Appeal from the Superior Court in Cochise County No. CR200500455 The Honorable Wallace R. Hoggatt, Judge
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee
Joel A. Larson, Cochise County Legal Defender, Bisbee Counsel for Appellant
Judge Vásquez authored the opinion of the Court, in which Presiding Judge Kelly and Judge Olson  concurred.
¶1 After a jury trial, appellant Dale Evans was convicted in absentia of possession of marijuana, possession of drug paraphernalia, and aggravated driving under the influence pursuant to A.R.S. §§ 28-1381 (A)(3) and 28-1383(A)(1). The trial court later sentenced him to concurrent, presumptive terms of imprisonment, the longest of which is 2.5 years. On appeal, Evans contends the court erred in denying his motion to suppress all evidence obtained from the traffic stop that led to his arrest. Relying on Terry v. Ohio, 392 U.S. 1, 20, 30 (1968), he asserts the stop was "not justified at its inception" because Cochise County Sheriffs deputies lacked "an articulable, reasonable suspicion, based on the totality of the circumstances, that [he was] involved in criminal activity." For the following reasons, we affirm Evans's convictions and sentences.
¶2 ''In reviewing the denial of a motion to suppress evidence, we consider only the evidence presented at the suppression hearing, and view that evidence in the light most favorable to upholding the trial court's ruling." State v. Olm, 223 Ariz. 429, ¶ 2, 224 P.3d 245, 247 (App. 2010) (citation omitted). We "give deference to the trial court's factual findings, including findings regarding [an officer's] credibility and the reasonableness of inferences that he drew, but we review de novo the trial court's ultimate legal determination." State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).
¶3 At the hearing on Evans's motion to suppress, Deputy Dana Anderson testified that his duties included "[p]atrol, DUI investigation, . . . [and] booking people in jail" and agreed that he was "[b]asically a uniformed officer out on the street." He stated he had been the passenger in a marked patrol car on an afternoon in November 2004 when, at about four o'clock, he had seen a truck parked "right at the stop sign" of an intersection in an area "known for illegal immigrant activity . . . [and] marijuana hauling." When he looked at the vehicle, he saw the driver turned in his seat and "[f]lailing his arms towards the passenger" with closed fists. Anderson demonstrated the movements for the court and said he told his partner, "[H]ey, we might have a rolling domestic violence . . . pull over and turn around." After his partner returned their patrol car to the intersection and turned around, the truck pulled out in front of them, and the deputies initiated the traffic stop.
¶4 On cross-examination, Anderson estimated that the patrol car had been travelling at fifty-five miles an hour, that he was twenty-five to thirty feet from the intersection when the driver's actions "caught the corner of [his] eye, " and that he observed the driver for "four or five seconds." He stated he had seen the driver make three arm movements toward the vehicle's passenger, which he described as "[l]eft, right, left, " but had not seen any contact made, "just . . . arms."
¶5 At the close of the hearing, the trial court agreed with Evans that it was unlikely Anderson had observed the driver for as much as four or five seconds. Rather, based on Anderson's testimony, the court found his observations of Evans's arm movements lasted "closer to a second-and-a-half or a second than . . . to four or five seconds." The court then stated,
But, in any event, I believe, based on the evidence presented, that the arm movements, though they might not have been criminal activity, were articulable facts that justified the Officers in trying to find out more.
. . . [T]here was a lot that [Anderson] didn't know, but it wasn't as if [he] looked at the vehicle and decided based on a hunch that there was something afoot. He saw arm activity that might have been consistent with some domestic violence assault, and I think that the officers were justified in ...