from the Superior Court in Pinal County No. CR201402545 The
Honorable Dwight P. Callahan, Judge Pro Tempore
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney
General, Tucson Counsel for Appellee.
Gallego Law Firm, P.C., Tucson By Rafael F. Gallego Counsel
Espinosa authored the opinion of the Court, in which
Presiding Judge Staring concurred and Judge Miller dissented.
After a jury trial, Francisco Urrea was convicted of
transportation of a narcotic drug for sale and sentenced to a
presumptive five-year prison term. On appeal, he renews
arguments rejected by the trial court that the drugs found in
his vehicle should have been suppressed and that the court
imposed an inadequate sanction after finding a
Batsonviolation. He also alleges, for the first
time, that the court erroneously admitted improper
"profile testimony" at trial. Finding no error, we
and Procedural Background
We view the evidence in the light most favorable to upholding
Urrea's conviction. State v. Welch, 236 Ariz.
308, ¶ 2, 340 P.3d 387, 389 (App. 2014). In June 2014, a
sheriffs deputy stopped Urrea's vehicle for a traffic
violation. After Urrea consented to a search, the deputy
found a package containing over sixty grams of cocaine hidden
in the rear cargo area of Urrea's vehicle.
Urrea was indicted on one count of possession of a narcotic
drug for sale and one count of transportation of a narcotic
drug for sale. He sought suppression of the drugs before
trial, arguing the "stop, seizure, search, [and]
arrest" had been illegal and sought to preclude a police
detective from testifying as an expert for the state. The
trial court denied the suppression motion after an
evidentiary hearing and heard arguments regarding the
state's expert immediately before Urrea's trial
began. The court ultimately allowed the expert to testify but
precluded him from explaining the significance of a baseball
cap in Urrea's car and a tattoo on Urrea's arm
allegedly depicting a "Narco Saint."
During jury selection, Urrea raised a Batson
challenge, arguing the state had improperly struck from the
venire jurors with "Hispanic ethnic background[s]."
After directing the prosecutor to identify the reasons for
its strikes, the trial court denied three strikes for which
it found the state had failed to provide adequate
race-neutral reasons and reinstated the prospective jurors.
Two of the reinstated jurors sat on the jury, which convicted
Urrea of both charges after a two-day trial. The state
subsequently dismissed the possession count, and the court
sentenced Urrea as described above. We have jurisdiction over
this appeal pursuant to A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A)(1).
Urrea first contends the trial court erred in denying his
motion to suppress evidence obtained from the warrantless
search of his vehicle. We review the court's rulings on a
suppression motion for an abuse of discretion, deferring to
factual findings but reviewing de novo constitutional and
purely legal issues. State v. Snyder, 240 Ariz. 551,
¶ 8, 382 P.3d 109, 112 (App. 2016). We consider only
evidence presented at the suppression hearing and view that
evidence in the light most favorable to upholding the
court's ruling. State v. Caraveo, 222 Ariz. 228,
n.1, 213 P.3d 377, 378 n.1 (App. 2009).
At a hearing in July 2015, Deputy Nikola Zovko testified he
had stopped Urrea's vehicle after he observed it
"merge over into the right-hand lane without its turn
signal, causing another vehicle to abruptly slam on its
brakes." After obtaining Urrea's license,
registration, and insurance documents, the deputy asked Urrea
to step out and wait at his patrol car while he conducted a
records check, "[primarily [as] a safety issue."
Urrea complied and throughout the stop was cooperative and
Before completing the traffic stop, the deputy approached
Urrea's vehicle a second time to check the Vehicle
Identification Number (VIN) against the registration
documents and a report he had received "from
dispatch." While doing so, he observed items in the car
that suggested to him Urrea might be transporting drugs,
including multiple air-fresheners and symbols on a baseball
cap and tattooed on Urrea's arm associated with drug
trafficking, and he asked Urrea if there were any drugs in
the car. Urrea said there were not and told the deputy he
"c[ould] check." Urrea then signed a "consent
to search" form and was placed in the back of the
deputy's vehicle while the deputy and another officer
searched Urrea's car. The package of cocaine was found
concealed behind the spare tire.
Urrea argued to the trial court that the initial stop was
invalid, that Deputy Zovko illegally had "extended the
detention to check federal [VIN] stickers, " and that
the search of his vehicle had exceeded the scope of his
consent. Ruling from the bench, the court concluded the
traffic stop was valid, the subsequent "inspection of a
VIN number [wa]s within the normal discretion of an officer
in a routine traffic stop, " and Urrea had consented to
a search which "encompasse[d] all voids within the
vehicle." Although the court found "no unreasonable
detention, " it noted it was "admitting the
evidence as a consent search and not on any other
basis." On appeal, Urrea renews his arguments that the
deputy impermissibly "'detour[ed]' from the
mission of the underlying traffic stop" and the
subsequent search of his vehicle was not based on "valid
consent." He does not challenge the validity of the
Regarding the duration of the stop, Urrea contends it was
illegally prolonged not when the deputy returned to
Urrea's vehicle to check the VIN numbers, as he argued at
the suppression hearing, but when he asked Urrea to
"step out of the car and walk back to [the deputy's]
vehicle." Because Urrea did not make this argument to
the trial court, we review only for fundamental error.
State v. Brown, 233 Ariz. 153, ¶ 12, 310 P.3d
29, 34 (App. 2013); see also State v. Lopez, 217
Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008) (objection
on one ground does not preserve issue on another ground). But
Urrea has not argued fundamental error, and although we will
not ignore such error if we see it, see State v.
Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650
(App. 2007), Urrea has failed to show error of any kind
occurred here. See also State v. Moreno-Medrano, 218
Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008)
(fundamental error waived if not argued).
First, Urrea has not explained how his being directed to exit
his vehicle while the deputy conducted a records check
illegally prolonged the stop. As we have consistently held,
"[l]aw enforcement officers are permitted to remove
occupants from a vehicle as a safety precaution."
State v. Kjolsrud, 239 Ariz. 319, ¶ 13, 371
P.3d 647, 651 (App. 2016), citing Pennsylvania v.
Mimms, 434 U.S. 106, 117 n.6 (1977); Newell v. Town
of Oro Valley, 163 Ariz. 527, 529, 789 P.2d 394, 396
(App. 1990). And, as noted in Arizona v. Johnson,
555 U.S. 323, 333 (2009), "[a]n officer's
inquiries into matters unrelated to the justification for the
traffic stop . . . do not convert the encounter into
something other than a lawful seizure, so long as the
inquiries do not measurably extend the duration of the
stop." Although the "[a]uthority for the seizure .
. . ends when tasks tied to the traffic stop infraction
are-or reasonably should have been-completed, "
Rodriguez v. United States, U.S.__, __, 135 S.Ct.
1609, 1614 (2015), Urrea has provided nothing to support that
either the records check or check of the VIN number illegally
prolonged his detention. In fact, Rodriguez
specifically permits "ordinary inquiries incident
to" traffic stops, which include "checking the
driver's license" and "inspecting the
automobile's registration and proof of insurance."
Id. at__, 135 S.Ct. at 1615, quoting Illinois v.
Caballes, 543 U.S. 405, 408 (2005). A check of a VIN
number is a permissible inquiry sufficiently related to a
traffic stop. See New York v. Class, 475 U.S. 106,
118-19 (1986) (upholding VIN number checks in both windshield
and doorjamb); United States v. Ramos, 194 F.Supp.3d
1134, 1167 (D.N.M. 2016) (concluding VIN inspection is lawful
part of traffic stop).
Moreover, even had Deputy Zovko illegally prolonged the
traffic stop when he asked Urrea to "step back to his
patrol vehicle in order to discuss the reason for the stop,
" the ensuing conversation appears to have been entirely
consensual. Kjolsrud, 239 Ariz. 319, ¶ 10, 371
P.3d at 650 ("Once the time needed to complete this
mission has passed, an officer 'must allow a driver to
continue on his way unless . . . the encounter between the
driver and the officer becomes consensual.'"),
quoting State v. Sweeney, 224 Ariz. 107');">224 Ariz. 107, ¶ 17,
227 P.3d 868, 873 (App. 2010). Not only did the sheriff's
deputy describe Urrea as "overly friendly" during
the encounter and "extremely eager to answer the
questions, " but he testified Urrea had answered
questions even before they could be asked.
Urrea nevertheless argues his consent was not voluntary
because he had not been read his rights pursuant to
Miranda,  he had been told other law enforcement
officers were on their way, and there was a lack of any sort
of intervening circumstance to break the causal connection
between the illegal detention and his consent. In support,
Urrea reviews considerable search and seizure law and cites
factors the Supreme Court has identified as relevant in
determining whether the taint of illegal conduct is
sufficiently attenuated from evidence subsequently obtained
by voluntary means. See Brown v. Illinois, 422 U.S.
590, 602-04 (1975); see also State v. Guillen, 223
Ariz. 314, ¶ 14, 233 P.3d 658, 661 (2010). But Urrea has
not demonstrated an illegal or custodial detention here, and
he has failed to explain how any of the factors he cites
apply to his case. Accordingly, Urrea has not shown the trial
court committed any error, much less fundamental error, in
denying his motion to suppress. Batson Remedies
Urrea next contends the trial court should have granted his
request for a mistrial after it found the state had struck
three Hispanic jurors without a sufficiently race-neutral
justification for doing so. He does not, however, explain how
the trial court erred in forfeiting the state's strikes
rather than employing the drastic remedy of a mistrial.
In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the
Court held that the use of peremptory strikes to exclude
potential jurors on the basis of race violates the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution. When a constitutional violation is
alleged, Batson and its progeny require a three-step
inquiry by the trial court: first, the party challenging the
strike must make a prima facie showing of discrimination;
second, the striking party must provide a race-neutral reason
for the strike; and third, if a race-neutral explanation is
provided, the trial court must determine whether the
challenger has carried its burden of proving purposeful
racial discrimination. State v. Garcia, 224 Ariz. 1,
¶ 21, 226 P.3d 370, 379 (2010).
Here, the trial court determined Urrea had made a prima facie
case of discrimination when the state used five of its six
strikes on potential jurors with "Hispanic ethnic
backgrounds]." The state offered race-neutral reasons
for the strikes, but failed to convince the court that three
of the five challenged strikes were constitutionally
valid. Over Urrea's objection, the court
denied the state's strikes it found invalid, reinstated
the struck jurors to the venire, and empaneled a jury that
included two of the improperly excluded jurors. Urrea
asserts, as he did below, that the only acceptable remedy to
the Batson violation was to strike the entire jury
panel and "start anew . . . with a new jury
pool." As there is no published case law addressing this
issue in Arizona, we review Batson and its progeny
among other jurisdictions in some detail.
Although discriminatory uses of peremptory challenges were
deemed unconstitutional over three decades ago, courts have
taken varied approaches to remedy Batson violations.
See generally Jason Mazzone, Batson
Remedies, 97 Iowa L. Rev. 1613 (2012) (setting out cases
adopting different responses to Batson incursions).
The Batson court itself addressed remedies for the
constitutional violation only briefly, stating in a footnote:
In light of the variety of jury selection practices followed
in our state and federal trial courts, we make no attempt to
instruct these courts how best to implement our holding
today. For the same reason, we express no view on whether it
is more appropriate in a particular case, upon a finding of
discrimination against [improperly struck] jurors, for the
trial court to discharge the venire and select a new jury
from a panel not previously associated with the case, or to