Court of Appeals of Arizona, Second Division, Department A
July 11, 2013
THE STATE OF ARIZONA, Appellee,
JOEL OSCAR MORANDO, Appellant.
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20103978001 Honorable Michael O. Miller, Judge.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Diane Leigh Hunt Tucson Attorneys for Appellee
Ronald Zack, PLC Ronald Zack Tucson Attorney for Appellant.
VÁSQUEZ, Presiding Judge.
¶1 After a jury trial, Joel Morando was convicted of possession of marijuana for sale, transportation of marijuana for sale, criminal damage, and fleeing from a law-enforcement vehicle. Pursuant to a subsequent plea agreement in the same cause number, he also was convicted of manslaughter. The trial court sentenced him to a combination of concurrent and consecutive, mitigated and presumptive prison terms totaling 13.5 years, to be followed by three years' probation. On appeal, Morando argues the court erred by denying his motion to suppress. For the reasons that follow, we vacate the conviction and sentence for possession of marijuana for sale but otherwise affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining Morando's convictions. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). On an early morning in November 2010, Arizona Department of Public Safety Officer Aaron Buckmister was in his patrol vehicle observing traffic from the median on Interstate 10 near Picacho Peak. He stopped the car Morando was driving because it was following another vehicle at an unsafe distance. After issuing Morando a written warning, Buckmister asked if he could walk his drug-detection dog around the exterior of the car; Morando consented. When the dog alerted to the presence of narcotics in the car, Buckmister called another officer for assistance. After the other officer arrived, Morando, who had been standing with Buckmister near his patrol vehicle, ran to his car and drove away. He led the officers on a high-speed pursuit that resulted in a collision causing the death of another driver. Morando fled on foot after the accident but was apprehended later. During a search of Morando's car, officers discovered six bales of marijuana totaling 153 pounds.
¶3 Morando was charged with first-degree murder, possession of marijuana for sale, transportation of marijuana for sale, criminal damage, fleeing from a law-enforcement vehicle, and two counts of reckless endangerment. Before trial, Morando moved to suppress "any evidence obtained, directly or derivatively, as a result of the unlawful stop, search[, ] and seizure." He argued Buckmister had no basis for the traffic stop because Morando had been following the vehicle in front of him at a reasonable distance. After a hearing, the trial court denied Morando's motion, concluding Buckmister had a "reasonable basis" to initiate the traffic stop.
¶4 After a jury trial, Morando was convicted of the drug offenses, criminal damage, and fleeing from a law-enforcement vehicle. The jury found him not guilty of the two reckless endangerment counts and was unable to reach a verdict on first-degree murder. Morando subsequently pled guilty to manslaughter. The trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶5 Morando contends the trial court erred by denying his motion to suppress because the initial stop of his vehicle was unlawful. We review the denial of a motion to suppress evidence for an abuse of discretion, State v. Fikes, 228 Ariz. 389, ¶ 3, 267 P.3d 1181, 1182 (App. 2011), considering only the evidence presented at the suppression hearing,  State v. Nelson, 208 Ariz. 5, ¶ 4, 90 P.3d 206, 207 (App. 2004).
¶6 "'An investigatory stop of a motor vehicle constitutes a seizure under the Fourth Amendment.'" State v. Livingston, 206 Ariz. 145, ¶ 9, 75 P.3d 1103, 1105 (App. 2003), quoting State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). But, because traffic stops are less intrusive than arrests, officers need only reasonable suspicion that a driver has committed an offense to justify them. Id; see also State v. Altieri, 191 Ariz. 1, ¶ 8, 951 P.2d 866, 867 (1997). Reasonable suspicion is "'a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Gonzalez-Gutierrez, 187 Ariz. at 118, 927 P.2d at 778, quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981). A traffic violation is sufficient to establish reasonable suspicion. State v. Whitman, 232 Ariz. 59, ¶ 32, 301 P.3d 226, 235 (App. 2013).
¶7 Morando contends "[he] was not violating any law while driving on the freeway" and Buckmister thus "lacked the authority under the Fourth Amendment to stop him." At the suppression hearing, Buckmister testified that he had stopped Morando for violating A.R.S. § 28-730(A). Section 28-730(A) provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent and shall have due regard for the speed of the vehicles on, the traffic on and the condition of the highway."
¶8 Buckmister testified that Morando had been driving approximately "one to two car lengths behind the vehicle directly in front of him" and would have caused a collision if that vehicle had stopped suddenly. Buckmister stated that Morando had been traveling less than two seconds behind the vehicle in front of him, and he explained that a vehicle traveling seventy-five miles per hour, the posted speed limit at the location he had observed Morando, is covering approximately 110 feet per second. Another detective also testified that "[g]enerally two to three seconds" is an appropriate following distance because a vehicle traveling seventy-five miles per hour would need at least 271 feet to stop.
¶9 Apparently referring to this testimony, Morando argues that Buckmister obviously was mistaken when he testified the distance between the two vehicles was one to two car lengths because Morando "was, in fact, more than 110 feet behind the vehicle in front of him." He bases this argument entirely on Buckmister's testimony that Morando was traveling about one second behind the vehicle in front of him. But the trial court was entitled to credit Buckmister's testimony regarding the distance between the two vehicles—one to two car lengths—even though it may have conflicted with his testimony about the time-lag involved. Because there was evidence to support the trial court's determination, we find no error.
¶10 Although Morando has not raised the issue on appeal, the state notes, and we agree, that Morando's conviction for possession of marijuana for sale must be vacated because it is a lesser-included offense of transportation of marijuana for sale. See State v. Cheramie, 218 Ariz. 447, ¶ 10, 189 P.3d 374, 376 (2008); see also A.R.S. § 13-3408(A)(2), (7). Morando's conviction for both offenses based on the same conduct violates the prohibition against double jeopardy. See State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶¶ 8, 21, 965 P.2d 94, 96, 99 (App. 1998). And, even though Morando did not raise this argument in his opening brief, this court will not ignore fundamental error when we see it in the record. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007); see also State v. Musgrove, 223 Ariz. 164, ¶ 10, 221 P.3d 43, 46 (App. 2009) (double jeopardy violation constitutes fundamental error).
¶11 For the reasons stated above, we vacate Morando's conviction and sentence for possession of marijuana for sale but otherwise affirm.
CONCURRING: JOSEPH W. HOWARD, Chief Judge, PETER J. ECKERSTROM, Judge.