State v. Morris

THE STATE OF ARIZONA, Appellee, v. RAYMOND VERBON MORRIS III, Appellant.

No. 2 CA-CR 2019-0010

ARIZONA COURT OF APPEALS DIVISION TWO

July 29, 2020

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County

No. CR20171460001

The Honorable Javier Chon-Lopez, Judge

The Honorable Casey F. McGinley, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Michael T. O'Toole, Chief Counsel

By Karen Moody, Assistant Attorney General, Tucson

Counsel for Appellee

Joel Feinman, Pima County Public Defender

By Erin K. Sutherland, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred.

BREARCLIFFE, Judge:

¶1 Raymond Verbon Morris III appeals from his convictions after a jury trial for possession of a dangerous drug for sale, possession of a narcotic drug for sale, possession of drug paraphernalia, and possession of a deadly weapon during the commission of a felony drug offense. The trial court sentenced him to concurrent terms of imprisonment, the longest of which was sixteen years. On appeal, Morris contends that the court erred in denying his pretrial motion to suppress evidence and to dismiss the indictment due to lack of reasonable suspicion and that the court erred by admitting certain expert testimony at trial. We affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining Morris's convictions and sentences. State v. Ontiveros-Loya, 237 Ariz. 472, ¶ 2 (App. 2015). In March 2017, at approximately 1:30 a.m., Oro Valley Police Sergeant Zachary Young stopped Morris's car after running a registration check that showed it had a temporary three-day restricted registration permit. After Young initiated the stop, Morris traveled about half a mile before pulling into a residential driveway. He later told Young that he had not pulled over right away because he was close to his destination, which was his friend Brittini's house. A woman, who Young suspected was Brittini, came out of the house during the stop. Morris was arrested for an "unrelated matter," and Young then searched Morris's vehicle. A backpack found on the passenger-side floor contained a gun, four cellphones, baggies, a scale, sheets of paper, what appeared to be a drug ledger, and a smaller bag containing heroin and methamphetamine. The apparent drug ledger contained a list of names and numbers, including an entry for "Brittini" with the term "grm" by it. At the time of the arrest, Morris was carrying a fifth cellphone and a total of $606—four $100 bills, nine $20 bills, two $5 bills, and sixteen $1 bills.

¶3 Morris was charged with possession of a dangerous drug for sale, possession of a narcotic drug for sale, possession of drug paraphernalia, possession of a deadly weapon by a prohibited possessor, and possession of a deadly weapon during the commission of a felony drug offense. The trial court severed the prohibited-possessor count before trial. Before trial, Morris filed a motion to dismiss seeking suppression of all evidence seized during the stop and a dismissal of the indictment with prejudice, which the court denied.

¶4 Morris was convicted and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Analysis

The Traffic Stop Was Based on Reasonable Suspicion

¶5 On appeal, Morris argues the trial court erred by denying his motion to suppress and to dismiss.¹ In his motion below, Morris claimed that "[t]he police had no reasonable suspicion to pull [his] car over; thus, the items found in the subsequent search should be suppressed." He argued that the limited, three-day registration permit and the time of the morning at which Sergeant Young had stopped Morris was not, in itself, enough to give Young any reason to believe that Morris had committed a crime. In addressing a motion to suppress we consider only the evidence admitted at the suppression hearing. Ontiveros-Loya, 237 Ariz. 472, ¶ 5. We view that evidence in the light most favorable to sustaining the trial court's ruling. Id.

¶6 During an evidentiary hearing on the motion, Young stated that he had not observed Morris commit any other traffic violations; his suspicion of a violation of the three-day permit was the sole reason for the stop. He testified that, based on his training and experience, when he sees a car with a three-day restricted use permit driving during the early morning or middle of the night, he initiates a traffic stop. Young testified that, although there are no time-of-day restrictions to the permit, "the types of restrictions that are on it would give a reasonable person an idea that this person is not driving to emissions, to Motor Vehicle Division, [or] to theirmechanic." He further testified that, in his twelve-plus years as a police officer, he had pulled over twenty to one-hundred vehicles driving at night with restricted use permits; only one of those vehicles was being operated within the scope of the permit. The trial court denied the motion to dismiss, determining that "Sergeant Young's temporary detention of [Morris], for purpose[s] of determining the purpose of his driving at that hour on a temporary registration, was reasonable."

¶7 Morris repeats his argument on appeal and claims, "all evidence obtained as a result of the stop was fruit of the poisonous tree, and the trial court erred by failing to suppress it. For these reasons, [Morris's] convictions must be reversed and all of the evidence obtained during the stop must be suppressed." We review de novo whether there was reasonable suspicion to conduct an investigatory stop. State v. Fornof, 218 Ariz. 74, ¶ 5 (App. 2008). "[W]e defer to the trial court's findings of fact and 'give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" Id. (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). The state argues that Young had reasonable suspicion to make the stop and thus that the trial court properly denied the motion. We agree with the state.

¶8 Morris relies on both the Fourth Amendment to the United States Constitution and article 2, § 8, of the Arizona Constitution. Because both the federal and Arizona constitutions require "reasonable suspicion" for a traffic stop, we will analyze this stop in light of Fourth Amendment authorities. See, e.g., State v. Starr, 222 Ariz. 65, ¶ 12 (App. 2009). Under the Fourth Amendment, an investigatory stop of a vehicle is a seizure, State v. Nevarez, 235 Ariz. 129, ¶ 7 (App. 2014), and must be justified by "an articulable, reasonable suspicion, based on the totality of the circumstances, that the suspect is involved in criminal activity," State v. Teagle, 217 Ariz. 17, ¶ 20 (App. 2007), or has committed a civil traffic violation, Starr, 222 Ariz. 65, ¶ 12. An officer, however, "is not required to determine if an actual violation has occurred prior to stopping a vehicle for further investigation." Nevarez, 235 Ariz. 129, ¶ 7; see also A.R.S. § 28-1594 (providing an officer may stop and detain a person when reasonably necessary to investigate an actual or suspected traffic violation). Our supreme court in State v. Evans, 237 Ariz. 231, ¶ 13 (2015), held that:

[T]he reasonableness standard does not demand that an officer affirmatively "consider the number of innocent travelers who might engage in similar behaviors," nor does it require that the officer rule out possible alternative,innocent explanations for the actions observed. It requires only that an officer exercise common sense to determine whether the facts justify an objectively reasonable suspicion.

(citations omitted) (quoting State v. Evans, 235 Ariz. 314, ¶ 20 (App. 2014)).

¶9 Morris was operating his car under a limited, three-day registration permit, issued under A.R.S. § 28-2155.² Such a registration permit is valid only if used for the following purposes: (1) vehicle emissions inspections, (2) registration or titling, (3) vehicle inspection by the registering officer, (4) vehicle repair to comply with an emissions inspection, or (5) movement of a vehicle by a licensed wholesale vehicle dealer. § 28-2155(B)(1)-(5). Operating a vehicle without a valid registration is a civil traffic violation. A.R.S. §§ 28-121(B), 28-2153. Although, as Morris claims, there is no express limitation to the hours during which a car so permitted may be operated, the authorized, enumerated purposes that, as a practical matter, may be undertaken at 1:30 a.m. are even more limited. Young testified that he had conducted a traffic stop "[b]ased on the fact that it [was] 1:34 in the morning . . . and it is not reasonable that somebody is going to the Motor Vehicle Division, which is closed, to emissions testing, which is closed, or the mechanic." Under these circumstances, Young's suspicion that Morris was unlawfully operating his vehicle was reasonable.

Expert Testimony

¶10 At trial, the state called Tucson Police Officer Michael Evans as a "for sale" expert witness. On appeal, Morris argues that the trial court erred in admitting Evans' testimony because the testimony was: (1) "not relevant and was overly prejudicial"; (2) akin to improper "drug courier profile evidence"; (3) inadmissible under Rule 702, Ariz. R. Evid., because it was not helpful to the jury; and (4) improper because it invaded the province of the jury.

¶11 We review the admission of expert testimony for abuse of discretion. State v. Salazar-Mercado, 234 Ariz. 590, ¶ 13 (2014). However, because Morris did not object below, we review only for fundamental error. State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). In such a review, if trial error exists, we must determine, based on the totality of the circumstances,...