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State v. Driscoll

Court of Appeals of Arizona, Second Division

November 6, 2015

THE STATE OF ARIZONA, Appellee,
v.
RUSTY JAMES DRISCOLL, Appellant

Appeal from the Superior Court in Pima County. No. CR20124099002. The Honorable Richard D. Nichols, Judge. The Honorable Paul E. Tang, Judge.

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By David A. Sullivan, Assistant Attorney General, Tucson, Counsel for Appellee.

Barton & Storts, P.C., Tucson, By Brick P. Storts, III, Counsel for Appellant.

Judge Howard authored the opinion of the Court, in which Presiding Judge Vá squez and Judge Brammer[1] concurred.

OPINION

Page 962

HOWARD, Judge:

[¶1] After a jury trial, appellant Rusty Driscoll was convicted of possession of a dangerous drug and possession of drug paraphernalia and sentenced to concurrent, presumptive prison terms, the longer of which is ten years. On appeal, Driscoll challenged his convictions and sentences, contending the search of his person and vehicle and his arrest were illegal and the same jury that rendered guilty verdicts should have decided aggravating factors. This court affirmed his convictions and sentences. State v. Driscoll, No. 2 CA-CR 2014-0086, ¶ 17 (memorandum decision filed Feb. 9, 2015). The supreme court thereafter vacated our memorandum decision and directed us to review this case in light of Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), which concluded that a traffic stop cannot be extended to allow a dog sniff. Having done so, we again affirm Driscoll's convictions and sentences.

Factual and Procedural Background

[¶2] Because our substantive review is limited to the effect of Rodriguez on this case, we review only the facts relevant to the motion to suppress. In reviewing the trial court's ruling, " we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the . . . ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014). " We review a denial of a motion to suppress for an abuse of discretion, but review constitutional issues de novo." Id. ¶ 7.

[¶3] In October 2012, an Arizona Department of Public Safety officer observed Driscoll driving a pickup truck with a malfunctioning license plate light at approximately 2:40 a.m. and initiated a traffic stop. While writing a repair order for the malfunctioning light, the officer casually conversed with Driscoll about where he was going and what he was doing. Based on Driscoll's evasive answers, the officer began to suspect that Driscoll was engaged in criminal activity.

[¶4] After issuing Driscoll the repair order, the officer's certified canine conducted a " sniff" of the truck, and alerted to the presence of narcotics. The officer searched the truck and found, among other things, a glass pipe, a two- to three-inch drinking straw, and a stolen handgun. After arresting Driscoll, the officer searched him and discovered a bag of methamphetamine in the waistband of his pants.

[¶5] The state charged Driscoll with the two drug counts described above.[2] Before trial, Driscoll moved to suppress the evidence obtained during the traffic stop; the trial court denied the motion after an evidentiary hearing. A jury subsequently found Driscoll guilty of the two drug offenses and, after a second jury found aggravating circumstances, he was sentenced as noted above.

[¶6] On appeal, Driscoll argued the trial court erred by denying his motion to suppress and by allowing a different jury to determine aggravating factors. With respect to the former, we concluded he had waived any issue concerning the length of his detention by the officer because he had ...


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