from the Superior Court in Pima County No. CR20151278001 The
Honorable Javier Chon-Lopez, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Section
Chief Counsel, Phoenix By Mariette S. Ambri, Assistant
Attorney General, Tucson Counsel for Appellee
R. Sonenberg, Pima County Public Defender By David J.
Euchner, Assistant Public Defender, Tucson Counsel for
Presiding Judge Howard authored the opinion of the Court, in
which Judge Espinosa and Judge Staring concurred.
HOWARD, Presiding Judge
After a jury trial, Francisco Florez Huez Jr. was convicted
of possession of marijuana and sentenced to a nine-month
prison term. He challenges the trial court's denial of
his motion to suppress evidence, arguing the officer did not
have reasonable suspicion to effectuate the investigatory
stop which resulted in the discovery of marijuana. Because
the court erred, we remand for further proceedings consistent
with this opinion.
and Procedural Background
"In analyzing a ruling on a motion to suppress, we
consider 'only the evidence presented at the suppression
hearing, '" State v. Hummons, 227 Ariz. 78,
¶ 2, 253 P.3d 275, 276 (2011), quoting State v.
Garcia, 224 Ariz. 1, ¶ 6, 226 P.3d 370, 376 (2010),
and "[w]e view the facts in the light most favorable to
support the trial court's ruling on the motion to
suppress, " id., quoting State v. Cook, 115
Ariz. 188, 192, 564 P.2d 877, 881 (1977). In March 2015, a
Tucson Police Department (TPD) officer saw Huez riding his
bicycle on a raised dirt area adjacent to a roadway in
Tucson. The officer stopped Huez because he suspected Huez
was violating the law by riding his bicycle on the sidewalk
as well as on the left side of a roadway, in violation of
A.R.S. § 28-815, and Tucson City Code ("the
Code") § 5-2 (1953); see also A.R.S.
§ 28-812. During the ensuing investigation, the officer
discovered Huez had outstanding warrants and arrested him.
Another officer, who arrived sometime during the stop,
conducted a search incident to arrest which produced the
evidence that Huez attempted to suppress below.
of the Stop
Huez first argues the trial court erred by denying his motion
to suppress on the ground that the officer lacked reasonable
suspicion for the stop because Huez's conduct could not
constitute a traffic violation. "We review a denial of a
motion to suppress for an abuse of discretion, but review
constitutional issues de novo." State v.
Salcido, 238 Ariz. 461, ¶ 6, 362 P.3d 508, 511
(App. 2015), quoting State v. Gonzalez, 235 Ariz.
212, ¶ 7, 330 P.3d 969, 971 (App. 2014).
"Interpretation of a statute is a question of law, which
we review de novo." Id., quoting State v.
Starr, 222 Ariz. 65, ¶ 14, 213 P.3d 214, 218 (App.
"A traffic stop must be based on an officer's
articulable, reasonable suspicion that the person has
committed a traffic violation." Id. ¶ 7.
Huez was cited for a violation of § 28-815(A), which
reads: "A person riding a bicycle on a roadway at less
than the normal speed of traffic at the time and place and
under the conditions then existing shall ride as close as
practicable to the right-hand curb or edge of the
roadway." Huez could only be cited for such a violation
if he was riding his bicycle on "a roadway."
Id. A "[r]oadway" is defined as "that
portion of a highway that is improved, designed or ordinarily
used for vehicular travel, exclusive of the berm or
shoulder." A.R.S. § 28-601(22).
The undisputed facts establish conclusively that Huez was not
riding his bicycle on a roadway. At the suppression hearing,
the TPD officer explained that when he first saw him, Huez
was traveling east in the "sidewalk area up off the
road." The officer clarified that there was no actual
sidewalk, but that Huez was riding in the area "where a
sidewalk would be if there was one." The officer further
testified that Huez was riding "over the curb in the
dirt area." The officer's citation of Huez was based
on his understanding that Huez had "to be going with the
flow of traffic." It is clear that Huez was not "on
a roadway" for the purposes of § 28-815(A). Thus,
the officer could not have had a reasonable suspicion that
Huez was riding on the wrong half of a roadway.
The officer also claimed he reasonably suspected that Huez
was violating a traffic law by riding his bicycle "on
the sidewalk area." Section 5-2 states: "It shall
be unlawful to ride a bicycle on any public sidewalks, or
upon a designated pedestrian path in any public park, unless
signs are posted specifically permitting bicycling." A
separate section of the Code defines a "[s]idewalk"
as "that portion of a street between the curbs, or
lateral lines of a roadway, and the adjacent property lines,
[that] is improved for the use of
pedestrians." Tucson City Code § 20-1(27).
The phrase "improved for the use of pedestrians, "
is not specifically defined in the Code. But the Code defines
"[u]nimproved pedestrian area" as "that
portion of a street between the curbs, or the lateral lines
of a roadway, and the adjacent property lines, which is not
improved with a sidewalk, is not landscaped, and is
physically capable of continuous pedestrian use." §