State v. Shwar

1

STATE OF ARIZONA, Appellee, v. YOGE SHWAR, Appellant.

No. 1 CA-CR 23-0229

Court of Appeals of Arizona, First Division

May 7, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Mohave County No. S8015CR202200757 The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

Arizona Attorney General's Office, Phoenix By Joshua C Smith Counsel for Appellee

Jill L. Evans, Attorney at Law, Flagstaff By Jill L. Evans Counsel for Appellant

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which Judge Kent E. Cattani and Judge D. Steven Williams joined.

MEMORANDUM DECISION

KILEY JUDGE

¶1 A jury convicted Yoge Shwar of transporting a narcotic drug for sale. He now appeals, asserting that the evidence at trial was obtained in violation of his constitutional rights and, in any event, was insufficient to support his conviction. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Viewed in the light most favorable to sustaining the verdict, see State v. Thompson, 252 Ariz. 279, 287, ¶ 2 n.3 (2022), the evidence establishes that while patrolling Interstate 40 in the early morning hours of June 29, 2022, Detective Dickinson, a 15-year veteran of the Arizona Department of Public Safety who was then serving in the K-9 unit, initiated a traffic stop after seeing a semi-trailer truck drift across the white "fog line" twice. While speaking with the driver, Kewal Garg, he saw another person, later identified as Shwar, in the sleeper compartment behind the cab.

¶3 Dickinson noticed that Garg's "hands were trembling" when he handed over his license, registration, and proof of insurance. When Dickinson pointed out that Garg was "shaking like a leaf" and asked if he suffered from multiple sclerosis or "some type of nerve issue," Garg replied that he is diabetic but "felt fine."

¶4 While issuing Garg a warning, Dickinson noticed that Garg kept "licking his lips and . . . the top row of his teeth," a behavior that Dickinson had previously seen in individuals "under the influence of stimulants." He also noticed Garg's "eyelids . . . flutter[ing]" when he closed his eyes. Dickinson, whose investigative training included drug recognition courses, later testified that eyelid tremors are indicative of being "under the influence of a stimulant drug" or "marijuana." He further testified that, in his experience, commercial drivers often use "illegal drugs to stay awake" while driving. Dickinson asked Garg whether he was "using something to stay awake"; Garg replied that he was not.

¶5 Based on the indicators of impairment he observed, Dickinson initiated a driving under the influence ("DUI") investigation by asking Garg to submit to a "walk and turn" field sobriety test ("FST"). As Dickinson later described it, the test requires the subject to "take nine heel-to-toe steps" in a straight line and then turn and walk back in the same manner while counting out loud. Garg performed "poorly" on the test; among other things, he "didn't count out loud" and "turned improperly." Dickinson later acknowledged, however, that his interaction with Garg was hampered by a language barrier; Garg's accent made it difficult for Dickinson to understand him, and Garg didn't appear to understand everything Dickinson said.

¶6 Accordingly, Dickinson approached the truck to talk with Shwar to find out what was going on with the driver. Meanwhile, a Drug Enforcement Administration ("DEA") agent who had arrived to assist with the traffic stop stayed with Garg.

¶7 Dickinson's conversation with Shwar was captured by his body-worn camera. As relevant here, Shwar explained that he and Garg were transporting a load of potatoes from Bakersfield, California to Cincinnati, Ohio. Dickinson noted that Garg was "jacked up" and asked Shwar if Garg had "any medical conditions." Shwar stated that Garg is diabetic and takes cholesterol medication but identified no other medical condition that might account for the physical signs of impairment that Dickinson observed.

¶8 Dickinson told Shwar to get out of the truck. Shwar complied. Believing that Garg was under the influence of a stimulant and that evidence of the drug he was using would be in the vehicle, Dickinson asked if there was cocaine or methamphetamine in the vehicle. Pointing toward the trailer, Shwar responded, "No, sir. You can check it." Dickinson clarified, "So I may check? May I search? . . . Truck and trailer?" Shwar replied that he could search the trailer but not the truck. Dickinson then returned to Garg, who was standing by the patrol car, to ask for permission to search the entire vehicle. Garg replied that Dickinson could search "anything."

¶9 Dickinson removed his narcotics detection canine, Turbo, from his patrol car to conduct an exterior sniff of the truck and trailer. Less than one minute later, Turbo alerted to the open passenger door. Turbo's alert occurred less than four minutes after Dickinson finished speaking with Shwar.

¶10 After Turbo alerted, Dickinson searched the cab and found four matching boxes in the sleeper berth, each bearing a prepaid U.S. Postal Service ("USPS") label for shipment from Los Angeles, California to Memphis, Tennessee. Dickinson opened one of the boxes and saw several plastic wrapped bundles that he believed, based on his training and experience, were "packages with bulk drugs."

¶11 Dickinson got out of the cab and asked Shwar about the boxes. Shwar said he was unaware of their contents and that he and Garg were transporting the boxes to a "guy" in Ohio as a "favor" for an unnamed "friend" of Garg's son. He explained that they had picked the boxes up in Hesperia, California. Dickinson found this answer strange because Hesperia is not on the route between Bakersfield and the location of the traffic stop. On the contrary, Dickinson later testified, driving to Hesperia would have added roughly an hour and a half of travel time to the trip. Dickinson also testified that such a detour would be unusual for commercial drivers, who are incentivized to take the fastest route to their destination.

¶12 At this point, about 35 minutes into the stop, both Shwar and Garg were arrested and transported to the Mohave Area General Narcotics Enforcement Team ("MAGNET") office in Kingman; the boxes were also taken to the MAGNET office. Upon opening the boxes, officers found 105 individually wrapped kilogram bricks of what appeared to be cocaine. Subsequent laboratory testing revealed that the bricks contained about 230 pounds of cocaine, with approximate wholesale and resale values of $3 million and $7 million, respectively.

¶13 At the MAGNET office, Detective Wyma, along with the DEA agent, interviewed Shwar. Footage of the interview, which was admitted at trial, shows that after Wyma advised Shwar of his Miranda rights,^[1] Shwar indicated that he did not fully understand. Wyma then repeated the advisement more slowly, and Shwar indicated that he understood. During the ensuing questioning, which lasted less than 20 minutes, Shwar reiterated that he and Garg were transporting the boxes as a favor for Garg's son's friend "Harry," explaining that they picked up the boxes in Hesperia from two men who knew Harry and were planning to give the boxes to an unnamed friend of Harry's somewhere along their route, at a location yet to be determined. Shwar further stated that he believed the boxes contained auto parts. He also insisted that this was the first time they had transported boxes for Harry and that they did not receive payment for doing so.

¶14 Shwar stated that, even though he was not acquainted with Harry, he spoke with him by phone "a couple of times" because Garg's poor hearing made communicating by phone difficult. Stating that Harry's phone number was saved in his contacts, Shwar provided his iPhone passcode. A subsequent warrant search of Shwar's phone revealed nineteen calls, both incoming and outgoing, between Shwar and a contact listed as "Harry" from June 26, 2022 to June 29, 2022.

¶15 A Mohave County grand jury indicted Shwar for transportation of narcotic drugs for sale, a class 2 felony in violation of A.R.S. § 13-3408(A)(7). The State later filed an allegation that the aggregate amount of narcotics involved exceeded the statutory threshold amount under A.R.S. §§ 13-3401(36), -3420. The State also alleged two aggravating circumstances under A.R.S. § 13-701(D): the presence of an accomplice and that Shwar committed the crime "as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value." See A.R.S. § 13-701(D)(4), (6).

¶16 Before trial, Shwar moved to suppress the cocaine found in the truck and the statements he made (1) during the traffic stop, after Dickinson searched the sleeper compartment, and (2) during his post-arrest interview. After briefing and an evidentiary hearing, the court denied Shwar's motions.

¶17 A jury subsequently found Shwar guilty as charged. After an aggravation hearing, the jury found that the State had proven both the presence of an accomplice and that Shwar committed the offense "as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value." See A.R.S. § 13-701(D)(4), (6). The superior court sentenced Shwar to eight years' imprisonment.

¶18 Shwar timely appealed. We have jurisdiction. Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(1).

DISCUSSION

¶19 We review the trial judge's evidentiary rulings for an abuse of discretion, "considering only the evidence presented at the suppression hearing and viewing it in the light most favorable to sustaining the trial court's ruling." Thompson, 252 Ariz. at 290, ¶ 26 (citation omitted).

A. The record supports the...