State v. Martinez

654 P.2d 53, 134 Ariz. 119, 1982 Ariz. App. LEXIS 562
CourtCourt of Appeals of Arizona
DecidedNovember 4, 1982
DocketNo. 1 CA-CR 5599
StatusPublished
Cited by4 cases

This text of 654 P.2d 53 (State v. Martinez) 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. Martinez, 654 P.2d 53, 134 Ariz. 119, 1982 Ariz. App. LEXIS 562 (Ark. Ct. App. 1982).

Opinion

OPINION

BROOKS, Judge.

This is an appeal by defendant/appellant Teldoro R. Martinez from convictions for the crimes of burglary in the third degree, a class 5 felony in violation of A.R.S. § 13-1506, and theft of property with a value of more than one thousand dollars, a class 3 felony in violation of A.R.S. § 13-1802. The following issues have been presented for review:

1. Did the trial court err in denying defendant’s motion to suppress evidence on the grounds that a United States Border Patrol agent had insufficient articula[120]*120ble facts upon which to stop the vehicle in which defendant was a passenger?
2. Were appellant’s fingerprints obtained as a result of an unlawful arrest?
3. Did the trial court err in denying appellant’s request that the judge who presided over his trial be the judge who imposed his sentence?
4. Did the trial court err in imposing consecutive sentences?

The facts relevant to our determination are as follows. On March 22, 1981, an employee at a business in Phoenix, Arizona discovered that the business had been burglarized and that materials valued at approximately $10,000 and a crew-cab truck valued at approximately $15,000 had been taken.

On March 25,1981, at approximately 3:00 a.m., three United States Border Patrol agents were on roving patrol duty near the Mexico-United States border station at Andrade, California. At this time, the agents observed a crew-cab truck approximately % of a mile north of the border station which was traveling toward the station. Approximately 15 minutes later, the agents saw the same vehicle traveling north away from the border station. The vehicle was stopped for the purpose of investigating border violations and the defendant and another occupant of the vehicle were later taken into custody.

Defendant initially contends that the vehicle was unlawfully stopped and that, accordingly, the evidence which was obtained as a result of this stop should have been suppressed.

The United States Supreme Court set forth the general rule as to roving border patrols in United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975):

Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with the rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.
Any number of factors may be taken into account in deciding whether there is a reasonable suspicion to stop a car in the border area. Officers may consider the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant. ... Aspects of the vehicle itself may justify suspicion.... [citations omitted.]

See also State v. Castro, 27 Ariz.App. 323, 554 P.2d 919 (1976).

When asked why he stopped defendant’s vehicle, Agent Stephen A. Maxon testified as follows:

Because of the fact that the port was closed; no one would have had any legitimate business in that area at that time of night; the fact that it is a notorious smuggling area, large numbers of aliens are smuggled out of that area daily. And those two factors combined with the time of day and the fact that the vehicle itself was what we would call a profile vehicle, in that it was capable of carrying a fairly large number of aliens. If that in fact was what the driver had in mind, he could have been able to conceal as many as a dozen aliens in that truck.

We hold that the trial court did not err in finding that these were sufficient articulable facts from which the agents could conclude that the vehicle or its occupants had crossed the border illegally. Accordingly, the trial court did not err in denying defendant’s motion to suppress the evidence which was obtained as a result of this stop.

Defendant next argues that there was no probable cause for his arrest and that, accordingly, the fingerprints which were obtained as a result of that arrest should have been suppressed by the trial court.

We find from our review of the record that this argument was never presented to the trial court. Appellate courts will review only those matters which appear in the records of the trial court. State v. [121]*121Caldwell, 117 Ariz. 464, 573 P.2d 864 (1977); State v. Wilson, 95 Ariz. 372, 390 P.2d 903 (1964). In this regard, the record reveals that a voluntariness hearing and a hearing on defendant’s motion to suppress occurred prior to trial. The only evidence presented was the testimony of the border patrol agents concerning the reasons for the vehicle stop and the questioning which occurred after the stop.

Agent Maxon testified that when he looked into the cab of the truck, he observed that the defendant was sitting on a .22 revolver and that the barrel of the revolver was visible. Agent Maxon reached in the cab and grabbed the gun and asked the defendant to step outside where he was questioned. The only question asked by defense counsel regarding the subsequent arrest was as follows:

Q. Was my client turned over to the Imperial County Sheriff’s Office at the scene of the stop?
A. I wouldn’t characterize it as being turned over. As far as I was concerned, in my own mind he was free to go from the time that we stopped that vehicle. After I myself determined that I could not break his story about being from Puerto Rico, I had nothing that I wanted to detain him for.

In his argument to the trial court, defense counsel argued that there were insufficient grounds upon which the vehicle could be stopped for investigation of border violations and that the statements made by the defendant after he had been found sitting on the revolver were involuntary because they were made without Miranda warnings. No evidence was presented and no argument was made regarding the subsequent arrest of the defendant.

The trial court ordered that the defendant’s motion to suppress based on the illegal stop be denied but that the statements made by the defendant subsequent to his being found sitting on the revolver be suppressed.

It is well-established law in Arizona that asserted error in the admission of evidence cannot be raised for the first time on appeal unless the error was fundamental. State v. Tacho, 113 Ariz. 380, 555 P.2d 338 (1976). The record is completely devoid of evidence of the defendant’s arrest. We find no error in this regard.

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Bluebook (online)
654 P.2d 53, 134 Ariz. 119, 1982 Ariz. App. LEXIS 562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martinez-arizctapp-1982.