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State v. Green

Court of Appeals of Arizona, Second Division

October 19, 2018

The State of Arizona, Appellee,
v.
David Lee Green, Appellant.

          Appeal from the Superior Court in Pima County No. CR20163874001 The Honorable Paul E. Tang, Judge.

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee

          Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant

          Arizona Attorneys for Criminal Justice, Phoenix By Brian Thredgold and Mikel Steinfeld and American Civil Liberties Union Foundation of Arizona, Phoenix By Kathleen E. Brody, William B. Peard, and Jared G. Keenan Counsel for Amici Curiae

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.

          OPINION

          ECKERSTROM, CHIEF JUDGE.

         ¶1 David Green appeals from his convictions and sentences for two counts of possession of a narcotic drug and one count of possession of drug paraphernalia, all non-dangerous, repetitive offenses. Green argues the trial court erroneously denied his motion to suppress evidence because police unlawfully extended his detention. He further argues the court was required to sentence him to probation under A.R.S. § 13-901.01. We affirm in part and vacate and remand in part.

         Factual and Procedural History

         ¶2 "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court's ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2 (App. 2014). In an early morning of August 2016, an officer with the Tucson Police Department saw a truck parked in a secluded part of Fort Lowell Park several hours after the park had closed for the night. The officer approached the driver's door and saw a pipe on the center console that, based on his training and experience, was a type used only for "smoking [il]licit substances." The officer handcuffed Green, the driver, and sat him in the back of his patrol car while he searched the truck, finding another similar pipe. The officer then removed Green from the patrol car, read him his Miranda[1]rights, and arrested him for possession of one of the pipes. Although the officer intended to release Green after citing him for trespassing and possession of the pipe, he nevertheless returned Green to the patrol car in order to check whether he was in violation of federal immigration laws pursuant to Senate Bill 1070 and department policy. See A.R.S. § 11-1051.

         ¶3 The check revealed no immigration issues and, when the officer removed Green from the car a second time, he saw a small plastic bag with a "crystalized substance" fall from Green's lap. The officer conducted a field test for narcotics, and the substance tested positive for the presence of illegal drugs. He then placed Green under custodial arrest. During a search of Green's person incident to that arrest, the officer found a plastic package with heroin and a container with morphine pills.

         ¶4 Before trial, Green filed a motion to suppress the drug evidence, arguing his detention had been unreasonably prolonged after the officer had decided merely to cite and release him for trespassing and possession of the pipe. Following an evidentiary hearing, the trial court denied the motion, finding the length of the delay had not been unreasonable and, in any event, police had not "gain[ed] any advantage" from it. Following trial, the jury found Green guilty of the offenses as described above.[2]

         ¶5 Before sentencing, Green filed a motion arguing he was entitled to mandatory probation under § 13-901.01. Specifically, he urged that his 2006 conviction for solicitation to sell a narcotic drug was not a disqualifying prior conviction, or "strike." See § 13-901.01(H)(1). Following a hearing, the court denied the motion and sentenced Green to concurrent prison terms, the longest of which were six years. Green appealed; we have jurisdiction. See A.R.S. §§ 13-4031, 13-4033(A)(1).

         Unreasonable Delay

         ¶6 Green first argues the trial court erroneously denied his motion to suppress because, after the officer completed his investigation into the trespassing and paraphernalia offenses, he would not have discovered any controlled substances but for having unlawfully prolonged the detention in order to complete an immigration check. We review a trial court's ruling on a motion to suppress for an abuse of ...


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