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State v. Huez

Court of Appeals of Arizona, Second Division

August 12, 2016

The State of Arizona, Appellee,
v.
Francisco Flores Huez Jr., Appellant.

         Appeal from the Superior Court in Pima County No. CR20151278001 The Honorable Javier Chon-Lopez, Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee

          Steven R. Sonenberg, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant

          Presiding Judge Howard authored the opinion of the Court, in which Judge Espinosa and Judge Staring concurred.

          OPINION

          HOWARD, Presiding Judge

         ¶1 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.

         Factual and Procedural Background

         ¶2 "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.

         Legality of the Stop

         ¶3 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. 2009).

         ¶4 "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).

         ¶5 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.

         ¶6 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."[1] Tucson City Code § 20-1(27).

         ¶7 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." ยง ...


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