The State of Ariz. v. AHUMADA

225 Ariz. 544

241 P.3d 908

The STATE of Arizona, Appellee,

v.Lando Onassis AHUMADA, Appellant.

No. 2 CA-CR 2010-0093.

Court of Appeals of Arizona,Division 2, Department B.

Oct. 28, 2010.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Alan L. Amann, Tucson, Attorneys for Appellee.

Robert J. Hirsh, Pima County Public Defender By David J. Euchner, Tucson, Attorneys for Appellant.

OPINION

ECKERSTROM, Judge.

¶ 1 After a jury trial, appellant Lando Ahumada was convicted of possessing both the narcotic drug cocaine and drug paraphernalia. He was sentenced to substantially mitigated, concurrent prison terms of 2.25 and .75 years. He argues the trial court should have granted his motion to suppress the cocaine found in his pocket because the officer's search exceeded the scope of the consent Ahumada had given. He also argues the search was unlawful under the “plain-feel” doctrine. Because we conclude the evidence was lawfully seized under that doctrine, we affirm the trial court's ruling and, in turn, Ahumada's convictions and sentences.

Factual and Procedural Background

[1] ¶ 2 When reviewing the denial of a motion to suppress evidence, we consider only the evidence presented at the suppression hearing, viewing that evidence in the light most favorable to upholding the trial court's ruling. State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App.2007). Tohono O'Odham police officer Paul South testified he was called to the Desert Diamond Casino to respond to a “probable drug transaction.” There, he viewed a surveillance video in which a person he later identified as Ahumada approached a man sitting at the casino bar. The men spoke briefly and looked around, “making sure that no one was watching them.” Then the seated man “handed something up” to Ahumada, who placed the item in his pocket.

¶ 3 South found Ahumada near the slot machines, identified himself, and asked Ahumada his name and whether “he had anything illegal on him.” Ahumada said he did not. South then asked Ahumada to empty his pockets, which Ahumada appeared to do. South next asked if he could conduct a “pat down,” to which Ahumada agreed. South felt an object in Ahumada's right pocket and asked what it was. Ahumada said he did not know, and South reached in and pulled out “two small plastic bindles with a white rocky substance in them.”

¶ 4 The trial court denied Ahumada's motion to suppress, finding it was “objectively reasonable” for the officer to believe Ahumada's consent to the pat-down included the inside of his pants pockets. The evidence was admitted at trial, Ahumada was found guilty, and this appeal followed his conviction and sentencing.

Discussion

[2] [3] ¶ 5 Ahumada argues the trial court abused its discretion when it denied his motion to suppress the evidence found in his pocket. Specifically, he contends the officer exceeded the scope of Ahumada's consent to a pat-down when he reached into Ahumada's pocket. When reviewing a trial court's ruling on a motion to suppress, “we evaluate discretionary issues for an abuse of discretion but review legal and constitutional issues de novo.” State v. Huerta, 223 Ariz. 424, ¶ 4, 224 P.3d 240, 242 (App.2010). We will uphold a trial court's ruling on a motion to suppress if it is correct for any reason. State v. Cañez, 202 Ariz. 133, ¶ 51, 42 P.3d 564, 582 (2002).

[4] [5] ¶ 6 “The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures.” State v. Jones, 188 Ariz. 388, 395, 937 P.2d 310, 317 (1997). Generally, searching a person without a warrant supported by probable cause is unreasonable. State v. Gant, 216 Ariz. 1, ¶ 8, 162 P.3d 640, 642 (2007), aff'd, Arizona v. Gant, ---U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). However, “ ‘a few specifically established and well-delineated exceptions' ” exist. Id., quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Consent, voluntarily given, is one of those exceptions. State v. Davolt, 207 Ariz. 191, ¶ 29, 84 P.3d 456, 468 (2004). Here, Ahumada does not contend his consent to the pat-down was involuntary; rather, he argues the officer exceeded the scope of that consent.

Scope of Consent

[6] ¶ 7 “The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); accord State v. Swanson, 172 Ariz. 579, 584 n. 5, 838 P.2d 1340, 1345 n. 5 (App.1992). Here, the trial court found that a reasonable person would have understood Ahumada's consent to the pat-down to include consent to search his pockets. The court concluded Officer South's previous request for Ahumada to empty his pockets had “identified the object of the search.” Cf. United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (holding scope of warrantless search of automobile “defined by the object of the search and the places in which there is probable cause to believe that it may be found”). It also found Ahumada had not objected to the search of his pocket and concluded this circumstance tended to show it was reasonable for South to believe Ahumada had consented. See United States v. Jones, 356 F.3d 529, 534 (4th Cir.2004) (“[A] suspect's failure to object (or withdraw his consent) when an officer exceeds limits allegedly set by the suspect is a strong indicator that the search was within the proper bounds of the consent search.”).

¶ 8 Ahumada counters that a pat-down is reasonably understood to involve the passing of an officer's hands over the outside of a person's clothing only, commonly to determine whether the person is carrying a weapon. This understanding of a “pat down” is consistent with our Supreme Court's use of the term-and the limitations on that type of search-in the context of investigatory detentions conducted pursuant to Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

¶ 9 Terry held that, “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,” the officer may “conduct a carefully limited search of the outer clothing of such person[ ] in an attempt to discover weapons [that] might be used to assault him.” Id. at 24, 30, 88 S.Ct. 1868. Since Terry, the Court has emphasized that “ ‘[t]he purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.’ ” Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); see also United States v. Casado, 303 F.3d 440, 447 (2d Cir.2002) (officer exceeded scope of Terry by reaching inside suspect's pocket and removing all items without first doing pat-down for weapons). And lower courts repeatedly have held that a pat-down search does not lawfully include reaching into the pockets of clothing to secure items that could not possibly have resembled weapons during the pat-down. See, e.g., United States v. Miles, 247 F.3d 1009, 1014-15 (9th Cir.2001) (officer's manipulation of box in suspect's pocket exceeded scope of Terry pat-down when object “could not possibly be a weapon”); State v. Valle, 196 Ariz. 324, ¶ 12, 996 P.2d 125, 129 (App.2000) (search of pocket exceeded scope of Terry frisk when officer testified he had not believed object was weapon); Davis v. State, 829 S.W.2d 218, 219, 221 (Tex.Crim.App.1992) (search of matchbox found in suspect's coat pocket during pat-down exceeded scope of weapons search under Terry because “unreasonable for two armed police officers to fear a razor blade that might be contained in a matchbox”).

¶ 10 Although the pat-down search here was not conducted pursuant to Terry and therefore was not necessarily subject to the constraints placed upon such searches in that case and its progeny, we cannot address the scope of consent to a pat-down search without considering the objectively reasonable understandings of its nature, purpose, and extent. See Jimeno, 500 U.S. at 251, 111 S.Ct. 1801. We think it relevant that, in the most common context for pat-down searches-namely, those conducted by officers during investigatory encounters-a pat-down is understood by our jurisprudence, and presumably therefore by our officers, to be a search for weapons, conducted for officer safety, that does not include searching the inside of the suspect's pockets for other contraband.

¶ 11 Nor, in our view, does South's previous focus on the contents of Ahumada's pockets necessarily define the scope of the pat-down later requested. While South's request that Ahumada empty his pockets undoubtedly conveyed the officer's interest in their contents, Ahumada could have reasonably understood that request, like the request to conduct a pat-down, as an effort by South to satisfy himself that Ahumada was unarmed. And Ahumada's strategic decision to empty his pockets only partially, presumably so that he would not expose the cocaine, tends to contradict the theory that he implicitly was consenting to the full search of the inside of his pockets when he agreed to the pat-down moments later.

¶ 12 The trial court cited Ross for the proposition that the scope of a search can be defined by the apparent object of the search, a principle also articulated in Jimeno. “The scope of a search is generally defined by its expressed object.” 500 U.S. at 251, 111 S.Ct. 1801; see also Ross, 456 U.S. at 824, 102 S.Ct. 2157 (holding scope of warrantless search of automobile “defined by the object of the search and the places in which there is probable cause to believe that it may be found”). ¹ But in Jimeno, the officer expressly...