car with a missing hood, and he would have heroin with
him.
¶3 Detective Scott coordinated with other law enforcement
officers located along Interstate 17 to surveil Thompson’s car as he traveled
back to Yavapai County. When Detective Scott saw Thompson’s hoodless
car driving in the direction the CI predicted within the time frame
predicted, he notified the other officers. Detective Warburton initiated a
traffic stop. He explained to Thompson he stopped him because
Thompson’s car had a darker window tint than legally allowed and there
was a GPS device affixed to the center of the windshield, violations of
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STATE v. THOMPSON
Decision of the Court
Arizona Revised Statutes section 28-959.01. During the stop, another
detective ran a K-9 along the car to sniff for drugs. Although the dog
reportedly alerted to the car, on appeal the State concedes there was no
alert. Officers then searched the car; however, their search did not reveal
any drugs. During the detention, Thompson’s wife informed Detective
Scott that she had heroin on her person. She eventually retrieved 1.31
ounces of heroin and gave it to the officers.
¶4 As pertinent here, Thompson moved to suppress the heroin,
asserting there was not “sufficient cause to detain and search” based on the
available facts, including the information provided by the CI and the fact
that the K-9 did not alert. The motion included a document purportedly
authored by Thompson’s alleged expert (“Falco Report”), which described
the K-9 search, concluded there was no alert, and stated the search was
unlawful.
¶5 The primary issue at the suppression hearing was whether the
CI was reliable and whether the information from the CI provided probable
cause to conduct the stop and search of Thompson’s car. The superior court
heard the evidence recounted above. In addition, Detective Scott testified
that an informant is deemed reliable when he or she provides information
on more than one occasion “that is vetted or confirmed through
independent police investigation.” He explained that he knew this CI was
reliable from prior cases. Finally, Detective Smith, the CI’s control
detective, testified that the CI was deemed reliable after having completed
two successful “reliability buys,” where the CI purchased drugs from a
supplier in a controlled environment set up by the police.
¶6 The superior court denied the motion to suppress, finding
there was sufficient evidence the CI was reliable and therefore the officers
had probable cause to stop and search Thompson’s car. The court declined
to hear testimony regarding the failed dog alert, explaining it was
unnecessary because other evidence provided probable cause to stop and
search the vehicle. Thus, the court reasoned the K-9 was “simply another
tool in an effort to facilitate an already legal search of the vehicle.” After a
bench trial, Thompson was convicted of transportation of a narcotic drug
for sale (heroin) and possession or use of drug paraphernalia and sentenced
to 11 years’ imprisonment. This timely appeal followed.
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STATE v. THOMPSON
Decision of the Court
DISCUSSION
¶7 We note at the outset the deficiencies of Thompson’s appellate
brief. Thompson does not develop any arguments, cite relevant legal
authority, provide any meaningful record citations, or identify specific
statements or facts to support the issues he identifies. An opening brief
must include, for each issue, the applicable standard of appellate review,
with citations to supporting legal authority, and specific references to the
record on appeal. Ariz. R. Crim. P. 31.10(a)(7). It must also include
significant arguments setting forth an appellant’s position on each issue
raised. See State v. Carver, 160 Ariz. 167, 175 (1989). Because Thompson’s
brief fails to comply with these requirements, we could find that he has
abandoned all issues he attempts to raise on appeal. See id. (“Failure to
argue a claim usually constitutes abandonment and waiver of that claim.”).
In our discretion, however, we decline to apply waiver here.
¶8 We review the denial of a motion to suppress for an abuse of
discretion. Brown v. McClennen, 239 Ariz. 521, 524, ¶ 10 (2016). In doing so,
we defer to the superior court’s determination of the witnesses’ credibility,
State v. Mendoza-Ruiz, 225 Ariz. 473, 475, ¶ 6 (App. 2010), and we will
uphold the ruling if it is legally correct for any reason, State v. Huez, 240
Ariz. 406, 412, ¶ 19 (App. 2016). “[W]e view the facts in the light most
favorable to upholding the trial court’s ruling and consider only the
evidence presented at the suppression hearing.” State v. Teagle, 217 Ariz.
17, 20, ¶ 2 (App. 2007). We review de novo the court’s ultimate
determination that a search complies with the dictates of the Fourth
Amendment. State v. Adams, 197 Ariz. 569, 572, ¶ 16 (App. 2000).
¶9 The Fourth Amendment to the United States Constitution
prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV.
Warrantless searches and seizures are generally unreasonable, “subject
only to a few specifically and well-delineated exceptions.” Katz v. United
States, 389 U.S. 347, 357 (1967). Under the “automobile exception” to the
warrant requirement, law enforcement officers may lawfully search a
vehicle if “probable cause exists to believe the vehicle contains contraband,”
even in the absence of exigent circumstances. State v. Reyna, 205 Ariz. 374,
378, ¶ 15 (App. 2003). “[P]robable cause requires only a probability or
substantial chance of criminal activity, not an actual showing of such
activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). “Probable cause
exists when the facts known to a police officer ‘would warrant a person of
reasonable caution in the belief that contraband or evidence of a crime is
present.’” State v. Sisco, 239 Ariz. 532, 535, ¶ 8 (2016) (citation omitted).
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STATE v. THOMPSON
Decision of the Court
¶10 Thompson vaguely questions whether the superior court
considered the reliability of the CI, which we construe as challenging the
court’s finding that there was “no basis to challenge the reliability of the
information . . . provided by the informant.”
¶11 A tip from a reliable informant may provide grounds for
probable cause to conduct a search if, given the totality of the circumstances
surrounding the tip, “there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” Gates, 462 U.S. at 238. The
totality-of-the-circumstances test requires a court to consider all
circumstances surrounding the tip, including the veracity and basis of the
informant’s knowledge. Id.; see also State v. Buccini, 167 Ariz. 550, 556 (1991)
(adopting Gates).
¶12 Here, the record supports the superior court’s finding that the
CI was reliable. Detective Smith considered the CI reliable after completion
of two “reliability buys.” The CI gave Detective Scott sufficiently specific
information to allow a reasonable officer to believe with a fair probability
that contraband would be found in Thompson’s car. The basis of the CI’s
knowledge was established: Thompson had a regimented practice of
traveling to Phoenix to purchase between one and one-and-one-half ounces
of heroin every Friday, and the CI was present at the supplier’s house when
Thompson arrived with his wife on May 8. Moreover, Detective Scott
substantiated the veracity of the CI’s information. The CI gave Detective
Scott a detailed description of Thompson, his wife, the clothes they were
wearing, and the car they were driving. The CI also specified the
approximate timeframe when Thompson would be traveling to Yavapai
County with the heroin. Thompson did in fact travel to Yavapai County
during the estimated timeframe, and arresting officers verified the
predictive parts of the tip—his route, his clothes, the car he was driving,
and who he was with. See Draper v. United States, 358 U.S. 307, 333 (1959)
(finding probable cause when police personally verified every part of the
tip, except whether the defendant was carrying drugs, prior to the search);
see also Gates, 462 U.S. at 242–43. The officers verified enough information
from the tip that, combined with the CI’s basis of knowledge and reliability,
the totality of the circumstances established probable cause to believe
Thompson was traveling with heroin when they stopped his car and
conducted a search. See Gates, 462 U.S. at 222–23.
¶13 Thompson also argues the superior court abused its
discretion by failing to consider the Falco Report, which indicated the K-9
failed to alert. As the court explained, a K-9 alert would have simply
provided another level of probable cause supporting a search of the car.
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STATE v. THOMPSON
Decision of the Court
The detectives had probable cause to stop and search Thompson’s car
before use of the K-9. See Reyna, 205 Ariz. at 375, ¶ 5. Thompson offers no
authority for the proposition that, under these circumstances, the failure of
a K-9 to alert would extinguish the probable cause developed from the other
evidence. Moreover, to the extent Thompson suggests the court failed to
consider the relevance of “the pretext stop,” the same reasoning applies—
the probable cause developed from the CI’s tip was more than sufficient to
justify the traffic stop. See Whren v. United States, 517 U.S. 806, 812 (1996)
(explaining that the Court previously “dismissed the idea that an ulterior
motive might serve to strip the agents of their legal justification” for the
stop); see also Teagle, 217 Ariz. at 22–23, ¶ 20 (finding reasonable suspicion
is sufficient to permit a traffic stop).
CONCLUSION
¶14 Because the superior court did not abuse its discretion in
denying the motion to suppress, we affirm Thompson’s convictions and
sentences. We decline his request to independently search the record for
fundamental error. See State v. Scott, 187 Ariz. 474, 477 (App. 1996) (“When
counsel has filed an advocate’s brief on behalf of a defendant, it is neither
the role nor the duty of this court to search the record for appealable issues;
that is the responsibility of defendant’s attorney.”).
AMY M. WOOD • Clerk of the Court
FILED: AA
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