State v. Huez

240 Ariz. 406

380 P.3d 103

745 Ariz. Adv. Rep. 10

The State of Arizona, Appellee,

v.Francisco Flores Huez Jr., Appellant.

No. 2 CA–CR 2015–0381

Court of Appeals of Arizona, Division 2.

Filed August 12, 2016

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Mariette S. Ambri, Assistant Attorney General, Tucson, Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellant

Presiding Judge Howard authored the opinion of the Court, in which Judge Espinosa and Judge Staring concurred.

OPINION

HOWARD, Presiding Judge:

¶ 1 After a jury trial, Francisco Florez Huez Jr. was convicted of possession of marijuana and sentenced to a nine-month prison term. He challenges the trial court's denial of his motion to suppress evidence, arguing the officer did not have reasonable suspicion to effectuate the investigatory stop which resulted in the discovery of marijuana. Because the court erred, we remand for further proceedings consistent with this opinion.

Factual and Procedural Background

¶ 2 “In analyzing a ruling on a motion to suppress, we consider ‘only the evidence presented at the suppression hearing,’ ” State v. Hummons , 227 Ariz. 78, ¶ 2, 253 P.3d 275, 276 (2011), quoting State v. Garcia , 224 Ariz. 1, ¶ 6, 226 P.3d 370, 376 (2010), and “[w]e view the facts in the light most favorable to support the trial court's ruling on the motion to suppress,” id. , quoting State v. Cook , 115 Ariz. 188, 192, 564 P.2d 877, 881 (1977). In March 2015, a Tucson Police Department (TPD) officer saw Huez riding his bicycle on a raised dirt area adjacent to a roadway in Tucson. The officer stopped Huez because he suspected Huez was violating the law by riding his bicycle on the sidewalk as well as on the left side of a roadway, in violation of A.R.S. § 28–815, and Tucson City Code (“the Code”) § 5–2 (1953); see also A.R.S. § 28–812. During the ensuing investigation, the officer discovered Huez had outstanding warrants and arrested him. Another officer, who arrived sometime during the stop, conducted a search incident to arrest which produced the evidence that Huez attempted to suppress below.

Legality of the Stop

¶ 3 Huez first argues the trial court erred by denying his motion to suppress on the ground that the officer lacked reasonable suspicion for the stop because Huez's conduct could not constitute a traffic violation. “We review a denial of a motion to suppress for an abuse of discretion, but review constitutional issues de novo.” State v. Salcido , 238 Ariz. 461, ¶ 6, 362 P.3d 508, 511 (App. 2015), quoting State v. Gonzalez , 235 Ariz. 212, ¶ 7, 330 P.3d 969, 971 (App. 2014). “Interpretation of a statute is a question of law, which we review de novo.” Id. , quoting State v. Starr , 222 Ariz. 65, ¶ 14, 213 P.3d 214, 218 (App. 2009).

¶ 4 “A traffic stop must be based on an officer's articulable, reasonable suspicion that the person has committed a traffic violation.” Id. ¶ 7. Huez was cited for a violation of § 28–815(A), which reads: “A person riding a bicycle on a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride as close as practicable to the right-hand curb or edge of the roadway.” Huez could only be cited for such a violation if he was riding his bicycle on “a roadway.” Id. A “[r]oadway” is defined as “that portion of a highway that is improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder.” A.R.S. § 28–601(22).

¶ 5 The undisputed facts establish conclusively that Huez was not riding his bicycle on a roadway. At the suppression hearing, the TPD officer explained that when he first saw him, Huez was traveling east in the “sidewalk area up off the road.” The officer clarified that there was no actual sidewalk, but that Huez was riding in the area “where a sidewalk would be if there was one.” The officer further testified that Huez was riding “over the curb in the dirt area.” The officer's citation of Huez was based on his understanding that Huez had “to be going with the flow of traffic.” It is clear that Huez was not “on a roadway” for the purposes of § 28–815(A). Thus, the officer could not have had a reasonable suspicion that Huez was riding on the wrong half of a roadway.

¶ 6 The officer also claimed he reasonably suspected that Huez was violating a traffic law by riding his bicycle “on the sidewalk area.” Section 5–2 states: “It shall be unlawful to ride a bicycle on any public sidewalks, or upon a designated pedestrian path in any public park, unless signs are posted specifically permitting bicycling.” A separate section of the Code defines a “[s]idewalk” as “that portion of a street between the curbs, or lateral lines of a roadway, and the adjacent property lines, [that] is improved for the use of pedestrians.”¹ Tucson City Code § 20–1(27).

¶ 7 The phrase “improved for the use of pedestrians,” is not specifically defined in the Code. But the Code defines “[u]nimproved pedestrian area” as “that portion of a street between the curbs, or the lateral lines of a roadway, and the adjacent property lines, which is not improved with a sidewalk, is not landscaped, and is physically capable of continuous pedestrian use.” § 20–1(33). Thus, a sidewalk must be an area that has been improved beyond being a simple path.

¶ 8 The area where the officer stopped Huez was not a sidewalk. The officer specifically testified “[t]here [was] no actual sidewalk” in the area where Huez was riding his bicycle, although that area is “where a sidewalk would be if there was one there.” The officer described the area where he stopped Huez as “over the curb in the dirt area.” The exhibits show the area was a strip of dirt or gravel that ran parallel to the roadway between the curb and the property line that was not “improved” in any noticeable way. See § 20–1(27). It was an “[u]nimproved pedestrian area,” and not a sidewalk. § 20–1(27), (33). Therefore, the officer did not articulate any facts showing that Huez was riding his bike on the sidewalk as defined in the Code.

¶ 9 Huez was not riding the wrong way on a roadway or riding on a sidewalk.² Accordingly, the officer was unable to provide any reasonable, objective facts to support reasonable suspicion that Huez was committing a traffic violation at the time of the stop.

¶ 10 The state contends that the officer could have reasonably suspected that Huez had committed a traffic violation just prior to the stop, or that Huez was about to commit a traffic violation. In particular, the state suggests that, because Huez was riding on the unpaved portion of sidewalk between two paved portions, it was reasonable for the officer to suspect Huez either

had been riding on the mostly continuously paved sidewalk all along and would continue to do so as he proceeded eastward, or ... [he] had been properly riding with eastbound traffic, but, upon seeing the construction, had cut across multiple lanes of traffic and proceeded on the wrong side of the road to avoid the hassle.

But the officer only witnessed Huez riding his bicycle on the dirt path, which, as we note above, constituted completely lawful behavior.

¶ 11 Moreover, the evidence shows Huez could have accessed the area where he was stopped from different, legal access points, including an adjacent parking lot, or could have walked his bike on the sidewalk area, or could have turned on a side street before reaching the other sidewalk area. Thus, in order to have reasonable suspicion under this “alternative-scenario” theory, the officer would have had to infer an entire narrative of events based solely on Huez's presence on a dirt path. This narrative would be little more than a “hunch,” State v. Evans , 237 Ariz. 231, ¶ 8, 349 P.3d 205, 208 (2015), quoting Terry v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that lacks “a particularized and objective basis,” id.quoting United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), relying as it does on speculation about Huez's previous or future behavior. “If all the circumstances [surrounding a traffic stop] taken together ... describe behavior that is entirely ordinary, then that behavior cannot reasonably give rise to particularized suspicion.” Id. ¶ 12. In this case, the circumstances surrounding the traffic stop—operation of a bicycle in a legal manner with nothing more than speculation that Huez had previously broken a traffic law—describe entirely ordinary and common behavior.

¶ 12 At oral argument, the state correctly contended that, under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),³ reasonable suspicion can be generated from observing completely legal behavior. In Terry, the United States Supreme Court stated that “a series of acts, each of them perhaps innocent,” could, when “taken together” justify reasonable suspicion. 392 U.S. at 22, 88 S.Ct. 1868. The facts of that case are instructive. The officer there observed two men standing on a street corner. Id. at 5, 88 S.Ct. 1868. He “took up a post of observation” and observed the men walking and conferring in an unusual manner, in particular walking back and forth from a single store window. Id. at 5–6, 88 S.Ct. 1868. The two men “repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips” over the course of ten to twelve minutes. Id. at 6, 88 S.Ct. 1868. At this point, the officer had developed a suspicion that they were “casing a job” and made an investigatory stop. Id. at 6–7, 88 S.Ct. 1868. The Court found that this set of observations warranted reasonable suspicion that justified a brief stop and frisk for the purpose of “protect[ing] himself and others from possible danger.” Id. at 28, 88 S.Ct. 1868.

¶ 13 The facts of this case are distinguishable from Terry. The officer testified at the suppression hearing that he saw...