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State v. Urrea

Court of Appeals of Arizona, Second Division

May 30, 2017

The State of Arizona, Appellee,
v.
Francisco Miguel Urrea, Appellant.

         Appeal from the Superior Court in Pinal County No. CR201402545 The Honorable Dwight P. Callahan, Judge Pro Tempore

          Mark 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 for Appellant.

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

          OPINION

          ESPINOSA, Judge.

         ¶1 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 Batson[1]violation. He also alleges, for the first time, that the court erroneously admitted improper "profile testimony" at trial. Finding no error, we affirm.

         Factual and Procedural Background

         ¶2 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.

         ¶3 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."

         ¶4 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).

         Motion to Suppress

         ¶5 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).

         ¶6 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 friendly.

         ¶7 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.

         ¶8 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 traffic stop.

         ¶9 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).

         ¶10 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).

         ¶11 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.

         ¶12 Urrea nevertheless argues his consent was not voluntary because he had not been read his rights pursuant to Miranda, [2] 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

         ¶13 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.

         ¶14 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).

         ¶15 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.[3] 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.

         ¶16 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 ...

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