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State v. Morando

Court of Appeals of Arizona, Second Division, Department A

July 11, 2013

THE STATE OF ARIZONA, Appellee,
v.
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Not for Publication Rule 111, Rules of the Supreme Court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.

MEMORANDUM DECISION

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).[1]

Discussion

¶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, [2] 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. ยง 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 ...


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