State v. Coronado

1

The State of Arizona, Appellee, v. Jose Carmelo Coronado, Appellant.

No. 2 CA-CR 2024-0018

Court of Appeals of Arizona, Second Division

October 22, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pinal County No. S1100CR201402798 The Honorable Bradley M. Soos, Judge Pro Tempore The Honorable Steven J. Fuller, Judge

Kristin K. Mayes, Arizona Attorney General

Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals

By Jacob R. Lines, Assistant Attorney General, Tucson

Counsel for Appellee

E.M Hale Law, Lakeside

By Elizabeth M. Hale

Counsel for Appellant Judge Kelly authored the decision of the Court, in which Presiding Judge O'Neil and Judge Vasquez concurred.

MEMORANDUM DECISION

KELLY, Judge:

¶1 Jose Coronado appeals from his conviction and sentence for transportation of marijuana for sale. Coronado argues the trial court erred by denying his motion to suppress evidence and admitting impermissible profile evidence as to drug trafficking. For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 "We view the evidence in the light most favorable to upholding the jury's verdicts, resolving all reasonable inferences against" Coronado. State v. Copeland, 253 Ariz. 104, ¶ 2 (App. 2022). On a November morning in 2014, an Arizona Department of Public Safety trooper stopped Coronado, who was driving westbound on Interstate 10, after he observed him driving "in very close proximity to another sedan." Once stopped, the trooper requested that Coronado step out of the vehicle and then asked him a series of questions. During this conversation, Coronado gave the trooper permission to search his vehicle. Also, at two separate points during this conversation, the trooper asked Coronado to put his finger in a heart rate monitor to check his heart rate, which Coronado did without objection. During their search of Coronado's vehicle, troopers located twenty pounds of marijuana hidden within the back seat area.

¶3 Coronado was later indicted for transportation of marijuana for sale. Before trial, he filed a motion to suppress the evidence seized during the traffic stop, which the trial court denied. After a three-day jury trial, Coronado was found guilty, and the court sentenced him to a slightly mitigated term of 4.5 years in prison. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13- 4033(A)(1).

Discussion

¶4 Coronado raises two issues on appeal. He argues that the trial court erred by denying his motion to suppress all evidence obtained as a result of the trooper's request that he place his finger in a heart rate monitor during the traffic stop, which he contends was an illegal search. He also argues that the court erred by admitting testimony at trial regarding a card found in his wallet bearing the image of Santa Muerte and its connection to drug trafficking.

I. Motion to Suppress Evidence

¶5 Coronado argues that the trial court erred by denying his motion to suppress because administering "a heart rate test during a traffic stop [was] an illegal search for the purposes of the Fourth Amendment." He contends that any evidence obtained as a result of the illegal search should have been suppressed as fruit of the poisonous tree. We review the denial of a motion to suppress for an abuse of discretion, see State v. Fikes, 228 Ariz. 389, ¶ 3 (App. 2011), "considering only the evidence presented at the suppression hearing," State v. Schinzel, 202 Ariz. 375, ¶ 12 (App. 2002).

¶6 However, Coronado did not raise this claim below. In his pretrial motion to suppress, he argued only that law enforcement illegally extended the traffic stop without reasonable suspicion of criminal activity and asserted that the trooper did not have "reasonable suspicion of any criminal activity [as] nothing he learned during the traffic stop would distinguish between an innocent traveler and a suspicious one." He argued his Fourth Amendment right to be free of unreasonable searches and seizures was violated "when [law enforcement] extended the traffic stop to conduct a criminal investigation" and requested that all evidence obtained as a result be suppressed. After a hearing on the matter, the trial court found that both Coronado's traffic stop and his consent to search the vehicle were constitutionally valid and denied the motion.

¶7 On appeal, Coronado does not challenge the trial court's ruling as to reasonable suspicion for the stop or the length of his detention; nor does he challenge the voluntariness of his consent to search his vehicle. He argues instead that "[a]dministering a heart rate test during a traffic stop is an illegal search." Because Coronado failed to present this argument below, he has forfeited review for all but fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶¶ 12, 21 (2018); State v. Newell, 212 Ariz. 389, ¶ 34 (2006) (reviewing suppression argument raised for first time on appeal for fundamental error); see also State v Alvarez 228 Ariz 579 ¶ 16 (App. 2012) (argument not preserved for appellate review when trial court not given opportunity to rule on it).

¶8 Under fundamental error review, Coronado must first establish trial error. See Escalante, 245 Ariz. 135, ¶ 21. Then, he must show that the error is fundamental by demonstrating that "(1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." Id. Error under the first two prongs requires a separate showing of prejudice, meaning Coronado must show that absent the error, objectively, a reasonable jury could have "plausibly and intelligently returned a different verdict." Id. ¶¶ 21, 31. If Coronado establishes the third prong, he has shown both error and prejudice. See id. ¶ 21.

¶9 During the traffic stop, after Coronado acknowledged that he had been arrested for a marijuana offense on a previous occasion, the trooper asked him, "you don't have any marijuana in the car today?" Coronado responded that he did not and told the trooper that he could "go ahead and check" his vehicle. After this exchange, the trooper asked Coronado to put his finger in the heart rate monitor, which he did without objection. A few minutes later, after Coronado again gave the trooper permission to search his vehicle, the trooper checked his heart rate for a second time. The trooper did not document the heart rate readings or results in his report. The trooper then gave Coronado a consent-to-search form written in both English and Spanish, which Coronado signed.

¶10 "The Fourth Amendment of the United States Constitution and Article 2, Section 8, of the Arizona Constitution protect against unreasonable searches and seizures." State v. Allen, 216 Ariz. 320, ¶ 9 (App. 2007). "A 'search' under the Fourth Amendment occurs when an individual's reasonable expectation of privacy is infringed." State v. Peltz, 242 Ariz. 23, ¶ 25 (App. 2017) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). It is well-settled that "intrusions into the human body" by law enforcement are searches under the Fourth Amendment. State v. Mitcham, 256 Ariz. 104, ¶ 18 (App. 2023) (quoting Schmerber v. California, 384 U.S. 757, 767 (1966)); see also State v. Quinn, 218 Ariz. 66, ¶ 6 (App. 2008) ("Normally, because any forced extraction of blood by the State invades one's expectation of privacy in bodily integrity, the intrusion is subject to the requirements of the Fourth Amendment."). Further, administering a breath test is a search under the Fourth Amendment. Diaz v. Bernini, 246 Ariz. 114, ¶ 6 (2019).

¶11 When a Fourth Amendment violation occurs, the "exclusionary rule generally requires the suppression at trial of any evidence directly or indirectly gained as a result of the violation." Allen, 216 Ariz. 320, ¶ 9. However, generally "suppression is not required unless a nexus exists between the violation and the evidence obtained." State v. Rumsey, 225 Ariz. 374, ¶ 16 (App. 2010); see also State v. Rosengren, 199 Ariz. 112, ¶ 22 (App. 2000) ("In general, [the exclusionary] rule applies to illegally obtained evidence and requires suppression only when a causal connection exists between a constitutional violation and the government's obtaining of such evidence."). "[I]f the evidence is not seized as a result of the [unconstitutional conduct], there is no nexus." State v. Bolt, 142 Ariz. 284, 287 (App. 1983), approved as modified, 142 Ariz. 260 (1984).

¶12 We need not determine whether the trooper's use of the heart rate monitor amounted to an unconstitutional search because Coronado has failed to establish any nexus between it and the subsequent seizure of evidence. Coronado initially gave the trooper permission to search his vehicle before the heart rate monitor was used, continued to offer to let the trooper search his vehicle throughout the traffic stop, and ultimately signed a consent-to-search document. Furthermore, the record before us does not suggest that the trooper's decision to search Coronado's vehicle was connected to the results of the heart rate monitor, which the trooper could not recall during the suppression hearing and which were not documented in his report. As such, Coronado's consent was sufficiently attenuated from the search. See State v. Guillen, 223 Ariz. 314, ¶¶ 13, 22 (2010) (suppression "is not required if the unconstitutional conduct is sufficiently attenuated from the subsequent seizure"). Therefore, even if the use of the heart rate monitor was an illegal search, it had no bearing on the consented-to search of Coronado's vehicle. See State v....