State v. Sweeney

227 P.3d 868, 224 Ariz. 107, 579 Ariz. Adv. Rep. 21, 2010 Ariz. App. LEXIS 42
CourtCourt of Appeals of Arizona
DecidedMarch 30, 2010
Docket1 CA-CR 08-0775
StatusPublished
Cited by50 cases

This text of 227 P.3d 868 (State v. Sweeney) 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. Sweeney, 227 P.3d 868, 224 Ariz. 107, 579 Ariz. Adv. Rep. 21, 2010 Ariz. App. LEXIS 42 (Ark. Ct. App. 2010).

Opinions

OPINION

SWANN, Judge.

¶ 1 Alvin J. Sweeney (“Appellant”) was convicted of Transportation of Narcotic Drugs for Sale after the superior court denied a motion to suppress evidence seized from his car. We hold that after a lawful traffic stop has concluded, an officer must have reasonable cause to initiate a second detention of a suspect. In this case, we conclude that no such reasonable cause existed and the forcible detention of Appellant to facilitate a canine sniff constituted a violation of the Fourth Amendment. Accordingly, we reverse and remand.

FACTS AND PROCEDURAL HISTORY1

¶ 2 On the morning of January 8, 2008, Arizona Department of Safety Officer Mace Craft initiated a stop after he observed Appellant following another vehicle at what he believed to be an unsafe distance. Officer Craft, a member of the canine unit, was traveling with his drug interdiction dog. Officer Craft used a stopwatch to determine that the “gap” time between the vehicles was .88 seconds. Thereafter, Officer Craft activated his lights and initiated the stop.2

¶ 3 When Officer Craft approached Appellant’s car from the passenger side, he noticed that Appellant’s vehicle was a rental, and he smelled deodorizer emanating from the vehicle. Officer Craft also testified that when Appellant handed him his Canadian driver’s license and the car rental agreement,3 Appellant’s hands were shaking and he was breathing heavily. Officer Craft asked Appellant to step back to his patrol vehicle, and, while filling out a warning citation, asked Appellant questions about his travels and the reason for his visit to Arizona.

¶ 4 During this exchange, Appellant told Officer Craft that he traveled from New York to Arizona in search of an old Chevrolet Camaro. Officer Craft found it unusual that someone would drive from New York to Arizona in search of a ear and asked Appellant about the possibility of flying. Appellant responded that he enjoyed driving. When asked if he had found a Camaro online, Appellant responded that he had not. Officer Craft also asked Appellant where he stayed while in Arizona and Appellant responded, without elaboration, that he had stayed in a hotel.

¶ 5 After Officer Craft finished filling out the warning citation (a process that consumed eight minutes), he handed it to Appellant and wished him a safe trip. Appellant said “thank you very much,” and Officer Craft responded “alright, be careful.” When Appellant turned and began walking back to his vehicle, Officer Craft called out to Appellant and asked if he could speak with him again. In response, Appellant turned around and walked back to Officer Craft. Officer Craft asked Appellant whether he had anything illegal in his vehicle, and Appellant responded that he did not. Finally, Officer Craft asked for Appellant’s consent to search the vehicle. Appellant replied, “No, you can’t, cause I don’t think it’s in [the] law, is it?” Officer Craft responded, “No, it’s not” [110]*110and requested Appellant’s consent to a narcotics dog sniff of the car. Appellant again declined.4

¶6 After this exchange, Appellant again turned to walk toward his car when the officer grabbed Appellant by the arm, turned him around and told him he was being detained. After ordering Appellant to stand in front of the patrol car, Officer Craft called for another unit to stand by Appellant while he took his dog out of his car and walked her around Appellant’s vehicle. The dog indicated the presence of drugs. When Officer Craft searched the car, he found a black bag in the trunk containing five kilograms of cocaine. Appellant was placed under arrest and indicted on two counts: (1) Transportation of Narcotic Drugs for Sale and (2) Possession of Narcotic Drugs for Sale.

¶7 Appellant moved to suppress the evidence seized from the car, arguing that (1) the detention was illegal; (2) the stop was illegal; and (3) the detention went beyond the scope of the traffic stop. The court held two evidentiary hearings, separately addressing the legality of the stop and the detention.

¶8 In a May 27, 2008 minute entry, the trial court found that there was reasonable suspicion to initiate a stop. The court gave little weight to Officer Craft’s testimony that the “gap” time between Appellant’s ear and the vehicle it was following was .88 seconds. Instead, the court based its ruling on a number of factors, including the icy condition of the roadway and expert testimony concerning traffic speed and safe following distances.

¶ 9 In a June 20 minute entry, the court found that (1) the length of the detention was reasonable; (2) the encounter between Officer Craft and Appellant was consensual after the warning citation was given; and (3) there was reasonable suspicion for the continued detention. With respect to the continued detention, the court noted Officer Craft’s testimony that his suspicions were aroused by the following factors:

(1) Appellant stated that the purpose of his trip was to buy a vintage Camaro in the Phoenix area. The officer concluded that it was not plausible for a person to drive over 4,000 miles round-trip to buy a car sight unseen.
(2) Appellant displayed an overly nervous demeanor, even after the officer told him that he was to receive a warning and not a citation. Appellant’s demeanor included a shaking hand, heavy breathing and twitching cheeks.
(3) Appellant gave vague answers to questions regarding his travel, and attempted to deflect the officer’s questioning by trying to discuss the weather. One answer in particular was suspicious to the officer. In response to a question about where he had looked in Phoenix to buy the car, Appellant had replied with a general statement about “car lots and stuff’ rather than a specific location.
(4) A strong smell of deodorant emanated from the passenger side of the front compartment when the officer first made contact with Appellant. The officer testified that many times deodorants are used to mask the odor of drugs.
(5) Appellant had started the trip that day from Phoenix. The car was clean inside and out. It had snowed in Flagstaff the night prior to the stop.
(6) There was an atlas on the passenger seat of the ear.
(7) The car was a rental car with Massachusetts license plates. Appellant rented it in Syracuse, New York, for a round-trip.
(8) Appellant is a Canadian citizen.'
(9) When the officer was driving near Appellant’s ear prior to the stop, Appellant appeared to the officer to be avoiding his sight by sitting far back in his seat.

[111]*111The court gave little weight to factors 2, 5, and 6; some weight to factors 7, 8, and 9; and great weight to factors 1, 3, and 4.

¶ 10 After a three-day trial, a jury found Appellant guilty of Transportation of Narcotic Drugs for Sale, and found that Appellant possessed an amount of cocaine in excess of nine grams.5

¶ 11 Appellant timely appeals. We have jurisdiction under Article 6, Section 9 of the Arizona Constitution and pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A)(1) (Supp.2009).

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Cite This Page — Counsel Stack

Bluebook (online)
227 P.3d 868, 224 Ariz. 107, 579 Ariz. Adv. Rep. 21, 2010 Ariz. App. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sweeney-arizctapp-2010.