State v. Larson

THE STATE OF ARIZONA, Appellee,

v.ROBERT LYNN LARSON, Appellant.

2 CA-CR 2009-0400

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT A

Filed: September 30, 2010

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20091733-001

Honorable Edgar B. Acuňa, Judge

AFFIRMED

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Laura P. Chiasson

Tucson Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender By Lisa M. Hise and M. Edith Cunningham Tucson

Attorneys for Appellant

BRAMMER, Presiding Judge.

¶1 Robert Larson appeals from his conviction and sentence for transportation of marijuana for sale. He argues the trial court erred by denying his motion to suppressevidence and by failing sua sponte to instruct the jury on the affirmative defense of duress. We affirm.

Factual and Procedural Background

¶2 On appeal, we view the facts in the light most favorable to sustaining the verdict. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In reviewing the denial of a motion to suppress evidence, we 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. See State v. Ellison, 213 Ariz. 116, ¶ 25, 140 P.3d 899, 909 (2006).

¶3 On April 29, 2009, Arizona Department of Public Safety (DPS) officer Steve Kroeger observed Larson driving a truck on an interstate highway. He saw the truck drift left and right within its lane, and then cross into the adjacent lane two times. Kroeger then pulled alongside the truck and noticed its left front tire "appeared to be low of air." He stopped the truck on the shoulder of a nearby off ramp.

¶4 As Kroeger approached the truck, he noticed plywood protruding from its bed, a spare tire on top of the wood, and a gas can on each side of the spare. Kroeger peered into a small opening between the truck's bed and the wood, but saw nothing unusual. He addressed Larson through the truck's open window, confirmed Larson's identity, and told him he was concerned about the left front tire's pressure. Larson responded that the truck had alignment and steering problems.

¶5 Kroeger asked Larson to get out of the vehicle. Using a gauge from Kroeger's car, Larson checked the left front tire's pressure, advising Kroeger that it wasthirty-three pounds.¹ Kroeger and Larson walked back to the side of Kroeger's patrol car while Kroeger filled out a written warning citation indicating improper lane usage. The warning did not refer to low tire pressure. Before handing him the warning, Kroeger asked Larson where he was going that day. Larson said he was going to a friend's house to fix a leaking roof. Kroeger asked Larson if there was any marijuana in the truck. Larson "stared" at Kroeger without blinking and replied "no." Once Kroeger handed him the written warning, Larson walked "very quickly" back to the truck, and appeared unusually anxious.

¶6 As Larson sat back down in the driver's seat, Kroeger walked back up along the right side of the truck, and "believed [he] smelled a possible odor of marijuana coming from the vehicle" for a "short second and then [the smell] was gone." Kroeger asked Larson if he could search the truck, and Larson replied "yes." Kroeger then had Larson get out of the truck and walk to the side of the patrol car, where he signed a consent to search form. The form explained that Larson could refuse the search and withdraw his consent to the search at any time. Kroeger found 526 pounds of marijuana in the bed of the truck, and placed Larson under arrest. After Larson was taken into custody, another officer drove his truck back to DPS headquarters.

¶7 Larson was taken to DPS headquarters, where he was interviewed by DPS officer Mack Dunham. Larson told Dunham that a family friend named Cirvando Paz had borrowed his vehicle three weeks earlier, and when he returned it to Larson there was marijuana in the back. Larson stated he was "concerned" about the marijuana and had dumped it in the desert. Larson claimed that, when Paz discovered what Larson had done, he put a gun to Larson's head and told Larson he "owed" him for the lost marijuana. Larson explained that the night before he was arrested, an associate of Paz had come to Larson's house, told him it was "time to pay his debt," and gave him instructions to pick up a load of marijuana the following morning. Dunham testified that Larson's truck was a "load vehicle," and that it is "not uncommon for drug organizations to use threats of violence to get... drivers [of load vehicles] to do things."

¶8 Larson was charged with transportation and possession of marijuana for sale. The trial court denied his motion to suppress the evidence found in his truck. Larson did not request a jury instruction on the defense of duress, and the court gave no duress instruction. After a two-day trial, the jury found Larson guilty of transportation of marijuana for sale. The court sentenced Larson to a presumptive prison term of 9.25 years. This appeal followed.

Discussion

Motion to Suppress

¶9 Larson contends the trial court erred in denying his motion to suppress the evidence obtained from the search of his truck. He asserts Kroeger had lacked reasonable suspicion to stop him, had detained him improperly a second time when he asked for permission to search the truck, and Larson's consent to that search was both tainted by the unlawful detentions and involuntary. He also contends Kroeger's questioning him about matters unrelated to the traffic stop violated his right to privacy under Arizona's constitution. We review the factual findings underlying the court's ruling for an abuse of discretion, but we review its legal conclusions de novo. See State v. Newell, 212 Ariz. 389, 1 27, 132 P.3d 833, 841 (2006).

The Initial Stop

¶l0 An investigatory stop of a motor vehicle constitutes a seizure under the Fourth Amendment. State v. Livingston, 206 Ariz. 145, ¶ 9, 75 P.3d 1103, 1105 (App. 2003). However, officers need possess only a "reasonable suspicion" of criminal activity to justify a vehicle stop. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 881 (1975. Reasonable suspicion is "„a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996), quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981). A traffic stop may occur if a police officer reasonably suspects a vehicle's driver of having violated a traffic law. See Livingston, 206 Ariz. 145, ¶ 9, 75 P.3d at 1105. Here, the state had the burden of proving, by a preponderance of the evidence, that Kroeger's stop of Larson was justified by reasonable suspicion. See Ariz. R. Crim. P. 16.2(b).

¶11 Relying on Livingston, as he did below, Larson first asserts his crossing of the lane divider on two occasions did not violate A.R.S. § 28-729(1), which provides, "[a] person shall drive a vehicle as nearly as practicable entirely within a single lane and shall not move the vehicle from that lane until the driver has first ascertained that the movement can be made with safety." Larson contends that because in Livingston we "held that crossing the white shoulder line once did not constitute grounds for a traffic stop when the driver did not pose a hazard to others on the road," and because there was no evidence he had "created a safety hazard to other vehicles on the road," he did not violate § 28-729(1).

¶12 Larson misreads Livingston. There, we determined a driver's brief, onetime deviation from the marked traffic lanes on "a dangerous, curved road" did not give the officer a reasonable basis for a traffic stop. 206 Ariz. 145, ¶¶ 4-8, 12, 75 P.3d at 1105-06. We reasoned that the phrase, "as nearly as practicable," as used in the statute demonstrated the legislature's intent to avoid penalizing drivers for "brief, momentary, and minor deviations." 206 Ariz. 145, ¶ 10, 75 P.3d at 1106. Contrary to Larson's argument, we did not conclude that a traffic stop was only proper when a driver's violation of the statute resulted in danger to others. We instead focused on the "as nearly as practicable language" in the statute and stated the trial court had not abused its discretion in finding Livingston's "alleged isolated and minor breach of the shoulder line" was not a traffic violation given the totality of the circumstances—particularly thefact the road was curved and dangerous. Id. 1 12. We noted that "seemingly small factual distinctions can affect a court's conclusions as to the reasonableness of a stop." Id. n.1. Here, Larson crossed the lane divider on two occasions, and the roadway was neither curved nor dangerous. Nothing in the record suggests it was not practicable for Larson to stay within a single lane. The trial court did not abuse its discretion in determining Larson's two crossings of the lane divider constituted a violation of § 28-729(1), warranting the traffic stop. In view of our resolution of this issue, we need not address Larson's contention the trial court also erred in finding the traffic stop justified by Kroeger's testimony that the air pressure in one of the truck's tires appeared low.

The "Second Detention "

¶13 Larson next argues Kroeger "unconstitutionally reinitiated" the initial detention by walking up to Larson's vehicle and requesting permission to search the truck after giving Larson a warning citation. But an officer is "free to ask [a driver] additional questions unrelated to the traffic stop" after a stop has ended if the interaction "was within the scope of a consensual encounter." State v. Box, 205 Ariz. 492, g 21, 73 P.3d 623, 629 (App. 2003). "The Fourth Amendment permits...