State v. Fornof

179 P.3d 954, 218 Ariz. 74, 526 Ariz. Adv. Rep. 3, 2008 Ariz. App. LEXIS 50
CourtCourt of Appeals of Arizona
DecidedMarch 25, 2008
Docket2 CA-CR 2007-0091
StatusPublished
Cited by6 cases

This text of 179 P.3d 954 (State v. Fornof) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fornof, 179 P.3d 954, 218 Ariz. 74, 526 Ariz. Adv. Rep. 3, 2008 Ariz. App. LEXIS 50 (Ark. Ct. App. 2008).

Opinion

179 P.3d 954 (2008)

The STATE of Arizona, Appellee,
v.
Billie Marie FORNOF, Appellant.

No. 2 CA-CR 2007-0091.

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

March 25, 2008.

*955 Terry Goddard, Arizona Attorney General By Randall M. Howe and David A. Sullivan, Tucson, Attorneys for Appellee.

Law Office of Thomas E. Higgins By Thomas E. Higgins, Tucson, Attorney for Appellant.

OPINION

VÁSQUEZ, Judge.

¶ 1 A jury found appellant Billie Marie Fornof guilty of possession of a narcotic drug for sale and possession of drug paraphernalia. On appeal, Fornof argues that police lacked sufficient basis to stop the car in which she had been riding as a passenger and the trial court therefore erred when it denied her motion to suppress the evidence officers found on her person. She also contends the court erred by permitting an expert to testify that he believed the drugs she had possessed were for sale, rather than personal use. For the reasons discussed below, we affirm.

Facts and Procedural Background

¶ 2 We view the evidence presented in the light most favorable to sustaining the convictions. State v. Cropper, 205 Ariz. 181, ¶ 2, 68 P.3d 407, 408, supp. op., 206 Ariz. 153, 76 P.3d 424 (2003). At approximately 11:40 p.m. on March 19, 2006, Tucson Police Sergeant Tony Kadous was driving a marked patrol car north towards the intersection of 12th Avenue and President Street when he noticed a red car that had stopped on President Street, just east of the intersection on the right side of the road. A pedestrian was reaching into the passenger side of the vehicle and exchanging something with the female passenger. Kadous slowed down and turned onto President, coming up behind the car. The pedestrian looked at him and walked quickly away. As the red car drove away, Kadous activated his emergency flashing lights, and the red car stopped after traveling about another hundred feet. Kadous asked the driver of the car and the passenger for their names and, after further investigation, discovered an outstanding arrest warrant for Fornof, who was the passenger. Kadous arrested Fornof and, searching her incident to the arrest, found a torn-off corner of a sandwich bag in her pocket, containing a pea-sized quantity of what appeared to be powder cocaine. A female police officer assisted Kadous, and after a more thorough search, found a number of rocks of crack cocaine in Fornof's underwear.

¶ 3 Fornof was charged with possession of a narcotic drug for sale and possession of drug paraphernalia. A jury found Fornof guilty on both charges, and the trial court sentenced her to a mitigated, three-year prison term on the possession for sale charge and a concurrent, presumptive, one-year prison term on the paraphernalia charge. This appeal followed; we have jurisdiction under A.R.S. § 13-4033(A).

Discussion

Reasonable suspicion for vehicle stop

¶ 4 Fornof challenges the trial court's denial of her motion to suppress evidence, claiming the search incident to her arrest violated the Fourth Amendment to the United States Constitution. Specifically, she contends Sergeant Kadous lacked reasonable suspicion to stop the vehicle in which she had been riding as a passenger before he conducted that search.

*956 ¶ 5 An investigatory stop of a vehicle constitutes a seizure under the Fourth Amendment. State v. Richcreek, 187 Ariz. 501, 505, 930 P.2d 1304, 1308 (1997) ("When the blue lights on the patrol car begin to flash, the person being followed does not feel free to ignore them and drive on."). Thus, an officer may only conduct such a stop if the totality of the circumstances "raise[s] a justifiable suspicion that the particular individual to be detained is involved in criminal activity." State v. Graciano, 134 Ariz. 35, 37, 653 P.2d 683, 685 (1982). This "reasonable suspicion" requirement for an investigatory stop, first articulated in Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), falls short of the probable cause required for an arrest. As the United States Supreme Court stated in Adams v. Williams:

In Terry this Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, [T]erry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), quoting Terry, 392 U.S. at 22, 88 S.Ct. 1868 (internal citations omitted). Although we review de novo whether the police had reasonable suspicion to justify an investigatory stop, State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996), we 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," Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Evidence derived from a stop not based on reasonable suspicion is "fruit of the poisonous tree" and must be suppressed. Richcreek, 187 Ariz. at 506, 930 P.2d at 1309.

¶ 6 Our assessment of reasonable suspicion is based on the totality of the circumstances, considering such objective factors as the suspect's conduct and appearance, location, and surrounding circumstances, such as the time of day, and taking into account the officer's relevant experience, training, and knowledge. See United States v. Arvizu, 534 U.S. 266, 275, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Graciano, 134 Ariz. at 37, 653 P.2d at 685; see also United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ("Officers may consider the characteristics of the area in which they encounter a vehicle."); Illinois v. Wardlow, 528 U.S. 119, 139, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (time of day a factor).

¶ 7 Although Fornof acknowledges this totality of the circumstances test, she also contends we should follow the reasoning of the Tenth Circuit Court of Appeals in United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997). There the court, quoting Karnes v. Skrutski,

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Bluebook (online)
179 P.3d 954, 218 Ariz. 74, 526 Ariz. Adv. Rep. 3, 2008 Ariz. App. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fornof-arizctapp-2008.