Court of Appeals of Arizona, First Division, Department A
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2011-159606-001 The Honorable Joseph C. Kreamer, Judge The Honorable Patricia A. Starr, Judge Pro Tempore
Thomas C. Horne, Attorney General, By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorney for Appellee
James J. Haas, Maricopa County Public Defender, By Margaret M. Green, Deputy Public Defender Attorney for Appellant
KENT E. CATTANI, Judge
¶1 Tony Deangelo Scott appeals from his convictions and resulting sentences for one count of possession of marijuana and one count of possession of drug paraphernalia. Scott argues the superior court erred by failing to suppress his statements to police because his initial confession was made before being advised of his Mirandarights, thereby tainting both his unwarned and also his subsequent, warned confession. Because Scott was not in custody at the time of his initial incriminating statements, the court did not err and we therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In August 2011, a Tempe Police detective and officer were dispatched to assist a local hotel in removing Scott and another individual from the premises for smoking in their guest room. The hotel had requested police assistance because Scott and the other individual had been seen with at least one firearm.
¶3 Scott informed the detective that there were two guns in the room. When the detective could find only one, Scott became concerned about the missing gun. Scott indicated the gun might be in his vehicle, and the detective accompanied Scott to the parking lot to help locate the firearm. One other officer later joined them near Scott's vehicle.
¶4 The detective stood two to three feet behind Scott as Scott opened the driver's door. As soon as the door was opened, the detective smelled "the distinct odor of burnt marijuana coming from inside." The detective also saw the top of a "sandwich style bag" in the center console, which Scott opened then closed again quickly. The detective kept his gun holstered and did not touch or attempt to detain Scott at that time.
¶5 Scott turned away from the vehicle, and the detective asked in a conversational tone why the vehicle smelled like burnt marijuana. When Scott did not respond to the question, the detective stated he believed the bag in the center console contained marijuana, and Scott admitted that it did. The detective asked him to retrieve the marijuana, and Scott did so.
¶6 After this initial questioning, the detective and Scott verified that Scott s gun was not in the vehicle. The detective arrested Scott, handcuffed him, and advised him of his Miranda rights, and Scott then agreed to speak with the detective. During this subsequent interrogation, Scott admitted the marijuana belonged to him, explaining that he used marijuana recreationally. According to Scott, the bag contained approximately $10-worth of marijuana, enough for three cigarettes.
¶7 The State charged Scott with possession of marijuana and possession of drug paraphernalia. Before trial, Scott moved to suppress all of his statements to police, arguing that the detective had "interrogated Mr. Scott prior to reading Miranda rights, Mirandized him, then continued his interrogation, thus frustrating Miranda and the Fifth Amendment" through an impermissible two-step interrogation. After briefing and an evidentiary hearing, the superior court denied the motion to suppress, finding no Miranda violation because Scott was not in custody when questioned prior to receiving Miranda warnings.
¶8 After a one-day bench trial, the court found Scott guilty of both misdemeanor charges, suspended sentence, and imposed concurrent one-year terms of unsupervised probation. Scott timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ...